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Thread: Mavi Marmara Raid

  1. #41
    Council Member davidbfpo's Avatar
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    Default Divided opinions

    I read some of the US daily press and sometimes wonder at the imbalance towards Israel. These two articles are in marked contrast, first the "usual" approach:http://seattletimes.nwsource.com/htm...thammer04.html

    Then a condemnation of the Israeli action:http://www.chicagotribune.com/news/o...004,full.story
    davidbfpo

  2. #42
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    Default Hi David,

    The "divided opinion" is not surprising if you happen to know of the two authors: for Israel refuses to commit suicide - Charles Krauthammer Wiki; and of Piracy on the high seas - Bill Press Wiki.

    It is fair to call Charles a conservative (formerly a Jimmy Carter liberal) and Bill a liberal. They are often Point and Counterpoint.

    I expect there is a division of opinion in the American Diaspora about the wisdom of the blockade, but have no polling data to back it up. Cf., see this, In its hour of need, Israel was let down by Diaspora, in 5 Jun 2009 Ha'aretz.

    That article included an interesting comment:

    On Monday evening, in one of those moments of tired, off-the-record frankness, an IDF colonel said to me, "Come on Anshel, we all know what the problem was here. This was a policing operation, not something for a real army."
    Still, the existence of a blockade requires the pre-existence of a armed conflict (which Israel has declared as its legal basis for the blockade). So, the blockade is not a law enforcement operation; although I suppose one might elect to use law enforcement tactics in any given situation.

    Regards

    Mike

  3. #43
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    Quote Originally Posted by jmm99 View Post
    still, the existence of a blockade requires the pre-existence of a armed conflict (which Israel has declared as its legal basis for the blockade). So, the blockade is not a law enforcement operation; although I suppose one might elect to use law enforcement tactics in any given situation.

    Regards

    Mike
    That is why I think they would do better using a Coast Guard/Border Patrol type LE operation. It deescalates the situation to an LE operation against some unruly non-state actors instead of escalating to a Military Blockade which has state vs. state War making operation.

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    Quote Originally Posted by John T. Fishel View Post

    2. It is declared by one of the warring parties.
    3. It is lawful as long as it can be enforced.
    4. It can be enforced by whatever means are ncessary - traditionally, that was seizing a blockade runner, imprisoning its crew, and seizing its its cargo, or blowing it out of the water.

    Cheers

    JohnT
    Hi,

    that still leaves a gap in my understanding. Lawful to who?

    What happens if country A and country B are at war.

    Country A announces it is blockading country B.

    I assume there is no international law that says countries C to Z have to play along?

    i.e. if country G decides to sail to country B... its not just on the say-so of country A that he is not allowed to?

    The blockade is only as strong as Country A's ability to enforce it.

    Now, if country A is North korea, and Country B is South Korea... then countries C-Z can tell country A to go screw itself, and country A ends up looking silly.

    Taking that thought further... if Israel's blockade of Gaza is a pure Israeli descision, are other countries required by international law to respect it? Or is the most they can fear the wrath of Israel?

    In fact, boarding a boat on open sea may get you off in an Israeli court (is after all their blockade), but for any country who thinks the Israeli Blockade is illegal... the Israeli Commandos were no better than Somali Pirates... (Who could probably have taken the ships with fewer losses).


    If the Irish ship just captured was in open water.... would ireland have a case against israel in a court of law?

  5. #45
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    Default Yes, Seabee

    JMM should, perhaps, weigh in here.

