—   The sharp point of dissent   —

Section: Middle East
14 August 2005

Fuming for Israel: the Case of Alan Dershowitz

11. Occupation, Resistance, Retaliation

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Moral equivalence

The flaws in Dershowitz's treatment of this topic begin with the chapter title: 'Is there a moral equivalence between Palestinian terrorists and Israeli responses?'[1] Putting aside the misphrasing which invites comparison between people and deeds, the wording infers that the actions of the Israelis are responses, but that the actions of the Palestinians are not. Road closures; denial of rights; plundering of water; illegal settlements; uprooting of whole olive groves; destruction of houses; settler lawlessness and violence; recreational shooting of children[2] - none of this, apparently, could be a contributing factor to the recruiting power of those wishing to strike back. By omission, therefore, we are asked believe that in a scenario of Palestinian peace, security and independence, the Palestinians would still be sending their deplorable messengers of death into Tel Aviv and Jerusalem. Note that on page one of this book, Dershowitz laid out a credo that was to become a constant refrain throughout: that 'so long as criticism [of Israel] is comparative, contextual and fair, it should be encouraged, not discouraged'.[3] But we can presume from his ruthless exclusion in this chapter of such unflattering facts - which largely explain the causes of violence - that he didn't really mean it. (The Pope, by the way, gets a rap on the knuckles over this. Dershowitz blacklists John Paul II among 'the accusers' because he condemns terrorism 'from whatever side it may come.'[4] So much for balance and context.)

Dershowitz obligingly notes how important it is to 'make a crucial distinction between deliberately intended consequences, such as targeting children, and unintended consequences, even when they cause the accidental death of a child in the process of targeting a dangerous terrorist.'[5] I won't waste time on the observation that once the quotient of dead children passes a certain point, it becomes difficult to adhere to the 'accident' theory. (A senior Israeli officer was quoted in Ha'aretz in as early as December 2000 saying 'Nobody can convince me we didn't needlessly kill dozens of children'[6]) However, it must be added that when it comes to defending the slaughter of civilian bystanders during a rocket attack on a terrorist, or an assault on a refugee camp, the phrase 'unintended consequences' is highly useful since it masks the fact that the consequences are anticipated beforehand and go largely uninvestigated after. The first 'targeted killing' Israel carried out during the new Intifada, for example, was that of Fatah member Hussein 'Abayat in November 2000, which resulted in the deaths of two female bystanders. This did not set a precedent of caution or restraint, however: Amnesty International reports that '[s]ince then, until the end of August 2001, at least 30 people appear to have been "targeted" for death and more than 20 others who happened to be near them have also been killed.'[7]

So let's just state a few simple truths about the Palestinian organization which is probably the most violent and dangerous in the occupied territories - specifically, Hamas. Hamas represents the true lunatic wing of militant theocracy. Its culture of death-worship is notorious for having murdered civilians, ruined lives, and wreaked havoc in Israel. It has no political programme to speak of outside of an uninflecting extremism, and no real vision for a future Palestine other than the erasure of Israel - a political aim so conveniently remote that it may be fairly described as a purely rhetorical goal. It recruits young people as suicide bombers and sends them to their (and others') deaths in acts that are as stupid as they are rebarbative, for such deeds play right into the hands of the tormentors of the Arab population it purports to be defending.

Any other observations we could make about this organization? Certainly. Hamas possesses no helicopter gunships; no nuclear weapons; no artillery to speak of; no battalions of well-armed, well-trained soldiers. It has no foreign lobby campaigning for it; it is not occupying foreign land; it is not using its military muscle to build settlements and slowly colonize that land; it has not succeeded in walling in millions of people and severely restricting their movements even within those walls; its tanks are not to be seen cruising the streets of Tel Aviv, menacing the civilian population; and its troops are not storming Israeli municipal offices and homes, marauding and pillaging. But perhaps all this blaring of the obvious is just too vulgar for the Madeline Albrights of this world. For during her September 1997 visit to Israel, Ms. Albright cast all of the above aside and chose to sagaciously inform us that 'there is no moral equivalence between killing people and building houses.'[8] It appears that Ms. Albright did not take the next cognitive step and ask herself if those houses would have lasted two minutes on Palestinian soil were it not for the presence of a massive military apparatus keeping them in place. Yet she's certainly correct in that there is no equivalence between a fanatic with a girdle of explosives and one with hundreds of tanks. (There's no competition, either.)


