I’m sorry, but when a law professor writes this kind of prima facie garbage, you have to wonder about an administration that keeps him on board. Without even delving into actual facts, let me just fisk the relevant parts of Bisharat’s article regarding Israel and war crimes to reveal logical inconsistencies and outright gibberish:
Israel’s current assault on the Gaza Strip cannot be justified by self-defense. Rather, it involves serious violations of international law, including war crimes. Senior Israeli political and military leaders may bear personal liability for their offenses, and they could be prosecuted by an international tribunal, or by nations practicing universal jurisdiction over grave international crimes. Hamas fighters have also violated the laws of warfare, but their misdeeds do not justify Israel’s acts. [This is Bisharat’s premise. Let’s see if he can support it.]
The United Nations charter preserved the customary right of a state to retaliate against an “armed attack” from another state. The right has evolved to cover nonstate actors operating beyond the borders of the state claiming self-defense, and arguably would apply to Hamas. However, an armed attack involves serious violations of the peace. Minor border skirmishes are common, and if all were considered armed attacks, states could easily exploit them — as surrounding facts are often murky and unverifiable — to launch wars of aggression. [Classic lawyer’s trick: use a wimpy term to define your own parameters. We’re just looking at a “border skirmish here” — which ignores the Hamas charter calling for Israel’s total destruction. In other words, on Hamas’ side at least, this is not a mere border skirmish over a few acres of land.] That is exactly what Israel seems to be currently attempting.
Israel had not suffered an “armed attack” immediately prior to its bombardment of the Gaza Strip. [Another lawyer’s trick, akin to “it depends what is” means. What does he mean by immediately? Within the five minutes before Israel’s attack perhaps. Can outside of that five minute margin and you discover that Hamas had unilaterally absolved itself of the ceasefire and increased the number of missiles going into Israel, this time adding in long-range missiles, probably from Iran.] Since firing the first Kassam rocket into Israel in 2002, Hamas and other Palestinian groups have loosed thousands of rockets and mortar shells into Israel, causing about two dozen Israeli deaths and widespread fear. As indiscriminate attacks on civilians, these were war crimes. During roughly the same period, Israeli forces killed about 2,700 Palestinians in Gaza by targeted killings, aerial bombings, in raids, etc., according to the Israeli human rights group B’Tselem. [I think he’s saying that it’s unfair that Israel was a more effective fighter. Please note that even Bisharat doesn’t have the chutzpah to pretend that Israel copied Hamas’ tactic of indiscriminately targeting civilians.]
But on June 19, 2008, Hamas and Israel commenced a six-month truce. Neither side complied perfectly. Israel refused to substantially ease the suffocating siege of Gaza imposed in June 2007. Hamas permitted sporadic rocket fire — typically after Israel killed or seized Hamas members in the West Bank, where the truce did not apply. Either one or no Israelis were killed (reports differ) by rockets in the half year leading up to the current attack. [Did you catch all the double-talk? Behind the babble lies the fact that, while Israel never violated the truce, simply keeping her borders intact, and fired on territories in which there was no truce, Hamas used Israel’s incursions into territory that had no truce to justify firing into Israel — which, if you didn’t catch it, broke the truce. In other words, behind all the double-talk in the paragraph, you discover that only Hamas broke the truce.]
Israel then broke the truce on Nov. 4, raiding the Gaza Strip and killing a Palestinian. Hamas retaliated with rocket fire; Israel then killed five more Palestinians. In the following days, Hamas continued rocket fire — yet still no Israelis died. Israel cannot claim self-defense against this escalation, because it was provoked by Israel’s own violation. [Now we’re going to phase two of the double-talk. We’ve established that Israel never broke the truce. Hamas retaliated on behalf of attacks against people who were not parties to the truce, effectively breaking the truce. But in Bisharat’s view, which Israel retaliated against Hamas, which had already broken the truce, it was Israel that broke the truce. Worse, Israel actually functioned efficiently, unlike Hamas which, despite firing thousands of missiles into Israel, aimed at schools and civilian communities, was unable to murder as many civilians as it intentionally targeted.]
An armed attack that is not justified by self-defense is a war of aggression. [So, the fact that Gaza broke the truce, and fired rockets at civilians nevertheless does not trigger Israel’s war of self-defense. That’s true, only in Bisharat’s skewed view where, factually, Israel does nothing to break the truce while Hamas does everything to break the truce, but theoretically, Hamas is morally incapable of breaking the truce, whereas anything Israel does breaks the truth.] Under the Nuremberg Principles affirmed by U.N. Resolution 95, aggression is a crime against peace.
Israel has also failed to adequately discriminate between military and nonmilitary targets. Israel’s American-made F-16s and Apache helicopters have destroyed mosques, the education and justice ministries, a university, prisons, courts and police stations. [Bisharat lives in an alternate universe where there isn’t video footage confirming, over and over again, that Hamas has been using its mosques, ministries, schools, prisons, etc., to house weapons and fighters, to cover up weapons smuggling tunnels, and to serve as launching pads for morters and rockets. In other words, these aren’t mosques, ministries, schools, prisons, etc., at all, they’re fortresses and, as such, legitimate targets. They’re the building equivalents of spies, and deserve to be shot on sight for being out of uniform] These institutions were part of Gaza’s civilian infrastructure. And when nonmilitary institutions are targeted, civilians die. Many killed in the last week were young police recruits with no military roles. Civilian employees in the Hamas-led government deserve the protections of international law like all others. Hamas’s ideology — which employees may or may not share — is abhorrent, but civilized nations do not kill people merely for what they think. [No, they kill them for what they do. And Hamas bends all its efforts to killing Israeli civilians and then using its own civilians, especially its children, as a defensive barrier. It’s worth pointing out here that Bisharat makes no mention of the fact that Israel provides three hours of warning in advance of any attacks structures that might house civilians. In other words, it’s not attacking civilians, but Hamas is making sure to place its own citizens in buildings it knows will be targets.]
From this point own, everything Bisharat says is legal garbage, because it’s premised on a skewed factual view that excuses Hamas from thousands of missile strikes and that criminalizes Israel for firing on civilians that Hamas intentionally put into harm’s way.
Incidentally, would it surprise you to learn that Bisharat is not only a shoddy thinker, but also one of the myriad UC professors who is radically anti-Israel? It should disturb you, as it disturbs me, that he has a law school full of students into whom he can pour this illogical, unfair, self-serving, double standard crap.
UPDATED: An intelligent counterpoint.