    My understanding of IL is that it is mostly customary or treaty driven. The law on blockade that I described as traditional is mostly customary. That said, in this case Isreal and Egypt are at war with Hamas. they have declared a blockade of Gaza. The Israeli Navy is enforcing the blockade. Other states and their merchant ships may choose to ignore the blockade or attempt to run it. If enough are successful, then the international community refuses to recognize the blockade and it is "illegal." If, however, most blockade runners are stopped (taken as prizes, taken into port, sunk) then the blockade is upheld.
    As to your question about hauling Israel into court. As a state and member of the UN, the only court with jurisdiction, is the International court of Justice (ICJ) but only if Israel agrees that it has jurisdiction - which she doesn't. As for the International Criminal Court (ICC) neither Israel nor the US are parties to the treaty so it has no jurisdiction even if it claims such.
    The only international organ that could lawfully break the blockade is the UN Security Council which could pass a resolution (if one of the P5 didn't veto it and 9 members voted for it) that would authorize the navies of any state to break the blockade. Otherwise, naval efforts to break the blockade are acts of war against the blockaders (Israel and Egypt). That is one reason why the Turkish navy did not escort the flotilla.

    Cheers

    JohnT

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    The NYT's Lede column yesterday has a piece which (quite apart from the link to a rather well-done pro-raid satirical video), contains some rather important pieces of the puzzle that haven't been well reported yet in the media frenzy around the raid:

    The commander interviewed by The Post said that the ship’s passengers did not react as he would have expected to the initial barrage of warning shots and stun grenades. His interpretation of this was that the group was laying an ambush:

    T. said he realized the group they were facing was well-trained and likely ex-military after the commandos threw a number of stun grenades and fired warning shots before rappelling down onto the deck. “They didn’t even flinch,” he said. “Regular people would move.”

    Then again, it also seems plausible that the passengers on the ship, hearing and seeing shots being fired and grenades being thrown from the dark sky above, might not have understood that they were not being attacked with deadly force before the commandos landed on the ship’s deck. If the early part of the Israeli raid was an effort to stun the passengers, it might have had the opposite effect, of making them enraged at a perceived attack.

    This possible misunderstanding about what sort of weaponry the Israelis were using might also have been bolstered by the paintball guns the commandos carried with them, which, in the chaotic, pre-dawn encounter could easily have been mistaken for real rifles.

    Earlier in the week, a military expert who looked at the available footage of the raid told Britain’s Channel 4 News that even shots fired by a paint-pellet gun would stun and confuse people struck by them. In hindsight, perhaps confusing a large group of activists already enraged at Israel’s military blockade of Gaza by firing shots of any kind in their direction in the dark was a recipe for disaster.
    The Turkish autopsies apparent show that while most of the dead received several hits from 9mm, one was hit in the head and killed by what may have been a crowd dispersal weapon of some sort:

    He said all but one of the bullets retrieved from the bodies came from 9mm rounds. Of the other round, Ince said: "It was the first time we have seen this kind of material used in firearms. It was just a container including many types of pellets usually used in shotguns. It penetrated the head region in the temple and we found it intact in the brain."
    There are several "less lethal" ammunitions in regular IDF use that could conceivably fit that description (RRNM, Roma GG, MA/RA 88), especially if it were fired at close range and/or the submunitions failed to deploy as intended.

    All just speculation, of course--it is also possible that the weapon was fired in the chaos of the melee on the deck of the ship. However, it would indeed be a tragic irony if one of the "less lethal" initial warning shots from the air not only proved fatal, but also exacerbated the subsequent violence.
    They mostly come at night. Mostly.


  7. #47
    Council Member tequila's Avatar
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    Default

    I also read an article in Zaman where several Turkish activists claimed that Israel was firing on them with live ammunition before the commandos dropped on board. In the confusion and excitement I can easily see how being fired on with less-lethal rounds from the air could be mistaken for an actual attack.

    'Israelis opened fire before boarding Gaza flotilla'

    The Israeli commander seems to verify that the Israelis were firing warning shots and stun grenades before they came aboard.

