6
THE FOURTH GENEVA CONVENTION
If you have never heard of the Fourth Geneva Convention of 1949 and thus do not know what Article 49, paragraph 6, of the convention says, or which UN member states and which institutions do or do not recognize the applicability of the convention to Israel’s occupation of Palestinian territory, then it would not be possible to understand a core aspect of that conflict as it has existed since June 1967. Nor would it be possible to assess the simple fairness of the American and Israeli proposals at Camp David in July 2000, and throughout the rest of that year, which featured the retention of large Israeli settlement blocs in the Palestinian West Bank, in addition, obviously, to the Palestinian land on which the settlements were built. And if you have been reading only Alan Dershowitz’s writings about the Israel-Palestine conflict over the past several years, you would know very little about the Fourth Geneva Convention and what it says.
In fact, one way to assess the validity of the work of Noam Chomsky and Alan Dershowitz is to be acquainted with their respective positions on the applicability of the Fourth Geneva Convention to the Israel-Palestine conflict overall and to the Israeli settlements in particular. Chomsky, consistent with a nearly unanimous international consensus, holds that the convention is legally applicable to Israel’s occupation of the Palestinian territories. Dershowitz, on the other hand, ignores the Fourth Geneva Convention. In this regard, there isn’t much difference between Dershowitz’s writings and the mainstream U.S. sources that he often credits to support his public defense of Israel’s policies, since the Fourth Geneva Convention also is not mentioned in The Missing Peace (2004) by Dennis Ross, Madam Secretary (2005) by Madeleine Albright, U.S. Secretary of State under President Clinton and during the 2000 Israel-Palestine negotiations, and My Life (2005) by Bill Clinton.
To begin, and very briefly, the Fourth Geneva Convention is the modern foundation of international humanitarian law, which consists of the rules of armed conflict seeking to protect people not taking part in hostilities.1 During World War II, “the law of Geneva,” as embodied in the three Geneva Conventions in force at the time, applied only to military personnel who were no longer taking part in the fighting. These included the wounded and sick members of the armed forces (Geneva I), the wounded, sick, and shipwrecked members of the armed forces at sea (Geneva II), and prisoners of war (Geneva III).2 However, when the war led to the killing of 50–70 million civilians worldwide, the international community established the Fourth Geneva Convention (1949) for the protection of civilians in two settings: armed conflict and military occupation.3
A key prohibition of the Fourth Geneva Convention, which is especially relevant to the Israeli military occupation of the Palestinian territories, is expressed in Article 49(6), which states: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”4 This provision would appear to outlaw all Israeli settlements in the occupied territories, including the big Israeli settlement blocs in the West Bank, given that the settlements are the product of the transfer of parts of Israel’s population into Israel-occupied Palestinian territory. Since Israel’s settlements are a key obstacle to a comprehensive Israel-Palestine peace agreement—and implicate questions pertaining to borders and the territorial contiguity of the West Bank in a Palestinian state—the issue of the legal status of the settlements is crucial. And, on this point, virtually every UN member state (except the United States and Israel), and every authoritative third-party legal assessment, has concluded that the Fourth Geneva Convention is legally applicable to the Israeli occupation and that the convention outlaws Israel’s settlements in the West Bank, including in East Jerusalem. The long-standing established fact of the nearly unanimous international consensus about the Fourth Geneva Convention outlawing the Israeli settlements may explain why the convention is not mentioned by Dershowitz in his published works or in the memoirs of the principal U.S. participants in the 2000 peace negotiations.
A summary of the international consensus on the applicability of the Fourth Geneva Convention to the Israel-Palestine conflict is presented in this chapter, featuring the positions of the UN Security Council, the UN General Assembly, and the International Court of Justice, in addition to the major human rights organizations that have addressed this question: the Geneva-based International Committee of the Red Cross, the London-based Amnesty International, the New York-based Human Rights Watch, and the Israel-based B’Tselem.
