Dershowitz’s Idea of “Fair” International Law

by Kevin Jon Heller

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.

8 Responses

  1. I’m used to Dershowitz, but I was profoundly shocked by this. It immediately conjures up images of the Nazis. I am sickened that a law professor would make such a suggestion. Moreover, does he not realise how damaging it would be for Israel and what the international response would be? I may not care about damage to Israel’s international standing and reputation, but surely he should.

  2. Before evaluating Dershowitz’s proposal I would like to know what his entire comments were and/or whether he articulated any clarifications.  Also, I think its important, no actually crucial, to examine his proposal in the context of 2002 – the Israelis were experiencing horrific acts of violence targeting school buses, pizza parlors, universities (there was a suicide bombing at Hebrew U), discos, etc.  To protect children from suffering the fate of a suicide bombing is any nation’s obligation.  Kevin, if you could be bombed at a restaurant or your kids in danger because they were at some disco would you not want that conduct to stop.  Please be honest with yourself.  I think a reasonable person would want the suicide bombings to stop.  If the language the other side understands is the disproportionate use of force suggested by Dershowitz would you not be in favor of it?  Other nations have also used disproportionate force.  Question for Kevin:  The US caused a large number of civilian deaths purposely by dropping 2 atomic warheads on Japan in order to end the war started by Japan expeditiously.  Clearly, disproportionate and a targeting of civilians.  Would you opine that the US violated international law by doing so?

  3. @Tom: you’r right! Nuke ’em! Why bother with bulldozer?

  4. Kevin,
    I bet the proposal, if implemented, would be pretty charitable to the Israeli civilians however you read it.
    And that’s all that matters, unless you can suggest a proposal comporting with IL which would save the Israelies from the barbarism they faced in 2002.

  5. Tom,

    Of course Israeli anger at suicide bombers and rocket attacks is understandable.  Of course the Israelis want it to stop.  Of course the restrictions of IHL can be frustrating.  But they exist for one primary reason: to protect civilians from the ravages of war.  IHL accepts that civilians will sometimes be (legitimate) collateral damage of attacks on military targets.  But nothing — nothing — justifies the kind of collective punishment of civilians that Dershowitz advocates.

    As for your question about Hiroshima and Nagasaki, it’s a difficult question.  Both would obviously be war crimes under current IHL, and I think a strong case can be made that Nagasaki was a war crime under WWII-era IHL, given that the US did not give Japan an opportunity to surrender after Hiroshima.  Was Hiroshima a war crime?  Maybe, but at the time so-called “morale bombings” — deliberately inflicting civilian casualties in order to convince a belligerent to stop fighting — were permissible.

  6. WWII-era IHL, given that the US did not give Japan an opportunity to surrender after Hiroshima………
    Japan did not need America’s permission to surrender. They easily had that oppotunity by going out over radio and saying “we surrender” war over.  Stop fabricating facts.
    As far as Israel bulldozing towns in response to terror attacks. The old saying that violence is the supreme authority from which all other authority derives is still 100 percent correct.

  7. Why anyone who believes “that violence is the supreme authority from which all other authority derives” reads a blog like Opinio Juris is beyond me.  It’s sad that Mr. Turner feels the need to continually debase the discourse that takes place at this blog.

  8. If the discourse was grounded in reality and not opinions passed off as fact with no supporting evidence I would not feel the need to blog at you. But the reinvention/ rewriting of history makes me wonder about this site.

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