8
RICHARD FALK AND SELF-DEFENSE
One certain feature of authoritarian states is the detention and imprisonment of intellectuals. The United States hasn’t detained any prominent U.S. intellectuals for political reasons in recent years, but Israel has, and it has done so without protest by the United States. Not only are these the very same American intellectuals whom Dershowitz has identified as “enemies of Israel,” but the state of Israel detained these individuals with Dershowitz’s silence or publicly issued support.
On December 15, 2008, the New York Times reported that “Israeli authorities on Monday expelled Richard Falk, a United Nations investigator of human rights in the Palestinian territories, saying he was unwelcome because of what the government has regarded as his hostile position toward Israel.” The Times reported that Falk “was held at the [Ben Gurion] airport and placed on the first available flight back to Geneva, his point of departure,” and that Falk “has long been criticized in Israel for what many Israelis say are unfair and unpalatable views.”1
In an article that he wrote for the Guardian a few days later, Falk elaborated on the circumstances of his detention:
I was separated [at the airport] from my two UN companions who were allowed to enter Israel and taken to the airport detention facility a mile or so away. I was required to put all my bags and cell phone in a room and taken to a locked tiny room that smelled of urine and filth. It contained five other detainees and was an unwelcome invitation to claustrophobia. I spent the next 15 hours or so confined, which amounted to a cram course on the miseries of prison life. . . . Of course, my disappointment and harsh confinement were trivial matters, not by themselves worthy of notice, given the sorts of serious hardships that millions around the world daily endure. Their importance is largely symbolic. I am an individual who had done nothing wrong beyond express strong disapproval of policies of a sovereign state. More importantly, the obvious intention was to humble me as a UN representative and thereby send a message of defiance to the United Nations.2
By December 2008, Falk was not the only American professor who had been detained by Israeli authorities. Seven months earlier, in May 2008, the Israeli newspaper Ha’aretz reported that “the Shin Bet security service detained and deported an American Jewish professor who is a prominent critic of the Israeli occupation when he landed at Ben Gurion International Airport.” Ha’aretz reported that “Professor Norman Finkelstein was interrogated for several hours and held in an airport cell before being put on a plane back to Amsterdam, his point of departure,” and was told that “he could not return to Israel for 10 years.” The Shin Bet told the newspaper that Finkelstein was not permitted to enter Israel “because of suspicions involving hostile elements in Lebanon,” and because he “did not give a full accounting to interrogators with regard to these suspicions.” However, after leaving Israel, and in an email and phone conversations with Ha’aretz, Finkelstein responded: “I did my best to provide absolutely candid and comprehensive answers to all the questions put to me. I am confident that I have nothing to hide. Apart from my political views, and the supporting scholarship, there isn’t much more to say for myself: alas, no suicide missions or secret rendezvous with terrorist organizations. I’ve always supported a two-state solution based on the 1967 borders.” Finkelstein then told Ha’aretz, “I’m not an enemy of Israel.”3
Two years after the detention in Israel of Falk and Finkelstein, Noam Chomsky was detained by Israeli authorities at the Allenby Bridge on the border of the West Bank and the state of Jordan, as Ha’aretz reported: “Professor Noam Chomsky, an American linguist and left-wing activist, was denied entry into Israel on Sunday [May 16, 2010], for reasons that were not immediately clear.” Ha’aretz noted that “Chomsky is a professor at the Massachusetts Institute of Technology and is considered among the foremost academics in the world,” and that Chomsky’s Israeli interrogators “had told him he had written things that the Israeli government did not like.”4 On the same day, the New York Times reported that Chomsky, “who had been invited to speak about American foreign and domestic policy by the philosophy department at the Palestinian university in Ramallah,” was “interrogated for several hours before being told that he would not be allowed to cross into occupied Palestinian territory.”5 According to Assaf Kfoury, a professor of computer science at Boston University, Noam Chomsky’s daughter, Aviva Chomsky, an intellectual and author in her own right,6 also was denied entry into the West Bank.7 The next day, the Boston Globe reported that Noam Chomsky “believed he was being singled out for his criticism of Israel.” Chomsky said that Israeli authorities “are carrying out an action of a kind that I’ve never heard of before, except in totalitarian states.”8
The Globe also cited the statement about Chomsky’s detention by the Association for Civil Rights in Israel (ACRI): “A democratic state, which considers freedom of expression a guiding principle, does not close itself off to criticism or uncomfortable notions and does not refuse entry to visitors whose views it does not accept, but rather deals with them through public discourse.”9 The Globe thus reproduced the ACRI statement nearly in its entirety, for some reason omitting the first sentence, which read: “The decision to prevent an individual from expressing his or her views by denying entry is characteristic of a totalitarian regime.”10 The same day, the Jerusalem Post reported that, “according to the Association of Civil Rights in Israel, left-wingers are denied entrance to Israel on a regular basis.”11
As if to illustrate the point, four months later, in September 2010, the Jerusalem Post reported: “Nobel Peace Prize winner and pro-Palestinian activist Mairead Maguire was refused entry into Israel on Tuesday [September 28], and was detained in the airport ahead of deportation. Maguire will reportedly be appealing the decision, and will therefore remain in custody until a court date is set.”12 And regular readers of the English-language Israeli press may also have noticed a report titled “Shin Bet Deports Spain’s Most Famous Clown Upon Arrival in Israel,” which was published by Ha’aretz about a week before Chomsky’s detention: “Ivan Prado, the most famous clown in Spain, did not expect to be put on a return flight back to Madrid soon after arriving at Ben-Gurion International Airport late last month, after spending six hours with officials from the Shin Bet security service and the Interior Ministry. Foreign Ministry officials, meanwhile, say the incident caused grave damage to Israel’s image in Spain.” Ha’aretz reported that after Prado returned to Madrid, “he launched a media campaign denouncing Israel and comparing the situation of Palestinians in the West Bank with Jews in Poland,” and that Shin Bet later “issued a statement to Ha’aretz lacking specific details about the reasons behind the decision” to detain and expel Prado.13
Falk, Finkelstein, and Chomsky were detained and expelled without having committed any crimes, and without being charged with any crimes. The arrests and detentions of these three prominent American academics were ordered by Israeli authorities as a response to their political views. This being the case, the detentions and expulsions may have violated the Universal Declaration of Human Rights, which gives everyone “the right to freedom of opinion and expression . . . without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (Article 19). The declaration also stipulates that “no one shall be subjected to arbitrary arrest, detention or exile” (Article 9).14 Under the circumstances, it seems that the arrest and detention of these U.S. academics were purely punitive, given their political views, and designed also to inhibit the imparting of information and ideas that the state of Israel found objectionable.