'Targeted killings'

This phrase was specifically coined by Israel as a substitute for the uglier word 'assassination', whose definition precisely matches what Israel does anyway. The best-known instances include the rocket attack which killed Hamas leader Sheik Ahmed Yassin; and the one which dispatched his successor, Abdel-Aziz Rantissi in April 2004. In fact, Israel has been quite successful in getting the media (even in Britain) to go along with this euphemistic nomenclature. So it's rather a shame that they couldn't get Alan Dershowitz to concentrate while he was asking the question 'Is targeted assassination of terrorist leaders unlawful?'[9]

Dershowitz seems to be in one and a half minds on the matter. On the one hand, he points out, extrajudicial killing was used by Hitler and Stalin; on the other hand it has been used by 'democratic nations' such as the United States. Among the American examples, however, Dershowitz cites that of Patrice Lumumba, Prime Minister of the Democratic Republic of the Congo, whose only crime was to helm a resource-rich country which he refused to sell out to US interests. The CIA had full knowledge of the plan to dispose of him in January 1961: he was eventually succeeded by the incomparably venal Mobutu Sese Seko, who plundered his country's wealth and ground the Congo's economy into the dust. Lumumba, needless to say, does not belong in the same pantheon as Muammar Ghaddafi or Saddam Hussein, where Dershowitz has decided to place him. Lumumba's proper place is in a gallery of victims which includes the Chilean General René Schneider, and Panamanian President Omar Torrijos, both assassinated by US operatives at the behest of a White House seeking to topple the governments they represented purely because they conflicted with US interests. So 'targeted killings', on the evidence Dershowitz both produces and ignores, seems to have a questionable moral pedigree to say the least.

So much for the best of intentions. What about results? The Mossad agents who did jail time in Norway for the July 1973 murder of an innocent man whom they mistook for the Black September member Ali Hassan Salameh provide a salutary lesson about the perils of ignoring 'due process' and proceeding straight to extrajudicial execution. Ahmed Bushiki, a Moroccan waiter who had nothing to do with any terrorist organization (much less the 1972 Munich atrocity which the Israelis were attempting to avenge), was shot in the street thirteen times while his pregnant wife looked on.[10] At the time, Israel had full diplomatic relations with Norway and could easily have requested the extradition of their suspect. However, they preferred to take the course of carrying out a mafia-style hit which went horribly wrong and thereafter soured relations with the Norwegians.

What of 'unintended consequences', the crucial moral distinction which Dershowitz trumpets as all-important? Well, the moral response to it is interesting, as in the case of Dan Halutz, the Israeli general who said that he had 'not lost a minute's sleep' over the 17 civilians killed (nine of them children) and 140 injured in August 2002 when a one-tonne bomb was dropped on an apartment block in Gaza, the ostensible 'target' of which was a single Hamas commander.[11] It's interesting to compare this execution with the July 2001 shooting of Mustafa Yassin, who was shot in his home the day after spending nine hours in Israeli custody.[12] The usual arguments adduced in favour of 'targeted killings' - that they (i) reduce the risk of civilian casualties, particularly in cases where (ii) the suspect is difficult to apprehend - are not available in the context of these examples.

Dershowitz also mentions the January 1996 assassination of Yahya 'the Engineer' Ayyash without taking the trouble to point out that he had been militarily inactive for six months prior to the attack, and that his killing provoked a sequence of dreadful suicide bombings, the horrors of which swung the Israeli electorate severely to the right and helped bring Benjamin Netanyahu's Likud coalition to power in the same year. In this case, the attack plainly had no preventive power or even intent: according to Shlaim, Shimon Peres allowed the assassination to go ahead purely as a swan song for the retiring leader of Shabak;[13] and far from halting future attacks, it instead induced an eruption of violence that horrified the nation.

All of this is, at any rate, irrelevant to Dershowitz's narrow focus on the 'unlawfulness' issue. The illegality of extrajudicial killings is made clear in Article 3(d) of the 4th Geneva Convention, which proscribes 'the carrying out of executions without previous judgment pronounced by a regularly constituted court', and is supplemented by Article 147 which lists precisely such 'willful killing' among 'grave breaches' of the Convention. The unlawfulness of the policy has been summarised by Tanya Reinhart:
Not only are the people who are targeted for assassination deprived of any such legal rights, but there is also no legal or other means of supervising who is added to the target list as this is left to the discretion of the security services. Many describe these operations as "state terrorism" and for a long while they were kept secret because of Israeli public opinion.[14]

Destruction of houses

Also listed among the 'grave breaches' of the Geneva Convention is 'extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly' - a category into which Israel's destruction of houses, farmland and olive groves fits squarely. It's remarkable to find a Harvard professor of law ponderously asking himself 'Is Israel's policy of house destruction collective punishment?'[15] when the question itself is clearly answered in the 4th Geneva Convention, the relevant passages of which he surely cannot be ignorant of:
Part III, Section 1, Article 33 No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.[16] Part III, Section 3, Article 53 Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.
Moreover, Israel today invokes the right to demolish houses under a dead letter from a colonial era - specifically, the 1945 Emergency Defense Regulations enacted by the British during the Palestine mandate. Interestingly, these laws were originally put in place to cope with a wave of Zionist terrorism, and were condemned at the time by Dov Yoseph (who later became Justice Minister) as 'worse than Nazi laws. True, the Nazis committed worse atrocities, but they at least did not legislate them.'[17] In fact, the specific clause relating to house demolitions (section 119) which Israel today invokes was rescinded by the British before they left Palestine.[18] Thus even Israel's own legal basis for house demolitions is shaky to say the least.

Once again, the focus of the topic is selectively narrow. Dershowitz confines his discussion only to 'the Israeli policy of demolishing houses that were used to facilitate terrorism or owned by people who assisted terrorists'[19] Let's place this matter back in the broader context and recount some history.

