On April 3, 2009, the New York Times ran an anti-Israel op-ed by University of California Hastings College of Law professor George Bisharat titled “Israel on Trial”. The piece, false where it is not misleading, is a disgrace. It offers a sounding board for all those who believe that only Muslims have a right to self-determination, that Gaza remains “occupied” even though Israel disengaged in 2005, and that Israel – a sovereign and legitimate nation – doesn’t have the right to defend itself against attack.

Bisharat is a Palestinian-American law professor whose professional mission is the indictment of Israel for war crimes, no matter how incredulous the argument. He begins his piece with the statement: “Chilling testimony by Israeli soldiers substantiates charges that Israel’s Gaza Strip assault entailed grave violations of international law.” Actually, it would be more accurate to describe this “chilling testimony” as rumors circulated by an anti-Israel activist. The fact that it was subsequently exposed as unsubstantiated like the Mohammed al-Dura defamation a decade ago that led to the deaths of hundreds of Israelis in the Second Intifada, merited scant attention by Bisharat or the Times for that matter.

Bisharat argues that while Palestinians firing missiles indiscriminately at Israeli towns and cities constituted a war crime, Israel’s response to such aggression constituted a war crime as well. It is the moral equivalency of the two – equating the actions of the aggressor with the response of the victim – that is offensive, but the fact that the New York Times chose to give it op-ed status is repugnant.

Bisharat lists six “offenses” committed by Israel in the Gaza War, each of which is deceptive:

1. “Violating its duty to protect the civilian population of the Gaza Strip. Despite Israel’s 2005 “disengagement” from Gaza, the territory remains occupied. Israel unleashed military firepower against a people it is legally bound to protect.”

As Dore Gold wrote in an analysis after the Gaza disengagement, what creates an “occupation” is the existence of a military government which “exercises the functions of government” making Bisharat’s statement nonsense. Israel uprooted army bases, entire towns, synagogues, the livelihoods of thousands of Israelis, and even forced them to remove their dead from these communities and rebury them in Israeli cemeteries. If no Israeli military government is exercising its authority or any of “the functions of government” in the Gaza Strip – and none is – then there can be no “occupation” and Bisharat’s statement cannot make it so.

More to the point, an entire industry of successful Israeli greenhouses was subsequently purchased for the Palestinians in Gaza after the disengagement – much of it by wealthy, idealistic American Jews. In return, the Palestinians elected an Islamist government that not only destroyed this lucrative Palestinian industry, but undermined the fabric of Palestinian society by firing thousands of missiles at Israel’s civilian population rather than tending to the more “mundane” aspects of statehood like paving roads, collecting taxes, creating jobs, providing healthcare and other social services, arranging garbage collection and educating their children in matters other than martyrdom and the glories of Paradise. If any entity has failed to “protect the civilian population of the Gaza Strip,” it is most assuredly Hamas.

2. “Imposing collective punishment in the form of a blockade, in violation of Article 33 of the Fourth Geneva Convention. In June 2007, after Hamas took power in the Gaza Strip, Israel imposed suffocating restrictions on trade and movement.”

Article 33 provides that no persons under foreign occupation are allowed to be punished for an offense they did not personally commit. In making collective punishment a war crime, the drafters of the Geneva Conventions had in mind the reprisal killings of World Wars I and II where the Germans executed Belgian villagers in mass retribution for resistance activity and carried out collective punishments against entire towns to suppress resistance. Aside from the fact that Israel was not an “occupying force” or that the Palestinians were not “protected persons” within the meaning of Article 33, no such actions took place by the Israelis against the Palestinians during the recent Gaza War.

If however, Bisharat was speaking of the blockade Israel imposed on Gaza to prevent Hamas from smuggling further weapons into the territory or rebuilding its terrorist infrastructures, it should be noted that Israel’s actions are no different from the American embargoes against Iran and Korea yet no accusation has ever been made that the US is committing a war crime by imposing “collective punishment” on the Iranians or the Koreans. Only Israel seems to merit that “honor”.

3. “Deliberately attacking civilian targets”.

