Fact- and Law-Checking the Wall Street Journal and Alan Dershowitz

Part II: Dershowitz Misstates, Misrepresents, and Misapplies the Law

Read Part One

There is no structure of an occupation that endured for decades and involved this kind of oppressive circumstances. The magnitude, the deliberateness, the violations of international humanitarian law, the impact on the health, lives and survival and the overall conditions warrant the characterization of a crime against humanity. This occupation is the direct intention by the Israeli military and civilian authorities. They are responsible and should be held accountable.

— Professor Richard Falk, United Nations Special Rapporteur for Human Rights in the Occupied Territories

Beirut, Lebanon — In the minds of some of his colleagues, and a law student reporter at the Harvard Law Recors, Professor Alan Dershowitz’s unique views of Israel’s obligations under International Law are reflected in the “Private Legal Memoranda” that he pens for time to time in his moonlighting job as “Counsel to the Government of Israel.” In this role, as one of his former students explained, Harvard’s Professor advises Israel “how to appear to be acting legally to the eyes of the American public.”

One recent bit of international legal advice that Alan is said to be particularly proud of is his recent Memorandum regarding the current ‘Legal Standard’ identifying those who the Israeli Defense Force (IDF) can ‘legally’ target in Gaza. These days one can witness his opus mini being read word for word off a cue card by IDF spokesman, Benjamin Rutland.

Mr. Rutland, speaking on 3 January 2009 to FOX TV by video-link, read to the mesmerized interviewer,

“Our [read: Alan's sui generis] definition of who we can legally target is that it can be anyone, I repeat, anyone, who is involved in any way, as the Government of Israel shall determine, with terrorism or who supports Hamas, in any qualitative way. That person obviously becomes a lawful target. This ranges from the strictly military institutions and includes the political institutions that provide the logistical funding [read: 'we can kill money changers'] and human resources for the terrorist arm of Hamas.”

The extremely broad scope of the IDF’s new Dershowitz-crafted ‘legal standard’ would appear to mean that Israel can now legally kill anyone in Gaza, including the 48 civilians seeking shelter in UNWRA’s Fakhura girls elementary school, or the three members of the Al-Sultan family 15 hours earlier, as they emerged from the toilets in the courtyard of Asma school, in the Shati refugee camp north of Gaza City.

Reflecting on Professors Dershowitz’s remarkable contribution to the development of the International Law of Armed conflict, Philippe Sands, Professor of International Law at University College London noted, “Once you extend the definition of combatants in the way that IDF is doing and associate individuals who are only indirectly or peripherally involved, it becomes an open-ended definition, which undermines the very object and purpose of the rules that are intended to be applied.”

As chance would have it, Mr. Rutland turned out to be the same IDF spokesman who asserted on the evening of 6 January 2009 that, “beyond any doubt militants fired mortars from inside the UN school compound thereby completely justifying the IDF returning fire on the school.”

It was also Mr. Rutland who seemed to remember the IDF’s lawyers’ earlier advice, which he related to a friend at Haaretz, to “always show the media ‘demonstrative evidence’ like terrorist weapons we have captured or video to support our case.” At that particular meeting, Professor Dershowitz reportedly advised his clients, “Americans don’t know shit but they do love to watch movies.” Eagerly, according to media reports on 7 January 2009, the IDF quickly produced video on which it claimed was proof positive that militants were indeed present on the UNRWA school property.

Professor Dershowitz must have been thrilled yesterday by his students’ performance, much as this observer was, while coaching our International Law Moot Court team in Portland, Oregon years ago as they excelled at the Evergreen State College-sponsored competition in Olympia, Washington.

But Mr. Rutland and the IDF cooked their ‘court filing’ by offering phony footage. Huge mistake. Given that the international media is barred from Gaza, with the exception that on 7 January 2009 the IDF did allow three chosen ‘embedded journalists’ to join them, the IDF apparently thought they could foist off some old file footage from nearly two years ago, which Mr. Rutland claimed showed militants in the school compound and carrying what may have been military equipment.

Immediately the UN cried ‘Hoax!” and Chris Gunness, a spokesman for the United Nations Relief and Works Agency (UNRWA), expressed outrage as he disclosed that the Dershowitz inspired ‘demonstrative evidence’ “was from 2007 video and bears no connection to Tuesday’s military strike on the school.”

On the morning of 7th January 2009, after a UN investigation, UNRWA announced that “we’re 99.9% sure that no militants were at the Fakhura girl’s elementary school.” The agency questioned survivors, including UNRWA staff that run the school under U.N. auspices and “who knew virtually all of the civilians who were seeking shelter form Israeli bombs and shelling.”

