Descent Into Moral Barbarism
Should Alan Dershowitz Target Himself for Assassination?
By Norman Finkelstein
08/13/06 "Counterpunch" -- -- 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 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 in the unprecedented war against a ruthless and fanatical foe, and that This is not the first time such a rationale has been invoked to dispense with international law.
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 Plus 硠change, plus c'est la mꭥ 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. 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 , 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 (emphasis in original), the latter commonly denoted preemptive use of force. The "For those impatient with such a response," it explained, the answer must be that,
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. 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 Even if for argument's sake it were true that Israeli leaders honestly erred, or, to use Dershowitz's coinage, how can a "false positive" be the paradigmatic case? Rather the contrary, 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. By collapsing the distinction between them, whereby not even a flea's hop separates the two poles on his continuum, In like manner he : "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, . 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," . This is because the U.N., which is the court of last appeal for inchoate armed threats, is biased against it. On the other hand, the Moreover, . 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,
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 itnot to find alternatives to the Security Council as a source of authority but to make the Council work better than it has.
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 ; ; "on some limited occasions, Hezbollah fighters have attempted to store weapons near civilian homes and have fired rockets from areas where civilians live."
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." . In addition, Dershowitz juxtaposes the "indisputable reality" that "Israel uses in an effort to target the terrorists" against Hezbollah which "targets Israeli population centers with in an effort to maximize casualties." Yet, 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: 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. " 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.
The main target of his "reassessment of the laws of war" has been the fundamental distinction between civilians and combatants.
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.
In light of the revisions Dershowitz enters in international law, : These are of course quibbles next to the fact that Dershowitz has now sanctioned mass murder of the Lebanese people.
It remains to consider . 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 He also recalls the highly pertinent case of Nazi propagandist , 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 had a circulation of only some 15,000 during the war, the
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 [and CounterPunch, Eds.,] 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 Finkelstein's most recent book is Beyond Chutzpah: On the misuse of anti-Semitism and the abuse of history (University of California Press). His web site is www.NormanFinkelstein.com.