The destruction of houses (and sometimes entire apartment blocks) is merely the most extreme expression of Israel's ongoing effort to gradually swallow all of Palestine. The expropriation of land for 'security purposes' and erasure of Arab property therein goes back to a time that predates even the occupation. Following the 1948 war, huge tracts of land were arbitrarily declared 'closed areas' by the military,[20] to which entry was prohibited even to the farmers wishing to till their own fields. The 'closed area' policy was the reverse of what is currently going on in the West Bank, a strategy encapsulated in Yehoshafat Palmon's remark that 'we take the land first and the law comes after':[21] here the formal expropriation of land preceded the de facto seizure. The confiscation was often carried out on foot of a flimsy or absent pretext, and for the Arabs, recourse to an Israeli legal system institutionally stacked against them - even when successful - was no guarantee that their property would be saved. David Hirst's recounting of the fate of one particular village is worth citing:
In July 1951 the Supreme Court ruled in favour of another Christian village, Iqrit, whose inhabitants had been ordered, three years earlier, to leave their homes, 'for two weeks' until 'military operations were concluded'. After this judgment the Military Government found another justification to prevent them from returning. The villagers once more appealed to the Supreme Court, which decided to consider the case on 6 February 1952. But a month and a half before that date, on Christmas Day to be precise, the Israeli Defense Forces took the Mukhtar of this Christian community to the top of a nearby hill and forced him to watch the show - the blowing up of every house in the village - which they had laid on for his benefit.[22]
The 1967 conquest provided opportunities for yet another round of brutal destruction of property. Hardly had the war itself ended when, on 11 June, the Maghreb ('sunset') quarter of Jerusalem was systematically extirpated during 'a single night of bulldozing' in which 129 families were made homeless.[23] Around the same time, three villages in the Latrun area which were home to 10,000 Arabs - Beit Nuba, Imwas and Yalu - were swept away by bulldozers or dynamited out of existence. A French nun who managed to reach the area described the devastation: 'Alone in a deathly silence donkeys wandered about in the ruins. Here and there a crushed piece of furniture, or a torn pillow stuck out of the mass of plaster, stones and concrete. A cooking pan and its lid abandoned in the middle of the road. They were not given enough time to take anything away.'[24] Traveling through the territories in later years, Hirst himself was regaled with frightful stories, such as that of the man who rebuilt his home three times (with the aid of thirty relatives) following its repeated destruction by the Israelis. Or the girl who recounted that
when a squad of soldiers and workmen came to her family's house, with orders to demolish it, they told her father, in answer to his protests, to go and see Mayor Teddy Kollek. He left them carrying out the furniture, but by the time he got back, bearing a stay of execution from Kollek, they had already pulled the house down, with a chain attached to a bulldozer, before his family's eyes.[25]
Fast-forward to more recent times. A report from Israeli human rights group B'Tselem covering just the early part of the new Intifada, reveals the following sample pattern:
23 June 2001: the IDF destroys 'houses and crops in the Barhameh neighbourhood in the Rafah refugee camp'. 10 July 2001: the IDF destroys eighteen houses and six shops in the Rafah refugee camp, leaving 272 people homeless.

15 November 2001: the IDF destroys 28 houses in the Khan Yunis area, rendering 125 people homeless.

10 January 2002: the IDF destroys 60 houses in Rafah and 'partially destroy' four others; more than 600 are left homeless.[26]
Note that houses are destroyed not individually, one at a time, in scattered locations; but in large swathes, on a single day, and in one specific area - thus making it difficult to believe that this is a single family being punished for an individual's act. In a report issued in February 2002, B'Tselem noted that:
[a]ccording to the UNRWA, since the beginning of the Intifada the IDF has demolished 655 houses in the refugee camps in the Gaza Strip, in which 5,124 people lived. In addition, the IDF partially demolished 17 houses in which 155 people lived. The International Committee of the Red Cross (ICRC) published similar figures: from the beginning of the Intifada to the end of 2001, the organization assisted more than 5,200 residents whose houses had been demolished. In comparison, Defence Minister Binyamin Ben-Eliezer stated that 'The total number of Palestinian structures that were demolished in the Gaza Strip stands at about 300. This figure includes structures used for residential purposes, farming, and walls. In addition, some 175 greenhouses were destroyed.' Regarding the number of trees and fields that were destroyed, Ben-Eliezer contended that 'In total, some 5,500 dunam of orchards of all kinds on the Palestinian side were uprooted and 4,500 dunam of planted fields and uncultivated land were destroyed.' The figures reported by the Palestinian Centre for Human Rights in Gaza, were much higher: from the beginning of the Intifada to the end of July 2001, some 13,500 dunam of agricultural land, constituting some 7 per cent of agricultural land in the Gaza Strip, were destroyed.[27]
What does Dershowitz have to say about all this? Apparently, a primary source of alarm for him is that 'in some Muslim countries, viewers are led to believe that the houses are destroyed with people still in them!'[28] The shrieked complaint, of course, conceals the reality revealed by the above reports - specifically, that '[i]n almost all the cases of demolition, the houses were occupied and the residents fled when the bulldozers appeared at their doorsteps';[29] that 'most of the demolitions take place at night, and the occupants are given only a few minutes to remove their possessions from the house' and that 'figures indicate that in only three percent of cases were occupants given prior notification of the IDF's intention to demolish their home.'[30] What, then, does the law professor make of the ethical issue?