Mr. Gunness, at a press conference on the afternoon 7 January 2009 broadcast by Press TV requested that the IDF or anyone [read: Alan Dershowitz] with relevant information, to please submit the evidence so that it might help the UN with a resolution of the “point one percent remaining doubt”.

Gunness also stated that UNRWA gave the IDF the coordinates of all of the 23 schools that are serving as refuges for the 14,000 people nearby forced to flee their homes. While Mr. Gunness is far too polite to say so, each of the schools hit on Tuesday housed about 400 people seeking shelter from American-gifted planes, bombs, artillery shells, missiles and perhaps yet to be proven, internationally banned White Phosphorus, in the service of Israel.

In his January 2, 2009 article in the Wall Street Journal entitled “Israel’s Policy Is Perfectly Proportionate,” Professor Alan Dershowitz defends Israel’s operation “Molten Lead” in Gaza and while doing so consistently misstates and misapplies the Principles, Standards and Rules of International Law as well as their moral underpinnings.

Law Checks

Alan Dershowitz: “Israel’s actions in Gaza are justified under international law, and Israel should be commended for its self-defense against terrorism. Article 51 of the United Nations Charter reserves to every nation the right to engage in self-defense against armed attacks. The only limitation international law places on a democracy are that its actions must satisfy the principle of proportionality.”

Law Check: Leaving aside Dershowitz’s misapplication of the term ‘terrorism’, the fact is that Article 51 of the UN Charter was drafted with Nazi Germany in mind and to support those who have the full right, duty, and backing of International law to resist illegal occupation. Article 51 is to be employed precisely to encourage resistance to the kind of aggression and invasions Israel has launched for more than 40 years. Article 51, and the international customary law on which it is based, gives Israel’s neighbors, both UN members and non-members, the right of self-defense against unlawful Israeli aggressions outlawed by UN Charter Article (2) (4).

Additionally, the legal obligation of Proportionality applies to all States, not just those Dershowitz erroneously asserts, i.e. “places on a Democracy” and especially, one could argue, on Apartheid states like Israel and the former regime in South Africa.

Professor Dershowitz refers to the Principle of Proportionality as if this black letter law is some sort of idealistic philosophical abstraction that is best discussed over drinks in a Boston Beacon Hill Salon. The Proportionality Standard, or Rule or Law is key to the enforcement of post-World War II international norms of civilized conduct and violation of it creates eligibility for criminal indictment and arrest warrants from the Office of the Prosecutor of International Criminal Court in the Hague.

Alan Dershowitz: “The claim that Israel has violated the principle of proportionality by killing more Hamas terrorists than the number of Israeli civilians killed by Hamas rockets — is absurd. First, there is no legal equivalence between the deliberate killing of innocent civilians and the deliberate killings of Hamas combatants”.

Law Check: Few, if anyone at all, have ever made the silly legal claim Professor Dershowitz floats. Here he simply employs a legal fiction ‘red herring’ and erects a ‘straw man’ to offer a spurious argument on Israel’s behalf.

Proportionality does not require numerical equivalence but, contrary to what Alan implies, it clearly does not allow countless killings of civilians to avenge the death or capture of an Israeli soldier. Every Israeli act whether it is ethnic cleansing, occupation, massacre or wanton destruction is consistently portrayed by Professor Dershowitz as perfectly legal, morally just and as a pure act of self-defense reluctantly perpetrated by Israel in its war against the worst kind of human beings imaginable.

Alan Dershowitz: “Under the laws of war, any number of combatants can be killed to prevent the killing of even one innocent civilian.”

Law Check: This statement is nonsense on its face and totally ignores the key International Law requirements of Proportionality and Distinguishing combatants from non-combatants. With respect to Gaza, clearly rocket attacks against civilian targets in Israel are unlawful. But that does not give rise to any Israeli right, either as Occupying Power or State, to violate international humanitarian law and commit war crimes or crimes against humanity in a frenzied response as it clearly did in Lebanon in 1978, 1982, 1993, 1996 and 2006 and is currently engaged in with Gaza.

Admittedly, International Humanitarian Law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. The crime occurs when there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the reasonable knowledge that the incidental civilian injuries would be excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv). Article 8(2)(b)(iv) criminalizes:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are “clearly” excessive. The application of Article 8(2) (b) (iv) requires, inter alia, an assessment of:

(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was “clearly excessive” in relation to (b).