  8. #48
    Council Member Fuchs's Avatar
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    Quote Originally Posted by John T. Fishel View Post
    The traditional IL on naval blockades is:
    1. It is an act of war.
    2. It is declared by one of the warring parties.
    3. It is lawful as long as it can be enforced.
    4. It can be enforced by whatever means are ncessary - traditionally, that was seizing a blockade runner, imprisoning its crew, and seizing its its cargo, or blowing it out of the water.
    (1) and (2) cannot be true any more because the UN authorized/declared naval blockades that were no act of war, such as against Yugoslavia (arms only IIRC).
    (3) makes no sense whatsoever, do you have a source to back it up?
    (4) Maybe it can, but it's not allowed to use whatever means are necessary. See unrestricted sub warfare and certain forms of excessive violence against civilians.

  9. #49
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    Default Legality or wisdom ?

    The basic legality of the Gaza blockade from Israel's standpoint is argued (pretty well in my view) by Eric Posner (University of Chicago Law School), The Gaza Blockade and International Law - Israel's position is reasonable and backed by precedent (4 Jun 2010). As JTF correctly points out, no international court is likely to hear the case (and if either the ICJ or ICC got a hold on the case, we might see a decision in a decade or so). The UNSC will also not render any sort of consensus decision.

    But, the basic wisdom of Israel's actions can also be questioned (again pretty well in my view) by Nicholas D. Kristof (NYT columnist), Saving Israel From Itself (2 Jun 2010), saying as his lede:

    When reports first circulated on Twitter of a deadly attack by Israeli commandos on the Gaza flotilla, I didn’t forward them because they seemed implausible. I thought: Israel wouldn’t be so obtuse as to use lethal force on self-described peace activists in international waters with scores of reporters watching.
    (emphasis by Kristof). That brings to mind Bob Jones' reference in another thread to his friend who found that the use of violence against non-violent insurgencies has been overwhelmingly unsuccessful - at least in democratic and quasi-democratic societies.

    As to the general law of blockades, we do have the San Remo Manual, correctly cited by Rex as the ICRC standard. However, that manual is heavily based on the 1977 Additional Protocols to the 1949 GCs, and on "customary international humanitarian law" which comes from the same milieu. Now as to various parties: Israel and Turkey have not ratified the APs; whereas Egypt and Ireland have. The legal position of Palestine is obscure.

    Generally, see Wiki - Blockade and two 1911 Enc. Brit. articles, Blockade and Pacific Blockade - which show that many points are available to argue the pros and cons of any blockade.

    I'd suggest that another way a blockade could be legally broken is if there happens to be a 600 lb gorilla, extremely committed to Freedom of the Seas, Rights of Innocent Passage and an Open Door Policy, which simply says that our flagged vessels will be escorted through by our warships - and we will defend ourselves. If the smaller primate backs off, the blockade has ceased to be effective. That is not my policy recommendation in this case.

    Regards

    Mike
    Last edited by jmm99; 06-05-2010 at 06:41 PM.

  10. #50
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    Default Gaza embargo, by the numbers

    For those interesting in detailed data on the Gaza embargo, the best source are the bimonthly reports produced by PalTrade and the World Bank, which you'll find here, along with a great deal of other economic data.

    The most recent monitoring report on the World Bank website at the moment shows that, in January 2010, some 1,933 trucks entered Gaza to supply the 1.6 million people there. This compares to an average of 10,400 per month prior to the current, draconian restrictions being put in place in early 2007.

    In short, around 8,400 trucks less than the normal civilian/commercial needs of Gaza are currently entering each month. Some of this material is simply not getting in--that represents shortages, and decreased economic activity. Some of this is coming in via the tunnels, smuggled from Egypt.

    Let's say, for the sake of argument, that half of the shortfall is smuggled. This would be equivalent of 4,200 trucks of material entering Gaza (via the tunnels) with no Israeli inspection each month--compared to the old pre-embargo system where almost everything entering Gaza went through an Israeli crossing point, and hence was inspected. As I suggested earlier, the perverse effect of the blockade, therefore, has been to spur the growth of a massive smuggling industry (scores or hundreds of tunnels, thousands of workers) which has given Israel less ability to interdict contraband.

