August 10, 2006
Editor’s note: reader letters below the article. See also DePAUL PROFESSOR DEFAMES CATHOLIC EDUCATION: DONOHUE DEFENDS DERSHOWITZ (Catholic League, 10.11.2006).
As Israel’s military bravely fires away shells and missiles to lay waste the fragile human and physical infrastructure of Lebanon, Harvard Law Professor Alan Dershowitz, waging battle on a second front to legitimize Israel’s criminal aggression, bravely fires away op-eds from his foxhole at Martha’s Vineyard to lay waste the fragile infrastructure of international law. These are but the latest salvoes in Dershowitz’s long and distinguished career of apologetics on behalf of his Holy State.
Since becoming a born-again Zionist after the June 1967 war Dershowitz has justified each and all of Israel’s egregious violations of international law. In recent years he has used the “war on terrorism” as a springboard for a full frontal assault on this body of law. Appearing shortly after the outbreak of the second intifada, his book Why Terrorism Works (2002) served to rationalize Israel’s brutal repression of the uprising. In 2006 Dershowitz published a companion volume, Preemption: A Knife that Cuts Both Ways, to justify Israel’s preventive use of force against Iran. It is painfully clear from their content that Dershowitz possesses little knowledge or for that matter interest in the timely political topics that purport to be the stimuli for his interventions. In reality each book is keyed to a current Israeli political crisis and seeks to rationalize the most extreme measures for resolving it. If Why Terrorism Works used the war on terrorism as a juggernaut to set back the clock on protection of civilians from occupying armies, Preemption uses the war on terrorism to set back the clock on the protection of states from wars of aggression. Dershowitz’s current missives from Martha’s Vineyard take aim at the protection of civilians in times of war.
The central premise of Dershowitz is that “international law, and those who administer it, must understand that the old rules” do not apply in the unprecedented war against a ruthless and fanatical foe, and that “the laws of war and the rules of morality must adapt to these [new] realities.” This is not the first time such a rationale has been invoked to dispense with international law. According to Nazi ideology, ethical conventions couldn’t be applied in the case of “Jews or Bolsheviks; their method of political warfare is entirely amoral.” On the eve of the “preventive war” against the Soviet Union, Hitler issued the Commissar Order, which mandated the summary execution of Soviet political commissars and Jews, and set the stage for the Final Solution. He justified the order targeting them for assassination on the ground that the Judeo-Bolsheviks represented a fanatical ideology, and that in these “exceptional conditions” civilized methods of warfare had to be cast aside:
In the fight against Bolshevism it must not be expected that the enemy will act in accordance with the principles of humanity or international law…any attitude of consideration or regard for international law in respect of these persons is an error….The protagonists of barbaric Asiatic methods of warfare are the political commissars….Accordingly if captured in battle or while resisting, they should in principle be shot.
It was simultaneously alleged that the Red Army commissars (who were assimilated to Jews) qualified neither as prisoners of war protected by the Geneva Convention nor civilians entitled to trial before military courts, but rather were in effect illegal combatants. Plus ça change, plus c’est la même chose.
It is similarly instructive that, although Dershowitz is represented, and represents himself, in the media as a liberal and civil libertarian, the sort of arguments he makes crops up most often at the far right of the political spectrum. For example, in the recent landmark decision Hamdan v. Rumsfeld, the Supreme Court found that the petitioner, a Yemeni national captured in Afghanistan and held in Guantanamo Bay, was entitled, under both domestic statute and international law, to minimum standards of a fair trial, which the Commission Order, setting the guidelines for military commissions, didn’t meet. A centerpiece of Judge Clarence Thomas’s dissent was that “rules developed in the context of conventional warfare” were no longer applicable because — quoting President Bush — “the war against terrorism ushers in a new paradigm” and “this new paradigm…requires new thinking in the law of war.” Inasmuch as “we are not engaged in a traditional battle with a nation-state,” he went on to argue, the Court’s decision “would sorely hamper the President’s ability to confront and defeat a new and deadly enemy.” It’s hard to know where Thomas (and Bush) ends and Dershowitz begins.
The main thrust of Preemption is to justify an Israeli assault on Iran’s nuclear facilities. Although the book purports to the lofty goal of constructing a jurisprudence for criminal intent prior to commission of an actual crime, Dershowitz’s range of historical reference is pretty much limited to the Bible and Israel, and it is plainly not the Bible that is uppermost in his mind. To justify the Israeli assault on Iran Dershowitz sets up Israel’s attack on Egypt in June 1967 as the paradigm of legitimate preemptive war and its attack on Iraq’s nuclear reactor in 1981 as the paradigm of legitimate preventive war. His argument seems to be that if the legitimacy of the June 1967 attack is beyond dispute and the legitimacy of the 1981 attack has come to be seen as beyond dispute, then the legitimacy of a preventive war against Iran should also be beyond dispute.
Before analyzing this argument it is instructive to look at the current legal consensus on preemptive and preventive war. Dershowitz asserts that an “accepted jurisprudence” doesn’t exist. In fact, however, there is an enduring consensus, which recent events haven’t shaken. In 2004 a high-level U.N. panel commissioned by the Secretary-General published its report on combating challenges to global security in the 21st century. The report reaffirmed the conventional understanding of Article 51 of the U.N. Charter, which prohibits the unilateral use of force by a State except to ward off an “armed attack” or if a “threatened attack is imminent, no other means would deflect it and the action is proportionate” (emphasis in original), the latter commonly denoted preemptive use of force. The report went on to prohibit the unilateral use of force by a State to ward off an inchoate armed attack, or what’s commonly denoted preventive use of force, reaffirming that the Security Council is the sole legitimate forum for sanctioning the use of force in such a circumstance. “For those impatient with such a response,” it explained,
the answer must be that, in a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all.