While writing nothing to my knowledge that deplored the detention in Israel of his academic colleagues and fellow Americans, Dershowitz instead wrote a column for publication in Israel that rebuked and berated Falk. Posted two days after Falk’s description of his detention in the Guardian, Dershowitz wrote in the Jerusalem Post that “one can certainly understand why the Jewish state would refuse to cooperate with a [UN] rapporteur [Falk] whose objectivity has been compromised by his bigotry.” Astonishingly, Dershowitz somehow managed to forego any mention of the fact of Falk’s detention and reported only that Israel had merely “refused to cooperate” with Falk. Thus, Dershowitz wrote an article for publication in a foreign country for the purpose of justifying the detention in that same foreign country of an American academic colleague for his alleged lack of “objectivity.” And, for good measure, Dershowitz added the charge of “bigotry” to Falk’s offense against that country. Presumably, Dershowitz—an apparent advocate of preventive detention in the United States (see chapter 11 in this volume)—views allegations of a “lack of objectivity” in one’s political views, and allegations of anti-Jewish “bigotry” (never mind that Falk is Jewish), as sufficient grounds for detention. Furthermore, while providing supporting material to help justify Israel’s detention of Falk, and somehow without irony, Dershowitz claimed to support the principle of free speech, even as it had just been violated by Israel with his support: “Bigots and crackpots are free to set up soapboxes anywhere they choose, and everyone is free to accept or reject their ideas in the marketplace.”15 Yet, Dershowitz said nothing that was critical of Israel for its deprivation of Falk’s liberty on speech grounds, and all of his criticism was directed at Falk.
In his same piece in the Jerusalem Post, Dershowitz liberally assigned the words “bigot,” “bigotry,” and “crackpot” to Falk and his views. Dershowitz also compared Falk to David Duke and Iran’s Mahmoud Ahmadinejad while implying that Falk is a Holocaust-denier.16 Dershowitz wrote: “It has become conventional for anti-Israel extremists to compare the Jewish state of Israel to the Nazi government that came close to murdering all the Jews of Europe. That is why this false comparison is the province of anti-Semites, assorted nuts of the hard right and the hard left, and haters such as Richard Falk.”17 Keep in mind that Dershowitz wrote all of this in the immediate aftermath of Israel’s detention and expulsion of Falk on the basis of Falk’s political views.
Before proceeding, and for the record, here is what Falk wrote in full in 2007, which prompted Dershowitz to call Falk a “bigot” and a “hater” in the immediate context of Falk’s detention in 2008 by Israel:
For one thing, this is hardly holocaust denialism. For another, Falk’s reluctant tone and tenor, here and elsewhere, is in no way comparable to the relentlessly offensive tone and content of the written and spoken commentary of Alan Dershowitz. In any event, regardless of Falk’s views, and whatever historical analogies he may have drawn to Israel’s occupation of the Palestinian territories, it is highly objectionable that Dershowitz would invoke this or any other remnant of the writings of a leading American intellectual and UN representative while seeking to validate that person’s detention and expulsion by the state of Israel.
Another aspect of Dershowitz’s public gesture of support for Israel’s detention of Falk was his argument, in the same article in the Jerusalem Post, that “Falk ignored the Hamas rockets directed against Israeli citizens and the suicide bombs employed by Palestinian terrorists to blow up school buses, discos and religious ceremonies,” and that “any comparison between Israeli efforts to defend its citizens from terrorism on the one hand, and the Nazi Holocaust on the other hand, is obscene and ignorant.” Dershowitz continued: “Even if one believes that the Israeli military has overreacted to terrorist provocations, there is surely a difference between military actions taken in self defense, and the systematic policy of the Nazis to murder every Jewish man, woman, and child living in Europe.”19 Although it is disturbing that Dershowitz would write an article seemingly to justify the detention of Richard Falk by invoking the Holocaust, I will leave Dershowitz’s references to the Holocaust aside at this point to focus on his claim that Israel acts in self-defense as a matter of policy when it resorts to the use of force against Palestinians, beginning with his reference to “Hamas rockets directed against Israeli civilians,” while declining to observe that Israel has fired thousands more, and far more powerful, rockets (artillery shells) into Gaza. In a report issued in June 2007, one year before Dershowitz sought to discredit Falk after he was detained by Israel, Human Rights Watch reported that “Palestinian armed groups fired about 2,700 Qassam-type rockets from September 2005 through May 2007” into Israel.20 In the same report, however, Human Rights Watch noted that Israel had fired many more rockets into the Gaza Strip during the same period: “From September 2005, when the IDF withdrew from the Gaza Strip, through May 2007, Israel fired more than 14,600 artillery shells in the Gaza Strip, primarily in the north, killing 59 Palestinians and injuring 270,” with Palestinian fatalities being “primarily if not exclusively civilians,” including seventeen children under the age of sixteen. Palestinian rockets for the same period killed four Israelis, all civilians, while injuring seventy-five Israeli civilians and nine soldiers.21 These figures do not include the incident of November 8, 2006, when “IDF shelling in Beit Hanoun [in Gaza] killed or mortally wounded 23 Palestinians and wounded at least 40 more, all civilians.”22 This one incident alone killed more Palestinians than all Israelis killed by Qassam-type rockets since 2001.
