PART III
DERSHOWITZ’S CASE LAW
7
JIMMY CARTER AND APARTHEID
Like other Americans in 2008, I followed the campaign to elect a new president after eight years of George W. Bush and Dick Cheney, which, in addition to reading the newspapers and watching the televised debates, included viewing the Democratic National Convention in August. On the first day of the convention, I watched with interest the odd one-minute appearance by Jimmy and Rosalynn Carter, with the lyrics of “Georgia on My Mind” by Ray Charles the only words that would emanate to the arena and TV audience while the former president was on stage. Having been limited to hand-waving by the time he had left the stage, it seemed possible that the party’s presidential nominee, Barack Obama, had acquiesced to the critics of Carter’s book Palestine Peace Not Apartheid, which was published in November 2006 and debated for many months afterward. I not only viewed what seemed like the public humiliation of the founder of the Carter Center as an insult and a bad omen for an Obama presidency, including with respect to the Israel-Palestine conflict, but I had an uncomfortable sense about whose views in particular had prevailed over Carter’s within the Obama campaign.
Sure enough, ten days after Obama was elected on November 4, Shalom TV, a cable TV network in the United States, reported that “Harvard Law professor Alan Dershowitz revealed that he was among those who convinced Barack Obama to keep Jimmy Carter from addressing the Democratic National Convention.” The cable network quoted Dershowitz in its exclusive interview as follows: “I pushed him very hard to make that decision. Barack Obama had to make a choice between his Jewish supporters and his anti-Israel supporters like Jimmy Carter, and he did not choose Jimmy Carter. And that was an embarrassment for Jimmy Carter and a show of disrespect. And I’m very glad he made that decision. It was a good decision, a wise decision, a moral decision.”1
That the Obama campaign would value the advice and influence of Alan Dershowitz over Jimmy Carter’s was disturbing, though not altogether surprising, given the manner in which Carter’s book was treated in the United States, the instrumental role that Dershowitz played in a loud crescendo of inaccurate and misleading statements about the book, and the precedent set by major news organizations in promoting the Dershowitzian rebuttal. If there was any surprise in witnessing Obama’s abandonment of Carter at the convention, and thereafter reading that Dershowitz had played a role in that decision, it was that Obama, upon rejecting Carter, had in effect ratified not only the substance of Dershowitz’s claims against Carter, which was bad enough, but also the manner in which Dershowitz pressed those claims to the public.
One memorable example was an interview, again on Shalom TV, on March 3, 2008—five months before the Democratic convention—when Dershowitz issued the following statement in the context of discussing Carter’s book: “Whatever the reason or reasons for Jimmy Carter’s descent into the gutter of bigotry, history will not judge him kindly. Jimmy Carter has literally become such an anti-Israel bigot that there’s a kind of special place in hell reserved for somebody like that.”2 Having read Carter’s book and witnessed this video and other such comments by Dershowitz by summer 2008, I somewhat surrealistically experienced the applause of Carter’s brief appearance at the Democratic convention as a salute to a successful smear campaign of a former president that had little basis in fact.
It is clear that the most aggravating aspect of Palestine Peace Not Apartheid among Carter’s critics was his use of the word “apartheid” in the book’s title. Writing in the Guardian, Michael Kinsley, for example, commented: “It’s not clear what he means by using the loaded word, ‘apartheid,’ since the book makes no attempt to explain it, but the only reasonable interpretation is that Carter is comparing Israel to the former white racist government of South Africa.”3 Like other such criticisms of Carter’s book, this statement was not accurate, since Carter had likened the conditions in the Israel-occupied Palestinian West Bank, and not Israel itself, to South Africa’s former apartheid regime. This was clear in Carter’s book, as he wrote, for example, while referring to the Israel-built separation wall (barrier) between the state of Israel and the Palestinian West Bank: “Israeli leaders have embarked on a series of unilateral decisions, bypassing both Washington and the Palestinians. Their presumption is that an encircling barrier will finally resolve the Palestinian problem. Utilizing their political and military dominance, they are imposing a system of partial withdrawal, encapsulation, and apartheid on the Muslim and Christian citizens of the occupied territories. The driving purpose for the forced separation of the two peoples is unlike that in South Africa—not racism, but the acquisition of land.” Carter continued: “There has been a remarkably effective effort to isolate [Israeli] settlers from Palestinians, so that a Jewish family can commute from Jerusalem to their highly subsidized home deep in the West Bank on roads from which others are excluded, without ever coming in contact with any facet of Arab life.”4 Elsewhere, again referring only to the West Bank and not to conditions within Israel itself, Carter invoked “a system of apartheid, with two peoples occupying the same land but completely separated from each other, with Israelis totally dominant and suppressing violence by depriving Palestinians of their basic human rights.”5 Thus, unlike what Kinsley wrote, Carter did not compare Israel itself to the South African apartheid system. Misrepresenting the context in which Carter applied “apartheid” permitted critics to denounce Carter without having to respond in a substantive sense to the actual Israel-imposed conditions in the occupied territories that Carter cited in his book as resembling the apartheid system of South Africa. Dershowitz perhaps was the most high-profile critic who accused Carter in this manner.
In November 2006, the month in which Carter’s book was published in the United States, and in his own first published comments about it, Dershowitz wrote: “[Carter’s] bias against Israel shows by his selection of the book’s title, Palestine Peace Not Apartheid. The suggestion that without peace Israel is an apartheid state analogous to South Africa is simply wrong.”6 As noted previously, Carter did not compare the state of Israel to South Africa; he compared Israel’s occupation of Palestinian territory to conditions in apartheid South Africa. The great convenience here is that Dershowitz can attack Carter with indignation for unfairly comparing Israel to apartheid South Africa, while Dershowitz options himself out of having to address the occupation-related conditions in the West Bank.
Furthermore, one month after his book was published, Carter met with leaders of the Board of Rabbis of Greater Phoenix. Following that meeting, Carter posted “A Letter to Jewish Citizens of America” on the Web site of the Carter Center. In the letter, Carter wrote: “The chairman of the group [of Phoenix rabbis], Rabbi Andrew Straus, then suggested that I make clear to all American Jews that my use of ‘apartheid’ does not apply to circumstances within Israel, that I acknowledge the deep concerns of Israelis about the threat of terrorism and other acts of violence from some Palestinians, and that the majority of Israelis sincerely want a peaceful existence with their neighbors.” In his posted letter, Carter then wrote, “The purpose of this letter is to reiterate these points.”7 The date of the letter, December 2006, is significant, since nearly two years later, in his 2008 book The Case against Israel’s Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of Peace, Dershowitz repeated his claim as follows that Carter had applied “apartheid” to Israel: “Israel’s most dangerous enemies are those who wield the power—political, academic, religious, and military—to challenge Israel’s continued existence as a Jewish, democratic, multiethnic, and multicultural state. These include Western political leaders, led by former president Jimmy Carter, who would delegitimize Israel as an apartheid regime subject to the same fate as white South Africa.”8
Furthermore, Carter never issued any challenges to “Israel’s continued existence,” as Dershowitz claimed. To the contrary, in his book, Carter presented his “three most basic principles” of an Israel-Palestine peace treaty:
And in his December 2006 letter after the meeting in Phoenix, Carter reiterated his commitment to peace within the framework of a recognized state of Israel: “When asked [by the Phoenix rabbis] my proposals for peace in the Middle East, I summarized by calling for Hamas members and all other Palestinians to renounce violence and adopt the same commitment made by the Arab nations in 2002: the full recognition of Israel’s right to exist in peace within its legally recognized 1967 borders (to be modified by mutual agreement by land swaps).”10 The fact is that Carter did not liken conditions within Israel to apartheid South Africa, nor did he challenge Israel’s continued existence, as Dershowitz falsely claimed on both counts.
