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<a href="http://www.counterpunch.org/lamb01082009.html" eudora="autourl">
http://www.counterpunch.org/lamb01082009.html<br><br>
</a></font><font face="Verdana" size=2 color="#990000">January 8,
2009<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>The Dershowitz
Check-Up Continues <br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">How
the Nutty Professor Misstates, Misrepresents and Misapplies the Law
</b></font></h1><font face="Times New Roman, Times" size=4>By FRANKLIN
LAMB<br><br>
</font><font face="Times New Roman, Times" size=2>Beirut.<br><br>
</font>
<dl>
<dd><font face="Verdana" size=2>"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."<br><br>
<dd>-- Professor Richard Falk, United Nations Special Rapporteur for
Human Rights in the Occupied Territories <br><br>
</font>
</dl><font face="Verdana" size=6 color="#990000">I</font>
<font face="Verdana" size=2>n 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".<br><br>
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.<br><br>
Mr. Rutland, speaking on January 3, 2009 to FOX TV by video-link,
read to the interviewer, <br><br>
<dl>
<dd>"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."<br><br>
</dl>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.<br>
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." <br><br>
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". <br><br>
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.<br><br>
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".<br><br>
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." <br><br>
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". <br><br>
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.<br><br>
</font><font face="Verdana" size=2 color="#990000">Law Checks</b>
<br><br>
</font>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.<br><br>
Alan Dershowitz:<br><br>
</b>
<dl>
<dd>"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."<br><br>
</dl>Law Check:<br><br>
</b>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).<br><br>
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.<br><br>
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.<br><br>
Alan Dershowitz:<br><br>
</b>
<dl>
<dd>"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".<br><br>
</dl>Law Check:<br><br>
</b>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.<br><br>
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.<br><br>
Alan Dershowitz:<br><br>
</b>
<dl>
<dd>"Under the laws of war, any number of combatants can be killed
to prevent the killing of even one innocent civilian". <br><br>
</dl>Law Check:<br><br>
</b>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.<br><br>
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:<br>
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;<br>
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.<br><br>
The application of Article 8(2) (b) (iv) requires, inter alia, an
assessment of:<br><br>
<dl>
<dd>(a) the anticipated civilian damage or injury;<br>
<dd>(b) the anticipated military advantage;<br>
<dd>(c) and whether (a) was "clearly excessive" in relation to
(b).<br><br>
</dl><font face="Verdana" size=2 color="#990000">It's beginning to look a
lot like Genocide!<br><br>
</b></font>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. <br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
Alan Dershowitz:<br><br>
</b>
<dl>
<dd>"Under international law, Israel is not required to allow Hamas
to play Russian roulette with Jewish children's lives".<br><br>
</dl>Law Check:<br><br>
</b>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:<br><br>
<dl>
<dd>· Collective punishment</b> - 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.<br><br>
<dd>· Targeting civilians</b> - the airstrikes are aimed at civilian
areas in one of the most crowded stretches of land in the
world…"<br><br>
<dd>· Disproportionate military response</b> - the airstrikes have not
only destroyed every police and security office of Gaza's elected
government, but have killed and injured hundreds of civilians.<br>
<dd>Other indictable crimes Israel is committing daily in Gaza include
intentionally directing attacks against civilian objects, that is,
objects which are not military objectives.<br><br>
</dl>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:<br><br>
<dl>
<dd>*</b> Ignoring the prohibition against attacks that target or
indiscriminately harm civilians and the requirement to distinguish at all
times between civilians and combatants.<br><br>
<dd>* </b>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.<br><br>
<dd>*</b> 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.<br><br>
<dd>*</b> 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.<br><br>
<dd>*</b> 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.<br><br>
<dd>*</b> 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.<br><br>
</dl>Alan Dershowitz</b> concludes:<br><br>
<dl>
<dd>"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".<br><br>
</dl>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.<br><br>
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.<br><br>
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.<br><br>
Franklin Lamb</b> 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. </b>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
<a href="mailto:fplamb@sabrashatila.org">fplamb@sabrashatila.org</a>
<br><br>
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