Protecting (Violent) Protest
June 1, 2015
Jun 1, 2015
5 Min read time
The legacy of the Gaza flotilla incident, five years later.
Did the protestors enjoy the rights international law grants to civilian populations, even while engaging in a violent form of protest? The most enduring message of the Mavi Marmara is one about a political potential that humans retain, in peace as in war. Without protection for some rudimentary form of political action, the international law of war is worthless. When politically motivated humanitarianism and popular protest are rendered targetable, war may become a form of governance by killing.
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Initially, Israel made an effort to distribute videos of the incident, explaining that these were not “peace activists.” The Israeli legal response to the flotilla went even further. The Israeli commission of inquiry, led by former Supreme Court Justice Yaakov Turkel, found that because they engaged in violence, the protestors lost their status as legally protected civilians. By “directly participating in hostilities,” the protestors were fair game for military targeting. Absent the status of soldiers, the Turkel Commission assumed those on board effectively became part of Hamas forces. The latter are categorized as “unlawful combatants”—the legal category the United States has used since 9/11 to refer to suspected terrorists.
Without protection for rudimentary political action, the international law of war is worthless.
In November 2014, the Office of the Prosecutor of the International Criminal Court issued its report on the “flotilla incident.” The prosecutor, Fatou Bensouda, found that the Gaza flotilla events do not justify an investigation by her office. Of all the cases concerned with war crimes, the ICC investigates only those reaching a threshold of gravity. Israeli authorities, she writes, may have committed war crimes during the navy’s raid on the Mavi Marmara, but these were not “grave” enough to trigger an ICC investigation.
More important than this bottom line, however, is Bensouda’s response to Turkel’s point on “direct participation.” Referring to the protestors who attacked Israeli soldiers, Bensouda explains: “It appears that their acts were intended to oppose Israel’s enforcement of the blockade in furtherance of the flotilla’s humanitarian and politically focused objectives . . . rather than specifically designed to support a party to the conflict.” She quotes language by the International Commission of the Red Cross (ICRC), explaining the distinction:
During armed conflict, political demonstrations, riots, and other forms of civil unrest are often marked by high levels of violence and are sometimes responded to with military force. . . . It is therefore important to distinguish direct participation in hostilities—which is specifically designed to support a party to an armed conflict against another—from violent forms of civil unrest, the primary purpose of which is to express dissatisfaction with the. . . authorities.
Bensouda and Turkel offer two separate understandings of the civilian category. At stake are two different theories of the person that international law seeks to protect from killing. One understanding holds, with Turkel, that anyone attacking a soldier must be an enemy. The premise is that the law of armed conflict is designed to protect the innocent—often depicted as women and children, not yet initiated into politics. Those bent on harming soldiers—whether with a gun, a knife, or their bare hands—are not considered among the innocent.
Bensouda’s point of view, of course, does not dismiss protections for children. But it provides equally firm protections for those who feel intensely involved in a conflict—so intense as to engage in some low-level forms of violence. In Bensouda’s opinion, the law of armed conflict provides protections for political contestation. For an army to fight a war legally, it cannot only allow the helpless to move from harm’s way. It must also expose itself to politically adverse and possibly hostile views.
Consider the best imaginable version of the world invited by the Turkel Commission’s interpretation of direct participation. This is a world in which political protest is banished from the battlefield, and the protection for those who do not express political views is absolute. Adversary parties in war never kill uninvolved civilians. Parties to war only kill anyone actively associating with the grievances underlying fighting, and they can do this with absolute efficiency. At first, this may sound like the dream of some human rights advocates. But this world with no civilian casualties is a macabre one. In this world, long-term war becomes a way of perpetuating authoritarian rule.
Allowing a measure of civilian violence during war reflects the realization that without a measure of violence, political contestation would simply not happen. And this may be true especially during conditions of war and military occupation. The law of occupation, for example, does not protect freedom of expression, and the occupying power may curtail the freedom of speech of the occupied population. Yet it is not allowed to shoot those who speak, even if they do so with their bodies. And this rule applies equally no matter who you are—a member of one of the groups associated with a conflict, or a voluntary activist coming from outside. The view advanced by Bensouda—the essential components of which had been articulated earlier by Israeli scholars—constructs a space within which one may use low-level violence as part of protest, without being killed.
The exact borders of the space for low-level violence—below direct participation in hostilities but above the de-politicized existence of animals or children—are never clearly determined. The Gaza flotilla demonstrated, in the most dramatic of ways, what it means to push the boundaries of this space. Today, states may be tempted to construe more and more activities as direct participation. Protecting the civilian’s capacity for political action, even during war, is insisting that a certain level of political participation can never disappear if the law of armed conflict is to carry any moral significance. The historical significance of the Mavi Marmara is in demonstrating the risks and opportunities of acting in this space.
In 2010, Itamar Mann was part of a legal team that submitted a pro bono habeas application to the Israeli Supreme Court, arguing that the high-seas interception of the flotilla was illegal under international law.
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June 01, 2015
5 Min read time