On December 23, 2024, the editors of the UCLA Law Review released a “Special Issue” of the review, apparently the first such special issue in at least the past 24 years. The issue is devoted solely to various aspects of the Israel-Palestinian conflict.  [1] 

None of tumultuous events of the 21st century, including 9/11, the two Gulf Wars, America’s War on Terror, the COVID-19 pandemic and lockdowns, and the constitutional crisis stemming from the 2020 presidential election and its aftermath, prompted the UCLA Law Review to publish a special issue outside its established publication schedule (according to the list of publications on the review’s website going back to 2001). All these events implicated profound and often unprecedented issues under US law, but apparently none of them prompted generations of UCLA Law Review editors to publish a special issue.

The Israel-Palestinian war in Gaza, which started on October 7, 2023, changed that. For the first time in at least 23 years, the law review published a special issue because, as the editors state in their introductory “Editors’ Note” (also unprecedented) they “felt compelled to provide a platform to those who have been relegated to the margins of legal and mainstream discourse.”

The editors apparently determined that, despite extensive and highly publicized proceedings before the International Court of Justice, the International Criminal Court, and numerous United Nations bodies, as well as the non-stop commentary of the world’s mainstream media and demonstrations on campuses and streets throughout the United States and Europe, the Palestinian perspective on the conflict with Israel has been marginalized. The editors were thus motivated by “a rising wave of censorship and retaliation against scholarship bearing witness to … issues unfolding in Palestine and Israel.”

To combat this assault on scholarship, the editors tout having brought together “a diverse group of legal scholars, including Arab, Christian, Israeli, Jewish, Muslim and Palestinian scholars.” Of course, however diverse in race, religion, gender, and national origin, these scholars are anything but diverse in one essential area: diversity of thought.

The last article of the issue capsulizes the overall tone: “From the Nabka until today, there have been around 28,000 days of displacement, settler colonial brutality, and human rights violations against the Palestinian people.” Calling for “[d]ivestment from Israel,” the author asks whether a law school or university is “a life-affirming institution or a death-perpetuating place.” [2]  Another, a Palestinian nurse, recounts horrors in Gaza that started on October 7, without ever mentioning what prompted Israel’s violent response. Indeed, the article doesn’t even mention the word “Hamas.” [3]  At the same time, however, he has managed to slip past the special issue’s editors the suggestion that Israel targeted the Ahli Arab Hospital, “massacre[ing]” hundreds of Palestinian “martyrs,” despite that claim having been thoroughly debunked. [4]

Two poems grace the issue, one is dedicated to a poet killed in an Israeli airstrike who had described the October 7 attack as “legitimate and moral,” exactly like the Warsaw Ghetto uprising. [5]  The other, just in time for Christmas, echoes the antisemitic deicide canard in lamenting that “Christmas is cancelled in Bethlehem”: “Not even a manger / to sleep in for civilians / or any refugee children / As if Christ wasn’t born / a Palestinian on the run / from a bloodthirsty king.” [6]

Other articles focusing on family reunification and the effectiveness of international law in advancing the Palestinian cause are less inflammatory but still present a one-dimensional perspective of Israel as the settler colonialist aggressor and Palestinians as simply seeking liberation from oppression or “bureaucratic violence.”

That the special issue includes authors who are Jewish or Israeli does not detract from its one-dimensional, anti-Israel bias. The thesis of one Israeli author is that the war in Gaza is simply a continuation of the “Nakba” and that although the Israeli victims of October 7 “did not deserve their brutal fate,” the “attack on October 7 was rooted in a. systemic reality of a violent, militarist and racist [Israeli] regime…” and Israel’s “deliberate strategy of erasing Palestinian existence and its history.” [7] Another laments that the identity of American Jews is held in “a straightjacket of Zionism,” that “sharp criticism of Israel” is deemed antisemitic, and that claims of antisemitism are “weaponized against Palestinians and their liberation struggle.” [8] Noted Israeli-born historian Ilan Pappe introduces his essay regarding Palestinian Studies by describing it as “a decolonize antidote to Israeli Studies project of erasure and denial,” and states “[d]ue to [his] political solidarity and scholarly identification with the Palestinian struggle” he had to leave Israel for the United Kingdom in 2006.[9]