The UN Security Council on the Fourth Geneva Convention. In a resolution issued in September 1969, the UN Security Council called upon “Israel scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation.”5 In March 1979, the Security Council stated that Israel’s settlements on occupied Arab territory had “no legal validity” and affirmed “once again” that the Fourth Geneva Convention “is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem.”6 In December 1992, the Security Council “reaffirm[ed] the applicability of the Fourth Geneva Convention of 12 August 1949 to all the Palestinian territories occupied by Israel since 1967, including Jerusalem.”7 And in March 1994, the Security Council again “affirmed the applicability of the Fourth Geneva Convention of 12 August 1949 to the territories occupied by Israel in June 1967.”8
The UN General Assembly on the Fourth Geneva Convention. From 1970 to 1998, in a series of resolutions that were supported by the vast majority of UN member states (the lone member states in dissent being Israel and the United States), the General Assembly declared that the Fourth Geneva Convention of 1949 was applicable to Israel’s occupation of the Palestinian territories. The resolutions also declared that Israel’s annexation of East Jerusalem, in addition to its settlements in the West Bank and Gaza, violated the convention.
In a resolution issued in 1970, the General Assembly called on Israel “to comply” with its legal obligations under the Fourth Geneva Convention.9 A 1971 resolution called on Israel “to comply fully” with the convention.10 The United States and Israel voted against both resolutions.11 In a 1972 resolution, the General Assembly specifically linked Israel’s obligations under the Fourth Geneva Convention, which Israel ratified in 1951, to its annexation and settlement policies at the time. The United States and Israel voted against this resolution as well.12
In 1973, UN member states voted unanimously to affirm that the Fourth Geneva Convention applies to the Arab territories occupied by Israel since 1967, and “call[ed] upon Israeli occupation authorities to respect and comply with the provisions of that Convention.” The General Assembly vote supporting the resolution was 120 to 0 with five abstentions; the United States voted for the resolution while Israel abstained.13 In a similar General Assembly resolution in 1974, the vote was 121 to 0 with seven abstentions; the U.S. favored the resolution with Israel abstaining.14 In 1975, the vote on the same issue was 112 to 2 with seven abstentions; the United States and Israel issued the only votes in opposition.15 And in 1976, the vote was 134 to 0 with two abstentions—Israel and Haiti.16
Beginning in 1977, and following the watershed electoral victory of the right-wing Likud Party, which included Menachem Begin as prime minister, Israel would vote against every subsequent General Assembly resolution affirming the applicability of the Fourth Geneva Convention to the Israeli occupation of the Arab territories, and in each such vote up to 1994—a period of eighteen years—Israel was the only UN member state to do so. However, in 1994 and 1995, the Clinton administration joined Israel in denying the applicability of the Fourth Geneva Convention to the Israel-occupied Arab territories. The vote count at the UN General Assembly from 1977 through 1995 affirming the applicability of the convention is presented as follows:
Beginning in 1996, the General Assembly began issuing short, stand-alone resolutions focused exclusively on reaffirming the applicability of the Fourth Geneva Convention to the Israel-occupied territories. In each vote in each of these years, the United States (under presidents Bill Clinton, George W. Bush, and Barack Obama) voted against the international consensus by denying the applicability of the convention to the occupation. The vote tallies follow:
Furthermore, in December 2010, the United States and Israel voted against a General Assembly resolution which, upon affirming once again the applicability of the Fourth Geneva Convention, also “reaffirm[ed] that the Israeli settlements in the Palestinian territory, including East Jerusalem, and in the occupied Syrian Golan, are illegal and an obstacle to peace and economic and social development.”19
Similar resolutions citing the illegal status of Israel’s settlements under the Fourth Geneva Convention were issued by the General Assembly from 1996 to 2009, which the United States and Israel opposed in each instance as follows, including with the usual votes from the Pacific island-states and later the right-wing government of Australian prime minister John Howard:
As the votes on these resolutions indicate, and despite an overwhelming consensus among member states at the United Nations, the U.S. and Israel have refused to affirm either that the Fourth Geneva Convention applies to Israel’s occupation or that the convention outlaws the Israeli settlements. And given that the United States under President Clinton voted against the applicability of the Fourth Geneva Convention to the Israeli occupation, it seems unlikely that he would have acted as an honest broker between the Israelis and Palestinians at the Camp David summit in July 2000 by applying Israel’s legal obligations to the convention as part of the substantive negotiations with the Palestinians.