According to international law, high-value targets protected by civilian human shields can still be attacked so long as every effort is made to minimize civilian deaths. The unfortunate truth is that the Geneva Conventions have become more of a sword used by terrorists to kill civilians, than a shield to protect civilians from terrorists. As Noah Pollak writes in Commentary: “The laws of war permit attacking a civilian object (ie: a school, home, mosque or building) only when it is making an effective contribution to military action and a definite military advantage is gained by its destruction” and Article 51 of the 1977 amendment to the 1949 Geneva Convention extends this provision by providing that: “The presence of the civilian population or individual civilians shall not be used to render certain areas (ie: civilian objects) immune from military operations, in particular in attempts to shield these military objects from attacks or to shield, favor or impede military operations.”

Hamas does not, nor has it ever acted in accordance with the Geneva Conventions and, as a matter of military strategy, consciously targets civilians in Israel and uses its own civilian population as human shields to protect its military assets. Indeed, its goal is to maximize the number of deaths and injuries among vulnerable civilians for propaganda purposes. Its foot soldiers do not wear military uniforms, deliberately hide amongst civilian populations, and use ambulances, mosques, schools, private homes, playgrounds, the Islamic University of Gaza, and UN buildings not as “civilian objects” but as military installations (not to mention using women pretending to be sick or pregnant, and even children as carriers of lethal explosives) knowing that none of their leaders will ever be charged with war crimes. That right, it seems, is reserved only for Israel.

4. “Willfully killing civilians without military justification.”

Bisharat’s condemnation of Israel as “willingly killing civilians” in not only factually incorrect but an abomination. In Gaza, the Israel Defense Forces dropped leaflets, used radio and TV stations, sent text messages and even amassed the complete list of cellular telephone numbers of Gaza Palestinians which, through an automated telephone response system in Arabic, warned residents to evacuate targeted buildings prior to Israeli air strikes. What other army in the world has ever conducted war in this fashion?

5. “Deliberately employing disproportionate force.”

In Gaza, Israel’s actions were justified under international law. Article 51 of the UN Charter reserves to every nation the right to engage in self-defense against armed attacks. The only restriction is that their actions must be “proportionate” – an ambiguous term at best. Unfortunately, no way has yet been found to conduct even the most justified war without causing harm to innocent civilians and Bisharat knows this. Was Cold Harbor proportionate to Fort Sumter? If Hamas can fire missiles into Ashkelon, would a proportionate response be for Israel to fire missiles into Gaza City? Was the war in the Pacific a proportionate response to the attack on Pearl Harbor? During World War II, British bombers firebombed German cities in response to Nazi bombings against civilian targets in British cities. While some 60,000 civilians in British cities were killed by Nazi bombers, the Allied aerial counter-offensive to eliminate that threat cost 600,000 German lives – a ratio of 10 to 1. Was that a “proportionate” response? Australian soldiers fought in Vietnam, East Timor, Iraq and Afghanistan and sometimes caused more casualties among civilians than among the enemy as the US has done in Iraq. Yet, despite these actions, no one would think to call the Australians or the Americans murderers. Thus, to condemn the Israelis as “deliberately employing disproportionate force” in response to over 8,000 Hamas missile attacks against its civilian population is the height of hypocrisy.

6. “Illegal use of weapons, including white phosphorus.”

Although white phosphorous in artillery shells, bombs and missiles can cause serious burns and spark fires on the ground, militaries are permitted under the laws of warfare to use it to create smoke screens to hide troop movements as well as to illuminate battlefields at night, but you wouldn’t think so after reading Bisharat’s editorial suggesting that Israel used it as a weapon.

While white phosphorous can and has been used as a weapon in the past, such was not the case in Gaza. It was, however, the case in Fallujah in November 2004 when US forces used white phosphorous as a weapon and not just for illumination or camouflage. Nor was the US alone in such use. In World War II, white phosphorus mortar bombs, shells, rockets and grenades were used extensively by American, British, and even Japanese forces, and later, it was used in Korea, Vietnam and Chechnya in both smoke-generating and anti-personnel roles, although Bisharat fails to mention this in his editorial.

Rather, the impression is created that Israel’s use of white phosphorous was “illegal” thereby implying that Israel committed a war crime. What he also neglected to mention was the January 14th, 2009 Ha’aretz article noting that Hamas had fired a white phosphorus mortar shell into southern Israel, but since Israeli civilians were the intended victims of the attack, it was not worth mentioning.

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There was once a time when the New York Times would never publish biased editorials such as this. Those days are clearly gone. Rather, it seems that the narrative has become more important than the facts, especially when that narrative aims at the demonization of Israel.