Dershowitz also criticized Carter for failing to provide support for a charge that Carter never made. For example, Dershowitz wrote: “Carter, despite the title of his book, offered no shred of evidence to prove that Israel practices apartheid.”11 If Dershowitz means by this statement that Carter provided no evidence that Israel practices apartheid inside Israel, he is correct that Carter provided no such evidence, inasmuch as Carter made no such charge. Also, as Dershowitz correctly pointed out, Carter barely mentions the word “apartheid” in his book: “Search through the pages carefully, and you will find the word apartheid mentioned only three times. Carter does not even define what the term means.”12 Dershowitz’s complaint here is accurate—the word “apartheid” appears only three times in Carter’s book (pp. 30, 189, 215)—and Carter provides no definition per se of the term. However, in his third mention of the word, Carter described well enough what he meant by “apartheid” as follows: “A system of apartheid, with two peoples occupying the same land but completely separated from each other, with Israelis totally dominant and suppressing violence by depriving Palestinians of their basic human rights.”13 In my view, and given the title of his book, Carter could have done more to explain his use of “apartheid” and how it applies to the Israel-occupied Palestinian territories, since that was his actual application of the term. However, given the scarce number of appearances of “apartheid” in Carter’s book, there were few opportunities to misconstrue Carter’s actual use of the term, and thus to claim, inaccurately as Dershowitz did, that Carter had applied the word to conditions within Israel itself.14
John Dugard is probably the most qualified person in the world to speak to the issue of an Israel-imposed system of apartheid in the West Bank. As a South African professor of international law, he has written extensively about, and in opposition to, South African apartheid. His books include Human Rights and the South African Legal Order (1978), The Last Years of Apartheid (1992), and International Law: A South African Perspective (2006). Beginning in 2001 he was appointed by the UN Human Rights Commission (later renamed the Human Rights Council) as special rapporteur on human rights in the occupied Palestinian territories and issued several reports in that capacity. There are few if any legal scholars who have had this amount of access to both the South African system of apartheid and Israel’s occupation of the West Bank. Dugard is thus uniquely qualified to assess whether the two-tier legal and political system that is imposed on the Palestinians in the West Bank by the state of Israel legitimately can be called an apartheid-like system of segregation.
Dugard in fact made several references to “apartheid” in a 2007 report and suggested that the question of apartheid in the West Bank be submitted to the International Court of Justice for a definitive opinion: “The international community has identified three regimes as inimical to human rights—colonialism, apartheid and foreign occupation. Israel is clearly in military occupation of the OPT [Occupied Palestinian Territory]. At the same time elements of the occupation constitute forms of colonialism and of apartheid, which are contrary to international law. What are the legal consequences of a regime of prolonged occupation with features of colonialism and apartheid for the occupied people, the occupying Power and third States? It is suggested that this question might appropriately be put to the International Court of Justice for a further advisory opinion.”15 Note here that Dugard is asserting “features of colonialism and of apartheid” in the Israel-occupied Palestinian territories, not inside Israel itself. Dugard then emphasized the unique nature of the Israeli occupation: “The Occupied Palestinian Territory is the only instance of a developing country that is denied the right of self-determination and oppressed by a Western-affiliated State. The apparent failure of Western States to take steps to bring such a situation to an end places the future of the international protection of human rights in jeopardy as developing nations begin to question the commitment of Western States to human rights.”16 This statement to some degree responds to a frequent complaint by Dershowitz that Western critics of Israel are “bigoted” due to a focus on Israel’s human rights violations as opposed to the violations of other states, such as Sudan and Somalia; that is, that the Israeli occupation, which features “elements of colonialism and of apartheid,” is a Western-supported phenomenon, and in particular a U.S.-supported one.
Having noted in a preliminary sense the apartheid-like conditions in the Palestinian territories, Dugard suggested that the 1966 International Convention on the Elimination of All Forms of Racial Discrimination, and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, may apply to Israel’s occupation of the West Bank. Noting that “Israel vehemently denies the application of these Conventions to its laws and practices in the Occupied Palestinian Territory,” Dugard nevertheless wrote that “it is difficult to resist the conclusion that many of Israel’s laws and practices violate the 1966 Convention on the Elimination of All Forms of Racial Discrimination.” Dugard continued:
Israelis are entitled to enter the closed zone between the [Israel-constructed] Wall and the Green Line [the internationally recognized border between Israel and the West Bank] without permits while Palestinians require permits to enter the closed zone; house demolitions in the [Israel-occupied] West Bank and East Jerusalem are carried out in a manner that discriminates against Palestinians; throughout the West Bank, and particularly in Hebron, [Israeli] settlers are given preferential treatment over Palestinians in respect of movement (major roads are reserved exclusively for settlers), building rights and army protection; and the laws governing family reunification unashamedly discriminate against Palestinians.17
Dugard wrote that he was “less certain” that Israel was in violation of the Apartheid Convention in the occupied territories. However, upon referring to policies and conduct prohibited by the convention, Dugard noted that “the IDF [Israel Defense Forces] inflicts serious bodily and mental harm on Palestinians, both in Gaza and the West Bank; over 700 Palestinians are held without trial; prisoners are subjected to inhuman and degrading treatment; and Palestinians throughout the OPT are denied freedom of movement.” Citing language from the Apartheid Convention, Dugard continued: “Can it seriously be denied that the purpose of such actions is to establish and maintain domination by one racial group (Jews) over another racial group (Palestinians) and systematically oppressing them?” Dugard then observed: “Israel denies that this is its intention or purpose. But such an intention or purpose may be inferred from the actions described in this report.”18
In the 2007 report, Dugard also approached the issue of apartheid in the occupied Palestinian territories as follows:
Israel’s practices and policies in the OPT are frequently likened to those of apartheid South Africa (see, for example, Jimmy Carter, Palestine: Peace Not Apartheid, 2006). On the face of it, occupation and apartheid are two very different regimes. Occupation is not intended to be a long-term oppressive regime but an interim measure that maintains law and order in a territory following an armed conflict and pending a peace settlement. Apartheid is a system of institutionalized racial discrimination that the white minority in South Africa employed to maintain power over the black majority. It was characterized by the denial of political rights to blacks, the fragmentation of the country into white areas and black areas (called Bantustans) and by the imposition on blacks of restrictive measures designed to achieve white superiority, racial separation and white security. Freedom of movement was restricted by the “pass system” which sought to restrict the entry of blacks into the cities. Apartheid was enforced by a brutal security apparatus in which torture played a significant role.