'The major problem with the destruction of houses involved in terrorism is not with its morality. ... The problem with destruction of houses is that it plays poorly on television.'[31] In a book filled with flabbergasting statements, this really is prizewinning material. Are we to believe that the entire neighbourhoods described above (greenhouses included) were all destroyed by the Israelis because each one of their houses was 'involved in terrorism'? The truth, according to the findings of a November 2004 report by B'Tselem, is that
[o]ver the last four years, Israel has demolished 4,100 Palestinian homes in the Occupied Territories. About sixty percent of the demolitions were carried out in the framework of what Israel calls "clearing operations." Twenty-five percent were destroyed because Israel claims they were built without permit. The remaining fifteen percent were demolished as a means to punish the families and neighbours of Palestinians suspected of involvement in carrying our attacks against Israelis.[32] [my italics]
Thus only fifteen percent of the homes demolished during this period have housed people even suspected of involvement in violence: Dershowitz has simply excluded discussion of all the others. Leaving aside the appalling fact that the destruction of Rafah turned people into refugees from refugee camps, the part of Dershowitz's assertion that does not insult one's intelligence exhibits some remarkable moral degradation: specifically, the reduction of a plainly exigent moral issue to how telegenic it is. The conjunction of the implicit and explicit parts of his argument form the intriguing proposition that house demolition in itself is not morally opprobrious but at the same time not recommended viewing. Dershowitz's attempt to unpack this argument gives us some insight into the incubi swirling around in his head; to wit: 'the inevitable picture of the crying woman bemoaning the loss of her home creates sympathy, even if the same woman was yesterday encouraging her son to become a martyr and tomorrow will be cheering the news of an Israeli restaurant blown up with a dozen teenagers inside'[33] Note the hurried manner in which the reader is exhorted to remain solidly pitiless. The unmistakable victim-hatred contained in this statement, the willful conjuring-up of imagined turpitude to project onto a wronged victim of a criminal attack, plumbs some remarkable depths of moral cowardice. By Dershowitz's own rationale then, every time we see the Israeli relative of a victim of a Palestinian attack grieving their miserable situation, the first thoughts entering our minds should not be of sympathy for their loss, but suspicion that this person might yesterday have been cheering the latest Israeli atrocity or tomorrow giving full-throated support to the expulsion of the Palestinians ... without any evidence.


Casualties

By now, with the Al-Aqsa Intifada into its fourth year, and the number of Palestinian victims significantly and consistently outstripping that of Israeli victims, there is little that pro-Israel mountebanks such as Dershowitz can do to combat the embarrassing arithmetic. The only option available is to interpret the statistics favourably, maintaining (by reference to such objective sources as the 'an internal analysis by the IDF'[34] - ipso facto, the accused's verdict on itself) that the great majority of the Palestinian victims were in fact combatants. Bearing in mind that it was in this book that Dershowitz coined the delightfully Orwellian term 'enemy civilians',[35] it's not entirely surprising to find him blurring the distinction between combatants and noncombatants.

To give a flavour of the kind of disproportion we are talking about, here is a brief description of the beginnings of the recent violence:
Within the first six days of the intifada, Israel's army and police had killed sixty-one Palestinians and injured 2,657, many of them children under the age of 18, and many of them killed or wounded from shots fired to the upper part of the body. By comparison, during the same period four Israelis - three soldiers and one settler - were killed, while thirty-five Israelis were wounded, most of them lightly.[36]
The yawning gulf between such figures on either side cannot be dismissed by glib references to 'terrorism'. And the impression that Israel started as it meant to go on is borne out by subsequent statistics. At the time of writing, figures compiled by B'Tselem reveal that since September 2001, 3244 Palestinians have been killed as opposed to 660 Israelis (civilians alone) within the same period.[37]

How does Dershowitz explain it? He essentially adduces three arguments as to why the statistics are 'misleading': (I) they allegedly exclude foiled Palestinian attacks which would have caused Israeli casualties; (II) Palestinian combatants are allegedly included among the dead; and (III) superior Israeli medical expertise has saved lives which would otherwise be among the fatality figures.