These comments do not delve into the substance of the special issue’s articles, nor is any of this to say that there is nothing of value or merit in the special issue. And none of these criticisms are intended to negate the death and destruction in Gaza following Hamas’s attack on Israel. The point of this commentary is to call out the issue’s descent into polemics in its manifest anti-Israel bias, hardly the stuff of a scholarly journal. Thus, in their battle against the purported censorship of and retaliation against Palestinian voices, the editors omit any contrasting voices from the pro-Israel scholarly community. The special issue, particularly when taken as a whole, leaves legal scholarship far behind and exhibits the trappings of partisan advocacy. It joins the extensive body of work singling out the world’s one Jewish state for condemnation.

Nonetheless, the editors appear to be aware of the shaky ground upon which the special issue rests. Their Editors’ Note qualifies the issue with the ambiguous statement that “it is not all-encompassing and captures a finite moment in time.” The editors tell readers that “the views of the Authors are not shared by all of those involved with the journal” and “do not represent the views of UCLA or UCLA School of Law.” Nonetheless, the editors, wrapping themselves in the protective blanket of a “student-run, editorially independent legal journal,” use their lofty position to publish an unprecedented, one-sided, and admittedly incomplete contribution to what they call “the legal repository.” Using language reminiscent of Soviet rhetoric, they tell us they’re working with their authors to advance “collective liberation.”

The problems with the special issue, however, go beyond its conception. The execution is extremely troubling.

Although not all of the issue’s content addresses the war in Gaza following Hamas’s October 7 attack on Israel, the editors make clear their “venture,” as they describe it, is motivated by the “genocide” that “ensu[ed]” in Gaza after October 7. And they present the “genocide” as an immutable fact. In support, they drop a long footnote (footnote 2) citing the  preliminary decisions of the ICJ in the pending case commenced by South Africa, as well as a US judicial decision.

If a footnote could ever be described as a wolf in sheep’s clothing, then footnote 2 is it.

Footnote 2 purports to support the editors’ blanket claim of “ensuing genocide” by characterizing the ICJ decision of January 26, 2024, as “determining in a ruling on provisional measures that some actions by the State of Israel in the Gaza strip may ‘plausibly’ fall within the scope of the Genocide Convention.” In other words, by stating there is an “ensuing genocide” and then footnoting that statement to the ICJ decision, without qualification or limitation, the editors heavily imply that the ICJ supports their conclusion of an “ensuing genocide.”

That is not what the ICJ found. However arcane and confusing the ICJ’s actual ruling may be to the media and other lay observers, the editors had to have known the ICJ did not make a finding of “plausible genocide,” much less actual “ensuing genocide,” as the Editors’ Note suggests. In April 2024, Judge Joan Donoghue, who served as president of the ICJ when the Court’s January 26 decision came down, corrected the public record on the BBC News program HARDtalk. She stated on air, in response to aggressive questioning by the host, that the ICJ “didn’t decide that the claim of genocide was plausible” nor “that there’s a plausible case of genocide.” The ICJ, as Judge Donahue explained, had only found that South Africa stated a plausible case that it had the right to seek certain protections under the Genocide Convention, not that there was a plausible case of genocide.

Although transcripts and videos of Judge Donoghue’s BBC interview are widely available, [10] the editors simply ignored Judge Donoghue’s clarification and proceeded to rely on the misstatement of the ICJ’s decision in releasing the special issue.

After erroneously relying on the ICJ decision, footnote 2 goes on to rely on the decision of the US District Court for the Northern District of California in a recent case, Def for Children Intl v. Biden, [11] in which plaintiffs sought a court order preventing the Biden administration from continuing to provide military and financial assistance to Israel in connection with the war in Gaza. This citation is even more troubling than the editors’ reference to the ICJ.

The editors quote the district judge’s erroneous statement, “[y]et, as the ICJ has found, it is plausible that Israel’s conduct amounts to genocide.” The editors thus rely on the district court’s mischaracterization of the ICJ decision that, in any event, due to the court’s dismissal of the case on jurisdictional grounds, was nothing more than the judge’s personal musings, having no legal effect.