Although Dershowitz puts forth Israel’s attack on Egypt in June 1967 as the paradigm of preemptive use of force, both as a matter of fact and theory this claim is patently untenable. The scholarly consensus is that an Egyptian armed attack was not imminent while it is far from certain that diplomatic options had been exhausted when Israel struck. Dershowitz himself acknowledges that “it is not absolutely certain” that Egypt would have attacked, and that “Nasser may not have intended to attack.” He finesses this with the assertion that Israeli leaders “reasonably believed” that an Egyptian attack was “imminent and potentially catastrophic.” Yet, apart from some transparently self-serving public statements there isn’t a scratch of evidence to sustain this claim either. Again, Dershowitz himself cites (in an endnote) the acknowledgment of former Prime Minister Begin, who was a member of the National Unity government in June 1967, that Israel “had a choice. The Egyptian Army concentrations in the Sinai do not prove that Nasser was really about to attack us. We must be honest with ourselves. We decided to attack him.” Even if for argument’s sake it were true that Israeli leaders honestly erred, how can resort to preemptive force on the mistaken belief that an attack was imminent constitute the paradigm of legitimate use of preemption — or, to use Dershowitz’s coinage, how can a “false positive” be the paradigmatic case? Rather the contrary, if June 1967 were the paradigm of preemption, it would undercut the legitimacy of any such resort to force. Dershowitz seems not to be aware that he has made a case not for but against preemptive war.
Dershowitz next nominates Israel’s attack on the Iraqi nuclear reactor as “paradigmatic” of legitimate use of preventive force. He mounts his case from multiple angles, sometimes implicitly, sometimes explicitly, but always falsely. In the first instance, Dershowitz puts preemptive war at one pole of a continuum and preventive war at the opposite pole. Although asserting that “the distinction between preventive and preemptive military action is important,” and that there are “real differences between these concepts,” he more often than not uses the terms interchangeably. For instance, he goes back and forth depicting the 1981 Israeli attack on Iraq’s nuclear reactor and the 2003 U.S. attack on Iraq both as preemptive and preventive uses of force. By collapsing the distinction between them, whereby not even a flea’s hop separates the two poles on his continuum, Dershowitz in effect legitimizes preventive war as preemptive war by another name. In like manner he redefines preemption so as to include preventive use of force: “preemption is widely, if not universally, regarded as a proper option for a nation operating under the rule of law, at least in some circumstances — for example, when a threat is catastrophic and relatively certain, though nonimminent.” If this is preemption, one wonders what prevention would be.
In addition, although acknowledging that the U.N. panel explicitly ruled out preventive use of force, Dershowitz nonetheless maintains that it has come to be seen as legitimate. To demonstrate this he alleges that Israel’s attack on Iraq’s nuclear reactor has become recognized as “the proper and proportional example of anticipatory self-defense in the nuclear age” and “the paradigm for proportional, reasonable, and lawful preventive action” in the “emerging jurisprudence of preventive military actions,” notwithstanding the “lack of imminence and certainty” of the Iraqi threat to Israel. He bases this resounding conclusion on a recent article in Foreign Affairs which “would certainly seem to have justified Israel’s bombing of the Osirak reactor.” Plainly the import of the U.N. panel’s findings pales by comparison.
Finally, invoking a philosopher’s wisdom that “no one law governs all things,” Dershowitz maintains that although preventive war might be illegitimate for all other States it remains a legitimate option for Israel. This is because the U.N., which is the court of last appeal for inchoate armed threats, is biased against it. Accordingly, unlike all other States, Israel cannot be held accountable to international law or, put otherwise, international law might apply to everyone else but it doesn’t apply to Israel: “it cannot expect the United Nations to protect it from enemy attack, and…with regard to international law and international organizations, it lives in a state of nature.” To demonstrate the U.N.’s inveterate hostility to Israel, Dershowitz specifically cites “Russia’s and China’s veto power” in the Security Council, which has allegedly blocked action supportive of it. Yet, not once in the past 20 years has Russia or China used the veto for a Security Council resolution bearing on Israel. On the other hand, the U.S. has exercised its veto power 23 times in just the past two decades (1986-2006) in support of Israel. Moreover, due to the U.S. veto Israel has been shielded from any U.N. sanctions, although the Security Council has imposed them on 15 member States since 1990, often for violations of international law identical to those committed by Israel. Not for the first time Dershowitz has turned reality on its head.
On a related note Dershowitz correctly observes that Israel “was not condemned by the Security Council” in June 1967, although its resort to force violated the U.N. Charter, an armed Egyptian attack having been neither actual nor imminent. The Security Council and General Assembly were both divided on how to adjudicate responsibility for the war. This would seem to suggest that far from being an inherently hostile forum, the U.N. has in fact granted Israel special dispensations. More generally, as former Israeli Foreign Minister Shlomo Ben-Ami observes, it was Israel’s policy of creeping annexation that shifted world opinion against it:
Neither in 1948 nor in 1967 was Israel subjected to irresistible international pressure to relinquish her territorial gains because her victory was perceived as the result of a legitimate war of self-defense. But the international acquiescence created by Israel’s victory in 1967 was to be extremely short-lived…. When the war of salvation and survival turned into a war of conquest and settlement, the international community recoiled and Israel went on the defensive. She has remained there ever since.
Insofar as the professed goal of Dershowitz’s book is not descriptive but normative — i.e., to devise ideal laws and institutional arrangements for combating terrorism — it is curious that he doesn’t propose reconfiguring the Security Council to mitigate its alleged bias. In this regard another of his claims merits attention: “The UN report fails to address the situation confronting a democracy with a just claim that is unable to secure protection from the Security Council and that reasonably concludes that failing to act unilaterally will pose existential dangers to its citizens.” Yet, the High-level panel report explicitly addresses this concern and devotes one of its four parts specifically to proposals for reforming the Security Council as well as other U.N. institutions, noting preliminarily that:
One of the reasons why States may want to bypass the Security Council is a lack of confidence in the quality and objectivity of its decision-making….But the solution is not to reduce the Council to impotence and irrelevance: it is to work from within to reform it…not to find alternatives to the Security Council as a source of authority but to make the Council work better than it has.