In addition to Israel reportedly firing over fourteen thousand artillery shells into the Gaza Strip during the twenty-one-month period examined by Human Rights Watch, these shells are many times more powerful than the Qassam-type rockets fired from Gaza into Israel. The most common artillery shell used by Israel’s twenty-eight-ton howitzer cannons are the M170 155mm high-explosive artillery shells, described by Human Rights Watch as “extremely deadly weapons,” with a lethal radius of 50 to 150 meters and a casualty radius of 100 to 300 meters.23
While neither Israel nor the groups in Gaza who fire the Qassam-type rockets into Israel have a right under international law to target civilians or fire indiscriminately, including as “reprisals” to rocket fire from the other side, applying Dershowitz’s interpretation of international law would yield a right of “self-defense” to both sides to exchange retaliatory rocket fire in perpetuity; however, to make matters even worse, Dershowitz grants this nonexistent right only to Israel. The fact is that neither side has any such right of “self-defense” under international law to launch rockets indiscriminately, or directly at civilian targets, as reprisals to rockets launched at them.
It also happens, ironically with respect to Dershowitz’s perpetual claims of Israeli self-defense, that Richard Falk, not Dershowitz, is one of the world’s leading experts concerning the use of force by states under the UN Charter—including the resort to force as “self-defense”—a fact which Dershowitz omitted from his published biography of Falk as a “bigot” and “hater” on the occasion of Falk’s detention by Israel. Indeed, Falk’s expertise about a key rule of international law—a rule that Dershowitz invokes with great frequency and imprecision—spans five decades, beginning with his opposition to the U.S. war in Vietnam.
In 1954, at the northern Vietnamese city of Dien Bien Phu, the Viet Minh forces of Ho Chi Minh defeated France’s Far East Expeditionary Corps, ending the colonial occupation of Vietnam that had begun in the late nineteenth century. About this key event in the history of Vietnam, Stanley Karnow wrote: “On the afternoon of May 7, 1954, the Vietminh’s red flag went up over the French command bunker at Dienbienphu. The next morning in Geneva, nine delegations assembled around a horseshoe-shaped table at the old League of Nations building to open their discussions of the Indochina problem.”24 Two months later, the signing ceremony of the Geneva Accords on July 21, 1954, marked the official end of the French colonial war in Vietnam, during which, from 1946 to 1954, more than 300,000 Vietnamese were killed, with nearly a billion dollars a year from the United States in support of the French effort.25
The Geneva Accords of 1954 consisted of three agreements on the cessation of hostilities, one each for Vietnam, Laos, and Cambodia, in addition to a “Final Declaration of the Geneva Conference” that “takes note of the agreements ending hostilities in Cambodia, Laos, and Vietnam and organiz[es] international control and the supervision of the provisions of the agreements.”26 The Final Declaration was signed by France, the United Kingdom, the Soviet Union, and the People’s Republic of China; the United States, fatefully, did not sign.
Referring to the 1954 Geneva Accords a little more than a decade later, the Lawyers Committee on American Policy Towards Vietnam, chaired by Richard Falk, assessed the legal status of the accords as follows: “While the Charter of the United Nations, as the most comprehensive basis of world legal order, is of course applicable to the Vietnam situation, the particular situation in Vietnam is grounded by a series of compacts, namely, the Geneva Accords of 1954. Under a general principle of international law, special compacts prevail over general rules, insofar as they do not violate them in letter or spirit. The Geneva Accords, carefully designed to restore peace to a war-torn area, fulfill the highest aim of the Charter.”27
In July 1954—four years after Senator Joseph McCarthy claimed in a speech from Wheeling, West Virginia, that he held a list of dozens of communists working at the U.S. State Department,28 and one month after McCarthy’s televised hearings, where he alleged that communists had infiltrated the CIA29—a New York Times editorial supported the American rejection of the Geneva Accords because the treaty would “turn over more than half of [Vietnam’s] 22 million people to Communist rule.”30 However, the Pentagon Papers, a secret history that in part reviewed U.S. policy toward Indochina during and immediately following World War II, revealed “the fact that Ho [Chi Minh] was acknowledged to be a genuine nationalist, as well as a communist, who was intent on maintaining his independence from the Soviet Union and China.”31
Following its rejection of the Final Declaration of the Geneva Conference, the United States proceeded systematically to violate the terms of the Geneva Accords on Vietnam. While “both the French [to the south] and the Vietnam People’s Republic [to the north] properly withdrew to their respective sides of the 17th parallel” as the legally required prelude to unification elections, “the refusal of South Vietnam, with United States backing, to hold the elections for unification, violated the provisions of the Geneva Accords that had made them acceptable to the Viet Minh.”32 South Vietnam’s refusal to participate in the unification elections—which would have been won by Ho Chi Minh with “possibly 80 percent” of the popular vote according to President Dwight Eisenhower33—contributed to the establishment of the armed insurgency of the National Front for the Liberation of Vietnam (called “Viet Cong” in the United States) and to the eventual full-blown, overt U.S. military involvement in Vietnam.