The International Court of Justice (ICJ) on the Fourth Geneva Convention. In its 2004 advisory opinion on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” the International Court of Justice, which is the judicial arm of the United Nations, legally settled the issue of the applicability of the Fourth Geneva Convention to the Israel-occupied territories. By a 14 to 1 majority (with the U.S. judge in dissent), and about the core issue before the court, it concluded that “the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law.”21 Relatedly, the court also ruled on aspects of the Fourth Geneva Convention as it pertains to Israel’s occupation, including as follows:
Even the U.S. judge, Thomas Buergenthal, who was the lone dissenting vote in five of the court’s seven decisions,24 agreed with the other fourteen judges that the Fourth Geneva Convention applies to the Israeli occupation. On this point, Buergenthal concluded “that Article 49, paragraph 6, which provides that ‘the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies,’ applies to the Israeli settlements in the West Bank, and that they violate Article 49, paragraph 6.”25
The International Committee of the Red Cross (ICRC) on the Fourth Geneva Convention. In addition to the ICJ and the great majority of UN member states, the four major human rights organizations with institutional or organizational mandates requiring them to oversee the implementation of international humanitarian law, including the Fourth Geneva Convention, all recognize the applicability of the convention to Israel’s occupation, as well as the illegal status of Israel’s settlements. On December 5, 2001, the ICRC, which officially administers the Geneva Conventions, reaffirmed its long-standing view: “In accordance with a number of resolutions adopted by the United Nations General Assembly and Security Council and by the International Conference of the Red Cross and Red Crescent, which reflect the view of the international community, the ICRC has always affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupied since 1967 by the State of Israel, including East Jerusalem.” The ICRC stated further: “In the course of its activities in the territories occupied by Israel, the ICRC has repeatedly noted breaches of various provisions of international humanitarian law, such as the transfer by Israel of parts of its population into the occupied territories. . . . In particular, the ICRC has expressed growing concern about the consequences in humanitarian terms of the establishment of Israeli settlements in the occupied territories, in violation of the Fourth Geneva Convention.”26
Amnesty International on the Fourth Geneva Convention. Amnesty International also recognizes the applicability of the Fourth Geneva Convention to the Israeli occupation. In a press release issued on December 4, 2001, just prior to the ICRC’s official statement of December 5, Amnesty International “welcomed the reaffirmation of the principles of the Fourth Geneva Convention” to the occupied Palestinian territories by its high contracting parties (states that have ratified the convention), and urged the parties to “now agree on concrete measures to ensure respect for the Convention and prevent further deterioration of the human rights situation in the Occupied Territories.”27 In response to a February 2011 U.S. veto of a UN Security Council resolution condemning Israel’s settlements, Amnesty responded as follows:
Israel’s policy of settling its civilians on occupied land violates the Fourth Geneva Convention, and is considered a war crime according to the statute of the International Criminal Court. Israel’s settlement policy is also inherently discriminatory and results in continuing violations of the rights to adequate housing, water and livelihoods for Palestinians in the occupied West Bank, as Amnesty International has repeatedly documented. Reported US government attempts to pressure the Palestinian Authority not to bring this resolution to a vote at the UN Security Council, including threats to cut US aid, are also troubling. If the Obama administration is serious about promoting a lasting, just resolution to the Israeli-Palestinian conflict, it should fully back the international consensus against Israel’s illegal settlements and the human rights violations that result from them.28
Human Rights Watch on the Fourth Geneva Convention. Like Amnesty International, Human Rights Watch recognizes the applicability of the Fourth Geneva Convention to the Israeli occupation, including as stated in a 2001 report (parentheses in original): “Two legal regimes are directly relevant to Israel’s obligations in the Occupied West Bank and the Gaza Strip. The first legal regime is that of International Humanitarian Law (particularly the Fourth Geneva Convention), which applies to situations of belligerent occupation as well as situations where hostilities rise to the level of international armed conflict.”29 In a report issued one year later, Human Rights Watch stated: “The Palestinian civilian inhabitants of the occupied West Bank and Gaza Strip are ‘Protected Persons’ under the Fourth Geneva Convention. They are entitled to extensive protections under the laws of war.”30 In February 2011, Human Rights Watch responded to the U.S. veto of the UN effort to condemn Israel’s settlements: “The US veto of a proposed United Nations Security Council Resolution calling upon Israel to end illegal policies that promote settlements in the occupied West Bank, including East Jerusalem, undermines enforcement of international law. . . . The Fourth Geneva Convention of 1949 explicitly prohibits an occupying power from transferring its civilian population into occupied territory. Notwithstanding this ban, almost half-a-million Jewish Israelis with Israeli government support have moved into settlements it has constructed in the Occupied Palestinian Territories, and formally annexed occupied territory in East Jerusalem, a move not recognized by any other government in the world.”31
