[News] Gaza and Violation of International Laws

[Anti-Imperialist News]

http://www.counterpunch.org/lamb01082009.html

January 8, 2009


The Dershowitz Check-Up Continues


How the Nutty Professor Misstates, Misrepresents and Misapplies the Law

By FRANKLIN LAMB

Beirut.

"There is no structure of an occupation that 
endured for decades and involved this kind of 
oppressive circumstances. The magnitude, the 
deliberateness, the violations of international 
humanitarian law, the impact on the health, lives 
and survival and the overall conditions warrant 
the characterization of a crime against humanity. 
This occupation is the direct intention by the 
Israeli military and civilian authorities. They 
are responsible and should be held accountable."

-- Professor Richard Falk, United Nations Special 
Rapporteur for Human Rights in the Occupied Territories

In the minds of some of his colleagues, and a law 
student reporter at the Harvard Law Record, 
Professor Alan Dershowitz's unique views of 
Israel's obligations under international law are 
reflected in the "private legal memoranda" that 
he churns out  from time to time in his 
moonlighting job as "Of Counsel to the Government 
of Israel". In this role, as one of his former 
students explained, Harvard's Nutty Professor 
advises Israel "how to appear to be acting 
legally to the eyes of the American public".

One recent bit of international legal advice that 
Dershowitz is said to be particularly proud of is 
his recent Memorandum regarding the current 
'Legal Standard' identifying those who the 
Israeli Defense Force (IDF) can 'legally' target 
in Gaza. These days one can witness his opus mini 
being read word for word off a cue card by IDF spokesman, Benjamin Rutland.

Mr. Rutland, speaking on  January 3, 2009 to FOX 
TV by video-link, read to the interviewer,

"Our definition of who we can legally target is 
that it can be anyone, I repeat, anyone, who is 
involved in any way, as the Government of Israel 
shall determine, with terrorism or who supports 
Hamas, in any qualitative way. That person 
obviously becomes a lawful target. This ranges 
from the strictly military institutions and 
includes the political institutions that provide 
the logistical funding and human resources for the terrorist arm of Hamas."

The extremely broad scope of the IDF's new 'legal 
standard' would appear to mean that Israel can 
now legally kill anyone in Gaza including the 48 
civilians seeking shelter in UNWRA's Fakhura 
girls elementary school or the three members of 
the Al-Sultan family, 15 hours earlier, as they 
emerged from the toilets in the courtyard of Asma 
school, in the Shati refugee camp north of Gaza City.
Philippe Sands, Professor of International Law, 
University College London notes, "Once you extend 
the definition of combatants in the way that IDF 
is doing and associate individuals who are only 
indirectly or peripherally involved, it becomes 
an open-ended definition, which undermines the 
very object and purpose of the rules that are intended to be applied."

As chance would have it, Mr. Rutland turned out 
to be the same IDF spokesman who asserted, on the 
evening of  January 6, 2009 that "beyond any 
doubt militants fired mortars from inside the UN 
school compound thereby completely justifying the 
IDF returning fire on the school".

But Mr. Rutland and the IDF cooked their 'court 
filing' by offering phony footage. Huge mistake. 
Given that the international press is barred from 
Gaza, with the exception that on  January 7, 
2009, the IDF did allow three chosen 'embedded 
journalists' to join them, the IDF apparently 
thought they could foist off some old file 
footage from nearly two years ago which Mr. 
Rutland claimed showed militants in the school 
compound and carrying what may have been military equipment.

Immediately the UN cried 'Hoax!" and Chris 
Gunness, a spokesman for the United Nations 
Relief and Works Agency (UNRWA) expressed outrage 
as he disclosed that the 'demonstrative evidence' 
"was from 2007 video and bears no connection to 
Tuesday's military strike on the school".

On the morning of  January 7, 2009, after a UN 
investigation, UNRWA announced that "we're 99.9% 
sure that no militants were at the Fakhura girl's 
elementary school." The agency questioned 
survivors, including UNRWA staff that run the 
school under U.N. auspices and "who knew 
virtually all of the civilians who were seeking 
shelter form Israeli bombs and shelling."