Though he professed an absence of absolute certainty, Dugard concluded by observing that “although the two regimes are different, Israel’s laws and practices in the OPT certainly resemble aspects of apartheid . . . and probably fall within the scope of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.”19
Another prominent South African, Desmond Tutu, also views the conditions in the occupied Palestinian territories as resembling apartheid in South Africa. Tutu supported investment boycotts and street demonstrations against the South African apartheid regime and in the mid-1990s led the Truth and Reconciliation Commission on South African Apartheid. It is therefore noteworthy that in April 2002, BBC News reported: “South African Archbishop Desmond Tutu has accused Israel of practicing apartheid in its policies towards the Palestinians. The Nobel peace laureate said he was ‘very deeply distressed’ by a visit to the Holy Land, adding that ‘it reminded me so much of what happened to us black people in South Africa.’” Tutu observed that he saw “the humiliation of the Palestinians at checkpoints and roadblocks, suffering like us when young white police officers prevented us from moving about.”20 Two months later, in an article in the Nation titled “Against Israeli Apartheid,” Tutu described “parallels” in the West Bank “to the struggle against apartheid” in South Africa:
Yesterday’s South African township dwellers can tell you about today’s life in the occupied [Palestinian] territories. To travel only blocks in his own [Palestinian] homeland, a grandfather waits on the whim of a teenage soldier. More than an emergency is needed to get to a hospital; less than a crime earns a trip to jail. The lucky ones have a permit to leave their squalor to work in Israel’s cities, but their luck runs out when security closes all checkpoints, paralyzing an entire people. The indignities, dependence and anger are all too familiar. Many South Africans are beginning to recognize the parallels to what we went through.21
Indeed, a year earlier, in October 2001, South Africans of Jewish descent issued a “Declaration of Conscience” about the Israel-Palestine conflict, which stated: “We assert that the fundamental causes of the current conflict are Israel’s suppression of the Palestinian struggle for national self-determination and its continued occupation of Palestinian lands. We do not dispute that certain sectors of the Palestinian population have resorted to terror and we condemn killings of innocent civilians from whatever quarter. Yet this is not the root cause of the problem.” The declaration continued: “In light of the suffering that we Jews have experienced ourselves, especially in the past century, we object to the ruthless security measures employed by the Israeli government against Palestinians. . . . We take note of the fact-finding report by members of South Africa’s Parliament who visited the Middle East in July 2001. The report observes ‘it becomes difficult, particularly from a South African perspective, not to draw parallels with the oppression experienced by Palestinians under the hand of Israel and the oppression experienced in South Africa under apartheid rule.’” The declaration was authored by Ronnie Kasrils, South African Minister of Water Affairs and Forestry, and Max Ozinsky, a member of the Western Cape Legislature, and endorsed by 290 prominent South Africans of Jewish descent.22
Seven years later, in July 2008, the Independent reported that a twenty-three-member delegation of human rights lawyers from South Africa, which included several Jewish South Africans, visited the West Bank to assess the living conditions there. As the Independent reported: “Veterans of the anti-apartheid struggle said last night that the restrictions endured by Palestinians in the Israeli-occupied territories were in some respects worse than that imposed on the black majority under white rule in South Africa.” About the West Bank, a former deputy health minister of South Africa, Nozizwe Madlala-Routledge, stated: “Even with the system of permits, even with the limits of movement to South Africa, we never had as much restriction on movement as I see for the people here.” At the same time, Dennis Davis, a South African high court judge and a Jewish member of the delegation, said that comparisons between the Israel-occupied Palestinian territories and South African apartheid were “very unhelpful,” although Davis also reported that “the level of social control I’ve seen here, separate roads, different number plates [for Palestinian and Israeli cars] may well be more cynically pernicious than what we have ever had.”23
In May 2009, a South African research organization, the Human Sciences Research Council (HSRC), issued a report—“Occupation, Colonialism, Apartheid? A Re-assessment of Israel’s Practices in the Occupied Palestinian Territories under International Law”—which set out to examine whether elements of Israel’s long occupation of the Palestinian territories amount to colonialism and apartheid. HSRC was established in 1968 by an act of the South African Parliament to conduct social science research in the public interest and serves as the national social science council for South Africa.24 The report’s editor was Virginia Tilley, a South African scholar of the Middle East, and its six principal contributors and eight consultants were academics and human rights officials from South Africa, the United Kingdom, Israel, and the West Bank.25 A “Background Note” to the report stated: “Over a period of 15 months, the team of scholars engaged in extensive research, discussion, and rounds of lively debate through seven drafts. The result is the consensus represented in this report.” The report’s executive summary was presented in May 2009 at the Law School of the School of Oriental and African Studies at the University of London. Absent an advisory opinion from the International Court of Justice, the HSRC report on the question of colonialism and apartheid in the Israel-occupied territories is the most scholarly and rigorous assessment available to date and, as such, merits the extensive review presented here.
The genesis of the HSRC report (hereinafter the “Tilley report”), as it noted, “was the suggestion made in January 2007 by Professor John Dugard, in his capacity as UN Special Rapporteur on the human rights situation in the occupied Palestinian territories, that Israel’s military occupation displays elements of colonialism and apartheid.”26 The Tilley report then asserted, upon summarizing its conclusions, that “elements of the occupation constitute forms of colonialism and apartheid, which are contrary to international law.” Like Jimmy Carter, the report’s authors also made it clear that the scope of their study was “whether Israel’s practices in the OPT amount to colonialism or apartheid under international law,” and not “Israel’s practices inside the Green Line (1949 Armistice Line),” except “where they illuminate Israeli policies in the OPT.” Thus, the Tilley report did not make claims about elements of colonialism or apartheid inside Israel itself and confined its conclusions to the Israel-occupied Palestinian territories.