B’Tselem on the Fourth Geneva Convention. In a section on “International Humanitarian Law” on its Web site, B’Tselem states that “the Fourth Geneva Convention deals with the protection of civilians during war or under occupation, and therefore relates to Israel’s actions in the Occupied Territories.”32 In a section on “Land Expropriation and Settlements,” B’Tselem states (parentheses in original): “The establishment of settlements in the West Bank violates international humanitarian law which establishes principles that apply during war and occupation. . . . The Fourth Geneva Convention prohibits an occupying power from transferring citizens from its own territory to the occupied territory (Article 49). . . . The establishment of settlements results in the violation of the rights of Palestinians as enshrined in international human rights law. Among other violations, the settlements infringe the right to self-determination, equality, property, an adequate standard of living, and freedom of movement.”33
Noam Chomsky on the Fourth Geneva Convention. Consistent with the international consensus, Chomsky recognizes that the Fourth Geneva Convention applies to the Israeli occupation and outlaws the Israeli settlements. In a recent book, Chomsky wrote: “It is useful to bear in mind that Israel understood at once that its settlement projects in the occupied territories, and anything related to them, are illegal. Israel’s top legal authority on international law, Theodor Meron, a distinguished international lawyer and a leading figure in international tribunals, informed the government in September 1967 ‘that civilian settlement in the administered [Palestinian] territories contravenes the explicit provisions of the Fourth Geneva Convention,’ the core of international humanitarian law.”34
Two relatively recent books by Israeli scholars on the history of the settlements—Chomsky has cited both,35 while Dershowitz has ignored them—concur with the international consensus on the applicability of the Fourth Geneva Convention. In his 2006 book The Accidental Empire: Israel and the Birth of the Settlements, 1967–1977, Gershom Gorenberg reproduced the memorandum by Theodor Meron cited by Chomsky:
Jerusalem, 13 Elul, 5727
September 18, 1967
Top Secret
To: Mr. Yafeh, Political Secretary of the Prime Minister
From: Legal Counsel of the Foreign Ministry
Re: Settlement in the Administered Territories
As per your request . . . I hereby provide you a copy of my memorandum of September 14, 1967, which I presented to the Foreign Minister. My conclusion is that civilian settlements in the administered territories contravene the explicit provisions of the Fourth Geneva Convention.
Sincerely,
T. Meron
About Meron and the legal memorandum, Gorenberg wrote:
In the second major book on the history of the Israeli settlements, Lords of the Land: The War Over Israel’s Settlements in the Occupied Territories, 1967–2007, Israeli historian Idith Zertal and Israeli journalist Akiva Eldar cited not only the legal status of the Israeli settlements, but also the impact of the settlements on the human rights of Palestinians:
In addition to citing Meron and Gorenberg, Chomsky has also observed that the Bush administration, in December 2001, boycotted the Switzerland-sponsored conference in Geneva of the high contracting parties to the Fourth Geneva Convention, which “specifically declared the U.S.-funded Israeli settlements to be illegal.”38
Alan Dershowitz on the Fourth Geneva Convention. In contrast to Chomsky, and despite writing prolifically about the Israel-Palestine conflict in books as well as in newspapers and Web commentary, Dershowitz in essence has ignored the international consensus on the applicability of the Fourth Geneva Convention to the Israeli occupation, as well as the established legal fact that the convention outlaws the Israeli settlements in Palestinian territory. From 2002 to 2008, Dershowitz published five books, all widely reviewed, that were wholly or largely about the Israel-Palestine conflict: Why Terrorism Works: Understanding the Threat, Responding to the Challenge (2002); The Case for Israel (2003); The Case for Peace: How the Arab-Israeli Conflict Can Be Resolved (2005); Preemption: A Knife That Cuts Both Ways (2006); and The Case against Israel’s Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of Peace (2008). Despite the core relevance of the Fourth Geneva Convention to the Israeli occupation, including with respect to the Israeli settlements, Dershowitz barely mentions the convention, if at all, in these books.