Assuming, as we must, that the editors of the UCLA Law Review are aware of the basic legal principle that, if a court has no jurisdiction over a case, it has no authority to make any factual findings, it is clear that they ignored it.

And now it gets even worse.

In its reference to the district court’s decision in Biden, footnote 2 indicates that the Ninth Circuit Court of Appeals affirmed (“aff’d”) the district court’s opinion (without stating that the court affirmed the dismissal of the case). But unless one has read the appellate court’s decision, anyone reading footnote 2’s reference to the Biden case would naturally conclude that, in affirming the district court’s decision, the Ninth Circuit was likewise affirming its conclusion that the ICJ had found a plausible case of genocide. That, however, is exactly the opposite of what the Ninth Circuit ruled.

At the very end of the Ninth Circuit’s decision, the court did something very unusual. It included a “final observation,” which was technically unnecessary considering the court’s decision affirming the dismissal. The Ninth Circuit, however, was obviously miffed by the district judge’s ill-considered (not to mention erroneous) characterization of the ICJ decision, despite its dismissal of the case. In this “final observation,” the appellate court rebuked the plaintiffs in the Biden case for relying on the district court’s personal commentary—the same commentary the editors proceeded to rely upon in their Note:

“We make one final observation. Although the district court concluded that plaintiffs’ claims presented ‘fundamentally non-justiciable political questions,’ it also commented on the merits of plaintiffs’ case. Among other things, the district court stated that ‘the current treatment of the Palestinians in the Gaza Strip by the Israeli military may plausibly constitute a genocide in violation of international law.’ To the extent plaintiffs construe the district court’s commentary as factual findings, plaintiffs are incorrect. Because the district court lacked subject matter jurisdiction, any claimed factual findings and related commentary are of no legal force. Once it is determined that claims present political questions, the judicial inquiry ends.” [12]

The editors not only fail to explain that the Ninth Circuit nullified the district court’s characterization of the ICJ decision regarding genocide, but by simply noting that the Ninth Circuit “affirmed,” without explaining what it affirmed, they also leave readers with the erroneous impression that the appellate court affirmed the “plausible case of genocide” claim.

This is no trivial or “gotcha” moment. The editors of the UCLA Law Review have published an entire issue of the review devoted to the one-sided presentation of issues of great complexity, political and social controversy, and emotion. In doing so, they have taken undue license with the ICJ decision and the Biden case. Whatever the merit or lack of merit of the individual articles contained in the special issue, to the extent that the editors justify their unprecedented venture by creating the specter that the occurrence of genocide has been judicially established, they do no service to their publication, to their law school, nor, most significantly, to legal scholarship in general.

 

 

 

 

[1] 71 UCLA L. Rev. 1044, Issue S (December 2024); available at UCLAlawreview.org.

[2] Id. at 1350.

[3] Id. at 1220–21.

 

[4] Id. at 1242; see, e.g., Video Analysis Shows Gaza Hospital Hit by Failed Rocket Meant for Israel, Wall Street Journal, Oct. 21, 2023, available at https://www.wsj.com/video/video-analysis-shows-gaza-hospital-hit-by-failed-rocket-meant-for-israel/120A1C22-BA32-418E-8837-BC4141FEFB00.

[5] Id. at 1148; see BBC Guest compares Hamas Onslaught to Warsaw Ghetto Uprising, Jewish News Syndicate, Oct. 8, 2023, available at
https://www.jns.org/bbc-guest-compares-hamas-onslaught-to-warsaw-ghetto-uprising/.

[6] Id. at 1268.

[7] Id. at 1254–55.

[8] Id. at 1150.

[9] Id. at 1276.

[10] See, e.g., https://www.youtube.com/watch?v=bq9MB9t7WlI.

[11] 4:23-cv-05829-JSW (N.D. Ca. Jan. 31, 2024) (dismissing complaint for lack of jurisdiction under political question doctrine); aff’d 107 F. 4th 926 (9th Cir. 2024).

[12] 107 F. 4th at 934. (The Editors’ Note, in indicating that the 9th Circuit affirmed the lower court’s decision, includes the “jump cite” to p. 934, but without stating that this is where the court neutered the lower court’s comments regarding genocide.)