George Bisharat’s Kangaroo Court

George Bisharat, a professor at University of California Hastings College of Law, has an unfortunate habit of leveling blatantly false charges against Israel in his op-eds, which just as unfortunately sometimes get published in major newspapers such as the Los Angeles Times and now the New York Times.

The point of Bisharat’s latest tirade (April 4) is obvious enough from the title, Israel on Trial. And the details with Bisharat are always the same – Israel allegedly commits war crimes against Palestinians, in this case in Gaza, and needs to be held accountable.

Bisharat’s underlying theme is also habitual: no matter what attacks the Palestinians launch against Israel, no Israeli response is legitimate or legal. To Bisharat it doesn’t matter whether it’s passive measures like a fence or checkpoints to keep out suicide bombers, or border closings, or more active measures like targeted killings of individual terrorists, or larger military incursions against terrorist bases, or the bombing of arms warehouses illegally hidden in, for example, mosques. All are disallowed. The Palestinians can attack at will, and any Israeli attempt to stop them is by definition a war crime.

Even ignoring the tendentious nature of Bisharat’s arguments, it’s still curious that the Times published his op-ed, since Rashid Khalidi’s January op-ed in the Times covered much the same ground, and with many of the same errors and falsehoods.

Bisharat begins his indictment of Israel with the allegation that:

[c]hilling testimony by Israeli soldiers substantiates charges that Israel’s Gaza Strip assault entailed grave violations of international law.

While in the same paragraph he admits that Israel “disputes some of the soldiers’ accounts,” Bisharat clearly discounts this, since he claims that the “testimony … substantiates” the charges. The fact is, however, that the soldiers who were quoted as leveling the charges have since admitted that they didn’t actually see the events they described, which were based entirely on hearsay and rumors. In other words, there wasn’t any “testimony.” But eyewitnesses present at the time and place of the alleged “grave violations” have since offered testimony that the events never occured.

So contrary to Bisharat, the actual testimony offered by Israeli soldiers disproves the premise of his op-ed.

The rest of Bisharat claims are just as unreliable. He charges, for example, that Israel:

[violated] 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 a law professor, Bisharat should know better. Since Israel has not carried out any of the functions of government in Gaza since 2005, it is clear under international law that Israel does not occupy Gaza. As Amb. Dore Gold explained:

The foremost document in defining the existence of an occupation has been the 1949 Fourth Geneva Convention “Relative to the Protection of Civilian Persons in Time of War.” Article 6 of the Fourth Geneva Convention explicitly states that “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….” If no Israeli military government is exercising its authority or any of “the functions of government” in the Gaza Strip, then there is no occupation. (Legal Acrobatics: The Palestinian Claim that Gaza is Still “Occupied” Even After Israel Withdraws, Amb. Dore Gold, JCPA, 26 August 2005)

But what if despite this we take seriously Bisharat’s claim that Israel is the occupying power and is therefore legally the sovereign authority in Gaza? In that case Hamas and similar groups are illegal militias, and international law would require Israel to restore order in Gaza, and specifically to disarm and remove from power all such groups. The Hague Regulations, recognized as customary international law, make this quite clear and explicit:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. (Article 43, Laws and Customs of War on Land (Hague IV); October 18, 1907)

Under this article Israel’s incursion into Gaza would therefore be completely legal as a legitimate exercise of Israel’s responsibility for restoring and ensuring public order and safety in Gaza. This would include removing Hamas, which by Bisharat’s logic is an illegitimate authority in Gaza. Under Hague the prevailing laws in Gaza (including those dating back to the British Mandate) need to be enforced. And under these laws Hamas certainly has no right to stockpile weapons or attack neighboring states, and Israel would therefore be fully justified in taking measures to disarm Hamas and prevent it from terrorizing the populations of both Israel and Gaza.

That is, Bisharat’s charge that Gaza is still occupied only further undermines his claims, since it actually offers the best possible argument for forceful Israeli intervention to put down what amounts to a violent and illegal insurrection by Hamas.

Contrary to Bisharat, therefore, it is Israel’s failure to remove Hamas that should be viewed as a violation of international law.

Bisharat also charges that Israel imposed “collective punishment” on Gaza in the form of a blockade:

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. The blockade — an act of war in customary international law — has helped plunge families into poverty, children into malnutrition, and patients denied access to medical treatment into their graves. People in Gaza thus faced Israel’s winter onslaught in particularly weakened conditions.< /SPAN>

Of course, Bisharat’s argument is fatuous: the border crossings with Israel have been open, except in response to Palestinian attacks, sometimes on the border crossings themselves. For example, just one year ago, on April 9, 2008, Palestinian gunmen infiltrated into Israel and launched a coordinated assault on the Nahal Oz fuel terminal, murdering two workers and riddling their bodies with bullets. The terminal adjoins the border with Gaza, and it supplies most of the fuel and gas used there. Naturally, after this attack the terminal was closed and fuel and gas deliveries into Gaza were disrupted.

