Duncan Kennedy, one of the most sophisticated legal scholars that the U.S. academia can display has written this important op ed on the Harvard Crimson. Duncan's book "A Critique of Adjudication" has been highly influential in my own thinking about the rule of law and its strategic uses.
Gaza. The Context.
by Duncan Kennedy
When I told a friend, a former section leader in a large Harvard College course, that I had been offered a chance to do an op-ed for The Harvard Crimson on Gaza, she identified two fairly common, understandable undergraduate attitudes: “The situation is too complicated and I can’t make up my mind about it;” and “This is controversial and there are differences of opinion. No side is ‘right.’’”
I hope that the recent war, occurring at the beginning of the Obama presidency, will lead to enough discussion of Israel and Palestine in the Harvard community so that more of us feel able to take positions. With that in mind, I will use my space to present a factual picture one would think controversial, but which surprisingly is a matter of consensus of “informed observers.”
The Israeli “new historian” Benny Morris—a strong Zionist—has documented the “Origins of the Palestine Refugee Problem.” During military operations in 1947 and 1948 against Palestinian resisters and Arab invading armies trying ineffectually to prevent the creation of a Jewish state, Jewish regular and irregular forces, sometimes using carefully calibrated terror tactics, drove somewhere between 600,000 and 800,000 Palestinian men, women and children from their villages, which they then leveled. After the war, they used force to prevent any of them from returning. Then the new state summarily confiscated their land and property for redistribution to Jews. The remaining Arab population of Israel—now about 20 percent—eventually received formal legal equality, but live in second-class citizen status similar to that of American blacks in the North before affirmative action and the rise of the new black bourgeoisie.
In 1967, Israel preemptively attacked Egypt, Jordan and Syria, and occupied the West Bank and Gaza, largely populated by refugees of 1948, as well as East Jerusalem, the Golan Heights and Sinai (later returned to Egypt). This generated another approximately 200,000 Palestinian refugees who were also forbidden to return. Since 1973, Israeli governments have gradually moved about 400,000 Jewish settlers into the West Bank and another 200,000 into East Jerusalem, appropriating about 50 percent of the land (when roads and other infrastructure are taken into account), taking over the water, and alternately exploiting and starving the West Bank and Gaza economies to the point where the Arab population is overwhelmingly dependent on the international “donor community” for subsistence.
Palestinian non-violent and violent resistance to the military occupation is fully legal under international law. On the other hand, many of the specific tactics, especially airplane hijacking, suicide bombing targeting civilians, including children and old people, and indiscriminate rocket attacks, have been widely denounced as criminal.
The Israeli government justifies the wall, check points, the network of access roads, the discriminatory legal regime, the pass laws, arbitrary arrests, house demolitions, targeted assassinations, torture, and everyday military control as necessary for the security of the settlements (viewed as illegal everywhere but in Israel), and to protect against terrorism inside Israel. The international human rights NGOs such as Human Rights Watch, Amnesty International, the United Nations that have denounced Palestinian terror tactics have unanimously condemned Israel on many occasions for violating the human rights of the Palestinians in the West Bank and Gaza.
After Israel withdrew its settlers from Gaza in 2005, it retained full control of land and sea borders and of the air space. It periodically entered the territory with the goal of suppressing rocket fire aimed indiscriminately at southern Israeli towns. Over the four years before the December 2008 invasion, this rocket fire killed 13 Israeli civilians and made life miserable for tens of thousands of inhabitants of the towns targeted.
After Hamas won the Palestinian legislative elections in 2006, Israel and the U.S. set out to isolate Hamas by cutting off Gaza from the outside world. The justification was that Hamas was a terrorist organization “dedicated to the destruction of Israel.” Israel and its allies persisted in this strategy in spite of repeated indications, reported faithfully in the New York Times, that Hamas, like the Palestine Liberation Organization of Yasser Arafat before it, was looking for face-saving means to alter its position and accept a two-state solution.
The economic and financial sanctions, including stop-and-go electricity and fuel for the people and for institutions like hospitals, along with Israeli restrictions of the movement of goods and persons into and out of Gaza, destroyed what little productive capacity the occupation had left in Gaza. It turned the territory, according to the cliché, into a “prison camp,” where the inmates were dependent on charity and Israeli government whim to keep them precariously one step away from “full fledged humanitarian crisis.” When this did not cause a revolt against Hamas in Gaza, Israel and the U.S., according to an article in Vanity Fair not yet refuted, organized a PLO coup, which failed, and led Hamas to expel the PLO from Gaza. There was eventually a truce between Israel and Hamas.
The Hamas claim, which seems basically sound to me, is that Israel was mainly responsible for its ending: Hamas suppressed almost, but not all rocket fire; Israel retaliated for the residuum by refusing to open the borders, so that Gazan misery continued unabated or worsened, and then carried out an armed incursion in November 2008. When Hamas refused to renew the truce and recommenced rocket fire, Israel invaded.
Numerous observers have charged Israel with committing war crimes during the war. Without downplaying that aspect, I think it is important to understand the 1,300 Palestinian casualties, including 400 children as well as many, many women, versus 13 Israeli casualties, as typical of a particular kind of “police action” that Western colonial powers and Western “ethno-cratic settler regimes” like ours in the U.S., Canada, Australia, Serbia and particularly apartheid South Africa, have historically undertaken to convince resisting native populations that unless they stop resisting they will suffer unbearable death and deprivation. Not just in 1947 and 1948, but also in Lebanon in 1982 and 2006, Israel used similar tactics.
Causing horrific civilian deaths is often perfectly defensible under the laws of war, which favor conventional over unconventional forces in asymmetric warfare. The outright “crimes,” like the My Lai massacre, Abu Ghraib, or Russian massacres in Afghanistan and then in Chechnya, are less important for the civilian victims than the daily tactics of air assault, bombardment, and brutal door-to-door sweeps, meant to draw fire from the resisters that will justify leveling houses and the people in them.
Can this picture be right? If so, what is to be done? If not, what is to be done? If you are not already clear about what you think, it is crucial to try to find out for yourself. If the situation is as bad as I have painted, you might consider some small step, perhaps just a contribution to humanitarian relief for Gaza, or e-mailing the White House, or something more, like advocating for Harvard to divest.
Duncan Kennedy ’64 is the Carter Professor of General Jurisprudence at Harvard Law School.