Mr. Gunness, at a press conference on the 
afternoon,  January 7,  broadcast by Press TV 
requested that the IDF or anyone with relevant 
information, to please submit the evidence so 
that it might help the UN with a resolution of 
the "point one percent remaining doubt".

Gunness also stated that UNRWA gave the IDF the 
coordinates of all of the 23 schools that are 
serving as refuges for the 14,000 people nearby 
forced to flee their homes. While Mr. Gunness is 
far too polite to say so, each of the schools hit 
on Tuesday housed about 400 people seeking 
shelter from American-gifted planes, bombs, 
artillery shells, missiles and perhaps yet to be 
proven, internationally banned White Phosphorus, in the service of Israel.

Law Checks

In his January 2, 2009 article in the Wall Street 
Journal entitled 'Israel's Policy Is Perfectly 
Proportionate', Professor Alan Dershowitz defends 
Israel's operation "Molten Lead" in Gaza and 
while doing so consistently misstates and 
misapplies the Principles, Standards and Rules of 
International Law as well as their moral underpinnings.

Alan Dershowitz:

"Israel's actions in Gaza are justified under 
international law, and Israel should be commended 
for its self-defense against terrorism. Article 
51 of the United Nations Charter reserves to 
every nation the right to engage in self-defense 
against armed attacks. The only limitation 
international law places on a democracy are that 
its actions must satisfy the principle of proportionality."

Law Check:

Leaving aside Dershowitz's misapplication of the 
term 'terrorism', the fact is that Article 51 of 
the UN Charter was drafted with Nazi Germany in 
mind and to support those who have the full 
right, duty, and backing of International law to 
resist illegal occupation. Article 51 is to be 
employed precisely to encourage resistance to the 
kind of aggression and invasions Israel has 
launched for more than 40 years. Article 51, and 
the international customary law on which it is 
based, gives Israel's neighbors, both UN members 
and non-members, the right of self-defense 
against unlawful Israeli aggressions outlawed by UN Charter Article (2) (4).

Additionally, the legal obligation of 
Proportionality applies to all States, not just 
those Dershowitz erroneously asserts i.e. "places 
on a Democracy" and especially, one could argue, 
on Apartheid states like Israel and the former regime in South Africa.

Professor Dershowitz refers to the Principle of 
Proportionality as if this black letter law is 
some sort of idealistic philosophical 
abstraction. The Proportionality Standard, or 
Rule or Law is key to the enforcement of 
post-World War II international norms of 
civilized conduct and violation of it creates 
eligibility for criminal indictment and arrest 
warrants from the Office of the Prosecutor of 
International Criminal Court in the Hague.

Alan Dershowitz:

"The claim that Israel has violated the principle 
of proportionality by killing more Hamas 
terrorists than the number of Israeli civilians 
killed by Hamas rockets -- is absurd. First, 
there is no legal equivalence between the 
deliberate killing of innocent civilians and the 
deliberate killings of Hamas combatants".

Law Check:

Few, if anyone at all, have ever made the silly 
legal claim Professor Dershowitz floats. Here he 
simply employs a legal fiction 'red herring' and 
erects a 'straw man' to offer a spurious argument on Israelis' behalf.

Proportionality does not require numerical 
equivalence but contrary to what Dershowitz 
implies, it clearly does not allow countless 
killings of civilians to avenge the death or 
capture of an Israeli soldier. Every Israeli act 
whether it is ethnic cleansing, occupation, 
massacre or wanton destruction is consistently 
portrayed by Professor Dershowitz as perfectly 
legal, morally just and as a pure act of 
self-defense reluctantly perpetrated by Israel in 
its war against the worst kind of human beings imaginable.

Alan Dershowitz:

"Under the laws of war, any number of combatants 
can be killed to prevent the killing of even one innocent civilian".