In Why Terrorism Works, there is no reference to the “Fourth Geneva Convention” in the index, and a search in Google Books shows a single reference by Dershowitz to “the Geneva Convention” in an endnote to chapter 5. The index also lists a reference to what Dershowitz refers to as the “Geneva Accords,” which appears in a paragraph in his book about whether “the international law of war” is a serviceable legal context for Israel and the United States in their war against terrorism. In that paragraph, Dershowitz notes that “traditional wars were fought by combatants in uniform, representing nations with return addresses and accountability.” He continues: “The current terrorist wars are different. The terrorists are themselves ‘civilians,’ their targets are civilians, they hide among civilians, and they are supported and financed by civilians. They exploit the traditional international law of war, especially the Geneva Accords, to their advantage and place those who seek to protect their civilian populations on the defensive [emphasis added].”39 While the accuracy of Dershowitz’s claims pertaining to the alleged unfairness of the laws of war to states like the United States and Israel is disputed in this volume, it is sufficient to note for now that there are no “Geneva Accords” in international humanitarian law, as Dershowitz wrote. He continued: “Since these terrorists ignore the law of war, they are free to target civilians with impunity. If they are captured, they demand ‘prisoner of war’ status. If the nations they target try to defend themselves by going after terrorists hiding among civilians, the terrorists inevitably complain that these nations are violating the Geneva Accords by endangering ‘civilians.’ It is a win-win situation for the terrorists and a lose-lose situation for the victims—because of the inadequacy of current law [emphasis added].”40
Once again, Dershowitz cites something called the “Geneva Accords” while referring to international humanitarian law, when no such instrument of humanitarian law exists by that designation. Thus, in the context of his expert complaint, being a professor of law at Harvard, that international humanitarian law is inherently unfair to the United States and Israel, and upon neglecting to mention the Fourth Geneva Convention, let alone as to whether it applies to the Israeli occupation and settlements, Dershowitz misspeaks (not once but twice) by invoking nonexistent “Geneva Accords” in humanitarian law that he claims are “exploited” by terrorists.41
Notwithstanding these bungled references to “Geneva Accords,” Dershowitz’s first major book on the Israel-Palestine conflict, Why Terrorism Works, contained no actual references to the Fourth Geneva Convention, despite arguing in that book that international humanitarian law, of which the Fourth Geneva Convention is the core body of law, favors the terrorists against the United States and Israel, and therefore must be changed to better accommodate those two states.
His next book, The Case for Israel, contains a single reference to the “Fourth Geneva Convention,” which appears in the context of a petition by faculty and students at MIT and Harvard University “to divest from Israel, and from US companies that sell arms to Israel, until these conditions are met.” The petitioners then listed their four “conditions” with which the two universities must be “in compliance,” the third of which was stated in its entirety as follows (parentheses in original): “In compliance with the Fourth Geneva Convention (‘The occupying power shall not deport or transfer parts of its own civilian population into territories it occupies’; Article 49, paragraph 6), Israel ceases building new settlements, and vacates existing settlements, in the Occupied Territories.”42 While referring to this demand and the others, Dershowitz mentions the Fourth Geneva Convention in The Case for Israel once as follows: “The [divestment] petition demands that Israel comply with UN Resolution 242, the UN Committee against Torture 2001 Report, the Fourth Geneva Convention, and UN Resolution 194 with respect to the rights of refugees. Apparently, most of the signatories of this petition, which included 130 Harvard and MIT faculty members at last count, are unaware of the fact that Israel has already complied with or has offered to comply with each of these conditions.”43 Without noting that Israel has refused for decades to recognize the applicability of the Fourth Geneva Convention to its occupation of the Palestinian territories, that it does not acknowledge publicly the illegal status of its settlements under the convention and that Israel obviously has not dismantled its settlements, and without footnoting his claims that both the state of Israel and “a significant number of the settlers have now expressed a willingness to leave their homes in exchange for peace,” Dershowitz blamed the Palestinians for the ongoing existence of the Israeli settlements: “But the Palestinians have refused to accept peace offers made by the Israeli government. Many moderate Palestinians agree that Arafat’s rejection of the peace offer made at Camp David and at Taba was a tactical mistake and that the resumption of terrorism against Israel is morally indefensible.”44 This is yet another application of Dershowitz’s faulty representations about the negotiations at Camp David in July 2000, and it is the sole context under which Dershowitz claimed that Israel has already complied, or has offered to comply, with the Fourth Geneva Convention with respect to its settlements.
