Tenured But Wrong

You’d have to be an undergraduate to believe the Israeli-Palestinian conflict is “complicated” and “controversial,” or to think there is right on both sides. So says Professor Duncan Kennedy, who sneers that these are “fairly common, understandable undergraduate attitudes,” before offering “context” (in an op-ed published in The Harvard Crimson on January 30) that aims to make Israel’s overwhelming guilt clear.

Yet Kennedy’s “context” is filled with errors few undergraduates would make. He seems to be unaware that Gaza shares a border with Egypt. He thinks the recent war in Gaza began “at the beginning of the Obama presidency,” when it ended two days before Barack Obama took the oath of office. He believes Israel preemptively attacked Jordan in 1967, when in fact Jordan struck first by shelling Jerusalem.

Undergraduates may err, but it takes a tenured professor to distort reality that badly. Kennedy is neither an historian nor an expert on the Middle East. What he is good at is thinking up radical ways to turn the academy upside down. He once suggested that the professors at Harvard Law School should earn the same salaries as the janitors. (After reading his opinions on Israel, you may be inclined to agree.)

Kennedy, like many other anti-Israel academics, attempts to reduce the Israeli-Palestinian conflict from a complex puzzle to a simplistic moral fable in which the apparently stronger Israelis, by dint of their strength and success, are always wrong and the apparently weaker Palestinians are always right. But he obscures basic facts of history and geography and misrepresents fundamental principles of human rights and international law.

Israel was formally established after the United Nations voted to divide the land of Palestine between Jews and Arabs. In its very declaration of independence, Israel guaranteed equal rights to its Arab citizens. The Israeli courts protected Arab land rights and later outlawed discrimination in residential housing. Today, Israel’s Arab citizens benefit from affirmative action programs and are represented in the Israeli cabinet.

You’d think these facts would interest a law professor. But not Kennedy, who prefers a tale of “original sin” in which Israel simply drove Arabs from their homes, took their land, and oppressed whoever was left.

Never mind the Jews who were expelled by Arab soldiers from Jerusalem’s Old City or the hundreds of thousands of Jewish refugees from Arab countries. Too “complicated” for Kennedy.

Here’s some “context” Kennedy skipped: when Israel launched its preemptive strike in 1967, it was under direct threat from Soviet-backed Arab states that had blockaded Israel’s shipping routes—an act of war under international law. Arab states still refused peace, negotiations, or recognition of Israel until Egypt agreed to peace with Israel in 1978 and duly recovered its territory.

Kennedy describes the 1967 war as though Israel set out aggressively to “generate” Palestinian refugees in some grim industrial process. He also gives bizarre dates and numbers to describe the growth of Israeli settlements in the territories it occupied. The first settlements began in 1967 and 1968—not 1973 as Kennedy claims—and the number of settlers is nowhere near the 600,000 that he suggests.

Though Israel’s settlement policy was wrong and short-sighted, it was nothing like the rapacious image Kennedy projects. Israel did not “take over” Palestinian water; in fact, it pumps water from Israel into Palestinian homes in both Gaza and the West Bank. And Israel did not “exploit” and “starve” the Palestinian economy. In fact, the Palestinian economy boomed under occupation for 20 years until the first intifada in 1987.

Kennedy apparently has no better grasp of law than he does of fact. He claims: “Violent resistance to the military occupation is fully legal under international law.” He does not cite any such law, because there is none that privileges violence when nonviolent options are available. (Perhaps he has in mind the first Protocol Additional to the Geneva Convention, which Palestinian terror groups routinely violate anyway.)

He adopts the same peculiar interpretation of human rights law as the UN Human Rights Council, which is dominated by dictatorships and which denounces Israel as a matter of course but never considers Palestinian violations of Israeli rights—or Palestinian rights, for that matter. He even slips in an obscure reference to “pass laws,” which existed in apartheid South Africa but are entirely foreign to Israel.

Kennedy also cites a “Vanity Fair” article to argue that “Israel and the U.S.” planned to overthrow Hamas. In fact, the article hardly mentions Israel. But it does record that Hamas was cut off by the U.S., European Union, Russia, and the UN when it failed “to renounce violence, recognize Israel’s right to exist, and accept the terms of all previous agreements”—not because it won an election, and not just by “Israel and the U.S.”

Having provided his misleading “context,” Kennedy finally returns to the present day. In his view, Hamas is not the organization whose charter calls for Jews to be killed and rejects “so-called peaceful solutions and international conferences.” No—it is just a tragically misunderstood bunch, desperately seeking a way to accept a two-state solution and “save face.”

It was Israel, not Hamas, that broke the ceasefire, according to Kennedy, because Israel “carried out an armed incursion” in November 2008. He does not bother to explain that the reason Israeli forces entered Gaza was to stop Hamas from tunneling into Israel to kidnap soldiers, as it had in the past. He trusts Hamas’s version of events, even though Egypt, and the Palestinian Authority itself, blamed Hamas for starting the war.

Moreover, he accepts Hamas’s inflated casualty figures—which hide the fact that many of the so-called “civilians” were Hamas fighters in plain clothes—without question and without considering Hamas’s admitted use of women and children as human shields, which is a war crime under the Rome Statute of the International Criminal Court.

Somehow, that “context” is entirely absent from Kennedy’s account.

In fact, Kennedy leaves out one of the most important events in the recent history of the conflict: the kidnapping, on sovereign Israeli territory, of Israeli soldier Gilad Shalit by Hamas infiltrators in 2006. That unprovoked attack helped trigger the Second Lebanon War. And, to this day, Hamas continues to hold Shalit illegally, denying him visits from the Red Cross and ignoring the principles of the Third Geneva Convention.

Harvard’s motto is “veritas,” and it directs us to consider the truth above all. The undergraduate who sees the Israeli-Palestinian conflict as “complicated” and “controversial” has a far better idea of truth than the professor who takes terrorist propaganda at face value and imposes it as the definitive “consensus” view.

But some things are clear. Jews and Arabs have equal rights to self-determination. Hamas, armed and funded by Iran, is dangerous to both. Until Hamas gives up terror, or is forced to do so, neither side will enjoy peace. How to achieve that outcome remains a “complicated” question, unless you ignore the truth.

Joel B. Pollak ’99 is a third-year law student at Harvard Law School and president of the HLS Alliance For Israel.