Yesterday, Matt Breuning pointed out the insanity of a Wall Street Journal op/ed trying to justify Israel’s killing of civilians in Gaza:

In the Wall Street Journal, Thane Rosenbaum [from NYU school of law] opines on the civilian status of the killed Gazans:

The asymmetry is complicated even further by the status of these civilians. Under such maddening circumstances, are the adults, in a legal and moral sense, actual civilians? To qualify as a civilian one has to do more than simply look the part. How you came to find yourself in such a vulnerable state matters. After all, when everyone is wearing casual street clothing, civilian status is shared widely.

The people of Gaza overwhelmingly elected Hamas, a terrorist outfit dedicated to the destruction of Israel, as their designated representatives. Almost instantly Hamas began stockpiling weapons and using them against a more powerful foe with a solid track record of retaliation.

What did Gazans think was going to happen? Surely they must have understood on election night that their lives would now be suspended in a state of utter chaos. Life expectancy would be miserably low; children would be without a future. Staying alive would be a challenge, if staying alive even mattered anymore.

The argument is this: Are Gazan civilians really innocent in all of this? After all, they voted for Hamas, didn’t they? Aren’t they therefore responsible for the actions of that government? Do they really have a rightful claim to innocence and the usual civilian immunity from military attack?

I’ve read this argument before. Osama bin Laden himself made this argument in response to those who said that 9/11 was an unjust attack because it targeted civilians:

(3) You may then dispute that all the above does not justify aggression against civilians, for crimes they did not commit and offenses in which they did not partake:

(a) This argument contradicts your continuous repetition that America is the land of freedom, and its leaders in this world. Therefore, the American people are the ones who choose their government by way of their own free will; a choice which stems from their agreement to its policies. Thus the American people have chosen, consented to, and affirmed their support for the Israeli oppression of the Palestinians, the occupation and usurpation of their land, and its continuous killing, torture, punishment and expulsion of the Palestinians. The American people have the ability and choice to refuse the policies of their Government and even to change it if they want.

Slate noted today:

If there’s a single thing that separates legitimate warfare from simple terrorism, it’s the effort to distinguish civilians from soldiers, and combatants from noncombatants.


To collapse the distinction, or to ignore it entirely, is to embrace the logic of terrorists, which is what Thane Rosenbaum, a senior fellow and director of the Forum on Law, Culture & Society at New York University Law School, did on Monday in an op-ed for the Wall Street Journal


For both Rosenbaum and Bin Laden, the situation is straightforward: Because a majority of Gazans/Americans voted for leaders who used violence or waged war against Israelis/Muslims, both have forfeited their claim to noncombatant status. After all, if they wanted to avoid conflict, they wouldn’t have elected those people in the first place.


If you recoil from this logic, your head is in the right place. By any standard, it’s perverse and morally wrong—a justification for the worst atrocities. [And it’s a war crime. And see this.]


Rosenbaum isn’t the only person to make this argument in the context of the Israel-Palestine conflict. In 2006, another law professor—Alan Dershowitz—took a somewhat softer line in arguing that we should have a “continuum of civilianality” that distinguished “the truly innocent” from the “guilty accessories to terrorism.” Dershowitz wasn’t as cold-blooded as Rosenbaum—sketching a difference between “a civilian who merely favors or even votes for a terrorist group and one who provides financial or other material support for terrorism” that Rosenbaum doesn’t abide—but even his logic is disturbing in its permissiveness toward broad-based violence against a population.

One last observation: In 2001, just after Sept. 11, University of Colorado professor Ward Churchill wrote an essay defending the attacks and disputing the innocence of the victims. “Let’s get a grip here, shall we? True enough, they were civilians of a sort. But innocent? Gimme a break,” he wrote, “They formed a technocratic corps at the very heart of America’s global financial empire–the “mighty engine of profit” to which the military dimension of U.S. policy has always been enslaved—and they did so both willingly and knowingly.” The men and women killed in the World Trade Center, he declared, were “little Eichmanns” who deserved their fate.

This essay resurfaced a few years later, and in the firestorm, Churchill lost his job. Somehow, I doubt Rosenbaum will lose his job, despite making similar comments for a much larger audience ….

Julia Wong tweets:

author, apparently an NYU prof, suggests that Gazan CHILDREN are not innocent if their parents have certain views

(I guess they should have “had a more responsible father“.)

And given that Israel helped to create Hamas in the first place, punishing peaceful non-combatant civilians who simply vote for Hamas is somewhat schizophrenic.

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