In the three remaining books—The Case for Peace (2005), Preemption (2006), and The Case against Israel’s Enemies (2008)—Dershowitz never mentions the Fourth Geneva Convention by name. In The Case for Peace, Dershowitz alludes to the ICRC conference on the Fourth Geneva Convention by referring untidily to “the reconvening of the Geneva Convention on December 5, 2001.”45 This reference also appeared in a section titled “Overcoming the Hatred Barriers to Peace,” and in a paragraph that began: “UN hate [against Israel] has actually accelerated in recent years.”46 Dershowitz wrote no other words of his own concerning the December 2001 conference in Geneva on the Fourth Geneva Convention and thus declined to mention that the conference was called to reaffirm the applicability of the convention to an Israeli occupation that, at the time, was in its fourth decade.
While not commenting himself, Dershowitz instead invoked the words of Irwin Cotler, former attorney general of Canada, who described the December 2001 ICRC conference as “a prime example of discriminatory treatment” against Israel. Cotler continued, referring to the ICRC conference as “government-sanctioned hate speech” against Israel:
Fifty-two years after its adoption in 1949, the contracting parties of the Geneva Convention met again in Geneva to put Israel in the dock for violating the convention. Until that time, not one country in the international community was ever brought before the contracting parties of the Geneva Convention—not Cambodia with regard to genocide, not the Balkan states with regard to ethnic cleansing, not Rwanda with regard to genocide, not Sudan or Sierra Leone with regard to the killings fields in those countries. When politics overruns the law, the result is prejudice to the Geneva Convention and to the universality of its principles. Regrettably, in the Middle East, and particularly with regard to the Israeli-Palestinian conflict, this government-sanctioned hate speech has not been given the importance it deserves. It is this state-sanctioned culture of incitement that is the most proximate cause of violence and terror. The assault on terrorism should, in fact, begin with efforts to end this state-sanctioned incitement.47 (Emphasis added.)
In quoting Cotler, Dershowitz declined the use of ellipses to mark the points in Cotler’s original text that Dershowitz omitted. Indeed, after “the universality of its principles” and before “Regrettably” in Dershowitz’s reproduction—which is where Dershowitz should have inserted ellipses—Cotler likened the December 2001 conference in Geneva to the “state-sanctioned culture of hate” of the Nazis, as follows:
What are the lessons to be learned? The first lesson is the danger of a state-sanctioned culture of hate. We learned from World War II and the genocide of European Jewry that the Holocaust did not come about simply as a result of the industry of death and the technology of terror of the Nazis, but rather because of the ideology—indeed pathology—of hate. This demonizing of the other, this teaching of contempt, is where it all begins. As the Supreme Court of Canada put it in validating anti-hate legislation in Canada, “The Holocaust did not begin in the gas chambers; it began with words.” In fact, some 50 years later those lessons remained unlearned and the tragedies were repeated, because both in Bosnia and in Rwanda it was government-sanctioned hate speech that led to ethnic cleansing.48
By not contributing any words of his own, Dershowitz simply let Cotler’s remarks stand, though he prudently omitted Cotler’s analogy to the ICRC’s conference on the applicability of the Fourth Geneva Convention to the Israeli occupation to the hatred of Jews by the Nazis.