In examining whether Israel’s laws and practices in the occupied territories contain aspects of “colonialism,” the Tilley report sought first to define what it meant by the term. It thus reported “although international law provides no single decisive definition of colonialism, the terms of the [UN’s] Declaration on Colonialism indicate that a situation may be classified as colonial when the acts of a State have the cumulative outcome that it annexes or otherwise unlawfully retains control over territory and thus aims permanently to deny its indigenous population the exercise of its right to self-determination.” The report continued: “Five issues, which are unlawful in themselves, taken together make it evident that Israel’s rule in the OPT has assumed such a colonial character.”27
Before proceeding to the five elements that the report identified, it is relevant to note that the “Declaration on Colonialism” is a shorthand reference to the 1960 UN General Assembly “Declaration on the Granting of Independence to Colonial Countries and Peoples,” which defines the essential character of colonialism as “the subjection of peoples to alien subjugation, domination and exploitation.” The declaration lists fundamental rights under international law, including “the right to self-determination,” whereby “all peoples” may “freely determine their political status and freely pursue their economic, social, and cultural development.” The declaration also stipulates that “all armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.” The resolution was passed unanimously in 1960 by eighty-nine states, with nine countries abstaining, including the United States, the United Kingdom, France, Spain, Portugal, Belgium, Australia, and apartheid South Africa.28 Having identified the Declaration on Colonialism as its principal reference, the Tilley report identified the five colonialist elements of Israel’s occupation.
Violating the Territorial Integrity of Occupied Territory. “Israel’s annexation [in 1967] of East Jerusalem is manifestly an act based on colonial intent. It is unlawful in itself, as annexation breaches the principle underpinning the law of occupation: that occupation is only a temporary situation that does not vest sovereignty in the Occupying Power. Annexation also breaches the legal prohibition on the acquisition of territory through the threat or use of force. This prohibition has peremptory [absolute, conclusive, incontrovertible29] status, as it is a corollary of the prohibition on the use of force in international relations enshrined in Article 2(4) of the UN Charter. Israel’s acquisition of territory in the West Bank also starkly illustrates this intent: the construction of Jewish-only settlements within contiguous blocs of land that Palestinians cannot enter; a connecting road system between the settlements and the settlements and cities within the Green Line, the use of which is denied to Palestinians; and a Wall that separates Jewish and Palestinian populations while also dividing Palestinian communities from each other, with passage between Palestinian areas controlled by Israel. By thus partitioning contiguous blocs of Palestinian areas into cantons, Israel has violated the territorial integrity of the OPT in violation of the Declaration on Colonialism.”30
Depriving the Population of Occupied Territory of the Capacity for Self-Governance. “The physical control exercised over [the OPT] is complemented by the administration that Israel exercises over the OPT, which prevents its protected population [the Palestinian inhabitants] from freely exercising political authority over that territory. This determination is unaffected by the conclusion of the Oslo Accords and the creation of the Palestinian National Authority and Legislative Council. The devolution of power to these institutions has been only partial, and Israel retains ultimate control. By preventing the free expression of the Palestinian population’s political will, Israel has violated that population’s right to self-determination.”31
Integrating the Economy of Occupied Territory into That of the Occupant. “The law of self-determination further requires a State in belligerent occupation of foreign territory to keep that territory separate from its own, in order to prevent its annexation, and also to keep their economies separate. Israel has subordinated the economy of the OPT to its own, depriving the population under occupation of the capacity to govern its economic affairs. In particular, the creation of a customs union between Israel and the OPT is a measure of prohibited annexation.32 By virtue of the structural economic measures it has imposed on the OPT, Israel has violated the Palestinian population’s right of economic self-determination and its duties as an Occupying Power.”33
Breaching the Principle of Permanent Sovereignty over Natural Resources in Relation to the Occupied Territory. “The economic dimension of self-determination is also expressed in the right of permanent sovereignty over natural resources, which entitles a people to dispose freely of the natural wealth and resources found within the limits of its national jurisdiction. Israel’s settlement policy and the construction of the bypass road network and the Wall have deprived the Palestinian population of the control and development of an estimated 38 percent of West Bank land. It has also implemented a water management and allocation system that favors Israel and Jewish settlers in the OPT to the detriment of the Palestinian population. Not only is this practice contrary to the lawful use of natural resources in time of occupation, which is limited to the needs of the occupying army, but it is also contrary to international water law as the allocation employed is both unjust and inequitable. . . . Thus, by its treatment of the natural resources of the OPT, Israel has further breached the economic dimensions of self-determination, as expressed in the right of permanent sovereignty over natural resources.”34
Denying the Population of Occupied Territory the Right Freely to Express, Develop, and Practice Its Culture. “Self-determination also has a cultural component: a people entitled to exercise the right of self-determination have the right to develop and practice its culture. Israeli practices privilege the language and cultural referents of the occupier, while materially hampering the cultural development and expression of the Palestinian population. This last issue renders Israel’s denial of the right to self-determination in the OPT comprehensive.”35
In similar fashion, the Tilley report set out to assess whether Israel’s policies in the occupied territories amount to a system of apartheid. It noted that the 1965 International Convention on the Elimination of All Forms of Racial Discrimination “prohibits the practice of apartheid as a particularly egregious form of discrimination, but it does not define the practice with precision.” It also noted that the Apartheid Convention and the Rome Statute of the International Criminal Court “further elaborate the definition of apartheid” and “criminalize certain apartheid-related acts.” The Apartheid Convention indeed criminalizes “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.” Likewise, the Rome Statute criminalizes inhuman acts “committed in the context of, and to maintain, an institutional regime of systematic oppression and domination by one racial group over any other racial group.” The Tilley report commented that both the Apartheid Convention and the Rome Statute “focus on the systematic, institutionalized, and oppressive character of the discrimination involved and the purpose of domination that is entailed” (emphasis in original) and that the systematic and institutionalized oppressive character “distinguishes the practice of apartheid from other forms of prohibited discrimination.” The Tilley report also observed that the prohibition of apartheid “has assumed the status of customary international law and, further, is established as a peremptory norm which entails obligations owed to the international community as a whole.”36
A key assessment in the Tilley report was whether “the groups involved” in the Israel-Palestine context “can be understood as ‘racial groups.’” In seeking to resolve this question, the report’s authors examined how racial discrimination is defined in the UN’s International Convention on the Elimination of All Forms of Racial Discrimination and in the jurisprudence of the International Criminal Tribunals for Rwanda and the former Yugoslavia, which concluded that “no scientific or impartial method exists for determining whether any group is a racial group and that the question rests on local perceptions.” The Tilley report found “that ‘Jewish’ and ‘Palestinian’ identities are socially constructed in the OPT as groups distinguished by ancestry or descent as well as nationality, ethnicity, and religion,” and “on this basis, the study concludes that Israeli Jews and Palestinian Arabs can be considered ‘racial groups’ for the purposes of the definition of apartheid in international law.” Accordingly, the Tilley report stated, by way of conclusion: “By examining Israel’s practices in the light of Article 2 of the Apartheid Convention, this study concludes that Israel has introduced a system of apartheid in the OPT.”37
In reaching that conclusion, the authors of the Tilley report also conducted a comparative analysis between South African apartheid practices and the Israel-imposed conditions in the occupied territories. In doing so, the authors noted: “Certainly differences are evident between apartheid as it was applied in South Africa and Israel’s policies and practices in the OPT. Nevertheless, the two systems can be defined by similar dominant features.”38 In defining these features, the Tilley report described the “three pillars” of South African apartheid and compared the laws and policies that characterized each pillar to a corresponding set of Israeli practices in the occupied Palestinian territories. As the report indicated: “Israel’s practices in the OPT can be defined by the same three ‘pillars’ of apartheid.”39
The first pillar of South African apartheid cited in the Tilley report was a formal demarcation of the population into racial groups in accordance with the 1950 Population Registration Act, in addition to the superior rights, privileges, and services rendered to the white racial group in South Africa through the Bantu Building Workers Act of 1951, and the Bantu Education Act and the Separate Amenities Act enacted in 1953. These laws “consolidated earlier discriminatory laws into a pervasive system of institutionalized racial discrimination, which prevented the enjoyment of basic human rights by non-white South Africans based on their racial identity.”