The first argument is intriguing in that it depends for its validity on figures relating to people who were not killed, and thus on statistics that are not available. Furthermore, it tacitly admits to a phenomenon which explains the disproportion of casualties on the other side: specifically, that the Israelis are protected by a massive security apparatus, while the Palestinians are almost entirely defenseless. The few figures Dershowitz cobbles together to support this claim are deeply problematic. He cites Israeli Supreme Court Justice Aharon Barak's remark that between September 2000 and August 2002 'approximately 14,000 attacks have been made against the life, person and property of innocent Israeli citizens and residents', but even in context the manner in which this figure was arrived at is never explained, and thus could include anything from vandalism to homicide.[38] Note that the next sentence of Barak's ruling claims that during this period 'more than six hundred citizens and residents of the State of Israel have been killed', and then watch as Dershowitz goes on to claim in the same paragraph that within this same period 'more than 800'[39] Israelis (the context implies civilians) have been killed by Palestinian attacks - with no source cited. In fact, B'Tselem's own figures for Israeli civilians deaths in the same period, sum to 397. Even if Israeli security forces are included, the figure does not exceed 571.[40] For the source of his claim that 'thousands more attacks were thwarted or prevented' since then, Dershowitz cites an Article in Atlantic Monthly which makes no mention at all of such figures.[41] In a chapter replete with accusations of Palestinian mortality inflation, this is an interesting sampling indeed.

In support of the second claim, Dershowitz contends that 'some Palestinian spokespersons'[42] place suicide bombers, terrorist plotters, bomb-planters, executed collaborators and so on among the Palestinians killed by Israelis without specifying that they are hardly innocent civilians. There is not a single example, quotation, or statistic following this claim which might substantiate it, and thus there does not appear to be an argument to rebut. Buttressing the third claim, Dershowitz explains that Israeli fatality statistics are misleadingly low because the survival rate of Israeli victims is improved by prompt medical treatment. In short: 'Palestinian terrorists ... are not any less murderous - it's just getting harder for them to kill Israelis because of the excellent medical response.'[43] What Dershowitz doesn't mention is that the Palestinians are not so lucky -their ambulances, rushing to the scene of the latest Israeli attacks to treat the wounded, are routinely hindered, blocked altogether, or just shot at by Israeli troops. This dreadful phenomenon has been well-documented by human rights organizations based in the occupied territories. Amnesty International note that during '[t]he Israeli invasions of March and April 2002 ... [t]he IDF's consistent fire on ambulances traveling to the injured halted ambulances for days at a time [and that] during the whole of 8 March, while clashes were continuing in Tulkarem refugee camp and the wounded were lying in streets and homes, not a single ambulance was able to leave the station.'[44] Amnesty also report that '[d]uring the first week of Operation Defensive Shield according to a statement given by Peter Hansen, the director of the UN Relief and Works Agency (UNRWA), on 5 April 2002, more than 350 ambulances had been denied access and 185 ambulances had been hit by gunfire.'[45] Assaults on medical vehicles are so common now that the head of the Palestinian Red Crescent has said that 'I find it safer now to send patients needing dialysis or other medical treatment by taxi, rather than by ambulance.'[46] And there have been many fatalities. To take a sample of just a single week:
4 March 2002, Jenin: Dr. Khalil Suleiman, killed when 'the PRCS ambulance he was traveling in was hit by gunfire from members of the IDF.'

7 March 2002, Tulkarem: Kamel Salem, a sanitation worker, killed while traveling in 'a clearly marked UNRWA ambulance on its way to collect three wounded people [when it was] attacked by a missile from an Apache helicopter.'

7 March 2002, Tulkarem: Ibrahim Jazmawi, killed while traveling in one of two ambulances which were fired upon by an Israeli tank later the same day, while trying to collect the same three injured people.[47]
The closest Dershowitz comes to this issue, however, is when he puts forth the contentious claim that twelve-year-old Muhammad al-Durra - whose shooting death was filmed by a French TV crew - was an example of a child 'caught in a crossfire'.[48] But he apparently did not research the matter thoroughly enough to learn either the boy's name or that the ambulance driver who tried to reach him was also shot dead by Israeli troops.[49] He goes on to pontificate that:
Israel must fight the war on terrorism "with one hand tied behind its back," because that is what the rule of law requires. [The Israeli Supreme Court] has prohibited the Israeli military from attacking ambulances, despite its recognition that ambulances are often used to transport explosives and suicide bombers.[50] [my italics]
So breathtaking is the dishonesty that its blushes must be concealed behind a bloated exaggeration, and all in one sentence - it's impressive stuff.[51]


* * *

'By deliberately hiding in and operating out of civilian population centers such as refugee camps', Dershowitz informs us, 'Palestinian terrorists use their own civilians as shields.' Rest assured, he knows the magnitude of this distortion. No ragtag guerilla force in history has ever faced on the battlefield a sophisticated modern army which vastly outnumbers them. The Palestinian fighters whose putative cowardice Dershowitz condemns have no tanks, helicopters, fighter jets or well-fortified military bases (all legitimate targets): their choices, quite simply, are to surrender completely or fight where they live in defense of a civilian population, and against an invading army. Undeterred by this reality, Dershowitz's lecture continues, stumbling into troublesome territory:
It is a violation of international law to use civilians as shields, and under international law, a civilian who is killed while being used as a shield is counted as a casualty caused by those using him as a shield, not by those who were legitimately trying to attack an appropriate military target ...[52]
In thus attempting to get the IDF off the hook, the good professor inadvertently hangs them. Dershowitz's rationale applies ineluctably to a case compiled 'in separate interviews with Human Rights Watch [in which] Palestinian civilians ... described how the IDF soldiers had forced them to stand in front of the soldiers when the soldiers fired at Palestinian fighters, while resting their rifles on the shoulders of the Palestinian civilians.'[53] HRW reported that this notorious 'human shield' incident occurred in Jenin on 6 April, 2002. According to the testimony of one of the captives:
they put us on the veranda where we could be seen [by the Palestinian fighters]. The soldiers were sitting inside the salon. We were facing the shooting. The soldiers did this to protect themselves. We could clearly be seen - if the fighters saw us they would not shoot.[54]
So it's a rare (if accidental) streak of honesty from Dershowitz.