The reason Dershowitz prefers to shunt aside the Security Council rather than reform it is not hard to find: it is difficult to conceive any configuration of the Security Council that would sanction Israel’s periodic depredations of neighboring Arab countries. Finally, Dershowitz justifies ignoring the Security Council’s strictures on the use of preventive force because its “anachronistic, mid-twentieth century view of international law” doesn’t take into account the threat posed by “nuclear annihilation.” It seems he forgot about the Cold War.
Apart from the alleged biases of the U.N., Dershowitz defends Israel’s unilateral right to prevent its neighbors from acquiring nuclear weapons apparently on the ground that conventional nuclear deterrence strategy is anchored in the mutually implied threat of inflicting massive civilian casualties. However Israel’s neighbors know, according to him, that it would never indiscriminately target civilian population centers. Lest there be any doubt on this score he quotes former Prime Minister Begin, “That is our morality.” As Lebanese civilians witnessed for themselves in 1982, and have witnessed again in 2006 from the “most moral army in the world” (Prime Minister Olmert).
The indefeasible right of Israel to wage war as it pleases would seem to grant it very broad license: if there’s just “five percent likelihood” that Israel might face a compelling threat in “ten years,” according to Dershowitz, it has the right to attack now, and apparently regardless of whether this potential threat emanates from a currently friendly state. This would seem to mean that no place in the world is safe from an Israeli attack at any moment. In Dershowitz’s mind, this is the essence of a realistic and moral jurisprudence on war.
Since the outbreak of hostilities between Israel and Lebanon in July 2006, Dershowitz has used the war on terrorism to target yet another branch of international law, the protection of civilians during armed conflict. Before analyzing his allegations, it is necessary to look first at the factual picture.
In early August Human Rights Watch (HRW) released a comprehensive report devoted mainly to Israel’s violations of the laws of war during the first two weeks of the conflict. Its main findings were these: over 500 Lebanese had been killed, overwhelmingly civilians, and up to 5,000 homes damaged or destroyed; “in dozens of attacks, Israeli forces struck an area with no apparent military target”; Israel attacked “both individual vehicles and entire convoys of civilians who heeded the Israeli warnings to abandon their villages” as well as “humanitarian convoys and ambulances” that were “clearly marked,” while none “of the attacks on vehicles…resulted in Hezbollah casualties or the destruction of weapons”; “in some cases…Israeli forces deliberately targeted civilians”; “no cases [were found] in which Hezbollah deliberately used civilians as shields to protect them from retaliatory IDF attack”; “on some limited occasions, Hezbollah fighters have attempted to store weapons near civilian homes and have fired rockets from areas where civilians live.” The “pattern of attacks during the Israeli offensive,” HRW concluded, “indicate[s] the commission of war crimes.”
Contrariwise, Dershowitz has repeatedly alleged in numerous op-ed pieces that Israel typically takes “extraordinary steps to minimize civilian casualties,” while Hezbollah’s typical tactics were to “live among civilians, hide their missiles in the homes of civilians, fire them at civilian targets from densely populated areas, and then use civilians as human shields against counterattacks.” He adduces no evidence to substantiate these claims, all of which are flatly contradicted by HRW’s findings. In addition, Dershowitz juxtaposes the “indisputable reality” that “Israel uses pinpoint intelligence and smart bombs in an effort…to target the terrorists” against Hezbollah which “targets Israeli population centers with anti-personnel bombs that spray thousands of pellets of shrapnel in an effort to maximize casualties.” Yet, HRW has documented Israel’s use in populated areas of artillery-fired cluster munitions with a “wide dispersal pattern” that “makes it very difficult to avoid civilian casualties” and a “high failure rate” such that they “injure and kill civilians even after the attack is over.” Finally, Dershowitz deplores not only the actions of Hezbollah but also of “the U.N. peacekeepers on the Lebanese border [who] have turned out to be collaborators with Hezbollah.” Shouldn’t he get some credit for a job well done after Israel killed four of these “collaborators” in a deliberate attack on a U.N. compound?
The “new kind of warfare” in the “age of terrorism,” according to Dershowitz, underscores the “absurdity and counterproductive nature of current international law.” He claims, for example, that this body of law “fails” to address contingencies such as the firing of missiles “from civilian population centers.” International law “must be changed,” he intones, and “it must become a war crime to fire rockets from civilian population centers and then hide among civilians,” while those using human shields should incur full and exclusive responsibility for “foreseeable” deaths in the event of an attack. Yet, such a scenario is hardly new and the law has hardly been silent on it: use of civilians as a shield from attack is a war crime, but it is also a war crime to disregard totally the presence of civilians even if they are being used as a shield. Dershowitz further declares that “it should, of course, already be a war crime for terrorists to target civilians from anywhere.” It of course already is a war crime. He alleges, however, that “you wouldn’t know it by listening to statements from some U.N. leaders and ‘human rights’ groups.” Isn’t his real beef, however, that they don’t only denounce the targeting of civilians by “terrorists” but the targeting of civilians by states as well?
International law, Dershowitz alleges, is based on “old rules — written when uniformed armies fought other uniformed armies on a battlefield far away from cities” — whereas nowadays “well-armed terrorist armies” like Hezbollah “don’t belong to regular armies and easily blend into civilian populations” that “recruit, finance, harbor and facilitate their terrorism.” But these conditions are scarcely novel. In his writings Dershowitz often cites Michael Walzer’s 1977 study Just and Unjust Wars. He surely knows, then, that Walzer devotes the chapter on guerrilla war to these issues. Consider this passage:
If you want to fight against us, the guerrillas say, you are going to have to fight civilians for you are not at war with an army, but with a nation….In fact, the guerrillas mobilize only a small part of the nation….They depend upon the counter-attacks of their enemies to mobilize the rest. Their strategy is framed in terms of the war convention: they seek to place the onus of indiscriminate warfare on the opposing army….Now, every army depends upon the civilian population of its home country for supplies, recruits, and political support. But this dependence is usually indirect, mediated by the bureaucratic apparatus of the state or the exchange system of the economy….But in guerrilla war, the dependence is immediate: the farmer hands the food to the guerrilla….Similarly, an ordinary citizen may vote for a political party that in turn supports the war effort and whose leaders are called in for military briefings. But in guerrilla war, the support a civilian provides is far more direct. He doesn’t need to be briefed; he already knows the most important secret: he knows who the guerrillas are….The people, or some of them, are complicitous in guerrilla war, and the war would be impossible without their complicity….[G]uerrilla war makes for enforced intimacies, and the people are drawn into it in a new way even though the services they provide are nothing more than functional equivalents of the services civilians have always provided for soldiers.