In an official government memorandum dated March 4, 1966, and titled “The Legality of United States Participation in the Defense of Vietnam,” President Johnson’s State Department set out to justify the U.S. military intervention in Vietnam, and started a debate in the United States about the U.S. resort to force as “self-defense” under the UN Charter. In bold type, the State Department emphatically presented its key claims:
In response to the State Department’s memorandum, a number of prominent U.S. international law scholars and foreign policy intellectuals, including Quincy Wright (University of Chicago), Hans Morgenthau (University of Chicago), Stanley Hoffmann (Harvard University), and Richard Falk (Princeton University)—a total of twelve altogether35—formed the Lawyers Committee on American Policy Towards Vietnam. The Lawyers Committee advanced two principal points in response to the State Department memorandum, the first of which is: “(a) The military intervention by the United States in Vietnam violates the Charter of the United Nations; the intervention is not justified by the right of collective self-defense.”36 Citing UN Charter Article 2, paragraph 4,37 the Lawyers Committee wrote: “One of the abiding Principles of the Charter of the United Nations is the obligation of its Members to eliminate the use of force, and even the threat of force, in international relations. . . . The State Department Memorandum interprets Article 2(4) with curious superficiality. Calling this Principle ‘an important limitation on the use of force,’ the memorandum creates a misleading impression. It is not a ‘limitation’ but the keystone of modern international law. Threat or use of force are not ‘limited’; in principle they are outlawed.”38 The lawyers continued: “The Charter acknowledges that, for the very purpose of maintaining peace, various measures, and ultimately force, may be required. It confers the competence to use force upon the [UN] Security Council, thus making force the instrument of the world community and not of individual states.” And: “The essential meaning of this rule of international law is that no country shall decide for itself whether to use force—and, especially, whether to wage war through an intervention in a foreign conflict.”39 At all times after July 1954 the United States “decided for itself” whether to wage war against Vietnam; at no time was the U.S. military intervention in Vietnam authorized by the UN Security Council. The second point is: “(b) The Charter permits collective self-defense only in case of an ‘armed attack.’ The existence of an ‘armed attack’ is not established by the [State Department] Memorandum.”40
Responding also to the State Department’s claim that the United States possesses an “inherent” right to self-defense in Vietnam, the lawyers wrote:
[UN Charter] Article 51 constitutes, as has been emphasized by many international lawyers, the single exception to the keystone principle of the Charter and contemporary world order—that is, the prohibition of unilateral use or threat of force. It is an accepted canon of construction that if a treaty grants an exception to a basic rule, such exception must be interpreted restrictively. . . . Seizing upon the reference in the United Nations Charter to the right of self-defense as “inherent” (that is, allegedly outside and independent of the Charter), the State Department argues in favor of a doctrine of self-defense that did not exist even before the Charter and which, if accepted, would establish a unilateral right of military intervention and confer a competence upon nation-states to wage wars that might have the greatest consequences for the world.41
Explaining further, the lawyers wrote: “The right of self-defense under the Charter arises only if an ‘armed attack’ has occurred. The language of Article 51 is unequivocal on this point. The term ‘armed attack’ has an established meaning in international law. It was deliberately employed in the Charter to reduce drastically the discretion of states to determine for themselves the scope of permissible self-defense both with regard to claims of individual and collective self-defense.”
Describing a key formulation concerning the charter’s prohibition of the use and threat of force, and the single exception of self-defense, the lawyers explained:
Individual self-defense and, a fortiori, collective self-defense, is not a lawful response to the commission of action unilaterally described as “indirect aggression,” but only in the event that the victim state experiences an “armed attack,” that is, if military forces cross an international boundary in visible, massive and sustained form. The objective of Article 51 was to confine the discretion of a state to claim self-defense to those instances “when the necessity for action” is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” In explaining Article 51, legal authorities usually invoke the classical definition of self-defense given by Secretary of State Daniel Webster in The Caroline. Mr. Webster’s description of the permissible basis for self-defense was relied upon in the Nuremberg Judgment in the case against major German war criminals.42
Thus, as the lawyers argued, the State Department’s own description in its legal memorandum of the alleged “armed attack” by North Vietnam against South Vietnam—that it “is not as easily fixed by date and hour as in the case of traditional warfare”—undermined its own case that the U.S. military intervention in Vietnam was an act of collective self-defense in response to an “armed attack” as the concept is defined under international law.
