Legal Scholars Weigh in on Gaza Blockade, Flotilla Deaths

 

By Erik Schechter

 

Nearly a month after its deadly naval raid on an aid flotilla, Israel refuses to lift its blockade of the Gaza Strip.

Still, the government of Benjamin Netanyahu has loosened restrictions on the types of goods that may enter the Hamas-ruled coastal enclave. Likewise, it has set up a commission to examine the events of May 30-31. None of this, however, has squelched criticism of the Gaza blockade and the flotilla incident.

To recap, in late May, the Free Gaza Movement, a pro-Palestinian solidarity group, arranged for six ships loaded with humanitarian aid to breach the Israeli naval blockade. Anticipating arrival of this flotilla, the Israeli navy sailed out to the boats and warned them away from Gaza coastline, offering instead to have the cargo delivered to the territory via Israeli land terminals. However, the flotilla activists rejected the offer.

When the Free Gaza crew made it clear that they intended to run the blockade, Israeli navy commandos boarded the boats at night, in international waters, and subdued the passengers. This occurred, for the most part, without incident. However, on one ship, the MV Mavi Marmara, a large contingent of baton-wielding Turkish Islamist activists clashed with commandos, resulting in the deaths of nine passengers.

This bloody episode provoked a wave of outrage—and not just in the Muslim world. In the United States, conservative pundit Pat Buchanan denounced the Israeli naval action as "piracy," while progressive columnist Glenn Greenwald decried it as a "massacre." Meanwhile, a number of human rights groups reiterated their position that the blockade was a form of "collective punishment" and illegal.

Putting aside overheated rhetoric and pseudo-legal analyses, I asked a group of international law experts about the blockade of the Gaza Strip and the methods employed by Israel to enforce it. These are their answers:

Q. Did Israel commit piracy?

The short answer is no, states U.S. Navy Commander James Kraska, who teaches international humanitarian law (IHL, otherwise known as the Law of War) at the U.S. Naval War College. Article 101 of the United Nations Convention on the Law of Sea defines piracy as "a private act, typically with some sort of pecuniary interest. And by private, that means it's not going to be a governmental act," he explains.

Accordingly, Israel—or any other state—cannot commit piracy, though in the past governments did issue Letters of Marque to privateers, who would raid enemy vessels. However, the Paris Declaration of 1856 banned this legal form of state piracy, and that prohibition has since taken root in international customary law. As such, privateering is a "historical artifact," says Kraska, and has no relevance to the Gaza flotilla incident.

Of course, even if not guilty of piracy, Israel may have still violated IHL. Therefore, to get at the root of the controversy, one must determine two things: Is the naval blockade of the Gaza Strip legal—in other words, can Israel ban ships from entering or leaving Palestinian ports? And did Israeli naval commandos use the correct amount of force when attempting to stop ships bound for the Hamas-run territory?

Q. Are naval blockades a legal form of warfare?

Though it has a negative impact on enemy civilians and neutral third parties, blockading a state is a "legitimate method of naval warfare," says Marko Milanovic, a legal scholar at Cambridge University. However, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), considered to be the consensus view of customary law on the issue, does contain a few caveats.

First, the state setting up the blockade must have some military rationale for its action other than just wishing to starve the enemy population or deprive it of goods necessary for survival. Second, the manual states that the blockade would be illegal if "damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade."

According to the San Remo Manual, Israel could—provided it adhered to the aforementioned conditions—impose a blockade on Lebanon in order to prevent Katyusha rockets from reaching Hizbullah, a local Shiite militia. Then again, Lebanon is an independent state and falls neatly into the legal category of international armed conflict. What does the law say about the Israeli naval blockade of the Gaza Strip?

Q. Can Israel blockade a foreign, non-state entity like Gaza?

In August 2005, Israel withdrew its soldiers and settlers from the Gaza Strip. However, since then, no independent state of Palestine has emerged—leaving the small evacuated territory in a weird legal limbo. This, in turn, makes adjudicating the Israeli naval action tricky because, while blockades clearly apply in the case of two states at war, the law falls silent with regard to non-state combatants like Hamas, notes Milanovic.

Now, were Gaza still under military occupation (as the UN considers it to be), there would be no problem blockading it. Indeed, Common Article 2 of the Fourth Geneva Convention states that IHL extends to undeclared wars and occupied territory, says Wolff Heintschel von Heinegg, a law professor at the Viadrina European University. This being the case, the IHL rules governing naval blockades also apply to Gaza.

However, if Gaza is not occupied, as Israel claims, things get messy again.

Customary law provides little guidance because so few states in history have blockaded non-state actors. One rare case is France in the late 1950s. Seeking to intercept arms ships bound for the Algerian independence movement, France "established a so-called security zone, which extended up to 60 nautical miles into the Mediterranean," says von Heinegg. Interestingly, the international community accepted this action with little protest.

Another example is the Union blockade of the Confederacy during the Civil War. However, in that case, "the imposition of a blockade on the Confederacy was recognized by the European powers as a belligerent act and converting the insurrection into an international armed conflict," Kraska says, though others believe that this latter concept only emerged in the 20th century.

Whatever the case, the Confederates did go from being mere "insurrectionists" to legitimate "belligerents."

For now, the U.S. and European Union classify Hamas as a terrorist group. But should the Islamist militia gain belligerency status, its fighters—so long as they did not commit war crimes—could not be prosecuted for murder by Israeli authorities for actions taken on the battlefield, states Avi Bell, a law professor at Bar-Ilan University. Likewise, Hamas would have the right to block ships bound for Israel.

