Should Alan Dershowitz Target Himself for Assassination?

By NORMAN FINKELSTEIN Counterpunch 8/12/06

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 lawany attitude of consideration or regard for international law in respect of these persons is an errorThe 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 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 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, 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:

“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.”

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.

Article continues here: Part Two