Anticipating Israeli response, Dershowitz blames atrocities in Goldstone Report on ‘rogue soldiers’

Israel/Palestine
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French members of the Gaza Freedom March, in Cairo last month, expressing their analysis of Gaza war

The Israeli response to the Goldstone report is due soon, and Adam predicted lately that it will blame some atrocities on "bad apples." I think he’s got it. For the defense is borne out by Alan Dershowitz’s draft response to the Goldstone report that he has circulated to colleagues, and that has now been widely shared on the internet. 

Below I quote the section in which Dershowitz concedes that there were some bad apples in the Israeli army– "rogue soldiers." Before I grant him a platform, three problems with Dershowitz’s analysis:

1) Dershowitz says that Goldstone accused Israel of deliberately targeting and killing "hundreds" of civilians. But Goldstone only makes this allegation in a few instances. And Dershowitz distorts Goldstone’s main statement about targeting civilians. Goldstone found that Israel had violated two humanitarian laws in war: it had not distinguished sufficiently between civilians and combatants, and it was disproportionate in its attacks on alleged combatants in a civilian setting. Thus, it destroyed several police stations, killing scores of innocent people, because it believed some cops were combatants. The underlying aim of the war, Goldstone concluded, was "a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population…" –evidently to make Gazans suffer for their support for Hamas, and get them to push for the release of Gilad Shalit, among other political purposes. Thus the attacks on flour mills and chicken farms, and horrific destruction of neighborhoods in which Israel believed combatants were operating. Elsewhere in his response, Dershowitz seems to concede Goldstone’s point when he admits that Israel targeted the "civilian power" that supports rocket strikes on Israel–which in Dersh’s interpretation seems to mean anyone who voted for Hamas.

2) Dershowitz mentions "disturbing narratives" from Gaza, with lawyerly vagueness–and never speaks about the atrocities detailed by the Breaking the Silence testimonies on which Goldstone depended. In those testimonies, Israeli soldiers say that they or their mates fired on civilians, even civilians holding white flags, because their commanders had drummed into them that combatants mingled with the civilian population, and if they had any doubt at all about whether someone was a civilian, they should shoot. This indiscriminate policy was policy, and it led to numerous atrocities. You can’t go blaming rogue soldiers now.

3) Dershowitz says that Israel suffers in global p.r. when it attacks civilians, so why would it do so? This is an ex-post-facto, post-Gaza line of reasoning. Israel got away with grossly disproportionate attacks on civilian infrastructure previously, in the Lebanon war, and obviously believed it could do so again. Israel miscalculated: Gaza was so horrific that it has destroyed Israel’s p.r. campaign around the world and forced it to highlight its relief efforts in Haiti to try and save its image. So the reasoning that Dershowitz ascribes to Israeli leaders may now be the case–we can hope–but it was not the case pre-Gaza.

Now take it away, Professor Dershowitz. An excerpt:

Goldstone does not even consider the most basic question of all: What would Israel gain by targeting civilians for death? It simply is not rational for Israel to target civilians. The Goldstone Report has brought worldwide condemnation upon Israel. Surely Israel would not want to bring such condemnation upon herself.
Every Israeli official understands that ever time a Palestinian civilian—especially a child or woman—is killed, Israel loses. As a western diplomat put it several years ago: Palestinian terrorists have “mastered” the “harsh arithmetic of pain.” “Palestinian [civilian] casualties play in their favor, and Israeli [civilian] casualties play in their favor.” Every time a Palestinian terrorist kills an Israeli civilian, Hamas wins. And every time an Israeli soldier kills a Palestinian civilian, Hamas wins. That is their strategy, and it is a win-win for terrorism and a lose-lose for democracy. Civilian deaths are inevitable in a conflict of this kind, but the accusation that they are part of a deliberate Israeli plan or policy defies reality and is wrong as a matter of fact. Reasonable people may disagree as to whether the deaths that resulted from Israel’s military objects were proportional or disproportional to risks its civilians feared from Hamas rockets. Reasonable people could also disagree about whether Israel’s policy of destroying Hamas buildings, tunnels and industry should be permissible under international law. But that is not the essence of what the report accuses Israel of deliberately planning—namely the deliberate targeting and killing of hundreds of innocent Palestinian women and children. On this most serious of charges, not only is there absolutely no evidence that points to this conclusion, what evidence there is points exactly the other way. Yet the report distorts the evidence, misquotes its sources, and turns the truth on its head, in order to arrive at a conclusion that at least some of its members had reached before even beginning to gather evidence for the report.
It is important to note that the report contains disturbing narratives accusing IDF soldiers of murdering Palestinian civilians. The Goldstone Report does not contain enough evidence to prove war crimes were committed, but parts of it do suggest investigations should be opened into the conduct of certain soldiers. If any soldiers committed war crimes, they should be prosecuted and punished in accordance with Israeli law. It bears no repeating that the commission of war crimes must be subjected to the strongest possible condemnation. If any soldier intentionally targeted Palestinian civilians, he must condemn him in the same manner that Hamas is condemned for targeting Israeli civilians.
Rogue soldiers are a fact of war. No matter how exacting military discipline, there will always be a soldier who sees war as an opportunity to release his own brutality. Recently, an American Private was convicted of murdering four innocent civilians while on duty in Iraq. This does not mean, however, that it is the policy of the American forces to murder civilians. Yet the Goldstone report takes the alleged instances of Israeli soldiers intentionally targeting civilians and claims it was the policy of Israel to intentionally target civilians. There is simply no evidence to support this illogical conclusion.

About Philip Weiss

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106 Responses

  1. Richard Witty
    January 19, 2010, 1:07 pm

    “Yet the Goldstone report takes the alleged instances of Israeli soldiers intentionally targeting civilians and claims it was the policy of Israel to intentionally target civilians. There is simply no evidence to support this illogical conclusion.”