Of course, all this assumes that Gaza is comparable to the Confederacy or Algérie Française. It isn't, says Stefan Talmon, a legal scholar at Oxford University. Just as it is not a foreign state, Gaza is also not an Israeli province in rebellion. Still, he says one could argue that if a state can employ a naval blockade in such radically different cases, then "you must also be able to blockade territory that is somehow in the middle..."

Q. What goods must Israel allow through?

Following the diplomatic fallout over the MV Mavi Marmara killings, the Israeli cabinet drew up a new, expanded list of humanitarian items allowed into Gaza via border terminals. Previously, however, Israel kept transfers to a bare minimum. Innocuous items like toys, livestock, sewing machines parts, musical instruments, chocolate, and coriander had all been barred entry into the enclave, contends Gisha, an Israeli NGO that supports the "freedom of movement of Palestinians, especially Gaza residents."

Were such restrictions legal? International law experts are divided on the topic. Milanovic argues that one may only seize contraband, i.e. military and dual-use supplies. By contrast, von Heinegg and others contend that a blockade is designed to keep out all vessels and their cargo, not just a list of particular goods. Only when the blockaded population is faced with starvation must "essential" items be allowed in.

"Water, medical supplies, [and basic] food—that's what we're talking about," von Heinegg says.

Q. Is the Israeli blockade a form of collective punishment?

Human Rights Watch, Amnesty International and the International Committee of the Red Cross have all decried the Gaza blockade as collective punishment. In doing so, they all look to Article 33 of the Fourth Geneva Convention, which states, "No protected person may be punished for an offense he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited…"

This prohibition has its roots in the experience of German reprisal killings during World War II, Bell notes. Keeping that in mind, to then argue that Article 33 applies to the Israeli naval blockade of Gaza is "bizarre," he says, adding that there "has never even been a claim in any legal forum … that economic sanctions of any kind or blockades of any kind constitute collective punishment."

The collective punishment argument is likewise critiqued by other academics. Von Heinegg, for example, contends that it "has no basis in the law" because the only limits set for blockades are in San Remo. To be illegal, the Israeli blockade would have had to be instituted—not to stop the importation of rockets—but just to starve Gazans. Or, if, intentions aside, the blockade were to kill hundreds of innocent Palestinians.

Neither is the case, he explains.

Geoffrey Corn, a South Texas College of Law professor and retired U.S. Army lawyer, concludes that some, when confronted with the issue of Gaza, simply default to human rights principles. "They focus on the individual 'victim' of the Israeli decision-making process, which is the Gaza civilian." However, this approach, Corn believes, has a "perverse impact on the debate" because it nullifies the role of Hamas.

Q. Can Israel intercept a blockade-runner in international waters?

Speaking in a private capacity, Major John Dehn, a law professor at the West Point Military Academy, says that, if a state has instituted a legal blockade, then it can board neutral ships in international waters. However, there must also be a reasonable belief that "the vessel is trying to breach a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture."

In radio exchanges with Israeli navy personnel on May 30, the flotilla crew made it clear that they intended to run the Gaza blockade. Therefore, Israel was well within its rights to stop the boats. But what of proportionality? Did the Israeli naval commandos use the proper amount of force when boarding the MV Mavi Marmara and confronting resistance from a contingent of Turkish activists?

Though some video clips of the incident have been released by the IDF [Israeli Defense Forces] Spokesman, nearly all the footage shot by flotilla passengers has been confiscated. In addition, the first-hand accounts of the clashes are vague or fragmentary. "It's really difficult to say [if the commandos used the right amount of forces," Kraska says, "because you don't know all the facts. You have to do a moment-by-moment tactical review."

Nevertheless, he thinks Israeli lawyers could make "a colorable claim" that their troops acted in self-defense.

Q. Can the Gaza blockade lose its legality over time?

Yes. Blockades do not stay legal forever, says Talmon. Case in point: Egypt and Israel, following the War of Independence. In 1949, the two countries signed an armistice agreement, yet Egypt continued to ban Israeli ships from the Suez Canal. Finally, two and a half years later, the UN Security Council declared the blockade to be an "unjustified interference with the rights of nations to navigate the seas."

Granted, Egypt and Israel signed a formal armistice, while the 2008-2009 Gaza War with Hamas ended with unilateral ceasefire declarations. Still, the scope of the violence has decreased significantly since then. "The question you would have to ask yourself is can you maintain this blockade indefinitely," Talmon states, adding that the Israeli blockade has already inched its way into a murky "gray area."

 

 

Erik Schechter

Copyright - Original materials copyright (c) by the authors.

 

RE: What Is Israel to Do?

 

by Emanuele Ottolenghi

 

As Jennifer points out, Admiral Mullen's remarks about Iran are disconcerting.

 

I am no military expert and, like most of us in the blogosphere and the policy community, lack the actionable intelligence to make the kind of judgment that Admiral Mullen makes on whether a military strike against Iran would yield the kind of benefits desired without the kind of consequences one may reasonably fear.

Maybe Admiral Mullen is in a position to know better and his public assessment is correct. But why announce it? To make the Mullahs sleep better?

What is remarkable, and remarkably shocking, about this procession of military and intelligence personnel coming to say what politicians have now said for a while, is that they do not seem to appreciate how these comments have damaging consequences.

Perhaps a military strike is not in the cards anymore — who knows? Perhaps the risks involved are considerable. Maybe the hour is late. Understandably, there is little appetite for war. And, frankly, one should underestimate neither the operational difficulties nor the political fallout.

But there is a world of difference between entertaining skepticism about the military option in private and ruling it out in public. Whether it is politicians or uniformed personnel, their public dismissal of the military option — perhaps the only thing Iran's regime truly fears — undermines the effectiveness of all non-military alternatives.

