Dershowitz: “My job today is to delegitimize international law.”

by Julian Ku

The Jerusalem Post reports on a recent discussion between Alan Dershowitz, Aharon Barak, and Amnon Rubinstein on Israel’s proper attitude toward international law.  Each represented a different perspective. Barak (former Israeli Supreme Court chief) suggests that Israel must follow international law as it is, while Rubinstein argued that Israel should engage to make sure international law is interpreted fairly and reasonably against it.  And then there is Dershowitz’s position, which is (predictably), the most interesting and extreme position:

Dershowitz charged that Israel was singled out for discrimination by those who interpret international law, whether they are international tribunals like the International Court of Justice, human rights organizations or left-wing academics, including Israeli and Jewish ones.

“The judges in the international tribunes are corrupt,” Dershowitz said. “They are appointed by political leaders to do their state’s bidding. You can’t have one law for Britain, one for America and another one for Israel. You can’t have different laws for thee and me. We see human rights turning into human wrongs or human lefts.

“My job today is to delegitimize international law, to attack it to the core. There must be one standard for all. Until that day happens, I will be its sworn enemy. I prefer no international law to unfair international law.”

Buried beneath Dershowitz’s colorful rhetoric (“sworn enemy”!) is a lot of legitimate criticism of how the laws of armed conflict are applied against Israel.  Since the Israeli government has been, in general, pretty sensitive to international law issues, its ultimate attitude toward this kind of international law is pretty important.  Interestingly, it is Dershowitz, the non-Israeli, who is recommending the most radical and aggressive position.

http://opiniojuris.org/2010/05/24/dershowitz-my-job-is-to-today-is-to-delegitimize-international-law/

5 Responses

  1. Since Israel is so widely attacked for supposed violations of international law, it’s interesting to find that in fact Israel is expert in this subject. See below:

    http://www.jpost.com/International/Article.aspx?id=172630

  2. The Dersh in full Dersh.  I stopped listening to him when he was reported as saying at some point that his thing about affirmative action was based on his worry that Jews in America would not be treated like whites or something to that effect.  No principle in this or that.
    Best,
    Ben

  3. The most interesting thing about Prof. Dershowitz’s position is the frequent use of interesting in the post. Let’s look at it in detail: attack international law to its core?? Would that include the OECD that just welcomed Israel as a member? Or the WTO? Or treaties on air traffic? Probably not even Prof. Dershowitz himself would claim that. So what we are really looking at is the claim that the laws of war do not work properly. That claim is neither interesting, nor new, nor radical (why is it that people regard a clearly ridiculous radicalization of a claim as interesting?). And a claim of inequality would seem to have to be based on Hamas & cohorts being universally embraced. Quite to the contrary there is little commentary that seems to even remotely suggest that what they do is legal. The condemnation of their terrorist acts is (and rightly should be) universal. And are other states not attacked for breaching international law? You have to be completely detached from international law to think that (see the debate on US actions in Iraq, Argentina’s action on BITs, etc. etc. etc.). So what we have here is the claim of a famous intellectual who is not engaged in international law discourse and only ever talks about it when it enters his intellectual focus (criminal law, Israel). And hence claims it needs to be fought. That is not interesting – that is, someone needs to say it – uninformed. Whatever you think of the concrete questions at issue.

  4. I suggest that Professor Dershowitz, although himself possibly motivated by a personal agends, highlights a difficulty that always exists with judicial tribunals.  The appointees to international tribunals are essentially both the servants of the appointing states and the creation of their professional environment.  It is probably the latter influence that is at once the most insidious and the most effective.  Not government instructions but cultural influence.
    That said, the best, and possibly only, solution appears to rest on the creation of mixed tribunals.  In international arbitration, we seek such tribunals on an ad-hoc basis.  Of three, one is drawn from the culture of each party.
    Not enough is known about the dynamics of such tribunals, but they seem to arrive at collegiate decisions with success.
    Is there something here for criminal courts to learn?

  5. Julian’s post is interesting.  Thank you for it!  After reading the linked article I think Prof. Rubinstein’s position is the most valid.  As stated by the 2nd Circuit in Filatiga, CIL changes over time and courts need to take into account evolving standards.  Rubinstein is spot on that international law should reflect the way war is waged today. To constantly single out Israel may not reflect anti-Israel bias by all (although its fair to say this does play a part by some who single Israel out) but reflects the extrapolation of the facts to “contemporary CIL”.  The problem is groups commencing hostilities with Israel (i.e., gaza firing rockets for months into Southern Israel) do not stand on the border with tanks but will instead fire barrages of rockets purposely into Israeli civilian areas leaving the Israelis little choice but to respond.  Since the organizations firing these rockets shelter their arsenals in civilian areas (houses, hospitals, schools) and the Israeli counter strikes cause high civilian damage the Israelis are accused of “war crimes”.  Again, in a traditional war situation with tanks versus tanks on an open field or fighter jets vs fighter jets these laws are germane but in the Israeli situation what exactly are they supposed to do. Avoid retaliating beacuse the hamas rockets are launched from hospital rooftops?

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