The corresponding first pillar in the Israel-occupied Palestinian territories, according to the Tilley report, “derives from Israeli laws and policies that establish Jewish identity for purposes of law and afford a preferential legal status and material benefits to Jews over non–Jews.” The report found that this “institutionalized system . . . privileges Jewish settlers and discriminates against Palestinians on the basis of the inferior status afforded to non-Jews by Israel. At the root of this system are Israel’s citizenship laws, whereby group identity is the primary factor in determining questions involving the acquisition of Israeli citizenship.” The Tilley report then itemized the Israeli laws and their effects:
The 1950 Law of Return defines who is a Jew for purposes of the law and allows every Jew to immigrate to Israel or the OPT. The 1952 Citizenship Law then grants automatic citizenship to people who immigrate under the Law of Return, while erecting insurmountable obstacles to citizenship for Palestinian refugees. Israeli law conveying special standing to Jewish identity is then applied extraterritorially to extend preferential legal status and material privileges to Jewish settlers in the OPT and thus discriminate against Palestinians. . . . The 2003 Citizenship and Entry into Israel Law banning Palestinian family unification is a further example of legislation that confers benefits to Jews over Palestinians and illustrates the adverse impact of having the status of Palestinian Arab.40
The Tilley report authors then commented that “the disparity in how the two groups are treated by Israel is highlighted through the application of a harsher set of laws and different courts for Palestinians in the OPT than for Jewish settlers, as well as through the restrictions imposed [in the OPT] by the permit and ID systems.”
The second pillar of apartheid in South Africa “was to segregate the population into different geographic areas, which were allocated by law to different racial groups, and restrict passage by members of any group into the area allocated to other groups, thus preventing any contact between groups that might ultimately compromise white supremacy.” The South African laws that facilitated these conditions were identified in the Tilley report as “the Group Areas Act of 1950 and the Pass Laws—which included the Native Laws Amendment Act of 1952 and the Natives (Abolition of Passes and Co-ordination of Documents) Act of 1952—as well as the Natives (Urban Areas) Amendment Act of 1955, the Bantu (Urban Areas) Consolidation Act of 1945 and the Coloured Persons Communal Reserves Act of 1961.” This forced separation of racial groups “constituted the basis for the policy labeled ‘grand apartheid’ by its South African architects, which provided for the establishment of ‘Homelands’ or ‘Bantustans’ into which denationalized black South Africans were transferred and forced to reside.”
The corresponding second pillar of conditions in the occupied Palestinian territories is reflected in Israel’s policy of “fragment[ing] the OPT for the purposes of segregation and domination.” The Tilley report continued:
This policy is evidenced by Israel’s extensive appropriation of Palestinian land, which continues to shrink the territorial space available to Palestinians; the hermetic closure and isolation of the Gaza Strip from the rest of the OPT; the deliberate severing of East Jerusalem from the rest of the West Bank; and the appropriation and construction policies serving to carve up the West Bank into an intricate and well-serviced network of connected settlements for Jewish-Israelis and an archipelago of besieged and non-contiguous enclaves for Palestinians. That these measures are intended to segregate the population along racial lines in violation of Article 2(d) of the Apartheid Convention is clear from the visible web of walls, separate roads, and checkpoints, and the invisible web of permit and ID systems, which combine to ensure that Palestinians remain confined to the reserves designated for them while Israeli Jews are prohibited from entering those reserves but enjoy freedom of movement throughout the rest of the Palestinian territory.
With respect to these conditions, the Tilley report noted that “much as the same restrictions functioned in apartheid South Africa, the policy of geographic fragmentation has the effect of crushing Palestinian socio-economic life, securing Palestinian vulnerability to Israeli economic dominance, and of enforcing a rigid segregation of Palestinian and Jewish populations.”41
The third pillar of South African apartheid was “a matrix of draconian ‘security’ laws and policies that were employed to suppress any opposition to the [apartheid] regime and reinforce the system of racial domination, by providing for administrative detention, torture, censorship, banning, and assassination.”42 As assessed in the Tilley report, the corresponding “third pillar upon which Israel’s system of apartheid in the OPT rests is its ‘security’ laws and policies.” These include, as itemized in the report, “the extrajudicial killing, torture and cruel, inhuman or degrading treatment and arbitrary arrest and imprisonment of Palestinians, as described under the rubric of Article 2(a) of the Apartheid Convention.” The report observed that “these policies are State-sanctioned, often approved by the Israeli judicial system, and supported by an oppressive code of military laws and a system of improperly constituted military courts.”
Finally, the Tilley report issued this clarification: “This study does not contend that Israel’s claims about security are by definition lacking in merit, but rather that Israel’s invocation of ‘security’ to validate severe policies and disproportionate practices toward the Palestinians is operating principally to validate suppression of Palestinian opposition to a system of domination by one racial group over another.”43
Though the executive summary and the larger report from the South African Human Sciences Research Council was issued in 2009, and thus after much of Dershowitz’s criticism of Jimmy Carter’s use of “apartheid” in Palestine Peace Not Apartheid, the value of the Tilley report is the scholarly and legal rigor of its assessment of the Israel-imposed apartheid-like conditions in the occupied Palestinian territories. To my knowledge, it is the most authoritative and painstaking response to the question of whether Israel’s occupation of the Palestinian territories amounts to a colonial and apartheid regime as characterized in both instances under international law.
