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Today's Stories August 12 / 13, 2006 Jean Bricmont
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August 12 / 13, 2006 Descent Into Moral BarbarismShould Alan Dershowitz Target Himself for Assassination?By NORMAN FINKELSTEIN 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:
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 paradigmrequires 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 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, andwith 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:
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:
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 vehiclesresulted in Hezbollah casualties or the destruction of weapons"; "in some casesIsraeli 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 effortto 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 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,
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":
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:
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 [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.
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from CounterPunch Books! The Case Against Israel By Michael Neumann  Grand Theft Pentagon: Tales of Greed and Profiteering in the War on Terror by Jeffrey St. Clair          Sick of sit-on-the-Fence speakers, tongue-tied and timid? CounterPunch Editors Alexander Cockburn and Jeffrey St Clair are available to speak forcefully on ALL the burning issues, as are other CounterPunchers seasoned in stump oratory. Call CounterPunch Speakers Bureau, 1-800-840-3683. Or email beckyg@counterpunch.org.                    |