Besides, it is not the job of military personnel to dismiss or even fret publicly about the consequences of a military operation. Their job is to find the best way to accomplish a mission they are tasked with by their civilian leadership — and, if that mission entails negative consequences, they can certainly let it be known and factor them into their plans. It should not be their business to comment on these matters on the record. McChrystal, anyone?

Incidentally, government officials in Europe have been adopting this characteristically thoughtless approach for a while now, failing to understand that a threat is more powerful than its actual manifestation when it carries credibility. Now America has joined the bandwagon. To see U.S. leaders publicly depriving themselves of a fundamental policy tool and tell Iran that, no matter what they do, nobody will attack them, is a truly myopic act — and it will achieve precisely the opposite of what its perpetrators wish it to accomplish. By reassuring Iran that no attack will come their way, the West has removed the last pressure tool from its arsenal. The reiteration of such a message will embolden the Iranians to become more defiant and more aggressive and convince the Israelis that they stand alone and have little time left.

So, paradoxically, the more Admiral Mullen and his military peers say that an attack against Iran would be a bad thing, the more likely it is there is going to be an attack on Iran.

 

Emanuele Ottolenghi

Copyright - Original materials copyright (c) by the authors.

 

Why So Much of the Western Elite Hates (or Doesn't Like) Israel (And Their Own Societies, Too)

by Barry Rubin

Aside from all the traditional reasons—antisemitism, oil money, the Arab world's strategic weight, guilt over colonialist pasts, fear of Islamist violence, etc—there are some  important new ideological ones making large elements of the Western cultural and intellectual elite dislike (or hate) Israel.

If you understand these factors, it also explains a lot more generally about the (temporarily?) hegemonic ideology that has taken over much of Western academia, media, and politics.

1. Religion
As a Jewish state, and a country where religion plays an important role, Israel is anathema to Western leftists and intellectuals who are against religion, or at least against Judeo-Christian religions. Incidentally, though, Israel is not a theologically based or defined states. In fact, Jews are a people who happen to have a distinctive religion, something rather common in history. The idea that Jews are only a religious group is a very recent idea in world history.

But the allergy to religion in public life is a powerful force in Western elites today. Why doesn’t this apply to Islam? There are a number of reasons but one rarely mentioned is that Islam isn’t “their” religion, meaning that they have never personally or collectively rebelled against it, nor has it shaped elements in their own society that these people hate. Islam may be a repressive religion in Saudi Arabia, but it isn't responsible for Jerry Falwell or the "Christian right." Hence, to a member of the Western elite, it isn't "their" problem.

While this is a simplification, to get across the idea I will use the following phrase: Islam for them is in the class of a “quaint, alien custom” rather than something they viscerally hate or believe their societies have dispensed with for the better. This is especially true, of course, for the anti-religious Jews among them.

For those from that general approach, of course, the alternative is to accept secular Zionism and support for non-religious forces in Israel, which are in the large majority of course.

2. Nationalism
Israel represents a nationalist movement and is thus anathema to Western leftists and intellectuals who are against nationalism. As with religion, of course, it is usually only the nationalism of their own people or patriotism toward their country they oppose. As with religion, they think this is a remnant of the “dark ages” of human division and mutual hatred which should be dispensed with as soon and completely as possible. Just as religion is identified with obscurantism and superstition, nationalism is identified with fascism and national chauvinism.

And, again, for the Jews among them who are assimilationist or believe the role of Jews is to be the most steadfast fighters for revolutionary change, Israel is especially repugnant.

Their idea is to make assimilation (and the disappearance of the Jews as a people) count by helping to create a glorious utopian society, the same kind of idea that mobilized Jews to be Communists in earlier generations. [If you are interested, read my book, Assimilation and its Discontents.] Jewish Communists fought, sacrificed, and died for decades only to find that the USSR's Communism became the most powerful antisemitic ideology during the Soviet Union's last four and a half decades.

For those from that general framework, a variant of acceptable Zionism historically has been support for left-of-center forces in Israel, not necessarily even far-left ones.

3. Nation-state/peoplehood
The idea that a country should consist of a distinct people, a central idea during the last two centuries and still dominant in most of the world, has become a sin in the thinking of the hegemonic view in the West, indeed the sin of “racism.”

It is important to note that this is true on two different levels:

First, in opposition to the idea that a specific ethnic group be virtually coexistent with the nation-state (the French in France; the Italians in Italy)

But also, second, that the population of a given country should have a coherent culture, identity, and worldview. After all, various countries have absorbed large numbers of immigrants but integrated them into a national community based on common beliefs. Multiculturalism has abandoned this approach.

In other words, it is not enough according to this ideology to have a multi-racial, multi-religious group of people who are "English" or ""French" for example, but a multi-racial, multi-religious group that belongs to multiple communities without an overarching identity and a basic common worldview. (Now that's a formula for the failure and collapse of a society into violence, poverty, and collapse if I've ever heard one.)

Actually, Israel is an example of a country that has absorbed large numbers of immigrants. In proportionate terms there is no nation state in the world that has done this to a greater extent. But Israel is a Jewish state, a state built around a people with a common identity, and this framework, which has been the norm for several centuries in the West, has suddenly been branded illegitimate. And so Israel is hated for this reason by those who would destroy their own people and nation-state. They don't want a successful example around to discourage suicidal tendencies in their countries.

Incidentally, if a Palestinian state ever comes into being it will be governed according to the constitution already written for it by the Palestinian Authority: An Arab state whose official religion is Islam and which will grant or withhold citizenship depending on whether one is a member of the Palestinian Arab people. And the world is now also accepting in practice a Hamas-ruled Palestinian Islamist state which even further restricts the definition of the nation. How ironic!