The reality of the occupation

Let's begin with a single story pulled almost at random from the chronicle of injustice that characterizes the Israeli occupation of the remaining 22% of historical Palestine. Omar Barghouti relates that
in Hebron in 1996, an Israeli settler fatally pistol-whipped 11-year-old Hilmi Shusha. The Israeli judge first acquitted the murderer, saying the child "died on his own as a result of 'emotional pressure.'" After numerous appeals and under pressure from the Supreme Court, which termed the act "light killing", the judge reconsidered and, as the new intifada was raging, sentenced the killer to six months' community service and a fine of a few thousand dollars. The boy's father accused the court of issuing a "license to kill." Gideon Levy of Ha'aretz described the fine as the "end-of-season clearance price" on children's lives...[55]
Nor is this incident atypical. Chomsky recounts an episode in which, in September 1989
General Matan Vilnai, the military commander of the Gaza Strip, granted early release from prison to six soldiers from the Givati Brigade so that they could spend the High Holidays with their families. They had served six months of the nine-month sentence they had received for savagely beating a Palestinian in his home - but not for murdering him, because, the court judiciously observed, his death might have been caused by the beating which he received a few hours later while under detention at military headquarters, a thought that led to no further inquiry.[56]
In recent years a number of schoolchildren from Beit Jala, a village near the Israeli settlement of Gilo were asked to give an account of their quotidian existence under occupation. On the night of 15 November, 2000 Sawsan Ghneim's family had to flee their house during an Israeli assault:

When morning came, the war settled down and we went back home. But it wasn't our home anymore; it was the home of missiles, rockets, bullets and scattered bombs. Nothing in the house was in normal condition: blankets were holed, clothes and curtains were burned, windows and beds were destroyed, bullets were inside the refrigerator, and the washing machine was broken. It was unlivable. The mayor expressed his sorrow and is paying for our stay in Bethlehem Hotel till we find another house to rent.[57]
In a report published in April 2002, Amnesty International recounted the testimony of Amal 'Abd al-Mun'im, whose house in the West Bank town of Dheisheh was taken over for several days by IDF soldiers:
They came on Saturday 9 March, 25 soldiers with armoured cars. They put us all in one room - there were six of us, [my husband], my four children and myself. They stayed about five hours and we were confined to one room. Then they took my husband away. They stayed four days in the house. When we came back we found everything destroyed. My house is three storeys high and they destroyed everything. They stole two video cameras each one [worth] $300. They took all our money, the computer which cost about 8,000 shekels. They were using the toilets but they didn't clean anything. We found their excrement everywhere - they filled towels with shit and smeared it on the wall, in the kitchen and our dishes. They tore up the Qur'an and broke everything.[58]
A report issued by Médecins du Monde and FIDH (International Federation of Human Rights Leagues) recounted the testimony of a Palestinian who, with eight others, had been brought to the Huwara military base, where
there were lots of soldiers, men and women, waiting for us; they hit us, they sang, danced and applauded all around us in Hebrew. This lasted for about an hour. They insulted my religion: they took off my blindfold, they spat on the Qur'an and then threw it on the ground. ... [later, in a detention tent:] soldiers, men and women, came to 'play' with us: some of them made us open our mouths and they spat into them and put earth in them. I was lying next to someone else. I asked him who he was in Arabic but an Israeli soldier intervened. He hit me in the forehead with his rifle butt to shut me up and struck the other person with his boots.[59]
I have not yet heard it adduced that looting, force-feeding with soil, scatological vandalism and desecration of holy books are among the measures - harsh but necessary - which Israel is entitled to employ in legitimate self-defense; and I suppose I never will. Destruction of property elsewhere, meanwhile, continues apace. The valiant fight against terrorism goes on in orchards and olive groves, which in themselves appear to constitute a mortal threat to Israel that must be eliminated. Nidal Barham, an English teacher in Beit Jala eloquently expresses the human toll of this destruction:
Worst of all is the uprooting, without any notice, of all trees between [my aunt's] house and the camp. Everything is allowed to Israelis under the claim of security. My aunt used to tell us stories about those trees: where she and her late husband bought each plant from, when each one was planted, and how she used to carry buckets of water on her head for long distances to water them. "I grew each tree and looked after it as I did my own children," she used to say. No one has dared to tell her what has happened to her trees. They are still waiting for the right time.[60]
The restrictions on movement within the occupied territories are severe: Palestinians often have to wait for hours at roadblocks and checkpoints that frequently seem to serve no purpose other than humiliation. According to B'Tselem, out of 47 staffed checkpoints in the West Bank, only 19 serve as portals into Israel proper.[61] The remainder, therefore, oppressively restrict movement of Palestinians within their own land and can hardly be described as protecting Israel's borders from attacks. Plus they are largely pointless: many Palestinians are now taking long, circuitous routes across dirt roads to avoid such gratuitous delays. B'Tselem have concluded that
The most striking features of the Forbidden Roads Regime is its sweeping, indiscriminate nature. The regime denies Palestinians freedom of movement, and grants special movement permits as a privileged right to Palestinians who meet Israel's criteria. On certain roads, travel is even forbidden to persons holding this privileged right. ... In its implementation of the roads regime, Israel transferred the burden of proof to the Palestinian population, making them responsible for proving that they do not constitute a risk if they wish to exercise their right.[62]
Of course, '[t]he failure to provide written regulations regarding the regime makes it difficult to investigate the policy and describe its features precisely. This lack of transparency prevents intelligent public debate on the issue, and releases policymakers from accountability.'[63] In short, it seems to be a purely arbitrary system of collective punishment. And it too has created casualties. According to the Palestinian physician Jumana Odeh, since the new Intifada began, at least 70 Palestinian babies have been born at Israeli checkpoints because the IDF have refused to allow pregnant women to pass through to reach a hospital: 39 of the babies died on the spot.[64] The view of Palestine from Alan Dershowitz's office window in Massachusetts, however, is rather different:
[T]he Israeli occupation, unlike any of the other occupations, has brought considerable dividends to the Palestinians, including significant improvements in longevity, health care and education. It has also brought about a reduction in infant mortality.[65]
So the Palestinians' lack of gratitude is clearly bewildering. And it seems that what happened to the infants who might have survived a roadside birth, grown up and lived whatever chivvied lives their conquerors would allow them is really just an aberration in a continuum of good.