Furthermore, the Lawyers Committee argued that the United States began its overt war actions against North Vietnam not in self-defense but as armed “reprisal,” that “this reprisal was unlawful,” and that “reprisals involving the use of force are illegal.”43 About the legal status of armed reprisals, the lawyers observed that “in the present system of world order, injured states may take actions short of violence, but a general consensus prohibits the use of force in reprisal, in view of the categorical provisions [prohibiting the resort to force] of the United Nations Charter.” As a study by the Royal Institute of International Affairs (London) concluded: “It is now generally considered that reprisals involving the use of force are illegal.”44 And in the wake of British raids against Yemen in response to Yemen’s attacks on the British Protectorate of Aden in 1964, the UN Security Council condemned reprisals “as incompatible with the purposes and principles of the United Nations.” In the preceding debate, U.S. Ambassador Adlai Stevenson “emphasized United States disapproval of ‘retaliatory raids, wherever they occur and by whomever they are committed.’”45
Thus—and referring back to Dershowitz’s claim that Israel has a right of self-defense under international law to retaliate unilaterally and at its own discretion with military force against Qassam rockets fired from the Gaza Strip—Dershowitz confuses Israel’s right of self-defense in response to an armed attack (should such an armed attack actually occur) with Israel’s illegal military reprisals in response to the Qassam rockets. Furthermore, the legal logic of the prohibition against the threat and use of force would prohibit both Israel and any governing authorities in Gaza from launching missiles as reprisals to any previous launch by the other side, thus preventing a cycle of violence. In contrast, and as things now stand, under Dershowitz’s view of international law, when Israel launches its rockets, it’s “self-defense”; when the Palestinians do it, it’s “terrorism.”
This double standard, which he applies throughout his writings, is indicative of the flaws of Dershowitz’s “jurisprudence” on the Israel-Palestine conflict and the so-called war on terrorism. Indeed, in his five books on the Israel-Palestine conflict: Why Terrorism Works (2002), The Case for Israel (2003), The Case for Peace (2005), Preemption (2006), and The Case against Israel’s Enemies (2008)—where Dershowitz frequently cites “self-defense” under international law to justify a multitude of Israeli uses of force, he fails to mention (a) UN Charter Article 2(4), which prohibits the use and threat of force by states; (b) that the prohibition against force is the cardinal rule of the charter and a peremptory norm of international law, that is, an absolute and incontrovertible rule; and (c) that the right of self-defense by states is the lone, highly circumscribed exception to the prohibition against force. In many cases, Dershowitz simply asserts that a given Israeli military action is “self-defense”—end of story. In short, Dershowitz habitually invokes the exception to the rule (self-defense) without citing the rule itself (the prohibition against force).
For example, a week after Dershowitz wrote a column in the Jerusalem Post (December 21, 2008) to defend Israel’s detention and expulsion of Falk, Israel launched its air-land invasion of the Gaza Strip (December 27). On January 4, Dershowitz wrote: “Israel’s military actions in Gaza are entirely justified under international law, and Israel should be commended for its act of self-defense against international terrorism. Article 51 of the United Nations Charter reserves to every nation the right to engage in self-defense against armed attacks.” Here, as is his practice, Dershowitz cites UN Charter Article 51 (the self-defense exception) without elaboration and without mentioning UN Charter Article 2(4) (the prohibition against force.) He concluded that Israel’s bombardment of Gaza was both “lawful and commendable.”46 Likewise, in a column in the Jerusalem Post on January 13, Dershowitz wrote:
Every Hamas rocket attack against Israeli civilians—and there have been more than 6,500 of them since Israel ended its occupation of Gaza [in September 2005]—is an armed attack against Israel under Article 51 of the United Nations Charter, which authorizes member nations to respond militarily to armed attacks against it. Under international law, Israel is entitled to do whatever it takes militarily to stop Hamas rockets from targeting its civilians. . . . In fact, under international law, Israel has the right to declare all-out war against the Hamas-controlled government of Gaza. In an all-out war, there would be no obligation to provide humanitarian assistance, electricity or any other services to an enemy who had started the war by an armed attack.47
Here, and repeatedly, Dershowitz writes as if Hamas is the only rocket-launching party. And he makes almost no attempt to define the term “armed attack” under international law. To quote Richard Falk and his cohort of legal scholars from 1967, Dershowitz thus argues here “in favor of a doctrine of self-defense which, if accepted, would establish a unilateral right of military intervention” in response to virtually any military provocation.
Perhaps most tellingly, Dershowitz’s column in the Jerusalem Post of January 13, which articulated a de facto doctrine of Israeli unilateralism, ignored and thus did not respond to the statement published on January 11 in the Times (London) by twenty-seven leading international law scholars, including Ian Brownlie and Richard Falk. The lawyers’ statement, which contradicts the legal claims by Dershowitz as applied to Israel’s bombardment and invasion of Gaza, was published as follows in its entirety:
The first signature (among the nonalphabetized signatures) to appear below this published statement belonged to the eminent British legal scholar Ian Brownlie, author of the most authoritative text on the legality of the use of force, International Law and the Use of Force by States, published by Oxford University Press in 1963.49 Considering also the signature of Falk, who chaired the 1967 study Vietnam and International Law, and who edited the three-volume The Vietnam War and International Law, which was sponsored by the American Society of International Law,50 it is difficult to fathom how Dershowitz’s column of January 13, which argued that Israel’s air-land invasion of the Gaza Strip was “self defense,” could so comfortably ignore the Brownlie-Falk statement of January 11, which authoritatively presented a legal opinion totally at odds with the one that Dershowitz sketched two days later.
While it is clear that the indiscriminate firing of Qassam and Qassam-like rockets by Palestinian militants into mostly civilian areas of southern Israel are violations of international humanitarian law and, as such, are deplorable and criminal acts, it is also clear that the preponderance of military power is owned and exercised by Israel. The underlying circumstances surrounding the Palestinian capture of Israeli soldier Gilad Shalit on June 25, 2006—that is, Israel’s military conduct leading up to June 25 and the number of Palestinian prisoners in Israeli prisons up to that date—illustrate the point.