    Dershowitz claims that the incidents of war crimes were exceptions. You imply that they were norms, strategic.

    If a rogue junior officer conveyed to on the ground soldiers innaccurately, or rules of engagement were misinterpreted, that is certainly a neglect in IDF professionalism, but it is very different from an intentional strategy TO humiliate and destroy civilian life.

    There are actions taken during war, in which civilian property and infrastructure are logistical obstacles to subsequent military activities, but only functional obstacles, not intended collective punishment.

    I think Dershowitz does accurately convey that the core message of difference is on intent. That is what Phil is referring to, that the IDF policy was to intentionally and fundamentally (rather than collaterally) terrorize the civilian population.

    I’ve read that the damage in Gaza was extensive, very extensive, but that it was also in limited geographic areas, not random, not general. I don’t know if it is accurate to say that the limited geographic areas were strategic or intentionally terrorizing.

    Are you confident enough on that conclusion Phil? How would you characterize the intent of the IDF as a whole, and in parts, from the results of your research?

    Negligent comprised of incidents of war crimes, or one giant war crime by intention and implementation. (And I don’t mean figuratively.)

    • Donald
      January 19, 2010, 1:31 pm

      There are some new euphemisms here, new ways to describe war crimes in antiseptic Orwellian prose–Wittyisms, in other words.

      For anyone interested in substance, it seems to me that Halbertal’s students answered most of this BS already–

      link

      • Donald
        January 19, 2010, 1:51 pm

        Jerome Slater also makes it clear that Israel’s cruelty in Gaza was policy-driven, not the fault of “bad apples” (a fruit that seems to have become very popular ever since Abu Ghraib made them popular eating for atrocity apologists.)

        Slater part 2

      • Richard Witty
        January 19, 2010, 2:36 pm

        Interesting comments by Slater.

        On the second category of law, proportion, he sites the disproportionate casualties as evidence of disproportionate force. But, results after the fact are NOT an evidence of the intent to use disproportionate force in the terms of international law.

        In THIS case, the presumption on the ground was that there would be similar Hamas and other factional active live resistance, as occurred in Lebanon. From that reasonable presumption, it can be argued that the use of force was disproportionate still, but that would have to compare apples to apples (actually applied force vs restrained standard of force given the expected resistance).

        And, even that flies in the face of contemporary military logic which states that a single undeniable intense force often (definitely not always) results in less overall casualties during a war than gradual extended use of force.

        And, particularly for civilian casualties.

        Apples to apples.

      • David Samel
        January 19, 2010, 2:37 pm

        Slater’s essay was excellent, and I added my own two cents in the comments. A truly exhaustive historical analysis of Israel’s record of targeting civilians would be book-length. (Actually, David Hirst’s book The Gun and the Olive Branch is the most encyclopedic account of such violence I’ve seen.) To be sure, there have been many, many incidents of Palestinians and other Arabs indiscriminately targeting Israeli civilians. However, there are at least three differences. First, the death toll is overwhelmingly skewed toward victims of Israeli military action. Second, as a general rule, Israel presented excuses, rationales and denials that complicate the narrative and require refutation; on the other hand, the Palestinian groups have been less concerned with public opinion and have simply acknowledged their intentions and boasted of their achievements. (These two reasons account for the Goldstone report’s emphasis on discussing Israeli crimes over Palestinian ones.) Finally, Israeli actions have been committed for the most part in pursuit of domination by one ethnic group over another, while Palestinians have been mostly acting in resistance to such domination. I know that some defend Palestinian violence against Israeli civilians for this reason, but I cannot join them, finding it absolutely abhorrent. The fact that such violence pales in comparison to Israeli violence makes those who complain only of “Arab terrorism” hypocrites, but does nothing to make such terrorism more palatable. It is a moral line which should never be crossed. In addition, it is also almost always counterproductive and just plain stupid.

      • Donald
        January 19, 2010, 3:09 pm

        Richard, your argument is abstract and vague and starts off at the wrong point. In some hypothetical circumstance one could imagine Israel having the right to launch an invasion of Gaza–let’s imagine, for instance, there was really good evidence some terrorists had some extremely powerful rockets capable of killing, say, 1000 Israeli civilians and were prepared to use them within a matter of days and Israel didn’t know exactly where the rockets were. Then we could have a discussion about how much force they should have used, how much collateral damage was acceptable, could it have been avoided, and your post would have some point. But that wasn’t the case. Few if any of these deaths were needed to prevent the deaths of large numbers of Israeli civilians.

        And much of Slater’s post is given to listing comments by Israelis that show that inflicting harm on civilians is part of their policy, not just in the Gaza War, but before and after. (Historically, as Slater and David Samel point out, they’ve been doing this for a very long time.) That’s obvious, anyway, from the results. And you can sometimes judge intentions from results, certainly in this case.

      • Donald
        January 19, 2010, 3:20 pm

        Superb post, David. Translation–I agreed with every word. In particular, I agree that Arab terrorist attacks on Israeli civilians are never justified. They are immoral. Additionally, as you say, they don’t even work on their own terms. All they do is provide the partisans on the other side with talking points justifying their own much greater atrocities.

        Cue Gandhi quote about eye for an eye making whole world blind.

      • Tuyzentfloot
        January 19, 2010, 3:25 pm

        Slater makes clear that Goldstone is clear about that.

        This prompts me to coin the description ‘policy of persecution’. Note the alliteration.