    (On a side note, I would argue that Israel's pre-blockade restrictions were too draconian and wrong too, but that's another issue.)
    They mostly come at night. Mostly.


  11. #51
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    Default Somebody set a trap and the IDF

    fast roped right into it. Clearly, if Wilf thinks this was stupid it almost certainly was.

    As to your 600 pound gorrilla point, Mike, "too right you are." But that is unlikely either for far too many reasons to bother with here.

    And, in the "for what it's worth department" I've referred my AMU students to this thread as it is the most reasonable discussion of what actually happened or should have happened going.

    cheers

    JohnT

  12. #52
    Council Member slapout9's Avatar
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    Quote Originally Posted by Rex Brynen View Post
    The NYT's Lede column yesterday has a piece which (quite apart from the link to a rather well-done pro-raid satirical video), contains some rather important pieces of the puzzle that haven't been well reported yet in the media frenzy around the raid:



    The Turkish autopsies apparent show that while most of the dead received several hits from 9mm, one was hit in the head and killed by what may have been a crowd dispersal weapon of some sort:



    There are several "less lethal" ammunitions in regular IDF use that could conceivably fit that description (RRNM, Roma GG, MA/RA 88), especially if it were fired at close range and/or the submunitions failed to deploy as intended.

    All just speculation, of course--it is also possible that the weapon was fired in the chaos of the melee on the deck of the ship. However, it would indeed be a tragic irony if one of the "less lethal" initial warning shots from the air not only proved fatal, but also exacerbated the subsequent violence.
    Anybody that knows anything about "Flash bangs" will be familiar with (or should be) the startle response.....freezing in place is NOT uncommon at all.

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    Quote Originally Posted by John T. Fishel View Post
    JMM should, perhaps, weigh in here.

    My understanding of IL is that it is mostly customary or treaty driven. The law on blockade that I described as traditional is mostly customary. That said, in this case Isreal and Egypt are at war with Hamas. they have declared a blockade of Gaza. The Israeli Navy is enforcing the blockade. Other states and their merchant ships may choose to ignore the blockade or attempt to run it. If enough are successful, then the international community refuses to recognize the blockade and it is "illegal." If, however, most blockade runners are stopped (taken as prizes, taken into port, sunk) then the blockade is upheld.
    As to your question about hauling Israel into court. As a state and member of the UN, the only court with jurisdiction, is the International court of Justice (ICJ) but only if Israel agrees that it has jurisdiction - which she doesn't. As for the International Criminal Court (ICC) neither Israel nor the US are parties to the treaty so it has no jurisdiction even if it claims such.
    The only international organ that could lawfully break the blockade is the UN Security Council which could pass a resolution (if one of the P5 didn't veto it and 9 members voted for it) that would authorize the navies of any state to break the blockade. Otherwise, naval efforts to break the blockade are acts of war against the blockaders (Israel and Egypt). That is one reason why the Turkish navy did not escort the flotilla.

    Cheers

    JohnT

    Just a quick note of thanks. You put it very well.

  14. #54
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    Default Some basic legal FAQs ...

    currently running on our SWJ Blog Feed; from Reuters, Q&A: Is Israel's naval blockade of Gaza legal?:

    (Reuters) - Israel has said it will continue a naval blockade of the Gaza Strip despite growing global pressure to lift the siege after a navy raid on a Turkish ferry carrying aid killed nine activists this week.

    What is the legality of the blockade and did Israel's intervention breach international law? Below are some questions and answers on the issue:

    CAN ISRAEL IMPOSE A NAVAL BLOCKADE ON GAZA?

    Yes it can, according to the law of blockade which was derived from customary international law and codified in the 1909 Declaration of London. It was updated in 1994 in a legally recognized document called the "San Remo Manual on International Law Applicable to Armed Conflicts at Sea."

    Under some of the key rules, a blockade must be declared and notified to all belligerents and neutral states, access to neutral ports cannot be blocked, and an area can only be blockaded which is under enemy control.