It’s beginning to look a lot like Genocide!

Professor Dershowitz in seeking to exempt Israel from the requirements of International Law has consistently argued that since Israel has not signed the Rome Statute and has not submitted to the jurisdiction of the International Court of Justice in The Hague, Israel is not bound by the Rome Statute’s International Law as noted below. He errs in his interpretation of the Rules of International Law and is quite mistaken that the provisions of the Rome Statute do not apply to Israel.

International Customary Law, i.e. legal norms accepted by the vast majority of States plus the United Nations, are binding on all States, including Israel. The Rome Statute does not make new law like, for example, some contract that Israel would have to sign in order to be bound by it. All states are bound by the law restated in Treaty form in the Rome Statute. Its binding provisions include Article 7 and Article 8 very applicable to the current carnage raging in Gaza.

Given that the Rome Statute imbued the International Criminal Court with ‘Universal Jurisdiction’ over all people and given further that the Rome Statute rejects Impunity for any person, which Israel has consistently used, for example in US Courts such as the recent Qana Case brought by the New York based Center for Constitutional Rights, Israeli leaders are now bound and can be tried jointly, severally and personally in the Hague. So can George W. Bush and Mohammad Hosni Mubarak, even though neither country has yet become a signatory of the Rome Statute.

Article 7 of the Rome Statute outlaws “a widespread or systematic attack directed against any civilian population,” which involves “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender” grounds.” Such projects, to which Palestinians have been subjected for more than 60 years, constitute a crime against humanity.

What Israel has been doing in Gaza and Palestine comes very close to genocide according to the provisions of the Genocide Convention (1948), reiterated in the Rome Charter of the International Criminal Court (2002), which includes: ‘(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’ (6). Some of Professor Dershowitz’s colleagues consider that the launching of rockets into Israel by Hamas, like the Warsaw ghetto uprising of 1943, constitute a legitimate response to impending extermination and are a desperate bid for survival.

Alan Dershowitz: “Under international law, Israel is not required to allow Hamas to play Russian roulette with Jewish children’s lives.”

This sentence, apparently borrowed by Professor Dershowitz without attribution (plagiarism again?) from Dory Gold, who has been using it profusely the past couple of months, has nothing to do with International Law; it just makes a good sound bite apparently.

Law Check: One of Alan Dershowitz’s nemeses, United Nations Special Rapporteur for Human Rights in the Occupied Territories, Professor Richard Falk, accuses Israel of the following indictable crimes in Gaza which are not Russian roulette:

* Collective punishment — the entire 1.5 million people who live in the crowded Gaza Strip are being punished for the actions of a few militants in direct violation of the absolute prohibition of Article 33 of the Geneva Convention.

* Targeting civilians — the airstrikes are aimed at civilian areas in one of the most crowded stretches of land in the world…”

* Disproportionate military response — the airstrikes have not only destroyed every police and security office of Gaza’s elected government, but have killed and injured hundreds of civilians.

Other indictable crimes Israel is committing daily in Gaza include intentionally directing attacks against civilian objects, that is, objects which are not military objectives.

Additionally, Professor Dershowitz ignores other violations of International Law by Israel in Gaza that fail to spare the civilian population, including, but not limited to, the following failures to act in accordance with the International Law of Armed Conflict while his “Perfectly Proportionate” judgment, yet again, exonerates Israel:

* Ignoring the prohibition against attacks that target or indiscriminately harm civilians and the requirement to distinguish at all times between civilians and combatants.

* Failure to adhere to the prohibition against disproportionate attacks by not launching any attack that may be expected to cause harm to civilians or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated.

* Failure to ensure the unhindered movement of medical personnel and ambulances to carry out their duties and of wounded persons to access medical care. Any restrictions on movement for genuine security grounds must be temporary, subject to regular review, and imposed only to the extent absolutely necessary.

* Failure to refrain from using “human shields” and by compelling Palestinian civilians to remain inside homes or other structures taken over by the IDF for military operations.

* Failing to take all necessary steps to ensure that the civilian population has access to sufficient food, medical care, and other essential humanitarian goods and services.

* Failure to allow journalists and humanitarian agencies access to Gaza and ensure that any restrictions on access and movement for genuine security grounds be temporary, subject to regular review, and only imposed to the extent absolutely necessary.

Alan Dershowitz concludes: “Until the world recognizes that Hamas is committing three war crimes — targeting Israeli civilians, using Palestinian civilians as human shields, and seeking the destruction of a member state of the United Nations — and that Israel is acting in self-defense and out of military necessity, the conflict will continue”.