If the questions Dershowitz poses are not original, it must be said that his answers are, at any rate coming from someone who claims to be a liberal. He writes, for instance, that “the Israeli army has given well-publicized notice to civilians to leave those areas of southern Lebanon that have been turned into war zones. Those who voluntarily remain behind have become complicit.” In fact, Walzer ponders precisely this scenario in the context of the Vietnam war where, according to the rules of engagement, “civilians were to be given warning in advance of the destruction of their villages, so that they could break with the guerrillas, expel them, or leave themselves….Any village known to be hostile could be bombed or shelled if its inhabitants were warned in advance, either by the dropping of leaflets or by helicopter loudspeaker.” In Walzer’s judgment such rules “could hardly be defended” in view of the massive devastation wrought. In the event that “civilians, duly warned, not only refuse to expel the guerrillas but also refuse to leave themselves,” Walzer goes on to stress,
so long as they give only political support, they are not legitimate targets, either as a group or as distinguishable individuals….So far as combat goes, these people cannot be shot on sight, when no firefight is in progress; nor can their villages be attacked merely because they might be used as firebases or because it is expected that they will be used; nor can they be randomly bombed and shelled, even after warning has been given.
To be sure, Walzer wrote this in the context of Vietnam. Like Dershowitz, he became a born-again Zionist after the June 1967 war and accordingly has applied an altogether different standard to Israel. Whereas Dershowitz plays the tough Jew, Walzer’s assigned role has been to stamp as kosher every war Israel wages, but only after anxious sighs. Thus, while HRW was deploring Israel’s war crimes, Walzer opined on cue that “from a moral perspective, Israel has mostly been fighting legitimately,” and that if Israeli commanders ever faced an international tribunal, “the defense lawyers will have a good case,” mainly because Hezbollah has used civilians as human shields — even if in the real world they haven’t.
Dershowitz purports to make the case that the laws of war need to be revised in the “new” age of terrorism. In fact, his real concern is an old one. A standard tactic of Israel in its armed hostilities with Arab neighbors has been to inflict massive, indiscriminate civilian casualties, and Dershowitz’s standard defense has been to deny it. But the credibility of human rights organizations that have documented these war crimes is rather higher than that of this notorious serial prevaricator, which is why he so loathes them. Dershowitz now uses the war on terror as a pretext to strip civilians of any protections in time of war, dragging the law down to put it on level with Israel’s criminal practices.
The main target of his “reassessment of the laws of war” has been the fundamental distinction between civilians and combatants. Ridiculing what he deems the “increasingly meaningless word ‘civilian'” and asserting that, in the case of terrorist organizations like Hezbollah, “‘civilianality’ is often a matter of degree, rather than a bright line,” Dershowitz proposes to replace the civilian-combatant dichotomy with a “continuum of civilianality”:
Near the most civilian end of this continuum are the pure innocents — babies, hostages and others completely uninvolved; at the more combatant end are civilians who willingly harbor terrorists, provide material resources and serve as human shields; in the middle are those who support the terrorists politically, or spiritually.
He imagines that this revision wouldn’t apply to Israel because “the line between Israeli soldiers and civilians is relatively clear.” But is this true? Israel has a civilian army, which means a mere call-up slip or phone call separates each adult Israeli male from a combatant. Israeli civilians willingly provide material resources to the army. To judge by its targeting of Lebanese power grids, factories, roads, bridges, trucks, vans, ambulances, airports, and seaports, Israel must reckon all civilian infrastructure legitimate military targets, in which case all Israelis residing in the vicinity of such Israeli infrastructure constitute human shields. Israel’s recent brutal assault on Lebanon, like its past wars during which massive war crimes were committed, has enjoyed overwhelming political and spiritual support from the population. “If the media were to adopt the ‘continuum”’ he has proposed, Dershowitz reflects, “it would be informative to learn how many of the ‘civilian casualties’ fall closer to the line of complicity and how many fall closer to the line of innocence.” It would seem, however, that on his spectrum nearly every Israeli would be complicitous.
In light of the revisions Dershowitz enters in international law, his reasoning begins to verge on the bizarre. He asserts that inasmuch as the Lebanese population overwhelmingly “supports Hezbollah,” there are no real civilians or civilian casualties in Lebanon: “It is virtually impossible to distinguish the Hezbollah dead from the truly civilian dead, just as it is virtually impossible to distinguish the Hezbollah living from the civilian living.” If this be the case, however, it is hard to make out the meaning of Dershowitz’s praise of Israel for only targeting Hezbollah terrorists in Lebanon. Didn’t he just say that all of the Lebanese are Hezbollah? Similarly he condemns Hezbollah for targeting Israeli civilians. But Israelis are no less supportive of the IDF than Lebanese are of Hezbollah. Doesn’t this mean that Hezbollah can’t be targeting civilians in Israel because there aren’t any? These are of course quibbles next to the fact that Dershowitz has now sanctioned mass murder of the Lebanese people.