In addition to numerous South African commentators who have likened the conditions in the Israel-occupied Palestinian West Bank to apartheid South Africa, many Israeli, British, and U.S. critics have as well. For example, the Israeli human rights organization B’Tselem, in a report issued in May 2002, stated: “Israel has created in the Occupied Territories a regime of separation based on discrimination, applying two separate systems of law in the same area and basing the rights of individuals on their nationality. This regime is the only one of its kind in the world, and is reminiscent of distasteful regimes from the past, such as the Apartheid regime in South Africa.”44 Two years later, in August 2004, and in a report on Israel’s vast network of roads in the West Bank, which permits Israelis to use the roads while prohibiting Palestinians, B’Tselem reported: “The roads regime, which is based on separation through discrimination, bears clear similarities to the racist apartheid regime that existed in South Africa until 1994. An individual’s national origin determines their right to use various roads.”45
Writing in April 2004 about Israel’s planned unilateral disengagement from the Gaza Strip, pursuant to which in August 2005 Israel withdrew its settlers and military personnel, in addition to removing a few Israeli settlements from the northern West Bank, journalist Akiva Eldar, Israel’s leading diplomatic correspondent, wrote in an opinion piece for Ha’aretz titled “Creating a Bantustan in Gaza”: “South Africa will be very interested in the Israeli disengagement plan published yesterday. The political, military, and economic aspects of the plan for the Gaza Strip and the [settler] enclave in the northern West Bank are amazingly similar to the homelands, one of the last inventions of the white minority in South Africa to perpetuate its rule over the black majority. The black and colored people that were concentrated in 10 isolated enclaves had limited autonomy, but their economic well-being depended on the good will of the white government.”46 Ten days later in the Guardian, in a piece titled “Bantustan Plan for an Apartheid Israel,” former deputy mayor of Jerusalem Meron Benvenisti wrote about the Israeli disengagement plan: “The Bantustan model for Gaza, as depicted in the disengagement plan, is a model that Sharon plans to copy on the West Bank. His announcement that he will not start to disengage before construction of the fence is completed along a route that will include all settlement blocs (in keeping with Binyamin Netanyahu’s demand), underscores the continuity of the Bantustan concept. The fence creates three Bantustans on the West Bank—Jenin-Nablus, Bethlehem-Hebron, and Ramallah. This is the real link between the Gaza and West Bank plans.”47
In an interview in 2005 with Amy Goodman for Democracy Now!, the Israeli journalist Amira Hass discussed her longtime reporting from the Palestinian territories under Israel’s occupation, including her characterization of the Israeli occupation as a form of apartheid, as follows:
Goodman: Amira Hass, you have said there has been a form of apartheid for 33 years, talking about Israel and the Occupied Territories, and the Oslo Accords did nothing to change that. . . . Can you talk about what you mean by an apartheid-like system?
Hass: An apartheid-like system is when we are talking about two peoples who live in the same territory, between the sea and the river, the Mediterranean and the River of Jordan, two peoples. And there are two sets of laws which apply to each separate people. There are two—there are privileges and rights for the one people, for the Israeli people . . . and there are restrictions and decrees and military laws which apply to the other people, to the Palestinians. The Palestinians, as a people, are divided into subgroups, something which is reminiscent also of South Africa under apartheid rule. . . . And then you have one government, which is elected, which actually decides about the future of both peoples, the scope of development of both peoples, but it is being elected only by one people. For me, this is a form of apartheid, of demographic separation which is meant to improve the conditions and the well-being and the future of one people on the account of the other.48
Another Israeli journalist, Danny Rubenstein, stated in August 2007 that “Israel today was an apartheid state with four different Palestinian groups: those in Gaza, East Jerusalem, the West Bank and Israeli Palestinians, each of which had a different status.”49 A year later, Yossi Sarid, another prominent Israeli journalist, in commentary for Ha’aretz titled “Yes, It Is Apartheid,” responded with satire to the virulent tone of Carter’s critics:
Similarly, a former education minister of Israel, Shulamit Aloni, recipient of both the Israel Prize and the Emil Grunzweig Human Rights Award from the Association for Civil Rights in Israel, wrote in response to the attacks on Carter and his book:
While misrepresenting Carter’s apartheid claim—implying or stating outright that Carter applied it to Israel rather than to the Israel-occupied Palestinian territories—Dershowitz ignored these persuasive assessments of the Israel-imposed apartheid system in the occupied territories.
Having given an appearance of soundly trouncing Carter’s use of “apartheid” while never actually addressing the substantive context in which Carter used the term, Dershowitz also spent a fair amount of time in The Case against Israel’s Enemies recounting a series of anecdotes involving himself and Carter, including during the former president’s appearance at Brandeis University, where, according to Dershowitz, “some hard-left professors” at the school had invited Carter to speak, and where “most of the students remained” to see his response to Carter, although “some from the hard-left walked out on my talk.”52 Following the Brandeis event, according to Dershowitz, “Carter’s tone became more shrill and his substantive accusations against Israel became more one-sided, even bigoted.”53 Two pages later, Dershowitz wrote that because the slaughter in Darfur is being conducted with the support of Arab governments, “the hard left that Carter has come to represent has refused to condemn it as genocide.”54 About the Carter v. Dershowitz debate controversy that Carter’s invitation to speak at Brandeis engendered, Dershowitz wrote that Carter had “simply lied” about whether Dershowitz had challenged him to a debate, that the Boston Globe “makes it clear that [Carter] was lying,” and that Carter’s alleged lying about the debates “was part of a pattern of lying” by Carter.55
These attacks by Dershowitz against Carter’s use of “apartheid,” and against his integrity as a commentator on issues of great public concern, are representative of Dershowitz’s successful tactic of branding Israel’s legitimate critics with defamatory epithets, including in this case characterizations of Carter’s book as “bigoted” and filled with “lies,” and taunting Carter in the idiom of authoritarianism as a “hard-leftist” and “enemy” of Israel. Dershowitz’s book The Case against Israel’s Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of Peace is in fact a Nixonesque catalog of enemies; literally an enemies list of prominent critics of Israel’s policies. The two lists—the one by Nixon and by Dershowitz—even share a common lexicon that abhors “liberals,” “leftists,” “haters,” and “enemies.”
