Dershowitz’s Idea of “Fair” International Law
So, Alan Dershowitz has decided that international law needs to be “delegitimized,” because it is unfair to Israel. It is reasonable to consider, therefore, what Dershowitz believes a “fair” international law would allow Israel to do. Here is one of his suggestions, from a 2002 Jerusalem Post editorial entitled “New Response to Palestinian Terrorism” (emphasis mine):
In light of the willingness of suicide bombers to die in the process of killing Israelis, the traditional methods of deterrence and retaliation seem insufficient. To succeed, Israel must turn the Palestinian leadership and people against the use of terrorism and the terrorists themselves. One way to do this is to make terrorists directly bear the responsibility for losses inflicted on the Palestinian cause as a direct result of their terrorism.
Here is my proposal. Israel should announce an immediate unilateral cessation in retaliation against terrorist attacks. This moratorium would be in effect for a short period, say four or five days, to give the Palestinian leadership an opportunity to respond to the new policy. It would also make it clear to the world that Israel is taking an important step in ending what has become a cycle of violence.
Following the end of the moratorium, Israel would institute the following new policy if Palestinian terrorism were to resume. It will announce precisely what it will do in response to the next act of terrorism. For example, it could announce the first act of terrorism following the moratorium will result in the destruction of a small village which has been used as a base for terrorist operations. The residents would be given 24 hours to leave, and then troops will come in and bulldoze all of the buildings.
The response will be automatic. The order will have been given in advance of the terrorist attacks and there will be no discretion. The point is to make the automatic destruction of the village the fault of the Palestinian terrorists who had advance warnings of the specific consequences of their action. The soldiers would simply be acting as the means for carrying out a previously announced policy of retaliation against a designated target.
Further acts of terrorism would trigger further destruction of specifically named locations. The “waiting list” targets would be made public and circulated throughout the Palestinian-controlled areas. If this automatic policy of destroying targets announced in advance is carried out with the full support of the entire government, including those who are committed to a resumption of the peace process, a clear message will be sent to the Palestinian people: Every time terrorists blow themselves up and kill civilians, they are also blowing up one of their own villages.
The most charitable reading of this proposal is that Dershowitz is advocating that Israel commit a wide variety of war crimes and/or crimes against humanity involving civilian objects. The less charitable one — and the more persuasive — is that he is advocating that Israel commit a wide variety of war crimes and/or crimes against humanity involving civilians themselves. After all, given that he is calling for an “automatic,” discretionless response, the bulldozers would knowingly and deliberately kill civilians if they did not heed Israel’s call to flee a village targeted for destruction — as they almost certainly wouldn’t.
If Dershowitz thinks that international law is unfair because it does not permit these kinds of crimes, I hope it remains unfair for decades to come.