As I have already reported, from September 2005 through May 2007, Israel fired approximately 14,600 artillery shells into the Gaza Strip, while Palestinian armed groups fired about 2,700 Qassam-type rockets into Israel.51 About midway through this period, on June 9, 2006—a little more than two weeks before the capture of Shalit—Israel fired several 155mm howitzer shells onto a beach in Beit Lahiya in northern Gaza. A few days later, on June 12, Amnesty International issued a statement “calling on Israel to end immediately its reckless shelling and air strikes against the Gaza Strip, which have killed and injured scores of unarmed Palestinians, including several women and children, in recent months.” Amnesty continued:
In the latest such attack on the afternoon of 9 June 2006, seven members of the same Palestinian family were killed and ten other civilians were injured when Israeli forces fired several artillery shells at a beach in the North of the Gaza Strip. The beach was crowded with Palestinian families enjoying the first weekend of the school holidays. Ali Issa Ghalia, his wife Raissa and their five children—a one-year-old son and four daughters aged two, four, 15 and 17—were killed and other members of their family, including two children, were injured when an Israeli shell landed where they were sitting.
Amnesty observed that “the seven members of the Ghalia family were the most recent among a growing number of victims of increasingly frequent and disproportionate Israeli attacks against the Gaza Strip.”52
Likewise, on June 21, in response to the ongoing Israeli shelling and air attacks on the Gaza Strip, Amnesty “called for the establishment of an international investigation to examine the circumstances in which scores of Palestinians have been killed by Israeli forces in the Gaza Strip in recent months.” The Amnesty statement continued: “Since the beginning of this year [2006] Israeli forces have killed some 150 Palestinians—many of them unarmed—including more than 25 children. About half of the victims were killed in the Gaza Strip. To date none of these cases have been adequately investigated.” Amnesty also noted that “since the end of March 2006” up to the date of its June 2006 report—a period of a little more than two months—“the Israeli army has launched close to 6,000 artillery shells and more than 80 air strikes against densely populated areas in the Gaza Strip,” and that “such disproportionate attacks have killed dozens of Palestinians, including several women and children.” Parallel to those artillery shells launched by Israel from March to June 2006, Amnesty reported that “Palestinian armed groups have launched hundreds of ‘qassam’ rockets at Israel, injuring several Israelis.”53
On June 25, four days after Amnesty International issued its report, Palestinian militants crossed the border from Gaza into southern Israel and captured Corporal Gilad Shalit, at the time a nineteen-year-old Israeli soldier. About this incident, Amnesty reported: “Amnesty International calls on the Palestinian armed groups who are holding hostage a 19-year-old Israeli soldier, Corporal Gilad Shalit, not to harm him and to release him promptly,” and the groups “are demanding the release of Palestinian women and children detained by Israel in exchange for information about the hostage.”54 About the women and children detained in Israel, the New York Times reported on June 27, two days after Shalit was captured, that “there are 95 Palestinian women and 313 Palestinians under 18 in Israeli jails, of a prison population [inside Israel] of about 9,000 Palestinians.”55 Israel rejected the Palestinian demand to exchange Shalit for all Palestinian women and children in detention in Israel.56
Rather than seek a nonmilitary remedy to the capture of the Israeli soldier, on June 28 Israel launched a highly destructive ground invasion and aerial bombardment of the Gaza Strip, as the New York Times reported: “Israel sent troops into southern Gaza and its planes attacked three bridges and a power station early Wednesday [June 28], in an effort to prevent militants from moving a wounded Israeli soldier they abducted Sunday, Israeli Army officials said. Israeli troops and tanks began to move in force in an effort to rescue the soldier, Cpl. Gilad Shalit, 19, who is believed to be held there.”57
About the June 28 Israeli bombardment and invasion, Amnesty International reported on June 30: “The deliberate destruction of the Gaza Strip’s only electricity power station, water networks, bridges, roads and other infrastructure is a violation of the Fourth Geneva Convention and has major and long-term humanitarian consequences for the 1.5 million inhabitants of the Gaza Strip.”58
B’Tselem called the Israeli bombing “an act of vengeance” in response to the capture of Shalit, while also reporting:
In the early morning hours of 28 June 2006, following the abduction of Cpl. Gilad Shalit, the Israeli Air Force attacked the only electrical power plant operating in the Gaza Strip. . . . As a result of the lack of electricity, the level of medical services provided by clinics and hospitals has declined significantly; most of the urban population receive only two or three hours of water a day; the sewage system is on the verge of collapse; many inhabitants’ mobility has been severely restricted as a result of non-functioning elevators; and the lack of refrigeration has exposed many to the danger of food-poisoning. Small businesses reliant on a regular power supply have been badly affected. The hardship involved in living without a steady flow of electricity is exacerbated by the deep economic crisis afflicting the Gaza Strip. . . . Aiming attacks at civilian objects is forbidden under International Humanitarian Law and is considered a war crime. The power plant bombed by Israel is a purely civilian object and bombing it did nothing to impede the ability of Palestinian organizations to fire rockets into Israeli territory.59
Human Rights Watch agreed: “Israel’s destruction of Gaza’s only electrical plant needlessly punishes the civilian population and has created the potential for a serious humanitarian crisis.”60
B’Tselem also described an additional dimension of the collective punishment, in response to the capture of Shalit, ordered by the Israeli government:
During its operation in the Gaza Strip following the abduction of Cpl. Gilad Shalit, Israeli air force jets have carried out low-altitude sorties over the Gaza Strip in which they intentionally cause powerful sonic booms. The air force has used sonic booms a number of times since the completion of the Gaza disengagement plan. In the present operation, the air force has caused three or four sonic-boom sorties a night. The sole purpose of these sorties is to prevent the residents from sleeping and to create an ongoing sense of fear and anxiety. Regarding the sonic booms, Prime Minister Ehud Olmert said that “thousands of residents in southern Israel live in fear and discomfort, so I gave instructions that nobody will sleep at night in the meantime in Gaza.” The clear intention of the practice is to pressure the Palestinian Authority and the armed Palestinian organizations by harming the entire civilian population.