Law Check:

This statement is nonsense on its face and 
totally ignores the key International Law 
requirements of proportionality and 
distinguishing combatants from non-combatants. 
With respect to Gaza, clearly rocket attacks 
against civilian targets in Israel are unlawful. 
But that does not give rise to any Israeli right, 
either as Occupying Power or State, to violate 
international humanitarian law and commit war 
crimes or crimes against humanity in a frenzied 
response as it clearly did in Lebanon in 1978, 
1982, 1993, 1996 and 2006 and is currently engaged in with Gaza.

Admittedly, International Humanitarian Law and 
the Rome Statute permit belligerents to carry out 
proportionate attacks against military 
objectives, even when it is known that some 
civilian deaths or injuries will occur. The crime 
occurs when there is an intentional attack 
directed against civilians (principle of 
distinction) (Article 8(2)(b)(i)) or an attack is 
launched on a military objective in the 
reasonable knowledge that the incidental civilian 
injuries would be excessive in relation to the 
anticipated military advantage (principle of 
proportionality) (Article 8(2)(b)(iv). Article 8(2)(b)(iv) criminalizes:
Intentionally launching an attack in the 
knowledge that such attack will cause incidental 
loss of life or injury to civilians or damage to 
civilian objects or widespread, long-term and 
severe damage to the natural environment which 
would be clearly excessive in relation to the 
concrete and direct overall military advantage anticipated;
Article 8(2)(b)(iv) draws on the principles in 
Article 51(5)(b) of the 1977 Additional Protocol 
I to the 1949 Geneva Conventions, but restricts 
the criminal prohibition to cases that are "clearly" excessive.

The application of Article 8(2) (b) (iv) 
requires, inter alia, an assessment of:

(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was "clearly excessive" in relation to (b).

It's beginning to look a lot like Genocide!

Professor Dershowitz in seeking to exempt Israel 
from the requirements of International Law has 
consistently argued that since Israel has not 
signed the Rome Statute and has not submitted to 
the jurisdiction of the International Court of 
Justice in The Hague, that Israel is not bound by 
the Rome Statute's International Law as noted 
below. He errs in his interpretation of the Rules 
of International Law and is quite mistaken that 
the provisions of the Rome Statute do not apply to Israel.

International Customary Law i.e. legal norms 
accepted by the vast majority of States, plus the 
United Nations, are binding on all States, 
including Israel. The Rome Statute does not make 
new law like, for example, some contract that 
Israel would have to sign in order to be bound by 
it. All states are bound by the law restated in 
Treaty form in the Rome Statute. Its binding 
provisions include Article 7 and Article 8 very 
applicable to the current carnage raging in Gaza.

Given that the Rome Statute imbued the 
International Criminal Court with 'Universal 
Jurisdiction' over all people and given further 
that the Rome Statute rejects Impunity for any 
person, which Israel has consistently used, for 
example in US Courts such as the recent Qana Case 
brought by the New York based Center for 
Constitutional Rights, Israeli leaders are now 
bound and can be tried jointly, severally and 
personally in the Hague. So can George W. Bush 
and Mohammad Hosni Mubarak even though neither 
country has yet become a signatory of the Rome Statute.

Article 7 of the Rome Statute, outlaws "a 
widespread or systematic attack directed against 
any civilian population', which involves 
"persecution against any identifiable group or 
collectivity on political, racial, national, 
ethnic, cultural, religious, gender" grounds ." 
Such projects, to which Palestinians have been 
subjected for more than 60 years, constitute a crime against humanity.

What Israel has been doing in Gaza and Palestine 
comes very close to genocide according to the 
provisions of the Genocide Convention (1948), 
reiterated in the Rome Charter of the 
International Criminal Court (2002), which 
includes: '(c) Deliberately inflicting on the 
group conditions of life calculated to bring 
about its physical destruction in whole or in 
part' (6). Some of Professor Dershowitz's 
colleagues consider that the launching of rockets 
into Israel by Hamas, like the Warsaw ghetto 
uprising of 1943, constitute a legitimate 
response to impending extermination and are a desperate bid for survival.

