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OpinionIsrael at War

‘The New York Times’ laments the loss of an anti-Israel rant

A supposedly “suppressed” article by a Harvard law student libels Israel with neither facts nor law.

The New York Times distribution truck. Credit: ChameleonsEye/Shutterstock.
The New York Times distribution truck. Credit: ChameleonsEye/Shutterstock.
Jerome M. Marcus
Jerome M. Marcus
Jerome M. Marcus is a lawyer in Philadelphia.

Riotous marchers on college campuses are demanding the creation of a country called “Palestine” on all the territory of the U.N.-recognized State of Israel, entirely free of Jews. The presidents of three prestigious universities can’t say whether calling for the genocide of Jews violates their codes of conduct. Harvard Chabad is told it can’t leave its Chanukah menorah up for eight days because the university doesn’t want to be embarrassed by a photo of a vandalized menorah in Harvard Yard. Jewish students are barricaded behind locked doors or offered an attic to hide in due to threats from racist fellow students.

Given all this, it is not surprising that The New York Times is deeply concerned about the alleged suppression of pro-Palestinian speech on American campuses.

The Times offers the example of The Harvard Law Review’s rejection of a blog post written by Rabea Eghbariah—now completing a doctorate at Harvard Law School—that accuses Israel of committing genocide in Gaza. The Times heavily implies the antisemitic libel that the post offended too many powerful Jewish and Israeli interests. It’s Rep. Ilhan Omar’s “Benjamins” again.

The left-wing magazine The Nation printed the “suppressed” post, revealing that the piece was a shoddy, poorly argued rant containing no supporting evidence and bereft of the serious legal analysis that any law review article requires.

As lawyers know, all legal arguments must be composed of two parts: the facts and the law. Eghbariah’s rant contains neither.

First, the post nowhere acknowledges that Gaza is in a state of war with Israel, declared by Hamas with the explicitly stated goal of eliminating the Jewish state. Now, one could argue that Israel’s military operation, though justified, is disproportionate. But Eghbariah makes no such argument. Indeed, he does not even attempt to assess or disprove any conceivable justification for any military action by Israel in Gaza.

International law is clear that, in order to prove genocide, evidence of the defendant’s “intent to destroy, in whole or in part, the national, ethnical, religious or linguistic group to which victims of the alleged wrongful acts belonged” is necessary.

In one of only two citations of any legal authority in the entire post—a glaring dearth of sources for a piece supposed to be published in a law review—Eghbariah cites this standard. He then claims, “Numerous statements made by top Israeli politicians affirm their intentions.” This sentence contains two links. That is the total extent of Eghbariah’s evidence.

One link quotes Israeli Prime Minister Benjamin Netanyahu telling his nation’s soldiers that their actions are a response to Hamas’s Oct. 7 slaughter. He then reminds them of the biblical narrative of Amalek’s attack on the Jews as they wandered the Sinai, described in Exodus 17. As Deuteronomy 25:18 explains, this attack was directed at the weak and unarmed—just like Oct. 7.

To Eghbariah, this is evidence of genocide because of verses Netanyahu did not quote. Eghbariah invokes the Torah’s statement that, in response to this cruelty, the Jews must wipe out Amalek.

On this basis, he asserts that Netanyahu was telling the IDF to wipe out the Palestinians. But Netanyahu said no such thing. In other cases, strategically unquoted by Eghbariah, Netanyahu has said that the IDF should wipe out Hamas. The difference is clear: It’s the difference between destroying the Nazi war machine and killing all Germans.  

The only other source Eghbariah cites is a Guardian article that collates what it claims is “genocidal language.” Put aside The Guardian’s well-known loathing of Israel, and look at the sources cited. One is an American senator, one a British newspaper editor, one an Israeli journalist and one a collection of letters written by Israeli schoolchildren in 2002.

Of the two who are Israeli politicians, President Isaac Herzog is quoted saying that “an entire nation is responsible” for the Oct. 7 attack because they voted Hamas into power and didn’t protest when Hamas attacked Israel. Herzog said nothing whatsoever about killing a single Palestinian.