It remains to consider Dershowitz’s own location on the continuum of civilianality. Israel could not have waged any of its wars of aggression or committed any of its war crimes without the blanket political and military support of the United States. Using his academic pedigree Dershowitz has played a conspicuous, crucial and entirely voluntary public role in rallying such support. He has for decades grossly falsified Israel’s human rights record. He has urged the use of collective punishment such as the “automatic destruction” of a Palestinian village after each Palestinian attack. He has covered up Israel’s use of torture on Palestinian detainees, and himself advocated the application of “excruciating” torture on suspected terrorists such as a “needle being shoved under the fingernails.” He has aligned himself with the Israeli government against courageous Israeli pilots refusing the immorality of targeted assassinations. He has denounced nonviolent resisters to the Israeli occupation as “supporters of Palestinian terrorism.” He has dismissed ethnic cleansing as a “fifth-rate issue” akin to “massive urban renewal.” He has advised Israel’s senior government officials that Israel is not bound by international law. He has now sanctioned the extermination of the Lebanese people.
Finally, in Preemption he boasts of having vicariously participated in a targeted assassination while visiting Israel:
I watched as a high-intensity television camera, mounted on a drone, zeroed in on the apartment of a terrorist…I watched as the camera focused on the house and the nearly empty streets.
It seems, however, that this moral pervert missed the climactic scene of his little peep show, although it isn’t reported whether he got his quarter back: “I was permitted to watch for only a few minutes, and no action was taken while I was watching because the target remained in the house.” One wonders whether Dershowitz carefully inserted these weasel words because, as he well knows, targeted assassinations constitute war crimes, and he might otherwise be charged as an accessory to one.
In Preemption Dershowitz observes that “there can be no question that some kinds of expression contribute significantly to some kinds of evil.” In this context he recalls that the International Criminal Tribunal for Rwanda handed down life sentences to Hutu radio broadcasters for inciting listeners to “hatred and murders.” He also recalls the highly pertinent case of Nazi propagandist Julius Streicher, who was described by writer Rebecca West as “a dirty old man of the sort that gives trouble in parks,” and by Nuremberg prosecutor Telford Taylor as “neither attractive nor bright.” Although Hitler had stripped this self-styled Zionist and expert on Jews of all his political power by 1940, and his pornographic newspaper Der Stuermer had a circulation of only some 15,000 during the war, the International Tribunal at Nuremberg nonetheless sentenced Streicher to death for his murderous incitement.
On his continuum of civilianality Dershowitz appears to fall in the proximity of the Hutu radio broadcasters and Streicher — less direct in his appeal, more influential in his reach. It is highly unlikely, however, that he will ever be brought before a tribunal for his criminal incitement. But there is yet another possibility for achieving justice. Dershowitz is a strong advocate of targeted assassinations when “reasonable alternatives” such as arrest and capture aren’t available. The conclusion seems clear — if, and only if — one uses his standard and his reasoning. Of course, the preponderance of humanity, this writer included, does not think this way. After all the hard-won gains of civilization, who would want to live in a world that once again legally sanctioned torture, collective punishment, assassinations and mass murder? As Dershowitz descends into barbarism, it remains a hopeful sign that few seem inclined to join him.
Norman G. Finkelstein
08 August 2006
New York City
1. New Haven, 2002. See Norman G. Finkelstein: Beyond Chutzpah: On the misuse of anti-Semitism and the abuse of history (Berkeley, 2005), p. 176n19.
2. New York: 2006.
3. The profundity of Dershowitz’s insights in Preemption can be gauged from these examples: in the event of a smallpox attack, he sagely advises, “an appropriate balance must be struck between too much and too little inoculation,” while “as terrorism increases,” he boldly predicts, “there will be increasing calls for prior censorship of speech that is believed to incite suicide bombers and others who target civilians” (Preemption, pp. 144, 149). His scholarly citations are also up to par of previous books: to document early U.S. plans for a first strike on Chinese nuclear facilities, for example, he cites Popular Mechanics magazine (Preemption, pp. 299-300n26).
4. Alan M. Dershowitz, “Arbour Must Go,” in National Post (21 July 2006); Alan M. Dershowitz, “Arithmetic of Pain,” in Wall Street Journal (19 July 2006).
5. Helmut Krausnick et al., Anatomy of the SS State (New York: 1965), p. 336 (quoting Himmler).
6. Horst Boog et al., Germany and the Second World War, vol. iv, The Attack on the Soviet Union (Oxford: 1998), pp. 38, 39, 517.
7. Krausnick, Anatomy, p. 356.
8. Ibid., pp. 318-19; Boog, Attack, pp. 499-500, 510, 515.
9. Boog, Attack, pp. 497-8, 508.
10. Hamdan v. Rumsfeld et al. No. 05-184. Argued March 28, 2006 — Decided June 29, 2006. It is not without interest that the specific features of military commissions that the Court criticized when it struck down their legality — use of secret evidence, hearsay evidence, and evidence extracted by coercion — are typical of Israeli military courts in the Occupied Palestinian Territory. See Lisa Hajjar, Courting Conflict: The Israeli military court system in the West Bank and Gaza (Berkeley: 2005).
11. His only other significant historical reference is the clichéd one to justify preventive war: if only the Allies had attacked Germany before the Nazis consolidated their power (Preemption, pp. 66-7, 159-61). Because Dershowitz doesn’t engage any of the scholarship on this topic it would be a pointless digression to do so here, except to note that political elites in the West were far from united in their assessment of the evil Hitler represented, many of them believing that he was a blessing in disguise, and that had they been of one mind collective undertakings short of preventive war could perhaps have contained him. Dershowitz himself quotes Churchill that “the rise of Nazi military power could have been prevented, perhaps without the use of force.” The problem, then, wasn’t Allied legal aversion to preventive war but lack of Allied political consensus on whether the Nazi regime warranted it. Analogously, while the Security Council has the legal power to use force in case of perceived threats to peace, the problem is reaching consensus on the existence of such threats.
