By NORMAN FINKELSTEIN Part One:Descent Into Moral Barbarism 8/12/06

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 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 [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

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