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July 1, 2015 9:30 am

Dershowitz: A Jurisprudential Framework for Defending Israel

avatar by Alan Dershowitz

Email a copy of "Dershowitz: A Jurisprudential Framework for Defending Israel" to a friend
The ICC. Photo: Wikimedia Commons.

The ICC. Photo: Wikimedia Commons.

Another recent United Nations report once again condemned Israel for defending its civilians against rockets fired by Hamas from densely populated civilian areas. Once again Israel responded by releasing information compiled by independents experts. This article attempts to put these issues in a broader jurisprudential context.

The aspiration of every legal system is to be governed by the objective rule of law rather than the ad hoc decisions of biased human beings. What then is the rule of law, as distinguished from the rule of men and women, since all law must, in practice, be administered by fallible humans. The essence of the rule of law — from the Bible, the Codes of Hammurabi and Lipit-Ishtar, to the Magna Carta, to the United States Constitution, to the Geneva Accords — is advanced codification: that is a series of written rules that are designed to be applied equally to all, without knowing in advance who will be perpetrators, who victims and who bystanders.

The great legal philosopher John Rawles made the principle an important part of the legal cannon, where he coined the phrase “veil of ignorance.” In his abstract conception, rules must be written in a nether-world by those veiled in ignorance in what their status will be in the real world to be governed by the rules.

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In other words, the writers cannot know whether they will be male or female, gay or straight, white or black, handicapped or fully able, Jew or gentile, handsome or ugly, strong or weak, smart or not so smart, poor or rich, healthy or unhealthy, etc. etc, when they draft the rules that will govern their future conduct.

In this way, they will be incentivized to enact laws that will be fair to all.

This idea was not original with Rawles, though he deserves credit for formulating it in a clever and accessible manner. The idea underlying Rawles’ conception is an ancient as codification, and finds expression in such Biblical concepts as “be kind to strangers, for you were once strangers in the land of Egypt,” with the implication that you may be strangers once again in other lands.

In the United States Constitution, this idea is manifested in the prohibition against Bills of Attainder, which preclude Congress from enacting laws punishing named individuals. All criminal laws must be a general nature, equally applicable to all who come within its prohibitory language. No one is above the law, as courts have repeatedly stated. The principle is also reflected in the prohibition against “common law crimes,” applied retroactively to conduct that was not specifically codified in advance.

How then do these general principles, about which there is universal agreement in theory, apply to the subject of our discussion today? Directly!

The way Israel is being judged today is a dramatic exception to the rule of law and the principles articulated above. Under the current approach, the international community first considers Israel’s actions, in isolation from the actions of other nations; it judges them to be imperfect, when evaluated against abstract rules; it then creates specific rules applicable only to the nation-state of the Jewish people, and to no other nation.

This has clearly been the case with the Goldstone Report, the more recent report by Mary McGowan Davis, the decisions of the International Court of Justice, the resolutions of numerous United Nations bodies, especially the misnamed Human Rights Council, and even the reports of Israeli NGOs such as B’tselem and Breaking the Silence.

These so called applications of the rules of international law all share a common modus operandi: they begin with Israel’s actions rather than with neutral principles of law designed to govern the actions of all nations and groups. They then judge Israel’s actions against unrealistic, anachronistic and abstract principles that could not be, and have never been, applied to other nations or groups. They then condemn Israel, without articulating rules of general applicability.

Consider the following relevant examples: What is the international law governing nations whose civilians are being targeted by rockets being deliberately fired from densely populated civilian areas? One can search the various codes of law without finding a definitive answer to this question. Must the victim nation simply accept the casualties and fear that accompany such rocket fire? May it try to stop the launch of future rockets, even if its preventive actions will inevitably kill some civilians? How many potential civilian deaths are permissible to prevent how many rockets, under the rules of “proportionality?”

What about the risk from terror tunnels dug under its territory with intended exits near civilian areas? Can the known entrances to these terror tunnels that are built in or near civilian homes, mosques, schools, hospitals, or United Nations facilities, be destroyed preventatively? Or must the victim nation wait until the terrorists exit the tunnels at unknown locations?