12. Along the way Dershowitz also justifies Israel’s other wars as strictly defensive: the 1948 war was “largely reactive” (pp. 78, 103); the 1956 invasion of Sinai was “largely preventive” (pp. 79, 102); the 1973 war was “entirely reactive” (p. 104; cf. pp. 83-89); the 1982 invasion of Lebanon was “purely preventive” (p. 104; cf. p. 102). Beyond the vulgar apologetics, he seems unaware that on his criteria Arab states had in each war a stronger case for launching the first strike against Israel: for Zionist plans before the 1948 Arab attack to expand beyond the U.N. Partition Resolution borders, see Shlomo Ben-Ami, Scars of War, Wounds of Peace (Oxford: 2006), p. 34; for Israeli plans already in the early 1950s to attack Egypt, see Finkelstein, Beyond Chutzpah, p. 267; for Israeli plans already in 1966 to attack Syria, see Ben-Ami, Scars of War, p. 100; for Israel’s opposition to a negotiated settlement with Egypt in 1971 leading to the 1973 attack, see Norman G. Finkelstein, Image and Reality of the Israel-Palestine Conflict, second edition (New York: 2003), chap. 6; for Israeli plans already in 1981 to invade Lebanon, see Finkelstein, Beyond Chutzpah, p. 295; for Israeli plans a year before the latest Lebanon offensive to attack Hezbollah, see Matthew Kalman, “Israel Set War Plan More Than a Year Ago,” in San Francisco Chronicle (21 July 2006).
13. Dershowitz, Preemption, p. 60.
14. Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, A More Secure World: Our shared responsibility (New York: 2004), para. 188. Dershowitz falsely implies that the sanctioning of preemptive force is a new development (Preemption, p. 19). His disingenuous intent is to suggest that if the rules on preemptive force have been modified in light of new, unprecedented threats to global security, why shouldn’t those on preventive force be modified as well? Similarly Dershowitz exhorts that “no law or rule of morality will ever succeed in prohibiting all preemptive military actions. Nor should it” (Preemption, p. 89). In fact, this is a red herring because international law has never barred such action, as he well knows (ibid., pp. 200-1, 203). He pretends this is a controversial principle in order to assimilate it to the truly controversial one of preventive war, conjoining them as allegedly disputed principles that are manifestly just.
15. Report of the Secretary-General’s High-level Panel, para. 191.
16. Finkelstein, Image and Reality, chap. 5 and Appendix.
17. Dershowitz, Preemption, pp. 82, 83; cf. p. 88. Elsewhere he seems to allege contrariwise that an Egyptian attack was imminent (ibid., pp. 200, 204).
18. Ibid., pp. 83, 203.
19. Ibid., pp. 302-3n25. Dershowitz also cites Michael Walzer’s argument that Israel couldn’t afford the costs of a protracted full-scale mobilization of its civilian army (ibid., p. 305n53). Yet, according to American estimates, as of 26 May “Israel could maintain the present level of mobilization for two months without causing serious trouble,” while the U.S. had committed itself to footing the bill for Israel’s mobilization. See U.S. Department of State, Foreign Relations of the United States, 1964-1966, vol. XIX, Arab-Israeli Crisis and War, 1967 (Washington, D.C.: 2004), doc. 72, and Finkelstein, Image and Reality, p. 136.
20. Dershowitz, Preemption, p. 94; cf. p. 220.
21. Ibid., pp. 60-1.
22. Ibid., pp. 104, 156; cf. p. 59.
23. Ibid. For 1981, see pp. 94, 98, 99, 167, 179, 180, 240; for 2003, see pp. 153-73 passim, 196. For this conflation in the case of a possible attack on Iran, see pp. 180, 183, 187, 188.
24. Ibid., p. 223; cf. p. 239 where he defines nonimminent attacks as “preemptive military actions.”
25. Dershowitz, Preemption, pp. 94-5, 220.
26. Ibid., p. 220. Taking a different tack he also maintains (ibid., pp. 96-9, 207, 325n26) that Israel’s 1981 strike was actually a preemptive response to an imminent threat: that is, had it deferred attacking until the Iraqi reactor went active, Israel couldn’t have struck because the radioactive fallout would have killed too many civilians — a contingency, according to him, that the U.N. panel ignored. Yet, as he well knows, the panel issued its strictures barring preventive war after vetting the possibility that a deferred attack might result in “radioactive fallout from a reactor destruction.” See Report of the Secretary-General’s High-level Panel, para. 189; also cited in Dershowitz, Preemption, p. 206.
27. Ibid., p. 208.
28. Ibid., p. 77 (internal quotation marks omitted); cf. pp. 180, 208, 211-12, 238, 327n17. Occasionally Dershowitz maintains that the U.S. also has the right, alone or in concert with Israel, to use preventive force unilaterally, although offering no explanation why it can’t consult the U.N. first (ibid., pp. 179, 181, 187).
29. Ibid., pp. 210-11, 328n37.
30. www.globalpolicy.org/security/membship/veto/vetosubj.htm. This figure doesn’t include many more resolutions critical of Israel that never reached a Security Council vote due to U.S. opposition. In this regard it also merits noting Dershowitz’s dismissal of the Security Council on the ground that members don’t vote on “any principle other than that of self-serving advantage and realpolitik bias” (Preemption, pp. 211-12, emphasis in original). To judge by frequency of use of the veto, and although Dershowitz passes over this in silence, the U.S. is by a wide margin least in sync with the collective will of the international community: of the 81 Security Council vetoes during the past 30 years (1976-2006), the U.S. was responsible for 69 of them (19 in concert with the United Kingdom and/or France).
31. David Cortright and George A. Lopez, The Sanctions Decade: Assessing U.N. strategies in the 1990s (Boulder, CO: 2000); Marc Weller and Barbara Metzger, Double Standards (Negotiations Affairs Department, Palestine Liberation Organization: 24 September 2002).
32. Dershowitz, Preemption, p. 202.
33. Ben-Ami, Scars of War, pp. 314-15.
34. Dershowitz, Preemption, pp. 211-12.
35. Report of the Secretary-General’s High-level Panel, paras. 197-8. The recommendations comprise Part IV of the report.