4. Israel Fights Revolutionaries
True, the Western Left is…leftist. It supposedly stands for widespread democracy, equality for women and homosexuals, secularism, and various other things. The revolutionary Islamists are rightists and have the opposite position on all of these issues.

But that’s not important. The self-identified revolutionaries of the West, even though they use no violence, see the revolutionaries of the Middle East as kith and kin. The latter are “fighting the man,” to use American slang. They want to overturn the system; they hate the West’s values and policies. So the parlor radicals of the West embrace them. After all, Che Guevara is dead and there are no Marxist revolutionary movements doing much.
So in revolutionary solidarity, elements of the Western elites embrace those who would love to torture or shoot them as romantic figures. For them, precisely because Israel is pro-Western, it is on the side of the “reactionaries.”

5. Israel Fights to Defend Itself
If you are under attack because people want to wipe you off the map and deliberately attack your civilians as their main strategy (it’s called terrorism), and you defend yourself, there is going to be violence. If there is violence and you are the least bit successful, there will be casualties on the other side. And inevitably in modern war—no matter how hard you try to avoid it—some of those casualties are going to be civilians.

There are many in Western elites who are against war and violence, at least unless it is waged “perfectly” with no casualties, or no military casualties, on the other side.

“Worse” yet, you might win the war. If the other side refuses to give up and make some kind of equitable peace, the conflict will go on. If you capture their territory and they refuse to make peace, you have to occupy it. All these things are impermissible according the (temporarily?) dominant ideology in much of the West.

Thus, Israel’s “sin” is to defend itself and to win. There are, however, rational people in the West who think this is a good thing. The cleverness of the strategy of Israel’s enemies is to use their own people as human shields, to promote their suffering to gain sympathy abroad and mobilize militancy at home. This fools many people in the West, though there are others who see through this ploy.

6. Israel is involved in Conflict
There are those in the West who think that conflict is not only a bad thing but a wholly unnecessary thing. There’s a Yiddish proverb that goes: Only a dead man has no problems. The extreme form of this as applied to contemporary views is if there’s a conflict caused by Israel’s existence, end Israel’s existence and there’s no more problem.

In addition, however, there is a more moderate version: Since conflict is unnatural, the conflict can and should be quickly ended. By demanding that the conflict only be ended on terms that ensure its security and end the conflict, Israel is being obstructive.

So for much of the anti-Israel left, the conflict can be ended real fast and would be only if Israel gave in on every point. Thus, there would be no violence or anti-Western sentiment in the Middle East and no terrorism in the world.

This leads into…

7. Causes of Radicalism
To paraphrase Paul Berman, the new ideology refuses to face the fact that there are deep conflicts in the world and that there are anti-freedom forces seeking to take power and oppress others or even wipe them out. Consequently, there are two ways to deal with this: ignore the threat or insist that it can be wished away. (This one is also prevalent on the Israeli far left.)

Ignore the threat: There are no radicals, just people seeking to be free and materially well-off. So the threat to Israel would disappear if only Israel changed its policy or made huge concessions.

Wish away the threat: Be nice to the radicals, apologize to them, engage them, give them what they want, and they will become moderate.

Israel is thus in the way to solving all these big problems. Consequently, it is at fault for their continuation. Possibly Israelis are stupid and don’t understand that their real interest is to give in and give away. Of course, it is the “great geniuses” who understand nothing and would be in the crocodile’s belly before you can say, “Tom Freedman is an appalling sycophant.”

8. If you’re “non-white,” you’re automatically right; if you’re the underdog we’ll roll your log.
[This was a tough rhyme. Log-rolling is an old American political slang word, meaning that I will help you get what you want.]

Reacting against centuries of discrimination and racism, the current idea is not to banish racialism—as Martin Luther King advocated, to create a color-blind society—but merely to reverse it. Israel is seen as stronger, whiter, and First World. [In reality, the skin tone test wouldn’t work between Israel and some of its enemies.]

If you are a Western elite left-wing hegemonic type, you feel guilty for being rich. But that’s ok. You can hold onto everything you have (even a gas-guzzling car] and redeem yourself by having Israel pay the bill for you.

Being the underdog, however, does not make someone automatically virtuous, especially if your problem is largely your own fault. African-Americans faced slavery and discrimination and thus are legitimate underdogs; Israel’s enemies have repressive dictatorships, waged war and terrorism, and refused compromises that would have solved their problems (with Israel, at least). That’s why they are worse off. It is political vice, not virtue that has landed them there.

So if Israel has "made the desert bloom," produced so many great inventions and innovations that benefit humanity, won the wars and survived, that is all the more reason for those who hate Israel to hate Israel. As Bob Dylan writes, they say, "There's no success like failure." But, in fact, "Failure's no success at all." Or as I wrote years ago about Yasir Arafat, the trouble with having your strategy based on being an underdog is that you have to keep losing.

Another element here is the view that, to paraphrase an intellectual famous for being...an intellectual, Susan Sontag, Western civilization is the cancer of the world. Israel is thus part of that cancer which must be cut out. Or to paraphrase a famous slogan of the last group that seriously tried to wipe out the Jews, "Today Israel, Tomorrow the Western World!" Again, Israel's virtues--reasonably regulated capitalism, democracy, modernism, freedom, success--are precisely the reasons for it to be hated.

The success of America is poison to this portions of the elite because they don't want to believe that these techniques lead to success. The same applies to Europe. And they refuse to realize that their proposed policies will wreck their own countries. They want to kill the goose that lays the golden eggs, eat it, and then expect to still get golden eggs every day.