There is simply no end to the weasel-wording: Dershowitz's book is festooned with fleeting references to Israel's 'mistakes' and 'imperfections' before hurrying onto the next distortion.[66] And in a sea of partiality can be found conspicuously floating his claims of objectivity, to wit: 'I myself have been quite critical of specific Israeli policies and actions over the years'[67] Although he is incautious enough to compliment himself for this, Dershowitz is still careful not to cite himself ... which I think would have been instructive.



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Notes:

1 Dershowitz, p. 189
2 Tanya Reinhart reports that 'a common practice is shooting a rubber-coated metal bullet straight in the eye - a little game of well-trained soldiers, which requires maximum precision.' (Quoted in Barghouti, 'Palestine's Tell-Tale Heart' in Roane Carey (Ed.), The New Intifada, Verso, New York, 2001, p. 186) During a February 2001 visit to Gaza where she was shot at by Israeli troops, Alison Weir reported the following:
I've read too many reports of injuries in just such situations, seen too many pictures of people with bandages over their eyes that have been shot out. Earlier in the day I saw a picture of four boys, probably about 7-12 sitting on chairs in a waiting room somewhere, looking at the camera with no expression on their faces and each with a large piece of gauze where one of their eyes should be. They were the lucky kids - these were only rubber bullets, and they hadn't gone into the brain. (Weir, 'Gaza: A report from the Front' in Carey (Ed.) The New Intifada, p. 159)
3 Dershowitz, p. 1
4 Quoted in Dershowitz, p. 190
5 Dershowitz, p. 191
6 Quoted in Omar Barghouti, 'Palestine's Tell-Tale Heart', in Carey (Ed.), The New Intifada, p. 167
7 Reporters without Borders (Eds.), Israel/Palestine: The Black Book, Pluto Press, London, 2003, p. 21
8 Quoted in Avi Shlaim, The Iron Wall: Israel and the Arab World, Penguin, London, 2000, p. 585
9 Dershowitz, p. 173
10 See 'Golda's List', 2000 documentary produced by Sunset Presse (France), directed by Emmanuel François; 'Norway solves riddle of Mossad killing', Guardian, 2 March 2000
11 See David Hirst, The Gun and the Olive Branch: The Roots of Violence in the Middle East, (Third Edition), Nation Books, New York, 2003, p. 73; Uri Davis, Ilan Pappé, Tamar Yaalon, 'What May Come After the Evacuation of Jewish Settlers from the Gaza Strip', Counterpunch, 15 July 2005
12 Reporters without Borders, p. 22
13 See Shlaim, p. 556
14 Tanya Reinhart, Israel/Palestine: How to End the War of 1948, Allen & Unwin, Australia, 2003, p. 123
15 Dershowitz, p. 166
16 Note that the provisions of this article would also forbid a Palestinian collective punishment of Israelis by suicide bombings.
17 Quoted in Israel Shahak, Open Secrets: Israeli Nuclear and Foreign Policies, Pluto Press, London, 1997, p. 16
18 See B'Tselem, 'Through No Fault of Their Own - Punitive House Demolitions during the al-Aqsa Intifada', November 2004, p. 10
19 Dershowitz, p. 166
20 See Henry Cattan, The Palestine Question; Croom Helm, Kent, 1988, p. 74; Hirst, p. 316
21 Quoted in Hirst, p. 358
22 Hirst, p. 317
23 See Hirst, p. 351
24 Quoted in Hirst, p. 352
25 Hirst, p. 363
26 B'Tselem, 'Policy of Destruction: House Demolitions and Destruction of Agricultural Land in the Gaza Strip', February 2002, quoted in Reporters without Borders, p. 40 et seq.
27 Ibid, p. 44.
28 Dershowitz, p. 171
29 B'Tselem, 'Policy of Destruction...', February 2002, p. 40
30 B'Tselem, 'Through No Fault of Their Own ...', November 2004, p. 7
31 Dershowitz, p. 171
32 B'Tselem, 'Through No Fault of Their Own ...', November 2004, p. 7
33 Ibid.
34 Dershowitz, p. 124.
35 Dershowitz, p. 141, 150
36 Muna Hamzeh, 'Notes from Dheisheh', in Carey (Ed.), The New Intifada, p. 223
