Fact and Law Checking the Wall Street Journal and Alan Dershowitz
Part II: Dershowitz Misstates, Misrepresents, and Misapplies the Law
by Franklin Lamb,
Beirut
"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
In the minds of some of his colleagues, and a law student reporter at the Harvard Law Record, 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 "Of 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, 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 at bit North 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 Israelis' 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, that 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 which 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", emailed a faculty friend from Harvard Law School yesterday among the 150-plus emails 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 Rumplestiltskin 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 drafted the International Criminal Court submission on behalf of HOKOK, the International Coalition
against Impunity, seeking to bring Israel before the Court for International Crimes in Gaza. On January 15, 2009,
lawyers from HOKOK will ask the Court to investigate Reports of the use of internationally banned weapons, including
White Phosphorus, in Gaza.