      • Tuyzentfloot
        January 19, 2010, 3:27 pm

        Woopsiedaisies . i was replying to Jerome Slater also makes it clear that Israel’s cruelty in Gaza was policy-driven, not the fault of “bad apples”

      • Richard Witty
        January 19, 2010, 5:51 pm

        The stakes got raised by both sides. War doesn’t happen ever by your description of “appropriate” scale. There is definitely some assessment in all cases, as there was in Israel’s. It did NOT kill every living thing.

        But, the scale that military apply are based on what they believe will achieve their authorized military end. If the end is suspect, that points to higher levels of policy.

        If the assessment of whether the status was war rather than skirmish is the question, then I would say more likely war.

        The failure to address what status of hostility Hamas raised its stakes to, is an example of dissent enabling of Hamas.

        Both deserve your scrutiny, seriously. Warring is a communication, not passive on either side.

      • zamaaz
        January 19, 2010, 8:21 pm

        I totally agree on the view of Professor Dershowitz. His statements refer to the context of a conduct of war appropriate during Gaza conflict. Fighting an enemy which hits your people in a non combat civilian zone, worse randomly, surely would make any country decide to hit back hard without considering the ‘equation of damage proportion’. What is at stake here among the Israelis is the lives of their civilian populace they are responsible to protect. The safety of Gazan civilians are likewise the responsibility of Hamas to protect. The sad final balance of this brutal encounter falls under the tragic ‘circumstances of war’.

      • zamaaz
        January 19, 2010, 8:35 pm

        I have been monitoring the Gaza conflict since its week 1 over Aljazeera TV. Livni has been appealing over the TV for Hamas to stop the rocket attacks (a also saw the rocket hits at Sderot). They gave virtually an ultimatum many times, then later, finally hell broke loose! With such a heavily armed highly angry and densely populated community and conflict character or situation one should really ‘softened the target area’ before advancing to minimize casualty or mortality among the government soldiers. I have not noticed much of a uniformed Hamas casualty, primarily civilians….Does it appears Hamas were among civilians too? But one thing I asked was; why did Hamas choose to establish the battlefront inside a highly populated civilian area?

      • zamaaz
        January 19, 2010, 8:43 pm

        Who among us would take effort to measure the strength of force applied at the heat of battle where all inside your mind is never get bloodied, and survive this war with self intact?

        I think the law of Israel should change, they should put a penal provision for those trouble makers questioning this conduct of war, to be witnesses at the battlefront! They should be released at the middle of battlefield as deserters…

      • zamaaz
        January 19, 2010, 9:02 pm

        Let us be realistic that these conventions and ‘ethics’ (is this an appropriate word?) in war is only applicable at the war rooms, or at the behind lines environment. But putting yourself on the shoes of a soldier right at the middle of the shooting, fumes of gunpowder, heat of flames, stuccato or explosive sounds of terror, Syrene (that mystic music that makes you an idiot!) twang of recocheting of bullets, and the smell of blood and sweat of your buddies, knowing not when you will got hit and fall down dead…you are even in a situation many times worst than a pot session. You become senseless, and full of ‘suppressed rage’, when having no choice of running or cowering all you think is kill, kill, and kill…I donot know where will we find intellect here…

      • kapok
        January 19, 2010, 10:19 pm

        You forgot to mention the Palestinians pay the price for their “crimes”. The Israelis enjoy complete impunity. Any of these “rogues” ever have their own homes bulldozed?

      • Citizen
        January 20, 2010, 7:35 am

        If prisoners would rebel against how they are treated by the PTB, they have no choice but to do it within the prison that confines them.

    • James Bradley
      January 19, 2010, 1:35 pm

      I think Dershowitz does accurately convey that the core message of difference is on intent. That is what Phil is referring to, that the IDF policy was to intentionally and fundamentally (rather than collaterally) terrorize the civilian population.

      First of all, Israel has been rather open about attacking “civilian infrastructure” in the hopes of turning civilian populations against their rulers. Then again all you have to do is look at that the destruction Israel unleashed on the Gaza strip. Virtually everything destroyed was civilian.

      Secondly, Dershowitz ridiculous defense would never hold up in a court of law. Imagine if I killed someone but said my intent was only to gravely wound him. I’m sorry but it would never hold up. Israel is guilty of crimes against humanity and must be held accountable for those crimes.

      • Donald
        January 19, 2010, 1:47 pm

        Every day, every post, every section of every thread is a new day for Richard. What bliss it must be to wake up every two minutes, innocent as a newborn babe, waiting to hear any evidence that Israel as a nation might somewhere have done something a little bit wrong and not expecting any to show up.

        Watch it though, or he’ll say you’re an apologist for Hamas war crimes. No ambiguity there.

      • Richard Witty
        January 19, 2010, 5:57 pm

        In contrast to you, I don’t know to what extent Israel did wrong. I see exageration in your comments, and dismissal from Israel.

        I’m nearly certain the that accurate assessment is somewhere in the middle, likely at some incidents, mostly a result of misestimation of Hamas’ intent to fight harshly on the ground (therefore militarily requiring larger logistical clearing/preparation). There would have been no way to anticipate that one way or another. Hamas was daily broadcasting how they would stick it to Israel when they entered on the ground.

        The Gazan civilians got the brunt of that bluster. So much for the transition from guerilla vanguard to responsible governance. Its so refreshing to be 19, militant, with no responsibilities for children, wife, constituents.

        They’ve changed now, clearly bitter, who knows how much permanent hatred?

      • Avi
        January 19, 2010, 7:03 pm

        The track record is there for anyone to read:

        Starting with the massacres of 1948, followed by deliberate and premeditated massacre of Egyptian POWs in 1967, following by a standing order by the army chief to shoot to kill any Palestinian who bends down to the ground to pick up anything during a demonstration to the flattening of Jenin, southern Lebanon and Gaza.

        Put together, all these crimes paint a gruesome image of a willfully criminal military and leadership.