B’Tselem then described some of the effects of the Israeli action: “Children, in particular, suffer from the sonic booms. In the past, the Gaza Community Mental Health Center reported that the supersonic sorties caused fear among many children, which led to a loss of concentration, loss of appetite, bedwetting, and other disorders. The Center also reported that sonic booms caused headaches, stomach aches, shortness of breath, and other physical effects that appeared among both children and adults. Sonic booms also cause property damage, primarily shattered windows.” B’Tselem also indicated that the use of sonic booms in this fashion violates Article 33 of the Fourth Geneva Convention, which states that “collective penalties and likewise all measures of intimidation or of terrorism are prohibited” and that “reprisals against protected persons [under the Fourth Geneva Convention] and their property are prohibited.”61
Furthermore, on June 29, Ha’aretz reported: “Israel Defense Forces troops launched early Thursday a major arrest operation against Hamas officials. Israel Radio reported that a total of 62 Hamas men were arrested in overnight raids, including eight [government] ministers and 20 lawmakers.”62 On July 1, the Associated Press reported that “Israeli aircraft fired missiles at the Palestinian prime minister’s office, setting the building on fire.”63 On July 4, the Associated Press reported that “Switzerland said that Israel has been violating international law in its Gaza offensive by heavy destruction and endangering civilians in acts of collective punishment banned under the Geneva Conventions on the conduct of warfare.”64
Given these accounts, it is apparent that by initiating the aerial bombing and ground invasion of the Gaza Strip in June 2006, Israel violated the UN Charter’s prohibition against the use of force (Article 2, paragraph 4), that the capture of the Israeli soldier, Gilad Shalit, did not constitute an “armed attack” against Israel, and that Israel engaged in the bombardment and invasion of Gaza without UN Security Council authorization. Israel’s military actions in Gaza also violated the Fourth Geneva Convention by its “extreme measures” (Ehud Olmert) and “deliberate attacks” (Amnesty International) against Gaza’s civilians and civilian infrastructure.
On July 12, 2006, in the midst of the Israeli bombardment and invasion of Gaza, and at about 9 am Israel time, Hezbollah militants attacked Israeli military positions in northern Israel, killing three Israeli soldiers and capturing two. The purpose of the raid was to capture IDF personnel to exchange for Lebanese prisoners in Israel. The Hezbollah raid was a provocative and deplorable incident; however, it was also clearly limited, did not threaten the state of Israel, and was not an “armed attack” as defined under international law. Nor did Israel have authorization from the UN Security Council to bomb or invade Lebanon in response. Nevertheless, only hours after the initial Hezbollah incursion, Israel retaliated with a massive air strike and ground invasion of Lebanon. This response violated international law on at least four counts: (a) it violated UN Charter Article 2(4), which prohibits the threat and use of force by states; (b) Israel’s armed reprisals were illegal, given the broad prohibition against the use of force in international affairs; (c) the massively disproportionate scale of the Israeli reprisals, relative to the original Hezbollah incursion, violated international humanitarian law; and (d) Israel’s failure to distinguish between civilian and military targets in its air strikes and artillery fire also violated international humanitarian law.
Indeed, news outlets throughout the night of July 12, and into the early morning hours of July 13, reported as follows the Israeli reprisal actions—all of which preceded the first Hezbollah firing on July 13 of missiles into Israel’s northern cities:
In response to these events and the nearly simultaneous Israeli military campaign in Gaza in June/July, 2006, Dershowitz sought to defend the bombing of civilians and civilian infrastructure in both Gaza and Lebanon by redefining the legal and moral status of the persons detained and bombed by Israel. Thus, in a Huffington Post column on July 14, and with respect to the Palestinian women and children and Lebanese men held in prisons in Israel, he wrote: “Anti-Israel zealots are insisting that the kidnapping by Hamas and Hezbollah of Israeli soldiers is the moral and legal equivalent of Israel’s confinement of Palestinian and Hezbollah terrorists, and that accordingly a ‘prisoner exchange’ is being appropriately demanded by the terrorists who crossed over into Israeli territory to kidnap the soldiers. Nothing could be further from the truth. Every single prisoner held by Israel has judicial review available to him or her and some have won release. Every one of them has access to Red Cross visitation, can communicate with family, and has a known whereabout.”65 Dershowitz cited no sources while making these assertions.