May a nation that is repeatedly threatened with non-negotiable demands for its complete destruction take preemptive or preventive military action to destroy nuclear facilities that may soon give the threatening nation the ability to carry out its threats with nuclear weapons? Or must they depend on negotiations from which they are excluded.

The international community refuses to address these general issues of great and immediate relevance. They refuse to apply the Rawlsian test veiled in ignorance of whether they will be the aggressor nation or the victim nation. They prefer instead to enact Bills of Attainder against only one specifically named country: the nation-state of the Jewish people.

I’m reminded of an infamous exchange between the great American jurist Learned Hand and Harvard’s bigoted former president A. Lawrence Lowell, who enacted anti-Jewish admission quota because, as he put it, “Jews cheat.” When Learned Hand wrote him, insisting that non-Jews cheat as well, Lowell wrote back: “You’re changing the subject.  We’re talking about the Jews now.”

Well you can’t just talk about Jews, or any other specific groups, when you apply the rule of law. Nor can you talk only about the nation-state of the Jewish people. You must talk about all groups, all nations, and all people when you enact or apply rules of law.

The same analysis is applicable to the BDS movement. As far as I’m aware, none of the advocates of BDS, nor any of the institution that have adopted it, have asked what general criteria should have to be met before BDS is directed against any country. The principle of the “worst first,” is never applied by BDSers. Instead they apply the President Lawrence approach: “We’re talking only about the Jews now.” If general principles were applied to the worst first no boycott movement would reach Israel until the very end of the list.

I suggest therefore the following approach to the BDS movement: whenever and wherever BDS is proposed, an effort ought to be made to apply BDS to the worst first. A document should be provided to the institution, listing the human rights violators in order of the seriousness of their violation and of the inability of its victims to achieve redress from institutions within the state, especially an independent judiciary and media. Topping this list would be nations such as China, Cuba, Iran, Russia, Turkey, Venezuela, Saudi Arabia, Egypt, Pakistan, Belarus, Syria, Lebanon, and Libya.  The list goes on and on, well before it would reach Israel. The idea of singling out Israel for BDS is as incompatible with the rule of law as is the focus of the international community on Israel’s alleged war crimes.

Those who support Israel should not be defending every Israeli action but merely demanding that Israel’s imperfections be assessed in a comparative context, as Learned Hand demanded that President Lawrence do of Harvard students, and as the Bill of Attainder clause and the prohibition against common law crimes demands in the context of the rule of law. Justice must not only be done, but it must be seen to be done and treating Israel differently from other similarly situationed nations undercuts both the rule of law and the quest for justice.

This article is based on a talk Professor Dershowitz gave to a legal conference in Israel sponsored by Shurat ha’din. 

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  • KENNETH C WILLIAMS

    BRAVO ALAN!!! 🙂

  • steven L

    Life is complicate and it is obvious that most people do not use the 100 millions neurons that are at their disposal in their cranium. This is of course a FAILURE of education and open mindedness.
    Excessive simplification and narrow mindedness complicates everything.
    Finally, without the complicity of the Western world, Jews and humanity would not be in this “predicament”.

  • JB

    I see no reason to disparage Mr. Dershowitz for this article, or for many of his other eloquent defences of Israel, even though he may be subject to criticism on a few other grounds.It is impossible to find people with whom we completely agree in general, and he has been in the public arena for a long time, enough to make a few blatant mistakes.None of these things contradict the truths he points out here, or the goodness of his heart for his people. He is still, among Jews, one of our most eloquent spokesmen, and he provides us with much fuel for thought, especially in this area of legal polemics, where the forces of darkness have assumed the guise of logical, caring, and pseudo-legalistic concern and condemnation of what they refuse to understand, or,at best, have been mis-educated to misunderstand. He provides an expert framework for intelligent defense of a righteous position which the world’s blind ideologists work overtime to create many pathways to err about. Mr.Obama’s veiled threats about his supposed difficulty in defending Israel against the ‘concerns’ of the world community, reflect perhaps the best of these ideologies, but are none-the-less a prosecution of them. Mr.Dershowitz as something of an insider to these sources, can, and has, used his expertise to provide a framework on the intellectual level to give understanding to counter the specious arguments. Perhaps it is correct to say that it is too late for such high level doctrinizing, but one hopes not, and we should be glad to have these points on record. They may serve us in the Neurenberg trials of the future,as yet hypothetical,and certainly avoidable, but still functionally conceivable.