        If Dershowitz the Terrible wants to explain away each crime as yet another “rogue soldiers” incident, then he’s mentally unstable.

      • Shingo
        January 20, 2010, 6:17 am

        Dershowitz is indeed mentally unstable.

        During the Lebanon war, he was justifying the attacks on civilians, though the angle he used then, was that anyone who lived in Southern Lebanon was eitehr Hezbollah or a sympathizer and if anyone else got hit, well, shit happens.

      • Citizen
        January 20, 2010, 7:40 am

        Hey Richard, remember “the Resistance” in Vichy France?

      • Mooser
        January 20, 2010, 12:33 pm

        He was too busy singing folk songs for the German High Command. You know, “charms to soothe the savage breast” and all that. Besides, all the partisans did was make it hard for guys like Witty, who just wanted to “get along”.

      • potsherd
        January 19, 2010, 2:34 pm

        Given that Gaza only had civilian targets, it is hardly surprising that they were targeted.

      • Richard Witty
        January 19, 2010, 2:39 pm

        Monday morning quarterbacking.

        Crimes are specific, not generalizations. The level of specifics might be in policy, or it might be in rogues.

        Phil can’t cop out by saying “it was really bad”, it must have been intentional.

        The causal relationship is necessary. Otherwise, it is tragic (as if that weren’t bad enough).

      • Donald
        January 19, 2010, 3:17 pm

        “Monday morning quarterbacking”

        Richard, you really have to get out of this habit of using tired sports metaphors to describe the murder of hundreds of innocent civilians. It makes you look like an asshole.

        As for crimes, to prosecute individual Israelis we’d need detailed evidence of who ordered what–an individual should not go to prison without having the case proved against him (or her) beyond a reasonable doubt, but the same is true of Palestinian terror attacks and yet, somehow, you manage to conclude that Hamas is guilty of war crimes and terrorism. You manage to do so because in the case of Hamas you don’t have a sacred ideology clogging your synapses and making you incapable of rational thought (or even very much empathy). You see a crime and you call it a crime, without having some neural circuit triggered that starts demanding evidence suitable to convict an individual person in a court of law. In the post I linked to above Slater includes numerous comments by Israelis and much historical precedent showing that Israel targets civilians.

      • Richard Witty
        January 19, 2010, 6:02 pm

        The difference between Hamas and IDF is that of discipline of targets.

        In the case of innaccurate missiles fired ONLY at civilians, there is not a wide range of interpretations.

        In the case of harms to civilians mostly in the path of professed Hamas armed militants, the description of most of that as genuinely collateral makes a great deal of sense. Again, during the escalation, Hamas publicly warned Israel that if they invaded by ground, that soldiers would “pay”. Israel rationally expected harsh resistance, but didn’t get it. Their strategy was largely rational from that expectation.

        It supports the Dershowitz description of the most gruesome of abuses as rogue.

      • Avi
        January 19, 2010, 7:11 pm

        Even when you’re given specifics you find a different excuse to dismiss.

        There simply is no point in wasting time addressing the absurdities that you peddle here. Perhaps someone with the patience of a saint could take you up on that offer. I, on the other hand, find you irredeemably transparently shallow and given your religious dogma, it’s no wonder evidence has no effect on your perception.

        The mental gymnastics you perform to keep Israel’s crimes locked in a closet under the guise of pseudo-academic arguments must be exhausting.

      • Chaos4700
        January 19, 2010, 7:18 pm

        In the case of innaccurate missiles fired ONLY at civilians, there is not a wide range of interpretations.

        So let me get this straight: the less accurate a rocket is, the more certain you are that it is aimed at civilians. Whereas a soldier can come up to a family with its hands in the air, shoot people execution style and you think that it’s pretty ambiguous that the soldier was targetting civilians.

        What is this, exactly, some half-assed attempt to apply Heisenberg uncertainty? Schroedinger is both spinning in his grave, and not (since he can’t be observed in his box).

        This is why accountants shouldn’t get within a parsec of physics. Fake finance math doesn’t really do you much good in the face of reality.

      • potsherd
        January 19, 2010, 7:30 pm

        There he is, repeating the same lies.

      • Aref
        January 19, 2010, 8:49 pm


        Chaos4700 this is the best explanation of the Heisenberg uncertainty principle I ever heard. I gotta remember it.
        Yes Mr. Witty is light years ahead of everyone his logic is just unfathomable.

      • Donald
        January 19, 2010, 9:38 pm

        BTW, Witty, did you ever read that Benny Morris link I provided? Twice now. Not counting the times others have linked it?

        Witty, you ignore every scrap of evidence uncovered by Goldstone, AI, and HRW and every argument made by them along with those made by Slater and Halbertal’s students if it doesn’t fit your case. It’s intellectually dishonest, to put it mildly. In your case it seems to be a psychological defense mechanism or that’s the charitable view–the less charitable view is that you are a conscious outright liar. Perhaps it’s a bit of both–surely you have moments when you recognize what you’re doing. It might be worthwhile for someone as an academic exercise to put together a few paragraphs refuting your bullshit, but the people I mentioned already did that and you don’t pay the slightest bit of attention. Doing it again would just give you another golden opportunity to ignore every point. I’m more interested in your psychology. How is it that you can read Slater’s piece and still keep talking as though there’s not strong evidence Israel targeted civilians? Are you aware of the evidence you’re ignoring? Do you know what I’m talking about? Can you pick out the paragraphs that indicate Israeli officials intended to punish Gazan civilians? Or does your mind freeze over? What’s happening now? Are you tuning it all out, thinking to yourself “He’s not humanizing the other like I Richard Witty do.” Or are you thinking to yourself again (You just did it), “It’s all Hamas’s fault and the more people talk about Israeli war crimes, the more I know that it’s all Hamas’s fault. And they more they talk about Israel, the more I’m sure they’re really excusing Hamas war crimes. ”

        There are serious liberal Zionists out there, people with integrity on human rights issues–you’re not one of them. I don’t know what your problem is. Perhaps we should try and figure it out.