36. Dershowitz, Preemption, p. 239.
37. Ibid., pp. 77, 319n1.
38. Ibid., p. 96; cf. p. 323n1.
39. Ibid., pp. 95-6, 186-7; cf. pp. 225-6.
40. Human Rights Watch, Fatal Strikes: Israel’s indiscriminate attacks against civilians in Lebanon (August 2006).
41. See his “Arithmetic of Pain,” in Wall Street Journal (19 July 2006), “Arbour Must Go,” in National Post (21 July 2006), “‘Civilian Casualty’? It Depends,” in Los Angeles Times (22 July 2006), “Blame the Terrorists, not Israel,” in Boston Globe (24 July 2006), “How the UN Legitimizes Terrorists,” in Chicago Tribune (25 July 2006), “Hizbullah’s Real Goal is Racist,” in Christian Science Monitor (27 July 2006), “Hezbollah’s Human Shields,” in National Post (1 August 2006), “Lebanon is Not a Victim,” in The Huffington Post (7 August 2006) (www.huffingtonpost.com/alan-dershowitz/lebanon-is-not-a-victim_…).
42. The specific context of the quoted statement regarding Hezbollah’s tactics was the 30 July Israeli massacre at Qana. Yet, no evidence has been found that Hezbollah fighters or rocket launchers were in the vicinity of the village when the building was repeatedly bombed. In addition to Fatal Strikes, see HRW press releases, “Qana Death Toll at 28” (2 August 2006) and “IDF Fails to Explain Qana bombing” (3 August 2006).
43. In addition to Fatal Strikes, see HRW, “Israeli Cluster Munitions Hit Civilians in Lebanon” (24 July 2006).
44. HRW, Questions and Answers on Hostilities Between Israel and Hezbollah (2 August 2006). See also Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict (Cambridge: 2005), pp. 129-31.
45. Michael Walzer, Just and Unjust Wars: A moral argument with historical illustrations (New York: 1977), pp. 176-96.
46. Ori Nir, “Israeli Military Policy Under Fire After Qana Attack,” in The Forward (4 August 2006). See also Michael Walzer, “War Fair,” in The New Republic (31 July 2006). For Walzer’s long record of apologetics for Israel, see Finkelstein, Image and Reality, pp. 1-3, 140, and sources cited on p. 207n9.
47. See Finkelstein, Beyond Chutzpah, pp. 272-6.
48. See ibid., pp. 91-4.
49. He goes so far as to suggest that combatants might deserve more solicitude than civilians in time of war, depending on “the precise nature of the civilian’s ‘civilianality'” (Preemption, p. 247).
50. For past wars, see Finkelstein, Beyond Chutzpah, pp. 176-7.
51. Ibid., pp. 221-4
52. Dershowitz, Preemption, pp. 126-7.
53. Ibid., pp. 146-7.
54. Telford Taylor, The Anatomy of the Nuremberg Trials (New York: 1992), pp. 150 (Taylor description, Zionist, Jewish expert), 228 (West), 264, 376-8, 481, 590.
55. Dershowitz, Preemption, p. 229.
Dear Professor Finkelstein,
I just read your article “Should Alan Dershowitz Target Himself for Assassination” and found your reasoning incisive and irrefutable and your writing engaging and very funny at times, despite the serious topic.
Also, thanks for kicking Dershowitz’s ass on “Democracy Now!” I especially enjoyed you pointing out to Dershowitz that he had graduate students write his book for him and “hadn’t read it” and didn’t even know what was in it!
Hello Prof. Finkelstein,
I am an Indian Hindu currently in the US. I have no personal feelings
towards the Israel-Palestine (unless one counts Prof. Chomsky’s words
and take into consideration that I pay taxes), yet I am interested in
it because of you. It is great to know that there are people like you
who are unafraid to speak the truth and speak it as unabashedly as you
May truth and justice prevail at the end.
Thoroughly enjoyed your piece on ‘Should Alan Dershowitz Target Himself for Assassination’.
Reading through the letters sections on your website, I get quite upset at the crude insults that certain people make at you and your family. I know that you are wise and strong enough to know that this in a peculiar way is a sign that your cause is just and strong.
Looking though the pictures of your family, let me first say they are beautiful. You have your mothers strength and dignity, so keep up the great work.
Dear Professor Finkelstein,
I hope I’m not wasting your time with a few glosses on your excellent article in yesterday’s Counterpunch.
Here they are, for what they are worth.
(1) “the proper and proportional example of anticipatory self-defense in the nuclear age”
I’ve met that kind of phrasing, ‘anticipatory self-defense’ quite often in public defenses of Israel’s mode of preventive warfare. It conjures up to mind the following passage from Hilberg’s ‘The Destruction of the Euriopean Jews'(1961) New Viewpoints ed.1973 New York p.14:-
“One of the most sagacious alleviation reactions in the Jewish arsenal is anticipatory compliance. In this type of alleviation attempt, the victim foresees the danger and combats it by doing the very thing demanded of him. But he does so before he is confronted by ultimatums. He is, therefore, giving in on his own terms. In a sense, this is the action of a man who – sensing a fatal blow – wounds himself. With the wound he seeks to demonstrate that the blow is unnecessary’
I’ve long been interested in the study of psychological reversal, the tendency to overcompensate for one negative strategy by embracing its polar inverse, or ‘positive’ extreme, and I think ‘anticipatory self-defence’ is one such mechanism, something extreme which developed, in part, out of a conscious repudiation in Zionist thought of the kind of ‘anticipatory compliance’ that Sabras found responsible for the passivity that contributed to the Nazi Holocaust. Diagnosing (Sandor Gilman’s books do the same) a weakness in the so-called (to me a fiction) traditional ‘Jewish psyche’, post-war Zionists encouraged a kind of public mentality that hailed any kind of chutzpah in the face of threats, real or, as seems more often the case, imagined, as if the facts dare-devilry established on the ground indefiance of law, custom and logic, somehow retroactively justified themselves even if the original formal cause for it proved to be false or a mere hallucination of peril. It bears close comparison and contrast with the Samid posture of quiescent steadfastness in the face of otherwise overwhelming aggression that Raja Shehadeh has written eloquently about in the Palestinian context. If to some Israelis, ‘anticipatory compliance’ led to the gaschambers, ‘anticipatory self-defence’, tantamount to an anticipatory defiance of international law, is the sine qua non of survival, though probably the long-term effect is to entice precisely the kind of apocalyptic end-game such measures are, at least publicaly, designed to forestall.