    • JB

      I am not referring to trials of Israelis. Quite the opposite.

  • Firstly Professor Dershowitz makes a very valid point – he is to be congratulated for standing for Israel – however, sad to say, Jews have never been able to win against illogical hatred; for the bigots, like an addict, is driven by an emotion controlling their mind – in truth, antisemitism is no different to bullying – one person or group (unfortunately most Arabs) have low self-esteem (as studies show for the cause of bullying)

  • Jonah

    Dershowitz is one of the most astute legal minds in the world along with being and avid defender of Israel. I hold him in very high esteem, but his age is over. It is now the Obama age of lawlessness…his type eats the Dershowitzs of the world for breakfast every morning. Obama agrees on the surface with everything but his actions are what you must put under the microscope. He appears to weaken Isis, while he is arming Iran….he has a triage to work with in order to flank Israel on all sides…he lost Egypt which he is still enraged over. While the Deshowitzes of the world are arguing legal precepts Isis is cutting the heads off of Christians. Trying to view the world through legal precepts is similar to viewing the world through rose colored glasses. Israel will inevitably have to rely on the court of last resort…the might of their military. Attempting to apply legal precepts is just a diversion for the naive while Obama is at the wheel.

  • Julian Clovelley

    I have seen nothing that convinces me that Zionism is prepared to accept the rule of law unless it is in its favour – and that – by definition is not respecting the rule of law at all

    Israel has gone out of its way to avoid legal judgement and that I am afraid is the root cause of such movements as BDS (which I do not personally support)

    In law the writer is well aware you cannot both have your cake and eat it. If Israel wants to see the rule of law applied to its situation

    1. ratify the International Criminal Court and bring and defend matters before it
    2. get out of the West Bank and close the settlements, handing them over as an undamaged gift to the Palestinian people
    3. return the question of Jerusalem to the United nations with a time frame for when the matter should come up for proper negotiation and settlement – I would suggest fifty years of unbroken peace.
    4. remove the sea blockade of Gaza

    I would also suggest that in relation to Middle Eastern matters Israel uses the term Israeli rather than Jew – otherwise one might go down a tortuous path of legally defining a Jew – a task which, to be perfectly frank, I would anticipate to be in legal terms impossible.

    • SARA RIFKA

      SO MANY RIDE A HIGH HORSE OF DETAIL AND SELF PRAISE….IT REALLY DOES NOT MATTER WHICH WAY A JEW TURNS…RIGHT OR LEFT AND OR CENTRE MEANS NOTHING …EACH WAY WE ARE TOUCHED TO TURN IN ANOTHER DIRECTION.

      FUNNY…..WE NEED NOT BE TURNED ANYMORE…BUT TO TURN THOSE WHO TRY TO TOUCH US , HURT US, KILL US OR EVEN OUR SPIRIT…..INTO THE MULCH THEY DESERVE….

      WALK AWAY…..DON’T NEGOTIATE….AND, DON’T LISTEN TO THE WORDS OF ‘GENTILES, ARABS, MUSLIMS. GERMANS, BRITS, FRENCE, ETC ETC….AS THEY HAVE NO REASON TO WANT JEWS TO SURVIVE.

      AND,,,,,,I AM NOT ISRAELI….NEITHER ARE OTHERS IN THE COUNTRIES THAT ABSORBED US FROM THE TERROR OF HISTORY AND THE COUNTLESS ELIMINATION OF JEWS….NOT ISRAELI’S….IT DID NOT EXIST THEN….NOW IT DOES….FOR ALWAYS.

      SO TO ALL THE GENTILES WHO BELIEVE THEY KNOW AND UNDERSTAND THEIR TOKEN BEST FRIEND….I CAN ONLY LAUGH OUT LOUD…….AS EVEN JEWS , REFORM ESPECIALLY, AND THOSE WHO WERE BORN SO ALIENATED FROM EVEN THE REALITY OF A JEW….THAT IS AMERICA….AMERICANS…..KILLERS OF THE SOUL

      AS FOR DERSHOWITZ….HE HAS NOT BEEN VERBAL FOR SO LONG ABOUT WHO WE ARE THAT I EVEN THROUGH HIS BOOKS .