And so in many ways, Israel is merely a stand-in for everything they hate closer to home. This is an important secret that must be kept from its own people because it will lose the anti-Israel mob support. (Reminds me of the Canadian anti-Israel group which talked too much, going from condemning Israel as a settler-colonial state that should be abolished to saying the same thing about Canada. Oops!)

This is quite a long list. I should hasten to add that brevity forces simplification and that not all the above characteristics can be found in one person or political group. To do a proper job of explaining this, especially by offering the dozens of examples going through my mind as I write this, would require a book. Hopefully, though, this effort is useful for you.

Finally, there is an important other side to this analysis. Those in the West who don’t agree with the above list of items tend to be supportive of Israel. This doesn’t just mean conservatives but real liberals (in the American sense of that word). And as the extreme left wears out its welcome mainly due to other issues—a process that is happening pretty fast and steadily—the pendulum is swinging back. In fact, if one examines public opinion polls and looks beyond the elite mass media this trend is already visible.

Come to think of it, that's a really good reason for the anti-Israel group to hate Israel: It is living proof that they are wrong.

Barry Rubin is director of the Global Research in International Affairs (GLORIA) Center and editor of the Middle East Review of International Affairs (MERIA) Journal.

Copyright - Original materials copyright (c) by the authors.

 

The European June: Riots, Stonings, and Brawls

 

by David J. Rusin

 

Islamists' long march through the West involves three interlocking campaigns, each of which can be advanced violently or nonviolently: provoking conflicts with authorities (governments, courts, police, etc.), intimidating the non-Muslim public, and bullying insufficiently radical Muslims. All three facets were on display in Europe over the past month, as tensions enabled by shortsighted policies erupted into physical altercations:

·                     Islamists versus the authorities. Rinkeby, a Muslim-heavy suburb of Stockholm, Sweden, is fast becoming Europe's latest "no-go zone" after riots rocked the area, which is dubbed "Little Mogadishu" and serves as a recruiting spot for al-Shabaab terrorists. When a group of "youths" was denied entry to a party on June 7 and police tried to disperse the crowd, junior jihadists used the opportunity to rampage against the state:

 

They then began to pull up street cobblestones and slabs of pavement and throw them at police. Then they started setting light to parked cars, and even a local bank ended up being set on fire. Firemen who came to put out the fires were then also set upon by the gang of up to 60 youths, according to news agency TT.

 

Disturbances started again Tuesday as night fell, and arsonists torched motorbikes and cars, as well as trying to light the local police station. They then moved on to a high school in the area, razing it to the ground. Firefighters were unable to get close enough to the school to fight the fire due to the stone-throwing youths.

"We are soldiers," one ruffian explained, "and the police are our enemy."

 

·                     Islamists versus non-Muslims. Two ugly cases of Islamist intimidation befell Jews in Germany. On the 19th, Arab "youths" attacked a Jewish dance troupe on stage at a street festival in Hannover, tossing stones at the performers and shouting "Jews out!" Days later, a Palestinian assaulted a pair of young Israeli men at a Berlin club; in a microcosm of Europe's approach to the Mideast dispute, the bouncer used pepper spray against the Israelis rather than the Palestinian perpetrator, who managed to flee.

 

·                     Islamists versus other Muslims. A June 6 brawl at an amusement park in Helsinki, Finland, was instigated by Somali Islamists seeking to impose Shari'a upon more secularized Kurds. YLE reports: "One of Sunday's fights started with an argument over the use of headscarves. According to the 25-year-old woman, the Somalis denounced Kurdish women for not wearing scarves."

 

Another Kurd offered a previous example of these overlooked intrafaith tensions: "When I was [in] a Finnish language course … one Somali prevented us from listening to music, saying that it is banned under Islamic law."

 

While there can be no excuses for this behavior, Western governments do help lay the foundation by permitting Muslim enclaves, condemning Israeli self-defense, and promoting identity politics. No doubt Europe's summer of discontent will only grow hotter from here.

 

 

David J. Rusin

Copyright - Original materials copyright (c) by the authors.

 

Hala Mustafa and the Liberal Arab Predicament Part I

 

by David Govrin

 

1^st part of 3

 

Liberalism is not and has never been widespread in the Middle East. There have been moments when it seemed set to open new vistas to countries whose citizens wanted to break free from the chains of traditionalism, dictatorship, and religious obscurantism. There have been many setbacks, but in the early 1990s a group of intellectuals, known in contemporary Arabic literature as the New Arab Liberals, Al-Liberaliyun al-'Arab al-Judad,[1] was informally established in the Arab Middle East. The group was formed in the wake of major global and regional events—the collapse of the Soviet Union and its ancillary communist regimes in eastern Europe (1989-91), the invasion of Kuwait by Iraq (1990), the repeal of the apartheid laws in South Africa (1991), and the official end of the Cold War (1992)—all of which suggested the advent of a new order internationally. This loosening of political tension was accompanied by the growth of globalization and a revolution in communications with the creation of the mobile phone and the Internet, both of which opened up new possibilities for international collaboration and free speech.

 These events had a great impact on intellectuals in the Middle East and encouraged Arab liberals to initiate a wide-scale public debate on the urgent need for change in their region. The debate that ensued, and which still continues, has focused on the issue of political and liberal reform in the Arab world and clearly reflects the predicament that faces modern liberal Arab thinkers. These liberals are deeply aware of massive changes taking place around them but are stymied in their own efforts by the undemocratic or antidemocratic regimes under which they live.

Egyptian liberals occupy a central position among the members of this group in terms of their relative numbers and the resonance of their activity. Egypt's political, historical, and cultural stance along with its relatively liberal legacy, gave Egyptian liberals a prominent role in this Arab discourse despite ongoing pressure from an illiberal regime on the one hand and growing threats from Islamists of different varieties.