With respect to the detention of Palestinians, and in contrast to Dershowitz’s claims, B’Tselem described Israel’s long-standing practice: “Over the years, Israel has administratively detained thousands of Palestinians for prolonged periods of time, without prosecuting them, without informing them of the charges against them, and without allowing them or their attorneys to study the evidence, making a mockery of the protections specified in Israeli and international law to protect the right to liberty and due process, the right of defendants to state their case, and the presumption of innocence.” B’Tselem reported that for the period 2005–2007—the same period within which Dershowitz made the aforementioned claims on July 14, 2006—Israel administratively detained or imprisoned “about 750” Palestinians per year under these conditions. Furthermore, B’Tselem reported: “Administrative detention is detention without charge or trial that is authorized by administrative order rather than by judicial decree. Under international law, it is allowed under certain circumstances. However, because of the serious injury to due-process rights inherent in this measure and the obvious danger of its abuse, international law has placed rigid restrictions on its application. . . . Israel’s use of administrative detention blatantly violates these restrictions.”
And with additional special relevance to Dershowitz’s claims about the legal propriety of Israel’s imprisonment of Palestinian and Lebanese persons, B’Tselem reported that in 2002 Israel passed “The Internment of Unlawful Combatants Law,” about which the human rights organization observed: “Originally, the law was intended to enable the holding of Lebanese citizens who were being held in Israel at the time as ‘bargaining chips’ for the return of [Israeli] captives and bodies. Now, Israel uses the law to detain Palestinian residents of the Gaza Strip without trial.”66 And only two months after Dershowitz claimed in Huffington Post that Israel detained and imprisoned Palestinians in a manner that was consistent with international law, B’Tselem reported that “almost 9,000 Palestinians are being held in prisons inside Israel in violation of international humanitarian law.”67
Dershowitz also wrote in the same commentary on Huffington Post on July 14: “Moreover, the prisoners being held by Israel are terrorists—that is, unlawful combatants. Many are murderers who have been convicted and sentenced in accordance with due process. The ‘women’ and ‘children’ are guilty of having murdered or attempted to murder innocent babies and other non-combatants.”68 Dershowitz cited no source to support his claim that the Palestinian women and children detained in Israel had murdered Israeli babies and other civilians.
Finally, a B’Tselem report issued in July 2011 provided an alternative explanation for the Israeli imprisonment of Palestinian children: “93 percent of all [Palestinian] minors convicted of stone throwing were given jail sentences.” According to B’Tselem, from 2005 to 2010, a total of 835 Palestinian children—including 34 twelve- to thirteen-year-olds, 255 fourteen- to fifteen-year-olds, and 546 sixteen- to seventeen-year-olds—were prosecuted in Israel for stone-throwing, of which 93 percent (776) were given jail sentences in Israel of four months to a year.69
According to Amnesty International and Lebanon’s Higher Relief Council, during the 34 days of the Israeli bombing and shelling of Lebanon—from July 12 to August 14, 2006—Israel killed more than 1,000 Lebanese civilians, including 300 children, and destroyed 15,000 Lebanese homes, 900 commercial structures (including farms and factories), 400 miles of roads, 80 bridges, Lebanon’s international airport, and displaced over 900,000 Lebanese civilians;70 43 Israeli civilians reportedly were killed, mainly by Hezbollah rockets fired indiscriminately on Israel’s northern cities.71
This amount of death and destruction in Lebanon was the product not only of an Israeli resort to force in violation of UN Charter Article 2(4), but also of the “hasty” and “impulsive” decision to bomb Lebanon, according to the report of the Israeli government’s Winograd Commission, which investigated the decision-making process of Prime Minister Ehud Olmert and his top officials in the context of their decision to bomb and invade Lebanon without delay in response to the Hezbollah provocation of July 12. The five-person commission of inquiry, chaired by Eliyahu Winograd, a retired Israeli judge, harshly criticized Olmert for his decision to resort to “an immediate, intensive military strike.” It was in response to this “intensive military strike” on July 12 by Israel that Hezbollah launched rockets against Israel’s northern cities, as the commission observed: “The [Israeli] decision to respond with an immediate, intensive military strike was not based on a detailed, comprehensive and authorized military plan, based on careful study of the complex characteristics of the Lebanon arena. . . . A meticulous examination of these characteristics would have revealed the following . . . an Israeli military strike would inevitably lead to missiles fired at the Israeli civilian north.”72
About Olmert’s decision to attack Lebanon within hours of the Hezbollah raid, the commission also asserted: “The Prime Minister made up his mind hastily, despite the fact that no detailed military plan was submitted to him and without asking for one.” About Israel’s defense minister, Amir Peretz, who also hastily concurred with the use of force, the commission concluded: “The Minister of Defense did not have knowledge or experience in military, political or governmental matters. He also did not have good knowledge of the basic principles of using military force to achieve political goals. Despite these serious gaps, he made his decisions during this period without systematic consultations with experienced political and professional experts, including outside the security establishment.” And about the chief of staff at the time, Dan Halutz, Israel’s top military commander, the commission decided: “The army and the COS [chief of staff] were not prepared for the event of the abduction despite recurring alerts. When the abduction happened, he responded impulsively.”73
It is quite clear, therefore, that the Hezbollah military incursion of July 12 was not an armed attack against Israel requiring an immediate military response, that the UN Security Council had not authorized the Israeli bombing and invasion of Lebanon, and that the Israel-based Winograd Commission found that the Olmert government indeed had acted hastily and impulsively by deciding to bomb and invade Lebanon as an immediate response to the Hezbollah incursion. In short, the Israeli bombing of Lebanon in July/August 2006, like Israel’s bombing of the Gaza Strip in June/July 2006 and December/January 2008–2009, were hardly legitimate acts of self-defense under the UN Charter, as Dershowitz asserted.