Alan Dershowitz:

"Under international law, Israel is not required 
to allow Hamas to play Russian roulette with Jewish children's lives".

Law Check:

One of Alan Dershowitz's nemeses, United Nations 
Special Rapporteur for Human Rights in the 
Occupied Territories, Professor Richard Falk, 
accuses Israel of the following indictable crimes 
in Gaza which are not Russian roulette:

· Collective punishment - the entire 1.5 million 
people who live in the crowded Gaza Strip are 
being punished for the actions of a few militants 
in direct violation of the absolute prohibition 
of Article 33 of the Geneva Convention.

· Targeting civilians - the airstrikes are aimed 
at civilian areas in one of the most crowded stretches of land in the world
"

· Disproportionate military response - the 
airstrikes have not only destroyed every police 
and security office of Gaza's elected government, 
but have killed and injured hundreds of civilians.
Other indictable crimes Israel is committing 
daily in Gaza include intentionally directing 
attacks against civilian objects, that is, 
objects which are not military objectives.

Additionally, Professor Dershowitz ignores other 
violations of International Law by Israel in Gaza 
which fail to spare the civilian population, 
including, but not limited to, the following 
failures to act in accordance with the 
International Law of Armed Conflict while his 
"Perfectly Proportionate" judgment, yet again, exonerates Israel:

* Ignoring the prohibition against attacks that 
target or indiscriminately harm civilians and the 
requirement to distinguish at all times between civilians and combatants.

* Failure to adhere to the prohibition against 
disproportionate attacks by not launching any 
attack that may be expected to cause harm to 
civilians or damage to civilian objects that 
would be excessive in relation to the concrete 
and direct military advantage anticipated.

* Failure to ensure the unhindered movement of 
medical personnel and ambulances to carry out 
their duties and of wounded persons to access 
medical care. Any restrictions on movement for 
genuine security grounds must be temporary, 
subject to regular review, and imposed only to the extent absolutely necessary.

* Failure to refrain from using "human shields" 
and by compelling Palestinian civilians to remain 
inside homes or other structures taken over by the IDF for military operations.

* Failing to take all necessary steps to ensure 
that the civilian population has access to 
sufficient food, medical care, and other 
essential humanitarian goods and services.

* Failure to allow journalists and humanitarian 
agencies access to Gaza and ensure that any 
restrictions on access and movement for genuine 
security grounds be temporary, subject to regular 
review, and only imposed to the extent absolutely necessary.

Alan Dershowitz concludes:

"Until the world recognizes that Hamas is 
committing three war crimes -- targeting Israeli 
civilians, using Palestinian civilians as human 
shields, and seeking the destruction of a member 
state of the United Nations -- and that Israel is 
acting in self-defense and out of military 
necessity, the conflict will continue".

Professor Dershowitz's conclusion makes plain his 
40-year thesis that Israel is above, and immune 
from, international law as well as his profound 
personal lack of respect for post-World War II international legal norms.

As an ultra-Zionist, what he insists is akin to 
"the law is what I tell you it is! And why can't 
the World understand that!" While cherry picking, 
mischaracterizing and misapplying International 
Law, Professor Dershowitz ignores what every Law 
School and University teaches on the subject.

Should he spend more time in the Harvard Law 
School library, and less in TV studios, he would 
surely learn that an objective application of 
international legal norms to the conduct of 
Israel is Gaza would result its leaders being 
indicted and brought before the International Criminal Court in The Hague.

Franklin Lamb drafted the International Criminal 
Court submission on behalf of HOKOK, the 
International Coalition against Impunity, seeking 
to bring Israel before the Court for 
International Crimes in Gaza. On January 15, 
2009, lawyers from HOKOK will ask the Court to 
investigate Reports of the use of internationally 
banned weapons, including White Phosphorus, in 
Gaza. Lamb is a former adjunct Professor of 
international law at Northwestern College of Law 
in Portland, Oregon. He is currently doing 
research in Lebanon and can be reached at 
<mailto:fplamb at sabrashatila.org>fplamb at sabrashatila.org




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