 

Arab Liberalism in Context

The New Arab Liberals view themselves as the heirs and successors of the liberal Muslims and Arabs who were active between the late nineteenth century and the 1950s. Two things distinguish them from those early liberals. The first is their concentration on political matters, especially on internal reforms and the need for a democratic regime; the second is their strategic and rational view of political and global realities.[2]

The New Arab Liberals can be divided into three main categories: government liberals, part-government liberals, and independents. A government liberal is a paid employee of a governmental institution. This dependence may narrow an individual's ability to maneuver while carrying out his public activities and may dull criticism of the regime. The head of the Center for Strategic Research at the leading state newspaper, Al-Ahram in Cairo, 'Abd al-Monem Said, is an example of a government liberal identified with the regime.

Most New Arab Liberals, however, are either partly governmental or independents. The part-governmental liberals, although paid employees of government institutions, actively criticize the regime and act publicly against official regime policies. Taking such a stand obviously jeopardizes their official standing and their careers. Noteworthy part-government liberals include the Egyptian feminist Hala Mustafa (whose activities will follow in detail later), Osama al-Ghazali Harb (Egypt), editor of the periodical As-Siyasa ad-Dawliya, Ahmad al-Baghdadi, Khalid ad-Dakhil and 'Abd al-Hamid al-Ansari (the last three from Persian Gulf States).

Some independent Arab liberals live in their home countries, for example, the Cairo-based Egyptians Sa'ad al-Din Ibrahim and Amin al-Mahdi, but many others live outside the Arab world, thereby freeing themselves from the restrictions on freedom of speech in their countries of origin. These include George Trabishi and Burhan Ghalyun, both originally from Syria and now living in Paris, and Shaker al-Nabulsi, originally from Jordan, who lives in the United States.

The movement's world-view is characterized by the centrality of the individual, civil rights, basic freedoms, equality, pluralism, progress, democracy, and science. Secularism, an essential ingredient for democratic developments elsewhere, is deliberately ignored on the grounds that it would alienate most Middle Eastern Muslims. But most Muslims consider democracy the only way to protect freedom and human dignity, so this demand provides a common denominator.[3]

For all that, the New Arab Liberals differ in their religion (a disproportionate number are Christian), their center of activity (in the Middle East, Europe, or North America), the extent of their independence from political institutions, and their ideological relation to Arabism, Islam, and the West. They differ in their views on practical matters, such as how far they will tolerate Islamists in the political system; how far they are prepared to accept normalization with Israel; how far they are willing to allow governmental financial involvement; and how far they approve of U.S. policy in the Middle East.

New Arab Liberals focus their attention on the governmental and social elites, speaking to them directly while making them targets for their criticism. Jordanian liberal Nabulsi explains:

The liberal discourse is unlike a folk song to which the drunkards sway from side to side, neither is it a populist discourse that is meant to quench the inclinations of the crowds … it is rather first and foremost directed at the educated elite since they are the ones who create history and not the loud crowds.[4]

The new liberals aim for profound, long-term political change within their countries, meaning the establishment of democratic states throughout the Arab world and a widespread assimilation of democratic values. The mass communications revolution of the 1990s opened up new audiences beyond the control of specific regimes. Through their criticism of Arab regimes, the New Arab Liberals made a broad impact on their audiences and generated a public debate regarding the urgent need for political reform.

However, these Arab liberals find themselves in a difficult position between government and radical Islam. Given the significance of religion in Arab society and culture, the new liberals work hard to establish their legitimacy while emphasizing an attachment to their liberal Arab and Islamic heritage. They do this to underscore their claim that democratic values are universal and in harmony with the Islamic heritage.

An additional difficulty the liberal group faces is the stigma of Western support, which is interpreted by many as an attempt to preserve a sort of colonialism. This sabotages the Arab liberals' credibility, identifying them as envoys of the West.[5] The absence of charismatic leadership, the ideological disagreements among them, and their inability to unite under a single organizational framework increase internal rifts and hamper the new liberals' efforts to become a significant alternative to government.

 

Hala Mustafa and the New Arab Liberals

One voice increasingly heard among the New Arab Liberals is that of an Egyptian woman, Hala Mustafa, who plays a particularly important role within the group. Her courageous criticism of Egypt's political elite and of Arab society as a whole justifies her prominence as a leading liberal in the Arab world, despite her formal affiliation with the government as a member of the Policy Secretariat of the ruling National Democratic Party. Her prominence is all the more remarkable in that she is an outspoken woman in a patriarchal society. She is also sophisticated and Westernized. As such, she is anathema to the forces of radical Islam and traditionalism. In that sense, she has become a symbol of what liberalism means for Egypt and the wider Arab world.

Mustafa was born in Cairo in 1958. She graduated with a bachelor's degree (1980), then a master's (1986) and finally a doctorate (1994) from the department of economics and political science at the University of Cairo. Between her studies there, she completed a continuing education program at the University of Maryland (1983) and an M.A. at the Institut d'Études Politiques de Paris (1986-87). She also served as a visiting fellow at the Washington Institute for Near East Policy during 2003 and 2006. In addition to her role within the National Democratic Party, since 1994, she has served as director of the political department at the Center for Political and Strategic Research at Al-Ahram. Concurrently, she is chief editor of the Arabic periodical Al-Dimuqratiya, published by the Al-Ahram Center since 2000; it is the only periodical in the Arab world dedicated to the analysis of worldwide democratic developments and Arab liberal thought.

