Bernstein on The Palmer Report and My Claim About Blockade

David Bernstein has a pointless “gotcha” post at Volokh Conspiracy today in which he argues that the Palmer Report somehow contradicts my claim that blockade is only permissible in international armed conflict (IAC), whether between states or between a state and an insurgent group recognized as a belligerent.  Here it is in full:

Kevin Jon Heller of University of Melbourne and Opinio Juris: “Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC [International Armed Conflict] with Hamas” (and thus the blockade of Gaza is unlawful).

U.N.‘s Palmer Committee Report on the Mavi Marmara incident (and note that the U.N. is not exactly the most sympathetic forum for Israel): “The Panel considers the [Hamas-Israel] conflict should be treated as an international one for the purposes of the law of blockade” (and thus the blockade is lawful).

Heller: “I have questioned the legality of the blockade before, leading two readers to claim that the Palmer Committee’s report contradicts my analysis of the situation. In fact, the opposite is true.”

Well, no. Because the Report concluded that the Hamas-Israel conflict was an IAC, it didn’t contradict Heller’s argument that if it’s not an IAC, the blockade is illegal under international law. But Heller also, as he acknowledges, “questioned the legality of the blockade” and said that it was not just wrong but that Israel’s claim to be in an IAC with Hamas is wholly implausible. While one Report cannot establish in everyone’s mind the lawfulness of the blockade, surely if an unsympathetic (or at the very least, non-sympathetic) forum like a U.N. commission adopts the Israeli position on IAC, that position cannot be deemed beyond the realm of even plausible argument, and Heller’s analysis is indeed “contradicted.”

So Bernstein admits that my central claim about blockade was completely accurate.  But he thinks that my analysis was nevertheless “contradicted” because I once claimed that, other than recognition of belligerency, occupation is the only plausible legal basis for considering Israel to be an IAC with Hamas.  I guess if we are willing to accept that a legal position cannot be “implausible” if any legal or political body anywhere has ever accepted it, my analysis was indeed contradicted.  By contrast, if a legal argument must be at least minimally reasoned in order to qualify as “plausible,” then my analysis was not.  If you look at paragraph 73, you will notice something remarkable: there is not a single citation to any legal source in defense of the idea that Israel’s conflict with Hamas is an IAC.  Not one.  The Palmer Committee did not even bother to cite to the Targeted Killing case, which would be insufficient — the Israeli Supreme Court’s view there that any transnational conflict with a terrorist group qualifies as an IAC is idiosyncratic, to say the least — but at least it would indicate that the Committee did some legal research before reaching its legal conclusions.  In fact, there is not a single citation to a legal source in the entire report.

The first definition of “plausible” in the Merriam-Webster dictionary is “superficially fair, reasonable, or valuable but often specious.”  In light of that definition, I am happy to stipulate that it is plausible Israel’s conflict with Hamas is an IAC.

PS. I’m glad Bernstein believes that any legal conclusion reached by the UN regarding Israel’s actions is by definition plausible.  Given various UN organs’ long-standing insistence that Israel continues to occupy Gaza and that Israel’s settlements in the West Bank are illegal, I’m sure we can expect Bernstein to acknowledge the plausibility of those positions in any future posts.