And this was just one of many Palestinian attacks against the crossing points since 2000, in which at least 34 Israelis have been killed. There was also a major attack in which Palestinian suicide bombers slipped into Israel by hiding behind a false wall in a shipping container that passed through the Karni Crossing. The bombers killed 10 Israelis after the container reached Ashdod Port. Naturally this attack, using shipping containers, caused tremendous disruptions in goods entering and leaving Gaza.

But Bisharat condemns only the disruptions in Gaza’s commerce, and omits any mention of Palestinian attacks that caused the disruptions and that also killed numerous Israelis.

Even after a ceasefire in June of 2008, in which opening the crossing points was a key Hamas demand, the organization immediately resumed rocket attacks against Israel, as the Associated Press reported in a story headlined Palestinian rockets threaten truce. According to the AP:

Palestinian militants fired three homemade rockets into southern Israel yesterday, threatening to unravel a cease-fire days after it began, and Israel responded by closing vital border crossings into Gaza.

Despite what it called a “gross violation” of the truce, Israel refrained from military action and said it would send an envoy soon to Egypt to work on the next stage of a broader cease-fire agreement: a prisoner swap that would bring home an Israeli soldier held by Hamas for more than two years.

In light of these attacks on the crossing points, and the thousands of other attacks from Gaza against Israel, it is simply ludicrous for Bisharat to charge Israel with “imposing collective punishment.”

Bisharat is also quite slippery when it comes to quoting people. For example, he charged that Israel was “deliberately attacking civilian targets,” and to support this quotes an Israeli general as saying:

We are hitting not only terrorists and launchers, but also the whole Hamas government and all its wings.

But Bisharat deceptively omitted the rest of General Dan Harel’s statement:

We are hitting government buildings, production factories, security wings and more.

Clearly, General Harel was describing what are clearly legitimate military targets: government buildings in which plans are made to fire terrorist rockets into Israel, factories in which the rockets and other weapons are produced, and the “security wings” which house the Hamas rocket brigades as well as Hamas gunmen.

Bisharat was just as deceptive with a statement from another senior Israeli general, whom he quotes as saying, in referrence to “possible future conflicts with neighbors,” that:

We will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction.

First of all, the General was referring not to “conflicts with neighbors,” but to a specific conflict and situation: the fortified villages, and bunker systems under these villages, that Hezbollah has built in south Lebanon, which include missile launchers built into homes.

Regarding those militarized villages, and the attacks against Israel launched from them by Hezbollah in 2006, General Eisenkot said that if Hezbollah tries this strategy again:

We will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction. From our perspective, these are military bases. (emphasis added)

In other words, yet another deceptive omission by Bisharat: the Israeli general was referring not to attacking civilian towns, but to responding to attacks from towns taken over by Hezbollah and turned into disguised military bases.

Not surprisingly, Bisharat was also deceptive about the number of Palestinian civilians killed during the fighting in Gaza. He charges that:

[o]f 1,434 Palestinians killed in the Gaza invasion, 960 were civilians, including 121 women and 288 children …

and cites the “United Nations special rapporteur,” Richard Falk. But what Bisharat doesn’t explain is how Falk, or the UN, could independently arrive at these numbers, and what he doesn’t mention is Richard Falk’s virulently anti-Israel history. Even the State Department has referred to Falk as “biased” and his views as “anything but fair.”

In addition, Bisharat also keeps from his readers the fact that an exhaustive Israeli investigation found that at a minimum 61% of those killed were terrorists:

1,166 Palestinians were killed. Most of them (709) belonged to terrorist organizations , i.e., Hamas, the Palestinian Islamic Jihad, and others. According to the findings, 295 non-combatant civilians were killed , among them women and children. The identity and degree of involvement of the remaining 162 Palestinians (all of them male) are unclear

After his litany of distortions and outright lies, it is no surprise that Bisharat concludes with a call for the “Israeli political and military personnel who planned, ordered or executed these possible offenses … [to] face criminal prosecution.”

Nor is it a surprise that, despite his concession in the first paragraph of his op-ed that “Hamas’s indiscriminate rocket attacks on Israeli civilians also constituted war crimes,” Bisharat then drops the subject of Hamas’s culpability entirely. No calls for an international investigation, no calls for Hamas leaders to be called to account for their war crimes, no calls for “criminal prosecution” of both Hamas leaders and those they ordered to build and fire rockets into Israel.

Once again, this is because for Bisharat the Palestinians can attack at will, and any Israeli attempt to stop them, by whatever means, is by definition a war crime. One can only wonder why such views have found such a welcome home on the New York Times op-ed page.

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