37 The relevant tables are publicly available at www.btselem.org.
38 Cited in Dershowitz, p. 124, citing 'Ajuri v. IDF Commander', Israeli Supreme Court sitting as the High Court of Justice, 3 September 2002, Case no. 7015/02. The judgment goes on to add that 'Moreover, in one month alone - March 2002 - 120 Israelis were killed'. However, B'Tselem's total for this month does not exceed 83, or even 103 when security forces are added. These statistics are publicly available at www.btselem.org.
39 Dershowitz, p. 124.
40 Statistics publicly available at www.btselem.org.
41 Specifically: Bruce Hoffman, 'The Logic of Suicide Terrorism', Atlantic Monthly, June 2003
42 Dershowitz, p. 125
43 Ibid.
44 Amnesty International, quoted in Reporters without Borders, p. 64
45 Ibid., p. 63
46 Ibid.
47 Ibid., p. 64-65
48 Dershowitz, p. 126
49 See Amnesty International, 'Broken lives - a year of intifada', AI Index: MDE 15/083/2001, November 2001, (Excerpted in Reporters with Borders), p. 16
50 Dershowitz, p. 184
51 To clarify the use of the word 'often': there has been precisely one confirmed instance of explosives found in an ambulance (Islam Jibril, in 2002). Contrast this single case with the hundreds of occasions in which the IDF have opened fire on ambulances - often lethally - without any knowledge of who or what is inside them.
52 Dershowitz, p. 128
53 Human Rights Watch, 'Jenin: IDF Military Operations', May 2002, excerpted in Reporters Without Borders (Eds.), p. 105
54 Ibid.
55 Omar Barghouti, 'Palestine's Tell-Tale Heart', in Carey (Ed.), The New Intifada, p. 167
56 Noam Chomsky, Fateful Triangle: The United States, Israel, and the Palestinians, (Updated Edition), Pluto Press, London, 1999, p. 474
57 'The Agony of Beit Jala', in Carey (Ed.), The New Intifada, p. 131
58 Quoted in Amnesty International, 'Israel and the Occupied Territories: the heavy price of Israeli incursions', AI Index: MDE 15/042/2002, 12 April 2002, p. 17. Excerpted in Reporters Without Borders, p. 66
59 International Federation of Human Rights Leagues, 'Operation Defensive Shield - Nablus Joint Investigative Mission Médecins du Monde - FIDH West Bank - 28 April to 5 May 2002', Excerpted in Reporters Without Borders, p. 81, 85
60 'The Agony of Beit Jala', in Carey (Ed.), The New Intifada, p. 125
61 B'Tselem, 'Forbidden Roads: Israel's Discriminatory Road Regime in the West Bank' August 2004, p. 10
62 Ibid., p. 32
63 Ibid., p. 36
64 Democracy Now interview, 18 July, 2005
65 Dershowitz, p. 161. This looking-glass view is reminiscent of Nadav Haetzni's amazing remark in Commentary that 'The population of the West Bank and Gaza spent 27 years under Israeli occupation - a lesson, among other things, in democracy.' ('In Arafat's Kingdom', Commentary, October 1996)
66 A random sampling follows: 'Israel has made mistakes and overreacted' (p. 152); 'Like every other nation, Israel has made mistakes in overreacting to terrorism' (p. 187); '[T]he Palestinian movement has made a concerted and somewhat successful effort to demonize Israel by exaggerating its imperfections in human rights.' (p. 229); Israel sometimes 'deviates from perfection' (p. 237); and so on. Of course, some of these blushingly undiscussed 'mistakes' have been made so often (and repeated so systematically) that one must sardonically wonder how the Israelis have not learned from them. In the meantime, the Palestinians are asked to simply put up with such 'imperfections' as torture and abuse; road closures; arbitrary curfews; water theft; occupation and destruction of their homes by abusive troops; roadside childbirth deaths; razing of olive groves and so on. And Westerners are scolded for critiquing the middle east's 'only democracy', with no comment on how the above actions (now routine) might have a cheapening effect on the very concept of democracy.
67 Dershowitz, p. 1