Moreover, exactly the same thing was said of the German people in the 1930s and 1940s. It should be obvious to any thinking person that when an entire people elects a government that publicly announces that it intends to destroy its neighbor and kill all Jews, this is a serious problem. Eghbariah does not seem to agree, perhaps because he has no problem with such intentions.

The only other politician cited is an Israeli Knesset member who said he wants Israel to do again what it did in 1948. In 1948, Israel declared independence and won a war against genocidal enemies. It didn’t kill all Arabs or state any intention of doing so.

Eghbariah further claims that “Israel continues to blatantly violate international law: dropping white phosphorus from the sky, dispersing death in all directions, shedding blood, shelling neighborhoods, striking schools, hospitals, and universities, bombing churches and mosques, wiping out families, and ethnically cleansing an entire region in both callous and systemic manner.”

Does any of this constitute, or even stand up to, serious analysis? It is indeed a breach of international law, for example, to bomb a hospital, unless it’s being used for military purposes. If it is, the hospital is an entirely legitimate and legal target. The Fourth Geneva Convention Article Section 19 states: “The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.”

Israel has released overwhelming evidence that Hamas uses Gaza’s hospitals as firebases, command-and-control centers, refuges for terrorists, prisons for hostages—hostage-taking is a violation of international law under any circumstances—and storehouses for weapons and ammunition. No legal argument whatsoever can justify Eghbariah’s claims without addressing this issue. He makes no attempt to address it.

Similarly, ethnic cleansing certainly violates international law. But again, Eghbariah prevents no evidence of it. In fact, he presents evidence of precisely the opposite, citing an Oct. 14 article quoting Israel’s warnings to Gazans, urging noncombatants to move from the combat zone to safety.

Gaza is also certainly blockaded—legally and for good reason. Hamas has for decades waged a genocidal war on Israel, and it imports weapons into Gaza with which to wage that war. The blockade seeks to prevent that. Oct. 7 was a battle in that war, using the weapons Hamas nonetheless succeeded in importing. (Those weapons, incidentally, were financed by Iran, which means they were financed in part by American taxpayer dollars.) Moreover, Hamas has publicly announced that it will use such weapons to repeat Oct. 7 as many times as necessary to destroy Israel and empty it of Jews.

Has Israel used the blockade or any other tactic to starve Gaza residents to death or to force them to leave? The population of Gaza has been growing steadily since 2005, when Israel withdrew from the territory, and has continued to do so under the Hamas regime—so, obviously not.

In May 1945, Berlin had been reduced to rubble. Of its 2.8 million residents, 125,000 civilians—approximately 4.5%—had died in the battle for the city, which was fought block-by-block right up to the Reichstag. Only apologists for Nazism have claimed that this constituted a war crime, because everyone knows it was necessary to defeat the Nazis.

More recently, Mosul, Iraq had 700,000 residents when coalition forces battled ISIS for control of the city. Approximately 10,000 civilians were killed, or 1.4% of the city’s population. Only political extremists have claimed that this was a war crime.

According to the Gaza Ministry of Health, which is run by Hamas for propaganda purposes, just under 20,000 people have been killed in Gaza since Oct. 7 out of a population of approximately 2.1 million. Even if the ministry’s casualty figures are accurate and even if all of them were civilians—which is obviously not the case—this isn’t remotely close to genocide. Given that Hamas has entrenched itself throughout civilian areas, it is a testament to the care Israel has exercised that the civilian casualties are so few.

You can choose to agree or disagree with all of this. But you have to back up your argument with facts. If you’re making a legal argument, you must back it up with facts and law. Eghbariah does neither. The Harvard Law Review could not possibly have published his piece without destroying its pretensions to be a serious academic journal. Had the Review published the piece anyway, it would have become what The New York Times has become: Not an objective chronicler, but a Viewpoint Validation Service, as its sadder but wiser former editor James Bennet has now confirmed.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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