Mustafa's personal outlook on the possibility for reform in Egypt is bullish. In an article coauthored with Augustus Richard Norton of Boston University, she writes that

in Egypt—one of the most important Arab countries of the region—there is a strong tradition of political debate and a vibrant intellectual life. There also are an extensive civil society, a judiciary intent on sustaining its autonomy and integrity, and a durable secular liberal tradition.[6]

It is in defense of this secular liberal tradition that Mustafa has been particularly active. Writing on the French head scarf ban, she defends former President Chirac from his critics, saying

Few addressed the merits of the secularism the French president wants to preserve, not for his own personal glory or that of his government, but to uphold France's long record of struggle for human freedom, fraternity, and equality. Few showed willingness to examine secularism neutrally and objectively.[7]

Later in the same piece, she asserts that

Human rights and freedoms developed in the context of secularism, for the latter paved the way to tolerance, freedom, and political accountability, just as it ended despotism in all its political and religious forms.[8]

Mustafa herself has backed up her support for secularism by arguing that the Arabs have a long secular tradition. If there is any truth in this, it cannot be denied that Arab secularists can and do come into conflict, not just with Islamists, but with government authorities when they uphold discriminatory legislation based on purely religious grounds. In the 1990s, Mustafa nailed her flag to the mast when she published several Arabic books regarding radical Islam, including Political Islam in Egypt[9] and The State and the Oppositional Islamic Movements.[10] In these she made clear her opposition to the politicization of religion.

 

David Govrin

Copyright – Original materials copyright © by the authors.

./…

Hala Mustafa and the Liberal Arab Predicament Part II

 

by David Govrin

 

2^nd part of 3

 

Mustafa’s Academic and Public Activities

As with other Egyptian liberals, the circumstances under which Mustafa operates are difficult. Alongside their self-censure, Egyptian liberal activists are denied access to the government-controlled communication networks.[11] Mustafa relates that she has come under physical and psychological pressures that limit her freedom of movement. She has, for instance, complained of tight supervision by the Egyptian security agencies, including telephone tapping and surveillance. She has pointed out that she fears for her life and that the “harsh security siege” in which she is placed has caused her to feel paralyzed. Moreover, some have compounded these problems by accusing her of serving as an U.S. secret agent.[12] She denies that her membership in the Supreme Committee for Policy Planning of the ruling National Democratic Party provides her with immunity.[13]

Recently, she landed in the middle of a controversy following a meeting with the Israeli ambassador to Egypt at her office in the Al-Ahram Center. The journalists’ union accused her of violating a previous union resolution that forbade any form of normalization with Israelis. She was summoned to the union’s offices for further investigation and received a warning for violating the union’s ban.[14] This episode, reported not only in the Egyptian press but also in the wider Arab media,[15] reflects the great many difficulties that face a prominent Arab liberal like Mustafa.

Although Mustafa is a liberal officially associated with the establishment, she displays great courage in expressing unconventional views. In published articles, she profoundly criticizes the involvement of the security apparatus in political life: “The real threat of Egypt’s state security apparatus … is that it continues to secretly manipulate the entire political system.”[16] According to her, it is no secret that the security services are deeply involved within the National Democratic Party to the extent that they select high-ranking officials and most of the party candidates for parliamentary elections.[17] Likewise, she has claimed that recruitment to all positions is made on the basis of loyalty to the security authorities instead of professional excellence and skills, political background, or experience.[18]

Mustafa has, therefore, claimed that if the security services’ “silent war” is not restrained, true political change and efforts to realize a “reform from within” will continue to be obstructed in Egypt. This will limit the progressive political elite and keep it ineffective; individuals capable of promise will systematically be treated as targets; moderate groups will be shut down, and citizens will be kept away from political life.[19] Mustafa maintains that the political dominance of the National Democratic Party of President Hosni Mubarak extends to the security authorities, the government bureaucracy, and the national media.[20]

 

The Egyptian Liberal Experience

Mustafa stresses that Egypt has the richest liberal heritage in the region, a heritage that dates back to the end of the nineteenth century. She ascribes vast importance to Egyptian liberals active then and subsequently, singling them out for praise because they worked to instill liberal concepts of government and individual freedoms, sought independence for the legal system from the political authorities, strove to develop the notion of citizenship and to institute religious reform, strengthen women’s status, and generate political pluralism.

During the 1920s and 30s in Egypt, the most important laws and regulations regarding constitutional and parliamentary life were published, and for the first time, basic individual rights and freedoms were approved. As far as Mustafa is concerned, the 1923 Egyptian constitution clearly reflected the liberal vision in matters of society-state relations, governmental methods, and relations between the executive, legislature, and judiciary.[21] For three decades (1923-52), Egyptians enjoyed constitutional rule and relative social freedom. Achieving independence from the British, the Egyptian parliament framed a constitution that called for Western-style government with a restricted monarchy. The press, universities, and intellectual life as a whole flourished. Liberalism took root in the cafés and clubs, only to be crushed after 1954 by the rise to power of Gamal Abdel Nasser.

Nevertheless, Mustafa is troubled by the fact that Egypt’s liberal experience did not produce a developed bourgeois class as occurred in Europe. There was a weak political foundation and not enough social power to spread liberal ideas. Mustafa believes that a lack of political independence prevented Egyptians from consolidating their experience of liberalism. The appearance in 1928 of the Muslim Brotherhood weakened liberalism from the beginning and destroyed the bridge between Islam and modernity, which earlier exponents of the reformist movement had established.[22] Additionally, by focusing mainly on the elite, today’s reformist liberals have failed to recruit wide support for their cause or to become a real alternative to those in power.