    "On the basis that Hamas is the ruling entity of Gaza and Israel is in the midst of an armed struggle against that ruling entity, the blockade is legal," said Philip Roche, partner in the shipping disputes and risk management team with law firm Norton Rose. .... (more in article)
    What is legal is not necessarily wise.

    Regards

    Mike

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    Must both parties be Nation States?
    What is Gaza?
    It is not a State, it is a bit of territory occupied by Israel and not yet fully subdued.
    Liverpool gets a bit unruly sometimes (red Ken 'n all) can the Royal Navy blockade it?
    And then there are the Scots you never can trust the SNP not to go for a rewrite on the Act of Union.

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    Default The Helsinki Principles

    I'd be remiss to my maternal Finnish ancestry if I omitted reference to the International Law Association's (1998) Helsinki Principles on the Law of Maritime Neutrality.

    Some of the more relevant principles (most all of the Helsinki Principles bear on this case to some extent):

    5.1.2(3) Merchant ships flying the flag of a neutral State may be attacked if they are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search, capture or diversion.

    5.1.2(4) Merchant ships flying the flag of a neutral State may be attacked if they:

    (a) engage in belligerent acts on behalf of the enemy;

    (b) act as auxiliaries to the enemy’s armed forces;

    (c) are incorporated into or assist the enemy’s intelligence system;

    (d) sail under convoy of enemy warships or military aircraft; or

    (e) otherwise make an effective contribution to the enemy’s military action, e.g., by carrying military materials, and

    it is not feasible for the attacking forces to first place passengers and crew in a place of safety. Unless circumstances do not permit, they are to be given a warning, so that they can re-route, off-load, or take other precautions.

    5.2.1 Visit and search. As an exception to Principle 5.1.2. paragraph 1 and in accordance with Principle 1.3 (2nd sentence), belligerent warships have a right to visit and search vis-à-vis neutral commercial ships in order to ascertain the character and destination of their cargo. If a ship tries to evade this control or offers resistance, measures of coercion necessary to exercise this right are permissible. This includes the right to divert a ship where visit and search at the place where the ship is encountered are not practical.

    5.2.10 Blockade. Blockade, i.e. the interdiction of all or certain maritime traffic coming from or going to a port or coast of a belligerent, is a legitimate method of naval warfare. In order to be valid, the blockade must be declared, notified to belligerent and neutral States, effective and applied impartially to ships of all States. A blockade may not bar access to neutral ports or coasts. Neutral vessels believed on reasonable and probable grounds to be breaching a blockade may be stopped and captured. If they, after prior warning, clearly resist capture, they may be attacked.

    5.3 Relief. A blockade may not be used to prevent the passage of relief consignments which has to be free according to the applicable rules of international humanitarian law, in particular those contained in Articles 23, 59 and 61 of the Fourth Geneva Convention or Articles 69 and 70 of Protocol I Additional to the Geneva Conventions.
    The Helsinki Principles (as also the San Remo Manual) are based in part on the 1977 Additional Protocols, not ratified by either Israel or Turnkey.

    Regards

    Mike

  17. #57
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    Default State or Non-State Actor

    Israel considers itself engaged in an armed conflict with Hamas, which occupies Gaza.

    The Int Law status of "Palestine" itself is obscure.

    See these Wikis for an overview:

    List of states with limited recognition

    Foreign relations of the Palestinian National Authority

    Hamas

    The Gaza-Hamas situation with Israel is similar to the AQ-Taliban situation with the US (where Common Article 3 of the 1949 GCs is the controlling law). But, how another nation will view it depends on its own ratifications or not of the various post-1949 conventions, and its own policy on recognition of nation-states and diplomatic recognition of governments.