(2) ‘ ‘”on some limited occasions, Hezbollah fighters have attempted to store weapons near civilian homes and have fired rockets from areas where civilians live.”
Again of course the standard Hasbara line. I think, from foruming experience, that one of the most effective ways to shut up people who trot out this nonsense is simply to cite the two decisions by the Israeli Supreme Court (2002, 2005) forbidding Tsahal to force Palestinean youths into acting as ‘human shields’ before Israeli troops and on tanks in their many incursions through Palestinian villages. I think the two judgements specifically cite the term ‘human shields’. The practice dates back some decades, and this is a legal verdict rendered by an Israeli court, and therefore not something someone like Dershowitz can ignore, if it is thrown at him. For Israel to use the ‘human shield’ gambit against Hezbollah is to say the least, a case of the pot calling the kettle black.
A second point on ‘human shields’ is that Israeli historians accept that the conquest of Jerusalem was won by Haganah exactly in this fashion, i.e. by ordering that no Jewish civilians leave areas where they themselves had their own armories and operational headquarters. There is a hint of this in Larry Collins, Dominique Lapierre’s ‘O Jerusalem'(1972) 1982 p.109, but a better example is the text cited by Chomsky in ‘The Fateful Triangle’:-
“In an interview on the siege of Beirut in early August, military historian Meir Pail compared it with the Arab siege of Jerusalem During the Jerusalem siege in 1948, “the Israeli Army also prevented civilians from leaving the town, and there too military centers were situated in the midst of the civilian population”— a response to anotherfamiliar canard. Note that the word “also” is out of place in this statement, according to the eyewitness reports of western journalists, quoted above.295 Pail pointed out that “Naturally military headquarters are at the center,” i.e., in populated areas, something that was “especially true” of the Haganah under the British mandate, “when the Israeli military network…was pushed under the cover of the legal civilian center, such as the Jewish Agency and the Histadrut [labor union].” Military orders were “that everyone should remain in the city.” The army prevented civilians from escaping, because “civilians are an organic part of the city just as its buildings are.” Haganah posts were placed on the roofs of houses, and drew hostile fire. Most of the residents of Jerusalem were from “the old community,” people who “fought very little and caused much trouble” (in fact, many were anti-Zionist; recall that the first recorded terrorist act of the Haganah was the murder of a religious Jew organizing among them in 1924—see chapter 4, section 9.3). Out of 100,000 inhabitants, “the Haganah managed to organize only two battalions of 800 men each.” Noam Chomsky, The Fateful Triangle,(1983) 1999 Pluto Books, London pp.533-4 (electronic edition available on the Net)
(3) Dershowitz ‘Hezbollah which “targets Israeli population centers with anti-personnel bombs that spray thousands of pellets of shrapnel in an effort to maximize casualties’:
Again there is a passage in Chomsky to counter this idea that what’s good for the goose is not quite appropriate for the gander. I.e.
“Rabin’s July 1993 war having achieved its goals, the pattern returned to normal. Israel continued to attack Lebanon at will, sometimes in retaliation for Hizbollah attacks on military personnel in Israel’s “security zone,” sometimes with no pretext. Hundreds of Lebanese were killed, but few were counting, so details are unknown. Israel’s use of “internationally banned shells which spray steel darts” was justified by Health Minister Ephraim Sneh, a former army commander, as “a very good weapon” that is “completely legitimate” in a war against “terrorists,” with no “ethical constraint.” Chomsky ‘The Fateful triangle,’ 1999 p.877
Secondly, you will have noted that over the last week, in the face of Hezbollah’s redoubtable resistance, Israel made a formal request to the US to hasten the delivery of M26 rockets, which are cluster bombs with ball-bearing-filled grenades that spread out over large terrain. The request was made just prior to the outbreak of hostilities, and was formally endorsed but I see today that Congress is apparently holding that shipment up, and one reason given was that their use would inevitably have an indiscriminate ‘collateral damage’ on civilians.
Finally, a more general consideration. As distinct from his own lawyerly practice, where he defends people indicted for various crimes by hailing their constitutional rights to be presumed innocent until proven otherwise, in the arena of international law, Dershowitz reverses the premises. In the ‘theory’ you are engaged in commenting on, the eventual victim of preemptive aggression is presumed guilty, as indicted by the assailant, unless proven otherwise, perhaps because in the run-up to conflicts the ‘Arab’ not does show sufficient ‘anticipatory compliance’ with Israel’s demands.
In the aftermath of the O.J.Simpson trial, Dershowitz expressed his shock at how uniformed, average folks out there were upset by the thought that a person they believed guilty was acquitted, far more upset than they would be were they to learn that an innocent person had been condemned to death. Noting that, ‘Many Americans seem to believe that it is better for ten innocent people to be convicted than for even one guilty person to go free,’ and this, in his view, reflects their ignorance, moral and technical of the way the American system of law operates.. Time magazine online ‘Looking Back at the OJ Trial Transcript from June 9, 1999’
His theorizing on the ‘war against terrorism’ however adopts the prejudices of the ‘many ill-informed Americans’ he criticizes in this remark, by applying their prejudices to the legal treatment of people suspected of terrorism.
All of Dershowitz’s comments on terrorism reverse this set of constitutional guarantees forming the American legal tradition as it applies to American citizens. The accused is to be presumed guilty as tortured, even if this means innocents caught up in the sweep of homeland security or extraterritorial arrest and rendition may suffer an injustice. It is hard therefore to understand how Dershowitz reconciles his ‘theories’ on the laws of war and terrorism with the ‘liberal’ theories he espouses as a practicing lawyer in the American courts.