While composing Nixon’s enemies list, White House counsel Charles Colson described Bernard Feld, an MIT physicist and proponent of nuclear-arms reduction, as a recipient of “heavy far left funding.” He described journalist Daniel Schorr as “a real media enemy,” columnist Mary McGrory as the author of “daily hate Nixon articles,” and actor Paul Newman as a supporter of “radic-lib causes.”56 The enemies list compiled by Dershowitz in The Case against Israel’s Enemies, which features a former U.S. president, prominent academics, and world-renowned human rights organizations, is presented in an equally malicious manner. About John J. Mearsheimer, the R. Wendell Harrison Distinguished Service Professor of Political Science at the University of Chicago, and Stephen M. Walt, the Robert and Renee Belfer Professor of International Affairs at the John F. Kennedy School of Government at Harvard University, who together authored The Israel Lobby and U.S. Foreign Policy (2007), Dershowitz wrote, “they are hate-mongers who have given up on scholarly debate and the democratic process in order to become rock-star heroes of anti-Israel extremists.”57 Because Amnesty International and Human Rights Watch issued reports that were critical of Israel’s conduct in the Gaza Strip and Lebanon in summer 2006, Dershowitz referred to them as “so-called human rights groups” and described their reports as “bigotry—pure and simple.”58
Dershowitz also cited “Amnesty International’s predisposition to blame everything on Israel,” claimed that “Amnesty International just can’t seem to help itself when it comes to blaming Israel for the evils of the world,” and described Amnesty as “a once reputable organization that has destroyed its own credibility by repeatedly applying a double standard to Israel.”59 Dershowitz also wrote that “Human Rights Watch (HRW) was even more biased in its reporting of the facts on the ground” during the Israel-Lebanon war in summer 200660 and commented as follows: “HRW no longer deserves the support of real human rights advocates. Nor should its so-called reporting be credited by objective news organizations. The same must be said about Amnesty International.”61 Dershowitz then claimed that the “biased” and “bigoted” human rights organizations “side with the terrorists”: “The so-called human rights organizations that constantly side with the terrorists are actually guilty of encouraging the tactic of using human shields and firing rockets from civilian neighborhoods. The terrorists themselves acknowledge that they are counting on these biased organizations to make their case for them, and the organizations are succeeding. That’s why terrorists persist in this doubly criminal tactic and civilians continue to be killed. And that is why Israel did not win a more decisive victory in its battle against Hezbollah in the summer of 2006.”62 And should the analogy to Nixon’s enemies list seem exaggerated, consider Dershowitz’s remarks again from his 2001 book Letters to a Young Lawyer. While advising the young lawyers to “Have a Good Enemies’ List”—the title of chapter 3 in that book—Dershowitz wrote: “Your mother told you it’s important to have the right friends. But it’s equally important to have the right enemies. Pick your enemies as carefully as your friends. A really good enemies’ list is often a sure sign of a courageous and moral person. The world is full of evil people and it is important to stand up to evil.”63
Using Dershowitz’s own standard for identifying the moral makeup of a person as judged by his enemies’ list, what can we presume about Dershowitz when his own such list features Jimmy Carter (founder of the superb Carter Center), Noam Chomsky (one of the world’s most important intellectuals of the twentieth century), Edward Said (one of the great public intellectuals of the twentieth century), Richard Falk (one of the most important international law scholars of the twentieth century), South African Anglican Archbishop Desmond Tutu (recipient of the Nobel Peace Prize in 1984 and the Albert Schweitzer Prize for Humanitarianism in 1987), and Amnesty International and Human Rights Watch (the two most important human rights organizations in the world). While one can easily imagine these same names making the enemies’ list of the Latin American military dictatorships of Pinochet and Somoza, it is simply stunning that a law professor from Harvard, who is supposed to be a civil libertarian, would compose such a list, publish it, and thereby defame such persons in a manner that resembles the hatred toward liberal intellectuals and human rights organizations that have marked the most vicious right-wing governments of the twentieth century. For example, one of the definitive scholarly accounts of the dictatorial regime of Augusto Pinochet in Chile is titled A Nation of Enemies.64 Also, in 1977, U.S. journalist Jack Anderson reported:
Nicaragua’s big banana, Anastasio Somoza, has picked up one tactic from his friend Richard Nixon. The Nicaraguan dictator has compiled his own private enemies list. Sources who have had secret access to the list say it contains the names of individuals and organizations in the United States whom Somoza regards as ‘potential enemies to the government of Nicaragua.’ Among his imagined adversaries are such prominent senators as Ted Kennedy, D–Mass., Hubert Humphrey, D–Minn., Frank Church, D–Idaho, and George McGovern, D–S.D. Somoza also has enemies in the House, including Reps. John Conyers, D–Mich., Don Fraser, D–Minn., and Ed Koch, D–N.Y. The eminent Father Theodore Hesburgh, president of Notre Dame University, is listed.65
Like the enemies list of Dershowitz, Somoza’s list was composed almost entirely of political liberals and leftists. Also recall that the hallmark speech of Senator Joseph McCarthy, delivered in 1950, is known as the “Enemies from Within” speech,66 as Dershowitz no doubt is aware.
Referring to Rabbi Michael Lerner, editor of Tikkun, Dershowitz resorted to the default Nixon’s-list assault, calling Lerner a “hard-left academic.”67 This is a common designation of “evil” for Dershowitz, who also wrote that Archbishop Tutu “has joined anti-Israel extremists in likening Israel to apartheid South Africa.”68 As he did with Jimmy Carter’s use of “apartheid,” Dershowitz misrepresented how Tutu applied the term.
About Pope Benedict XVI, another “enemy” of Israel, Dershowitz wrote:
In 2005, Pope Benedict XVI condemned terrorist attacks against civilians in Great Britain, Egypt, Iraq, and Turkey. In a pregnant omission—very pregnant, in light of the Vatican’s long history of silence in the face of attacks against Jews—the pope omitted any mention of the country that has suffered the largest number of terrorist attacks against civilians since 9/11, namely, Israel.69
Note that Dershowitz criticizes Pope Benedict not because of anything that the pope actually said in this instance; his criticism is that the pope did not say anything about Israel, which, according to Dershowitz, “has suffered the largest number of terrorist attacks against civilians since 9/11.” But how should the pope handle the situation in the manner in which Dershowitz would like, when Israel has killed nearly six times the number of Palestinian civilians? According to B’Tselem, from September 29, 2000 to January 31, 2011, Palestinians have killed 1,085 Israelis, while Israelis have killed 6,383 Palestinians. These Palestinian fatalities include 1,315 Palestinian children (ages seventeen and younger), which is a higher number of fatalities than all Israelis killed for the same period.70 B’Tselem’s statistics on Israeli-Palestinian casualties closely track the statistics reported by Amnesty International and Human Rights Watch. This means that, according to Dershowitz’s own logic, the pope should have mentioned the killing of Palestinian civilians and children before mentioning the killing of Israeli civilians and children.
Another of Dershowitz’s practices is that while he regularly invokes “anti-Semitism” and “anti-Israel bigotry” when attacking Israel’s “enemies,” he denies calling Israel’s critics anti-Semites and argues that claims to the contrary are fabricated. In his introduction to The Case against Israel’s Enemies, Dershowitz wrote: “The claim that critics of Israel are branded anti-Semites is a straw man and a fabrication of Israel’s enemies who seek to play the victim card.”71 Dershowitz made the same claim elsewhere in the same book, while referring to Carter, Mearsheimer, and Walt: “Ironically, they have attempted to hide from scrutiny by labeling their critics intolerant, using the same ad hominem attacks that they claim they are victims of. They refer to me, for example, as being ‘often quick to brand Israel’s critics as anti-Semites,’ without offering a shred of proof.”72
There is in fact more than a shred of evidence that Dershowitz and other prominent Jewish-Americans do what Carter, Mearsheimer, and Walt have claimed. In 2007, Abraham Foxman, national director of the Anti-Defamation League, published a book titled The Deadliest Lies: The Israel Lobby and the Myth of Jewish Control as a response to the Mearsheimer and Walt article, “The Israel Lobby,” published in 2006 in the London Review of Books. Foxman’s book was published to coincide with the publication of the follow-up book by Mearsheimer and Walt, The Israel Lobby and U.S. Foreign Policy. In his book, Foxman wrote “anti-Semitism,” “anti-Semitic,” “anti-Semite,” “bigotry,” “bigoted,” or “bigot” about seventy times, including over twenty times in the introduction alone.73 Yet, despite this immersion into “anti-Semitism” and anti-Israel “bigotry” as a direct response to Mearsheimer and Walt, Foxman, like Dershowitz, denied, as follows, in the same book that he labels legitimate critics of Israel as “anti-Semites” and anti-Israel “bigots”: “It’s an accusation I deny. Are there some overly sensitive Jews who are excessively prone to seeing anti-Semitism where none really exists? There probably are. But I don’t agree that this charge applies to me, to the Anti-Defamation League, or to the great majority of Jewish leaders and Jewish organizations with which I’m acquainted. We know the difference between criticism of Israel and anti-Semitism, and we are careful to respect that difference.”74 This being the case, why write a book in direct response to Mearsheimer and Walt that is immersed in references to anti-Semitism and anti-Israel bigotry? Either Foxman should have argued outright with evidence that Mearsheimer and Walt are anti-Semitic, or he should have declined to infuse his book with a multitude of references to anti-Semitism and anti-Jewish bigotry as the highly suggestive characterization of the work of Mearsheimer and Walt.