    Regards

    Mike
    Last edited by jmm99; 06-07-2010 at 01:29 AM. Reason: add link

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    Default

    It seems to me that there is likely a difference between the legality of 1) the naval blockade, and 2) the legality of the blockade/embargo as a whole (which arguably comprises, in its present form, collective punishment of the civilian population of Gaza, and in its sweeping extent is disproportionate to any military advantage gained).

    Some of this hinges on whether the Gaza is still considered "occupied territory." Israeli ground forces and settlers withdrew in 2005, but the IDF has full control of Gaza's air and sea space, most of its borders, and can enter the much of the area at will. The US, EU, UN, and ICRC continue to describe Gaza as "occupied territory" (which has clear legal implications under the 4th Geneva Convention). Israel argues that Gaza is a hostile, not occupied, territory.

    Final note: Gaza has no seaport. It has a small fishing harbour/breakwater, and that's it (picture below, taken on my last visit).
    They mostly come at night. Mostly.


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    Default US Law on Naval Operations

    Commander's Handbook on the Law of Naval Operations (1995), and its Annotated Supplement (1997), covered the US view toward Neutrality in general (chap 7) and Blockades in particular (Section 7.7).

    The Commander's Handbook was updated in July 2007 (same chap and section refs); and that update can be found at the Naval War College (MCWP 5-12.1 in Marine indexing). The 1997 Annotated Supplement has not been updated.

    ---------------------------
    Perhaps, Rex, there is something to this:

    from Rex
    It seems to me that there is likely a difference between the legality of 1) the naval blockade, and 2) the legality of the blockade/embargo as a whole (which arguably comprises, in its present form, collective punishment of the civilian population of Gaza, and in its sweeping extent is disproportionate to any military advantage gained).
    although I haven't thought enough about Gaza issues to pontificate.

    Most all blockades, embargoes and sanctions are de facto "collective punishments" of the civilian populations at which they are aimed - regardless of their status de jure. They also do the most damage to the "least of us" - and the "Powers That Be" rarely suffer. Thus, I find these so called "less than war operations" to be often less humanitarian than outright military incursions.

    As to "occupied" or not, our FM 27-10, The Law of Land Warfare, has these statements re: occupation:

    351. Military Occupation

    Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. (HR, art. 42.)
    and

    355. Occupation as Question of Fact

    Military occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.
    and (emphasis added by me)

    360. Maintenance of Occupation

    Occupation, to be effective, must be maintained. In case the occupant evacuates the district or is driven out by the enemy, the occupation ceases. It does not cease, however, if the occupant, after establishing its authority, moves forward against the enemy, leaving a smaller force to administer the affairs of the district. Nor does the existence of a rebellion or the activity of guerrilla or para-military units of itself cause the occupation to cease, provided the occupant could at any time it desired assume physical control of any part of the territory. If, however, the power of the occupant is effectively displaced for any length of time, its position towards the inhabitants is the same as before occupation.

    361. Termination of Occupation

    The law of belligerent occupation generally ceases to be applicable under the conditions set forth in paragraphs 353 [JMM Note: 353 is annexation of the occupied territory] and 360. However, with respect to the provisions of GC alone, Article 6 of that Convention provides:

    In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention; 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.

    Protected persons whose release, repatriation or re-establishment may take place after such dates shall meanwhile continue to benefit by the present Convention. (GC, art. 6, 3d and 4th pars.)
    Of course, reasonable persons can argue about questions of fact until the cows come home (or the horses come back to the beach). My own IMO is that Israel has a good argument for no occupation by Israel (and for occupation by Hamas) following the lines of FM 27-10.

    Cheers

    Mike
    Last edited by jmm99; 06-07-2010 at 04:11 AM. Reason: add link

  20. #60
    Council Member davidbfpo's Avatar
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    Default Insight on the "boat people"

    From an Israeli source, with details on the activists from the IHH aboard the ship, photos of weapons and more. Yes some information gained from those detained and released.

    Link: http://www.terrorism-info.org.il/mal...hamas_e110.htm
    davidbfpo

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