      • Shingo
        January 20, 2010, 6:19 am

        “‘It supports the Dershowitz description of the most gruesome of abuses as rogue. “‘

        I do love how Israel ignored the testimony of the breaking the silence group, yet when faced with irreutable evidence of war crimes, they go looking for sacrificial lambs.

      • Citizen
        January 20, 2010, 7:47 am

        Prisoners must make do with the hand-made weapons available to them inside the prison. Those weapons are not subject to calibration as are those of the well-equipped security guards, empowered by the state government.

      • sammy
        January 20, 2010, 8:30 am

        “Monday morning quarterbacking”

        You mean, like the Nuremberg trials?

      • Mooser
        January 20, 2010, 12:34 pm

        “The mental gymnastics you perform to keep Israel’s crimes locked in a closet under the guise of pseudo-academic arguments must be exhausting.”

        Oh, I don’t know about that, Avi. It never seems to demand more than Richard’s got to give.

    • Chaos4700
      January 19, 2010, 7:13 pm

      Dershowitz claims that the incidents of war crimes were exceptions. You imply that they were norms, strategic.

      “Liberal” Witty and the Abu Gharib defense, huh.

    • annie
      January 19, 2010, 8:49 pm

      witty, why do you think israel chose not to evacuate civilians as it was allegedly done in fallujah before the massacre?

      it is very different from an intentional strategy TO humiliate and destroy civilian life.

      have you read the Dahiya Doctrine? Dahiya doctrine is a proposed and approved defense strategy of Israel under which “Israel finally realizes that Arabs should be accountable for their leaders’ acts…IDF Northern Command Chief Gadi Eisenkot expressed the doctrine’s premise as follows: “What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on. [...] We will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases. [...] This is not a recommendation. This is a plan. And it has been approved

      if the civilian villages are regarded as military bases, wouldn’t your theory indicate israel was not targeting what their doctrine considered the military bases? this makes no sense.

      • Richard Witty
        January 19, 2010, 9:19 pm

        A reprehensible strategy, in response to a reprehensible strategy of Hamas.

        When is a rational approach going to be adopted that results in reconciliation?

        The two dance together.

      • zamaaz
        January 19, 2010, 9:39 pm

        Richard, in a sense, the Israeli ‘Dahiya Doctrine’ against the Gazan civilians could be understood as this; ‘ because you have made yourself a pawn by the Hamas, and never made any action to get relieved from this situation you yourselves shall equally suffer the armed violence…. ‘ Actually I donot question it… for it appears at this moment for them a ‘sound’ military decision…and an issue of national defense at that. But what I saw here is the sorrowful circumstances among the Gazan civilians – they have no other options but suffer the tragedies of war! They cannot effectively resist the compromising action of armed Hamas, nor defend themselves against the aggressive actions of Israelis…The civilians were ‘put in a bind’ just like a living bird in an oven…
        Who will protect on a global level, the civilians from this kind of plight?
        The some UN agencis has been taking sides on this conflict apparently already… and because of that the UN will definitely become irrelevant…
        As this situation is yet to be debated at the UN, while there is no definite protection the same crisis of civilians will repeat and repeat again…
        Who will protect on a global level, the civilians from this kind of plight?
        I do not know either….

      • Donald
        January 19, 2010, 9:51 pm

        “Who will protect on a global level, the civilians from this kind of plight?”

        Well, not you, since you don’t question what Israel did. Perhaps people should bomb Israel in response and you can write another semi-coherent piece of drivel expressing your approval and sorrow simultaneously.

      • Donald
        January 19, 2010, 9:53 pm

        “A reprehensible strategy, in response to a reprehensible strategy of Hamas.”

        Which in turn was a response to Israel’s war crimes, Israel’s oppression, Israel’s apartheid, and Israel’s practice of ethnic cleansing.

        If you want to play the excuse game, that is. Somehow you always do, when the subject is Israel’s crimes. In fact, each side separately and independently chooses to do evil. Israeli crimes don’t justify Hamas crimes, and Hamas crimes don’t justify Israeli crimes.

        Waste of time telling you that, though, hypocrite that you are.

      • Richard Witty
        January 20, 2010, 7:17 am

        And Israel’s “crimes” were responses to earlier terror, ad infinatum.

        The remedy is acceptance, not agitation.

        Again, the metaphor of a pendulum.

        If the reality is a cycle of violence, then the BEST that can be accomplished is to moderate the swings. To my mind that requires strategy to improve the lives of Palestinians, but not through militancy (which harms them currently and over time).

      • Shingo
        January 20, 2010, 7:19 am

        “‘And Israel’s “crimes” were responses to earlier terror, ad infinatum.”‘

        Yes, Israel always responds. Never the protagonist right Witty?

      • Richard Witty
        January 20, 2010, 7:40 am

        Its a cycle, one idiocy stimulating another.

        A dysfunctional marriage, rather than a therapy.

      • Citizen
        January 20, 2010, 7:54 am

        Endless US UNSC vetos and US blank checks to Israel keep the living bird in the oven.

      • Citizen
        January 20, 2010, 7:59 am

        Israel needs a US intervention; let’s keep in mind who has the power in this “dispute.” If you wonder who, take a look at the last Gaza turkey shoot.

      • sammy
        January 20, 2010, 8:33 am

        “The two dance together. ”

        Uh, of course, if a Brooklyn Jew breaks into a Palestinian home because he hears his sky daddy talking, thats action and reaction. The Brooklynite had the option to stay home, the Palestinian has no option but to defend himself.