Similarly, while Dershowitz denies resorting to charges that Israel’s most prominent critics are anti-Semites, The Case against Israel’s Enemies, published in 2008, contains about 140 references to “anti-Semitism,” “anti-Semitic,” “anti-Semite,” “bigot,” “bigoted,” or “bigotry.”75 His 2005 book, The Case for Peace, has about 110 such references.76 And his 2003 book, The Case for Israel, includes about eighty such references.77
In The Case against Israel’s Enemies, and about Jimmy Carter, Dershowitz wrote: “Initially, I defended Carter against accusations of anti-Semitism” with respect to Carter’s book;78 the implication being that the initial assessment was a mistake. Dershowitz then wrote in an article in the Jerusalem Post, titled “Has Carter Crossed the Line,” about Carter’s public statements issued after the publication of his book, that “Carter has gone well beyond what he says in his book and may have crossed the line into bigotry.”79 And referring to John Dugard and Richard Falk, Dershowitz wrote: “Carter’s book has given aid and comfort to such bigots”—that is, to Dugard and Falk.80
In his chapter titled “The Case against Mearsheimer and Walt,” Dershowitz wrote that the two professors “acknowledge some of the concerns that critics of their essay have raised about anti-Semitism, declaring, ‘Let us be clear: we categorically reject all of these anti-Semitic claims’”;81 later, in the same chapter, Dershowitz denounced “the incantation of boilerplate disclaimers against anti-Semitism” by Mearsheimer and Walt.82 Dershowitz also argued that Mearsheimer and Walt “write behind a façade of erudition that purports to reject anti-Semitism but copies its classic archetype.”83 And in the concluding paragraph of his chapter on Mearsheimer and Walt, Dershowitz called them “hate mongers” who sought “to become rock-star heroes of anti-Israel extremists,” and he observed, “perhaps this is not anti-Semitism but misanthropy.”84 Thus, after Dershowitz denied “that critics of Israel are branded anti-Semites” and offered that such claims are a “straw man and a fabrication of Israel’s enemies who seek to play the victim card,”85 he proceeded to tar Carter, Mearsheimer, and Walt with inferences and innuendo of anti-Semitism. Now, in perhaps the starkest literal sense, none of this means that he ever actually called anyone an anti-Semite.
Furthermore, upon writing in The Case against Israel’s Enemies about the British University and College Union (BUCU) boycott of Israeli educators and academic institutions, Dershowitz explained how he and others wrote an op-ed piece for the Times of London, “in which we demonstrated parallels between this boycott and previous anti-Jewish boycotts that were undoubtedly motivated by anti-Semitism.”86 The signed authors of the op-ed piece, which included Dershowitz, then “turned to the motive underlying the [boycott] campaign” and asked, “To be blunt, is it anti-Semitic?”87 While the issue motivating the boycott was Israel’s forty-year occupation of Palestinian territory, and the attendant and systemic violations of Palestinian rights, Dershowitz and his coauthors argued that “in supporting a boycott they have put themselves in anti-Semitism’s camp,” and that the boycotter’s motivation was “the desire to destroy Jews.”88
Likewise, and still writing in The Case against Israel’s Enemies, Dershowitz condemned a U.S. Presbyterian divestment initiative targeting multinational corporations that sell goods and services that support the Israeli occupation. About the Presbyterian initiative, the Israel-based Committee against House Demolitions (ICAHD) reported: “ICAHD supports the initiative of the Presbyterian Church of the US to divest in ‘multinational corporations that provide products or services to . . . the Israeli police or military to support and maintain the occupation, . . . that have established facilities or operations on occupied land, . . . that provide services or products for the establishment, expansion or maintenance of Israeli settlements, . . . that provide products or services to Israeli or Palestinian organizations/groups that support or facilitate violent acts against innocent civilians, . . . that provide products or services that support or facilitate the construction of the Separation Barrier.’”89 While mentioning none of these details, Dershowitz simply referred to “the Presbyterians in their malevolent divestment campaign.”90 Omitting such details makes it easier for Dershowitz to argue, as he did in this instance, that “the Presbyterian [divestment] resolution is so anti-Israel in its rhetoric and so ignorant of the realities on the ground that it can only be explained by the kind of bigotry that the Presbyterian Church itself condemned in 1987, when it acknowledged its long history of anti-Semitism and ‘never again to participate in, to contribute to, or (insofar as we are able) to allow the persecution or denigration of Jews.’”91 Dershowitz added that “unless the [Presbyterian] church rescinds this immoral, sinful, and biased attack on the Jewish state, it will once again be ‘participating in’ and ‘contributing to’ bigotry and the encouragement of terrorism.”92
Based on Dershowitz’s expert assessment of anti-Israel bigotry within the ranks of the Presbyterian Church and its alleged “encouragement of terrorism,” shouldn’t the FBI launch an investigation and initiate surveillance of the church’s leaders and rank and file? Likewise, should the FBI similarly investigate the American novelist Alice Walker, after Dershowitz charged that “Walker participated in unlawful efforts to break Israel’s entirely lawful military blockade of the Gaza Strip” and thus “she has provided material support for terrorism, in violation of the law of the United States and several other countries”?93
Apart from the fact that the Israeli embargo on all 1.5 million inhabitants of Gaza is a form of collective punishment and is therefore “a flagrant violation of international law,”94 and that Walker’s participation in a protest to end the illegal blockade was a humanitarian act, since “rather than targeting armed groups, the blockade mainly hits the most vulnerable, such as children (who make up more than half of the population in Gaza), the elderly, the sick and the Gaza Strip’s large refugee population,”95 Dershowitz’s charge that Walker “ha[d] provided material support for terrorism” is a mere hint of the degree to which the Harvard law school professor has become an “enemy” (to use his own language) of political dissent in the United States when it involves criticism of Israel’s policies.