Furthermore, any concerns about genocide or ethnic cleansing, as in Cambodia, the Balkans, and Rwanda, as Cotler invoked them, would likely fall primarily under the legal authority internationally of the Genocide Convention of 1948. Nor did the United Nations forego the investigation and prosecution of war crimes committed in the former Yugoslavia and Rwanda, having established the United Nations International Criminal Tribunal for the former Yugoslavia,49 and the International Criminal Tribunal for Rwanda.50 In addition, the international effort to establish an international criminal tribunal for Cambodia was met for years with significant political resistance within Cambodia.51 In contrast, there has been no UN tribunal on Israeli war crimes in the occupied Palestinian territories. Thus, it seems that Cotler was mistaken when he complained that the United Nations and the contracting parties to the Fourth Geneva Convention were engaged in discriminatory conduct and “government-sanctioned hate speech” against Israel upon convening a conference merely to reaffirm the applicability of the convention to four decades of Israel’s occupation of the Palestinian territories.
The status of the Fourth Geneva Convention, as it applies to Israel’s occupation of the Palestinian territories, is presented here not only as an introduction to an important issue that is central to the Israel-Palestine conflict, but also to make the point that the conflict is viewed from the perspective of the United States in an isolated and provincial manner. Furthermore, the focus on humanitarian law and human rights as applied to the conflict is not mere legalism; it is a guide to Israel’s U.S.-supported violations of Palestinian rights. This “rejectionism” of settled law (to quote Chomsky52) is as extreme as the rejection of settled science by climate change denialists, who also are headquartered in the United States.
Also evident is the extent to which Dershowitz mishandles the facts and law. As we proceed, and as the mishandling multiplies, one may wonder whether Dershowitz’s standards of analysis are indeed that poor, or whether they are beholden exclusively to the defense of Israel’s conduct, regardless of the consequences to humanitarian law, human rights, and democratic debate. Considering Dershowitz’s position of defense attorney and his role as Israel’s chief public defender in the United States, it is helpful to review, in an attempt to discern an analytical standard, how Dershowitz describes the institutional role of a defense lawyer, and where he might draw the intellectual and ethical lines in his public defense of Israel.
In his 2001 book Letters to a Young Lawyer, Dershowitz wrote, “inevitably, all advice is, at least in part, autobiographical.”53 Dershowitz’s advice may have been particularly autobiographical when he wrote the following thoughts about what constitutes “doing good” within his profession: “So you want to do good. Don’t we all? But when you become a lawyer, you have to define good differently than you did before. As a lawyer, you’re someone else’s representative. You’re acting on their behalf. You’re their spokesperson. You may not like the term, but you’re their mouthpiece. You are they, only you are better educated and more articulate. So doing good means doing good specifically for your client, not for the world at large, and certainly not for yourself.”54 This statement prompts the following questions: Upon acting as Israel’s foremost public defender in the United States, has Dershowitz carried over the ethics of his profession (as he sees them) to his role as a public intellectual, and is he therefore guided in his defense of Israel’s conduct by the narrow standard of what is good defense lawyering?
In addition to his take on “doing good,” what are Dershowitz’s views about “truth” and “justice”? In Letters to a Young Lawyer, Dershowitz continued: “The defense attorney comes close to being a pure one-sided advocate for his generally guilty client. His job—when his client is guilty—is to prevent, by all lawful and ethical means, the ‘whole truth’ from coming out. He is not concerned about ‘justice’ for the general public or about the rights of victims. He is supposed to try to get his guilty client the best possible deal, preferably an acquittal.”55 The evident methods and values that underlie Dershowitz’s published work on the Israel-Palestine conflict bear some resemblance to the advice that he gives to young lawyers. For example, we might ask in the context of such advice: In those five books about the Israel-Palestine conflict, did Dershowitz fail to mention the Fourth Geneva Convention, and that it applies to Israel’s occupation and outlaws the Israeli settlements, because he is ignorant of those facts? Or is it far more likely that Dershowitz neglected to put those references into play because they inexorably point to the “guilt” of his “client”—the state of Israel? Being a “one-sided advocate for his generally guilty client,” Dershowitz likely decided not to disclose these facts about the Fourth Geneva Convention and its legal effects on Israel’s policies in the occupied Palestinian territories.