      • sammy
        January 20, 2010, 8:43 am

        That should read:

        “if a Brooklyn Jew breaks into a Palestinian home because he hears his sky daddy talking and gets shot by the resident homeowner, thats action and reaction”

      • annie
        January 20, 2010, 11:13 am

        The remedy is acceptance

        i notice you framing, always the response by israel. however you never really addressed my question before.

        Crimes are specific, not generalizations. The level of specifics might be in policy, or it might be in rogues.

        Phil can’t cop out by saying “it was really bad”, it must have been intentional.

        you admit the Dahiya Doctrine is ‘A reprehensible strategy’ but you hold onto this excuse is may have not been intentional or policy? it is written right there the civilian neighborhood will be treated as military bases. of course legal minds and think tanks were all in place to make sure the apologists voices were heard going in, we have the minions (yourself included) excusing war crimes. as if ‘a response’ in any way justifies and intentional strategy of targeting civilians. why the harping on ‘response’, obviously the same could be said of hamas, they were responding to. this chicken and egg thing doesn’t wash away israel’s policy. they could have evacuated civilians, they did nothing of the sort, invaded w/bulldozers w/the intent to demolish neighborhoods.

        the crime is specific, the causal relationship is established clearly.

    • Shingo
      January 20, 2010, 4:15 am

      “‘Dershowitz claims that the incidents of war crimes were exceptions. You imply that they were norms, strategic.”‘

      So do many Israelis.

      “‘The Israeli army has always struck civilian populations, purposely and consciously. The army has never distinguished civilian from military targets, but has purposely attacked civilian targets.”‘
      Ze’ev Shiff (Israeli journalist and military correspondent for Ha’aretz. )

      “‘Since 1948, we have been fighting against a population that lives in towns and villages.”‘
      Mordecai Gur(Israeli politician and the 10th Chief of Staff of the IDF)

      “‘There was a rational prospect, ultimately fulfilled, that affected populations would exert pressure for the cessation of hostilities, satisfying Israel’s goals.”‘
      Abba Eben (Israeli diplomat and politician)

      And last but not least, there is Zionist shill, Tom Friedman, who made the case that tagretting civilians was a successful stratergy.

  2. Gaius Baltar
    January 19, 2010, 1:08 pm

    What does Israel have to lose from committing war crimes? NOTHING. Thanks to the likes of Dershowitz and the rest of The Israel Lobby, Israel need only worry that the US will one day stop letting Israel lead it around like a pack animal leashed with ring through its nose. Until such time, world opinion is completely irrelevant to Israel.

    This reality clearly shows that Israel can and will continue to thumb its nose to the world as long as its Lobby controls US policy towards Israel. A blank check from the world’s only superpower means you don’t have care about what anyone else thinks.

    • Elliot
      January 19, 2010, 1:12 pm

      Every Israeli official understands that ever time a Palestinian civilian—especially a child or woman—is killed, Israel loses. As a western diplomat put it several years ago: Palestinian terrorists have “mastered” the “harsh arithmetic of pain.” “Palestinian [civilian] casualties play in their favor, and Israeli [civilian] casualties play in their favor.” Every time a Palestinian terrorist kills an Israeli civilian, Hamas wins. And every time an Israeli soldier kills a Palestinian civilian, Hamas wins. That is their strategy, and it is a win-win for terrorism and a lose-lose for democracy.

      Substitute “Israel” for “Hamas” and “Israel wins” for “Israel loses” and you have the Israeli strategy.

  3. MHughes976
    January 19, 2010, 1:37 pm

    ‘Bad apples’ is deeply British rhetoric. How bad habits spread.

    • Shmuel
      January 19, 2010, 2:32 pm

      The Hebrew expression is “weeds”, but the principle is the same.

      • potsherd
        January 19, 2010, 2:41 pm

        If there are weeds in the IDF, it is because it has cultivated them, watered and fertilized them, with military rabbis that incide them to murder, “to get rid of the gentiles who disturb us from conquering the holy land.”

  4. Mooser
    January 19, 2010, 1:41 pm

    Bad apples and curate’s eggs.

  5. marc b.
    January 19, 2010, 2:18 pm

    Pathetic. Israeli conduct in Cast Lead Gaza was unexceptional even in recent history.

    1.Israel deliberately targeted civilian infrastructure outside of the control of Hizbollah in the summer of 2006. A reasonable assumption could be drawn that this conduct constituted collective punishment, and was a means of keeping a potential economic competitor in the region in ruins.
    2.The IDF admitted its use of ‘human shields’ (a war crime) years before Cast Lead, but argued that such use was humaine as the practice ultimately saved lives. The IDF continued the use of human shields even after the Israeli high court ruled that the practice was illegal under Israeli law.
    3. Israeli soldiers or their agents have long shot Palestinian civilians when they posed no imminent threat to anyone. Children scavaging for scrap metal or throwing rocks at armored vehicles, for example, .

  6. AreaMan
    January 19, 2010, 2:40 pm

    “…if they had any doubt at all about whether someone was a civilian, they should shoot

    The alternative is for the soldier to expose himself to risk of death. The result of this or any war is, of course, an atrocity. But the policy of shooting on doubt is not, so far as I can see, against any law or treaty. War is violent, hell, and unfair. But that doesn’t make every death illegal. And shooting on doubt is clearly not an attempt to kill civilians.

    If Israel had wanted to kill Gazan civilians, it could surely have killed hundreds of thousands.

    A policy to protect your own soldiers in battle is not at all the same as a policy of targeting civilians. Every officer in almost every war knows that some civilian deaths may occur. This does not mean that any or all of the civilian deaths violate any laws of war.