Professor Dershowitz’s conclusion makes plain his 40-year thesis that Israel is above and immune from International Law, as well as his profound personal lack of respect for post-World War II international legal norms.

As an uncompromising ultra-Zionist, what he insists is akin to “the law is what I tell you it is! And why can’t the world understand that!” Professor Dershowitz insists in his final paragraph above that unless the International Community agrees with his misapplication of the requirements of International Law, including legitimate self-defense, military necessity, distinguishing between combatants and non-combatants, the UN Charter, proportionality, collective punishment, Israel will continue its serial violations of International Law and “the conflict [read: unlawful slaughter] will continue.

While cherry picking, mischaracterizing and misapplying International Law, Professor Dershowitz ignores what every Law School and University teaches on the subject.

Should he spend more time in the Harvard Law School library and less in TV studios, he would surely learn that an objective application of international legal norms to the conduct of Israel is Gaza would result its leaders being indicted and brought before the International Criminal Court in The Hague.

UPDATE:

“Better be careful Franklin, you don’t want Dersh dishing dirt on you, in other words you risk joining his growing shit list”, e-mailed a faculty friend from Harvard Law School yesterday among the 150-plus e-mails I received (only three being hate mail) from the piece on Alan’s WSJ article.

Sure enough, this observer made Alan’s ‘small fish’ list yesterday when following a program moderated by Mr. Charles Adler on the Corus Radio Network (wherever that is), the esteemed Felix Frankfurter Professor of Law reportedly called me ‘white trash’, Robert Fisk a neo-Nazi and trashed Jimmy Carter again for defending the Palestinians.

According to one listener (Mr. OS from California) the Professor: “made the comment about Fisk being a “neo-Nazi” at about 2:20 Mountain Standard Time (MST) five minutes into the interview, which began about 2:15 pm. Adler stepped aside and allowed Alan Dershowitz to rant on and on all he liked. It’s as if Rumpelstiltskin had been bested by the Queen who secretly learned his true name, such was AD’s ugly ogreish passion in his attacks on Fisk, Jimmy Carter and others”.

About the Professor considering me’ white trash’? Well, I guess it hurts my feelings, but yes I suppose I am. But how ever did the Professor learn that I come from an old tiny Indian village on the banks of the Willamette River in Oregon, and my family home is close to Tanya Harding’s? And that I love Ice Skaters, macaroni and cheese, mashed potatoes, gravy, creamed corn, green beans and meat loaf just like Ronald Reagan did! Could Alan use a sabbatical? In Gaza?

Franklin Lamb is author of the recently released book, The Price We Pay: A Quarter Century of Israel's Use of American Weapons in Lebanon. His volume Hezbollah: A Brief Guide for Beginners is due out soon. He can be reached at fplamb@gmail.com. Read other articles by Franklin, or visit Franklin's website.

4 comments on this article so far ...

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  1. bozh said on January 8th, 2009 at 11:34am #

    franklin may be mistaken in denying an occupied people the right and obligation to cary out any violent act against the occupier.
    even if israel wld treat palestinians according to internat’l laws.
    and even if neutral observes testify to that.
    but israel, according to numerous reports, is perping many crimes which many people have enumerated and described in detail.

    the laws were written, i deduce, having in mind, a conflict btw more or less two equally strong econo-military-diplomatic belligerents.
    thus any law written that tends to punish such weaklings as palestinians is, to me, extremely immoral.

  2. bozh said on January 8th, 2009 at 11:44am #

    an explanation why i hyphenate the three, to me, aspects of one phenomena. it is because one can’t separate in realityanyone aspect from all the others.
    reality can be split asunder only verbally.

  3. kalidas said on January 9th, 2009 at 12:26pm #

    Dershowitz should be prosecuted for impersonating a Semite.

  4. The Scarlet Pimpernel said on January 11th, 2009 at 11:00am #

    I see a problem with some of Prof. Dershowitz’s advice to the state of Israel. He ignores the Rules of the Geneva Convention in his definition of targeting individuals as well as the strictures of the Charter of the United Nations.
    Maybe the time has come to take the State of Israel up on the job offer, as his skills in logic seem to be diminishing and his vocabulary seems to also be declining. When the only thing you can say to counter someone’s arguments is that they are ‘White Trash’ or a Neo-Nazi, that indicates that you HAVE no logical counter to their arguments so you resort to the ultimate refuge of a scoundrel (or someone whose dementia has begun): the ad hominem attack.