The revolutionary fervor of Arab nationalism during the 1950s also negatively affected the development of today’s reformist liberal trend. The nationalist Arab movement focused on the struggle against colonialism and demands for independence, and it came to be linked to a single-party system. Under these circumstances, pluralism was considered a form of fragmentation that conflicted with the movement’s core purpose. As the nationalist movement developed, it gave rise to the principle of a single-party system, which led to a single leader and a single voice.[23]

 

Liberal Values and Democratic Political Culture

The need to develop a democratic political culture in Arab society ranks as a central plank of Arab liberal discourse in general and for Mustafa in particular. She believes that the political culture includes all the issues leading to a democratic regime and that it plays a central role in speeding up or slowing down social change.[24] For her, it is not enough to build constitutional institutions, such as governmental parties and a legislative body. There is an urgent need for cultural and liberal values that will inform the laws and institutions with meaning and content.[25]

According to Mustafa, the stagnation of political life in the Arab world is attributable to two types of factors. The first are populist, pan-Arab, and Islamic trends that developed after the 1950s and are by now deeply integrated within Arab political culture. These trends inherently oppose pluralism, democratic transformation, liberalism, and other Western values. The second factor is the absence of a sense of individualism. Arab culture emphasizes blood kinship, clan affiliations, and family ties over the individual, something that contradicts individual rights and freedoms.[26] Therefore, the political culture still conveys a kind of collectiveness and anti-individualism that obstructs the road to democracy.[27]

Mustafa emphasizes that the meaning of liberalism is more extensive and profound than that of democracy. Without a liberal constitution, democracy would be flawed. As she states,

The democracy to which we strive is not a mere legal, constitutional, institutional, and partisan framework; but rather, it is at its core a theoretical democracy, a democracy that is cultural and social and which stems from the values of liberty and thus restores the individual’s value and appropriate stature in designing the future. [28]

 

Islamism

Writing on political Islam, Mustafa stresses that Islamist movements refuse to acknowledge that the state is the highest source of political authority but adhere to the rule of God (Hakamiyat Allah). Therefore, they insist on canceling modern civil legislation and propose to replace it with Islamic laws. This implies a deep-rooted change in the nature of the modern state system and the foundations upon which it is based. It also dismisses people’s right to choose an alternative to Islam or to recognize approaches that are beyond the scope of religious authority. Religious authority opposes freedom of opinion, thought, and faith. There is an inherent conflict within the Islamic movements over the principles of pluralism and open competition as forces in society, both of which constitute basic tenets of democracy. Thus, a large gap exists between Islamist declarations about their formal willingness to accept democracy and their lack of acceptance of its underlying principles.[29]

In an article published in the semiofficial Egyptian daily paper Al-Ahram, Mustafa harshly criticized the Islamic groups and the legacy of the Arab national movement. She called for self-criticism, allowing Arab societies to contend with the tremendous challenges that face them. She further warned against the gravest threats to the region, namely, the radical political and religio-political groups that overshadow Arab societies and their democratic, cultural, and social development. These forces focus on denying the “other,” by which they mean the West, including its culture and values, and seek to defeat it. They strive to impose their political plans, not just on themselves but upon society at large.[30]

Mustafa concludes that the Arab world must reflect critically upon its activities. Arab society must hasten modernization while steering clear of slogans or erecting conspiracy and anti-Westernization theories. There is no escape from the centrality of the issue of individual freedom, she argues, for the individual is the essence of the construction and awakening of society. Democracy is not merely a confirmation of legal and constitutional rights or the establishment of political institutions, but exists within a culture and through the values in which the individual believes.[31]

She argues against the claim, which she says was cultivated by the Egyptian regime, that the only alternative to the current regime is an Islamic polity. Egypt’s liberal-secular legacy means it has the potential to become a secular, moderate, liberal, and modern country. In addition, it enjoys the advantage of being relatively homogenous at most levels of society, unlike some other Arab countries (Iraq, Lebanon, Syria), which have to deal with ethnic rifts that inhibit the development of democracy.[32]

Mustafa views the Muslim Brotherhood’s relationship with the regime as one of mutual dependence and points to a tacit and bizarre alliance between the government and the Brotherhood. The regime uses the Brotherhood to frighten the United States and other Western countries about what might happen in Egypt. In practice, Mustafa stresses—unlike many other observers—that the Brotherhood is unable to overthrow the regime or take over the political system, and that its influence is much less significant than it may seem. When trying to explain why the regime allows the Brotherhood significantly more political and media coverage than the liberals, Mustafa notes that the conflicts between the government and the Brotherhood have to do with power-sharing in the regime, whereas the discord between the regime and the liberals is more of a threat to the status quo since it is based on ideology and political principles. Thus, the government persistently denies legitimacy to liberal reformers who are devoted to an alternative, secular, and popular political challenge.[33]

Historically, political stagnation and the weakening or elimination of political parties during the eras of Arab socialism and nationalism (which were led by liberals), resulted in the mosques becoming alternative centers through which political debate, calls for the right of free expression, disagreement, criticism, and opposition were voiced. This opposition developed into an armed and violent force.[34]

Mustafa does not limit the political crisis in Egypt during the last three decades to the Islamists and how far they have become integrated into the political system. Rather, the question should be: How can Egyptians allow representation for all political trends, not just Arab nationalism and political Islam?[35]

It is Mustafa’s impression that should true reform take place, the Muslim Brotherhood will be unable to obtain any substantial political advance. Political reform would constitute a barrier to the Brotherhood since it would no longer represent the only alternative to the government. Reform would change the status quo and the balance of power. As a result, new trends would arise and compete with each other.[36] On the other hand, granting the Muslim Brotherhood legal status would most likely contribute to the further Islamization of politics.[37]

 

David Govrin

Copyright – Original materials copyright © by the authors.

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