    Also, it’s not at all clear how treaties such as the Geneva or Hague conventions would apply to Gaza, led by Hamas, which not only has not signed any treaty, but has repeatedly declared that it will allow no restrictions on it’s combat, from any law or authority at all, except for it’s own interpretation of Islam.

    Law cannot apply to just one side. And I’m sure judge Goldstone would agree

    • potsherd
      January 19, 2010, 2:50 pm

      The Geneva conventions are rather specific on the rights of irregular combatants resisting a military occupation. In short, the burden of proof always falls on the military occupation. And there isn’t a clause, although Israel would like to add one, that says, “If you brand your opponents as ‘terrorists’ there is nothing you can’t do.”

      The fact is that Israel is a decadent society no longer willing to pay the price in its own lives for carrying out its military missions. Israel has embraced a culture of impunity. It believes it has the unlimited right to kill others and never to be killed in return.

    • syvanen
      January 19, 2010, 5:55 pm

      AM writes: If Israel had wanted to kill Gazan civilians, it could surely have killed hundreds of thousands.

      This is one of the better defenses of Israeli actions in Gaza that I have seen. It is steeped in truth. In fact, does any one doubt that if Israel had wanted to kill 1.5 million Gazans they surely have done so. This makes her action at stopping at only .1% of that number even more humanitarian. She has earned her reputation as having the most moral army in the world.

      • David Samel
        January 19, 2010, 6:05 pm

        Absolutely true. Israel practices extraordinary restraint every hour these people live. Actually, Dersh himself has raised this issue. Whereas Goldstone accused Israel of intentionally targeting civilians, Dersh has defended Israel against the charge that it has maximized civilian casualties. Subtle but devious change. Of course, he hasn’t made the 1.5 million argument, but the “maximum” argument is a much easier accusation to defend against. In a sense, Israel calculated the maximum destruction it could wreak without incurring consequences, and with Gaza, it apparently miscalculated.

    • Colin Murray
      January 19, 2010, 9:53 pm

      If Israel had wanted to kill Gazan civilians, it could surely have killed hundreds of thousands.

      Your statement would have been accurate if you had said “If Israel had wanted to exterminate Gazan civilians, it could surely have killed hundreds of thousands. Israel most certainly targeted civilians, but the objective was to terrorize, not to exterminate. They are not fools enough to think they could get away with that, but they have gotten away with terrorism so many times in the past they were quite surprised when this time their hasbara ops failed to contain the public relations damage. It will be even worse next time, and given Israelis racist self-righteousness and adamant unwillingness to cease their campaign of occupation, ethnic cleansing, and colonization, I don’t have any doubt that there will be a next time, and the delegitimization of the Israeli state will continue apace.

    • sammy
      January 20, 2010, 8:35 am

      “A policy to protect your own soldiers in battle is not at all the same as a policy of targeting civilians.”

      Soldiers sign up to kill, civilians don’t. If you bomb homes, hospitals, schools and police stations to “protect soldiers” who wear tee shirts that proclaim, One shot, Two kills [i.e. even unborn children are justified targets], then its a genocide.

  7. marc b.
    January 19, 2010, 3:05 pm

    War is violent, hell, and unfair.

    I don’t meant to insult you, but you’re not related to Witty are you? The style seems oddly familiar.

  8. Oscar
    January 19, 2010, 3:33 pm

    My problem with The Dersh is that he truly believes he is 40 IQ points higher than the rest of the world and that his pretzel logic will displace truth.

    Yet the Goldstone report takes the alleged instances of Israeli soldiers intentionally targeting civilians and claims it was the policy of Israel to intentionally target civilians. There is simply no evidence to support this illogical conclusion.

    Uh, hey, everyone — ignore that elephant in the corner of the room. It’s called The Dahiya Doctrine.

    Israeli Leader, Col. (Ret.) Gabriel Siboni, also weeks before the Operation Cast Lead in Gaza, had this to say about Israel’s military plans:

    “With an outbreak of hostilities, the IDF will need to act immediately, decisively,and with force that is disproportionate to the enemy’s actions and the threat it poses. Such a response aims at inflicting damage and meting out punishment to an extent that will demand long and expensive reconstruction processes. The strike must be carried out as quickly as possible, and must prioritize damaging assets over seeking out each and every launcher. Punishment must be aimed at decision makers and the power elite… In Lebanon, attacks should both aim at Hizbollah’s military capabilities and should target economic interests and the centres of civilian power that support the organization. Moreover, the closer the relationship between Hezbollah and the Lebanese Government, the more the elements of the Lebanese State infrastructure should be targeted. Such a response will create a lasting memory among … Lebanese decision makers, thereby increasing Israeli deterrence and reducing the likelihood of hostilities against Israel for an extended period. At the same time, it will force Syria, Hizbollah, and Lebanon to commit to lengthy and resource-intensive reconstruction programmes…

    “This approach is applicable to the Gaza Strip as well. There, the IDF will be required to strike hard at Hamas and to refrain from the cat and mouse games of searching for Qassam rocket launchers. The IDF should not be expected to stop the rocket and missile fire against the Israeli home front through attacks on the launchers themselves, but by means of imposing a ceasefire on the enemy.”

    Source: link to alterpolitics.com

    Your witness, Professor Dershowitz.

    • David Samel
      January 19, 2010, 3:52 pm

      The Dahiya doctrine also was articulated by active Israeli General Gadi Eisenkot. The doctrine gets its name from the area in Beirut that Israel had flattened in the 2006 “war.” “What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on. . . We will apply disproportionate force on it (village) and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases,” Eisenkot told the Yedioth Ahronoth newspaper. He added: “This is not a recommendation. This is a plan. And it has been approved.” Eisenkot added: “In practical terms, the Palestinians in Gaza are all Khaled Mashaal, the Lebanese are all Nasrallah, and the Iranians are all Ahmadinejad.” Since Mashaal is a supreme terrorist, and the Palestinians are all Mashaal, all Palestinians are terrorists as well, and subject to capital punishment.

