Commentary Magazine


He Forgot about the Poisoned Wells

The New York Times publishes an op-ed today by George Bisharat, the U.S. academic whose professional mission is the indictment of Israel for war crimes, no matter how implausible. His piece starts with a lie that the Times itself had an important hand in promoting:

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

Except that there never was any “chilling testimony” — there were rumors circulated by an anti-IDF activist, which were breathlessly republished by Haaretz and its American counterpart, the Times. His opening claim does, however, set an appropriately mendacious tone for the rest of the piece. Bisharat says that Israel committed six separate violations of international law during Operation Cast Lead, and the first one he cites lays the foundation for the five that follow:

[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.

Bishara doesn’t explain how it is conceivable under international law that Israel is still occupying Gaza, but consistency has never been the hobgoblin of international law fetishists. He cites the Fourth Geneva Convention elsewhere in his piece, so he must be familiar with its definition of occupation: “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.” 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.” This is a confirmation of the older 1907 Hague Regulations Respecting the Laws and Customs of War on Land, which state, “Territory is considered occupied when it is actually placed under the authority of the hostile army.” The Hague Regulations also stipulate: “The occupation extends only to the territory where such authority has been established and can be exercised.” What follows is that 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.

Bisharat continues by charging that Israel is violating Article 33 of the Geneva Conventions by imposing “collective punishment” on Gaza. This claim depends on every resident of Gaza being considered a “protected person” under the Geneva Conventions, which they are not, because Israel is not occupying Gaza. The blockade may be a bad policy, an ineffective policy, or an immoral policy — but it is not a violation of the Geneva Conventions. Side question: Why do people like Bisharat never condemn Egypt for its involvement in the blockade?

Bishara continues his indictment by saying that Israel was

Deliberately attacking civilian targets. The laws of war permit attacking a civilian object only when it is making an effective contribution to military action and a definite military advantage is gained by its destruction.

The level of dishonesty on display here is pretty amazing. Throughout Cast Lead, Hamas used all of the “civilian objects” cited by Bisharat as military installations. Rockets were fired from schools, mosques were used as weapons depots, and the Islamic University of Gaza was used as an explosives production facility and rocket storehouse. Why does Hamas use conspicuously civilian infrastructure for terrorist purposes? One reason is to make the job of Hamas’ western apologists and useful idiots so much easier.

And because, in Bishawat’s telling, Israel intentionally destroyed civilian targets, Israel also became guilty of “Willfully killing civilians without military justification.”

Two other charges round out the indictment: that Israel “deliberately employed disproportional force” — a discredited and misrepresented charge — and that the IDF illegally used white phosphorous on the battlefield. Catch Bisharat’s evasion:

Israel was finally forced to admit, after initial denials, that it employed white phosphorous in the Gaza Strip, though Israel defended its use as legal. White phosphorous may be legally used as an obscurant, not as a weapon, as it burns deeply and is extremely difficult to extinguish.

So, did Israel use white phosphorous illegally as a weapon or legally as an obscurant? Bisharat never says, although he categorizes the issue in his list of Israeli war crimes, letting the implication speak for itself. But Israel only used white phosphorous as an obscurant. Bisharat would rather you believe otherwise — and so would the Times editors who chose to publish such a deceptive op-ed.