      FAME ALWAYS CRAWLS TO THE CENTRE…..WHO KNOWS PERHAPS HE WILL RETURN TO THE FOLD IN A MANNER NEITHER OF US CAN REACH……GOOD LUCK ..

    • Dov J. Shazeer

      Your comment in no way addresses the issue raised by Prof. Dershowitz in this article: the UN’s disregard for the rule of law. You’re off-topic.

      It appears that you’ve made it your life’s mission to delegitimize and smear the Jewish People; the tragic consequences of which the Jewish People are living with still today. So, against my best judgement I’ll respond to you; but only this once.

      The root cause of the BDS movement has nil to do with the rule of law, the gift of the Torah to civilization; rather the root cause is hatred for Jewish Peoplehood.
      Evidence for this is provided by Prof. Dershowitz in this article which you ignore; namely the flouting of the rule-of-law by the UN, by the Socialist entities which dominate the EU, and by Leftist/Liberal NGOs.

      It is immoral for the Jewish People to accept judgement which not only flouts the rule-of-law but represents an existential danger to its survival; never again will the Jewish People be coerced into accepting Nuremberg laws.

      A point-by-point response follows:

      1. The International Criminal Court is a criminal organization. No ethical person will support its war against the Jewish People.

      2. The so-called Palestinian People was invented in 1964 by the Soviets with the sole purpose of destroying Jewish sovereignty in its homeland. This purpose is in fact stated in the PLO charter. The Arabs living in the so-called West Bank, a name invented in 1949, ought to voluntarily migrate back from whence they came. Thus Judea and Samaria, the 3500 year old name of the region illegally occupied and destroyed by Arabs will revert to its rightful owners; the Jewish People.

      3. Jerusalem is the 3000 year old capital of the Jewish People. The UN, a criminal organization invented in 1945, dominated by and for the benefit of genociders and human rights abusers, will never change that by its criminal fiats.

      4. Israel does not blockade Gaza; and so, at best, you mislead. Rather Israel inspects goods entering Gaza. Hamas, which rules Gaza, repeats in its charter the command of the Prophet Muhammad to murder every Jew on earth.

      There is no country more moral than Israel, which sends into Gaza 550-600 trucks of supplies every week and did so even in the midst of the last war; even whilst Hamas terrorists were exiting underground tunnels attempting to murder Jewish babies.

      That you support the unrestricted arming of Hamas whose explicit aim is the genocide of the Jews reveals all that anyone needs to know about your ethical standards.

      The Jewish People don’t need your “suggestions” nor your “perfect frankness”; advice which would result in a repeat of the genocides of previous generations.

      I’ll give you an unsolicited suggestion: learn ethics! And Until you have acquired a smidgen of human decency, mind your own business.

    • Julian, you sound like you have a head on your shoulders, yet the points you make really miss the mark. Your proposal regarding the naval blockade takes the cake.

      Hamas devotes almost all of its energy and resources to arming combatants for the next war. Do you really think Israel should turn a blind eye, knowing that massive weapons shipments will slip in easily, and knowing that those weapons will be used against Israel’s citizens?

    • steven L

      Blissful ignorance and bias exposed.

  • David Goshen

    I see that several of your readers discount Deshowitz legal opinions because he supported Obama.With all due respect the legal arguments of Prof Deshowitz are not cancelled because he supported Obama whose policies could not have been fully known in advance.I think that President Bush has no small responsibility of what happened in Iraq.President Bush did not realise that by overthrowing Sadam Husein he was reintroducing the historical struggle of hundredsof years that the Sheites were waging for generations to give the Sheites the majority to severely suppress the minority headed for years by Sadam Husein.|This also strengthened Iran .Islam completely rejects democracy and the wars of the segments of Islam
    were thus put on a collision course which will be with us for a long time.There will be no peace in the world till the Arabs come to some peace amongst themselves.

  • David Goshen

    A very learned article but I would respectively suggest that Hamas had the means after causing the war to break out by sendeing thousands of rockets on to civilian Israeli targets from highly occupied Gaza to avoid vitrually all the civilian killed in Gaza by allowing its citizens to take shelter in the numerous tunnels under all the houses in Gaza
    easily acessable after the early warnings sent to all in Gaza by Israel.In addition there are large halls underground Gaza which could give safe cover to all citizens of Gaza .But Hanas as a desire to get as many civilian dead refused to protect its own citizens so that instead of some 600 civilians killed the deaths would most probably have been less than a dozen!Surely this is the major WAR CRIME OF THE WHOLE RESCENT GAZA WAR!!!Did the commission not hear of the huge air raid shelters which existed but were sinically NOT USED BY HAMAS.Is there no international law
    which requires governments to protect their citizens???
    Most probably Hamas leaders never heard of the bombings of Great Britain in WW2 when citizens were allowed to take refuge in the London Tubes?Of course those used as human sheilds by Hamas would not have been saved.Also Fatah supporters summarily executed as spies for Israel without trial by Hamas ,Every one should also know that the 2,200 odd claimed civilian deaths included over 700
    Hamas Fighters who were redressed in civilian clothers before being taken to the morgue at the hospital!
    It is no sweceret that the citizens of Gaza haveno human rights .This is borne out by clandestine interviews of citizens of Gaza who are not allowed to criticize their government for fear of death.In an even worse position ate tens of thousands of Fatah supporters who have been locked in Gaza since the bloody coup of 2007 when Hamas seized Gaza .They are constantly subjected to house arrest and should have been repatriated to thePA afterthe coup.

  • Wm. J. Levy

    Always remember that Dershowitz is the man who said he would defend Hitler because everyone deserves a defense.

    Are we really that crazy?

    This is a man who should be shunned instead of being elevated.

    We have enough real enemies and Dershowitz is one of them.

    • steven L

      Shamefully stupid and ignorant.

  • vida lavi

    Dear professor Dershowitz as much as I enjoying your point of view of Israeli and ADMIRING you, and I wish you became prime minister of Israel some day,but still I don’t understand how with this amazing knowledge of yours, you supported Obama,still I didn’t get it.

  • Angela Amor

    Well said sir. In other words the International community like the UN has a different law for Israel from the rest of the nations. Who gives who the right to make make an exception of one nation from the ambit of general law? Is this not playing god ? But even God Himself cannot be a bigot because even if He may claim such privilege for being a creator whose creatures cannot question His decision, He cannot be untrue to His nature which is Just, Good and True. People who condemn Israel without judging the facts and circumstance objectively are simply demi-gods of bigotry whose brains and virtues are small and detestably wormlike.

  • Three cheers for you.

    How glad I am that you choose to go into law

    rather than the Rabbinate. (I read your bio.)

    Ms Fay

    • SARA RIFKA

      I WOULD NOT VOUCH FOR ANYTHING OTHER THAN THE VERY RABBINATE THAT IS IN QUESTION….TO TRUST A JEW OF LEARNED QUALITY OF TORAH TO BEHAVE AS DERSHOWITZ HAS IN HIS LIFE AND CAREER IS BEYOND TOUCHING.

      WHY WOULD ANYONE ASK A PRIEST TO UNDERSTAND A CERTAIN QUESTION AND WHY WOULD DERSHOWITZ KNOW DIFFERENTLY….

      HE IS ABOUT AN AGING LAWYER, WHO HAPPENS TO BE JEWISH AND WANTS TO REMAIN IN FRONT OF THE AMERICAN PUBLIC…..IF HE DID NOTHING BEFORE THE ODD WORD NOW
      HAS NO PURCHASE PRICE…….OTHER THAN HINT AND CAPTURE MORE AWFUL REMARKS POINTED DIRECTLY AT ‘JEWS AND ISRAELI’S AND JEWS FROM ALL OVER THE WORLD…JEWS BORN FROM JEWISH MOTHERS AND NOT UNKOSHER CONVERSION.

      ITS SIMPLE REALLY…..IF YOU DON’T BEND A LAW FOR PERSONAL GAIN AND GROWTH AND OR MANIPULATION THE CLOCK WILL TICK PERFECTLY……

  • Dershowitz has no credibility. Twice he supported Obama who reveres Muhammad, a mass murderer of Jews. If you support someone who reveres a mass murderer of Jews, you have no credibility with real Jews aka non liberal Jews.

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