      • potsherd
        January 19, 2010, 4:00 pm

        I think Eisenkot would be well advised not to leave Israeli jurisdiction.

        “Anything you say can be used against you in a court of law.”

  9. Citizen
    January 19, 2010, 3:58 pm

    Gee, remember when?
    link to johnsack.com

  10. marc b.
    January 19, 2010, 4:05 pm

    It has been mentioned many times before, but it bears repeating: Dershowitz is, first and foremost, a legal advocate. And his argumentation, particularly when it comes to his client Israel, is based on the adversarial model of litigation. A side is chosen, and all ‘logic’ flows from his advocacy for that client. Objectivity is important only so far as it permits him to anticipate an antagonist’s argument. But don’t expect any objectivity to peak through in his public statements.

    • Avi
      January 19, 2010, 7:47 pm

      I think in assigning Dershowitz the Terrible the label of a “legal advocate” you give him more credit than he deserves. He is, as a matter of fact, a facilitator and enabler of Israel’s crimes. He is not defending a client in a court of law in which the court’s decision will have bearing on his client. He is merely a public relations propagandist. If he were defending Israeli leaders at The Hauge, for example, then that label might fit.

      But, in this case, he is nothing but an enabler of said crimes.

      • Citizen
        January 20, 2010, 8:09 am

        Marc b has correctly delineated Dershie’s approach (and training); Dershie is
        treating the subject of alleged Israeli crimes as a legal advocate under the US adversarial model. The court however is not a court in the legal sense, but “the court of public opinion.” The result, Avi is as you say, Dershie is a PR guy and enabler of
        crimes.

  11. marc b.
    January 19, 2010, 4:25 pm

    Re-reading the post, my prior comment basically regurgitated Phil’s point. Yeah. What he said.

  12. David Samel
    January 19, 2010, 4:29 pm

    Little wonder that Dershowitz has circulated this response among colleagues for comment before releasing it to the public. He is wondering whether his reasoning can pass what is known in legal circles as “the giggle test”: Could you make that argument to a judge without giggling? The answer is, I couldn’t, but Dersh is no doubt quite capable. I’ve seen him glorify in righteous indignation where lesser men, such as myself, would fear to tread.

    The heart of Dersh’s defense is this: “Goldstone does not even consider the most basic question of all: What would Israel gain by targeting civilians for death? It simply is not rational for Israel to target civilians. The Goldstone Report has brought worldwide condemnation upon Israel. Surely Israel would not want to bring such condemnation upon herself.” Gaius Baltar already has answered that Israel was relying on people like Dersh to defend its actions. That is surely true. Dersh has pursued this task energetically, with truly vicious denunciations of the Goldstone report, including blatant dishonesty about the mandate and other things, etc., and passionate condemndation of Hamas for deliberately sacrificing the lives of Palestinian children for worldwide PR consumption. Unfortunately, Israel’s conduct this time was just too awful for most of the world to stomach, especially coming on the heels of similar barbaric behavior in Lebanon. Dersh’s efforts have not been enough.

    But there is a deeper flaw in Dershowitz’s argument. He’s claiming that since Israel supposedly had no motive to target civilians, and could only have incurred the world’s wrath, it could not have targeted civilians. Let’s see. That means that al-Qaeda did not attack the US on 9/11, because they had nothing to gain from such an attack and their only “reward” was worldwide condemnation. And the US didn’t invade Iraq in 2003, because the overwhelming sentiment in the world was against the war and there were no WMD’s anyway. The argument that no motive implies no intent is completely absurd.

    Moreover, as Dersh well knows, contrary to popular opinion, proof of motive is unnecessary to prove guilt of a crime. Even if there were no motive at all, that doesn’t mean a thing. But there were obvious motives – the same ones that have guided Israel through the many decades. They are the same motives that terrorists have when they target Israel. Such actions sent twin messages. To the civilian population – if you let terrorists operate, you will be punished with lethal indiscriminate force. To the terrorists themselves – if you continue to target Israelis, you’re going to kill more of your own people. Those who articulated the Dahiya doctrine stated these motives quite plainly. Then of course, there’s Israel’s underlying motive of causing so much death and destruction that people just give up and either emigrate if possible or submit to their permanent fate of being dominated by Israel. What’s the mystery?

    Goldstone and his companions committed the unpardonable sin of actually looking at Israel’s actions and simply believing what they saw rather than what Israeli PR told the world. The report may not be perfect, but overall, it is a great achievement and a very significant document, as attested to by Israel’s discomfort over it.

    • potsherd
      January 19, 2010, 5:53 pm

      Dersh ignores the fact that Israel considers itself immune to criticism and the consequences of its acts. It knows it can snap its fingers and the US Congress will approve any crimes it commits.

  13. Brewer
    January 19, 2010, 5:39 pm

    “What would Israel gain by targeting civilians for death? It simply is not rational for Israel to target civilians.”

    Dershowitz is well aware that Israel’s strategy is to convince the Palestinians that they are a defeated people, making way for their eventual dispersion. His comment is aimed at what is, unfortunately, a majority of Westerners who haven’t studied the history of the conflict and haven’t yet recognized the pattern that confirms the intent enunciated by Begin -
    “All of it and forever”.

  14. The Hasbara Buster
    January 19, 2010, 6:00 pm

    Dershowitz cites an American private who killed four civilians. But did his chaplain give him a booklet that instructed him to show “no mercy with the enemy”? Israeli soldiers did get such a booklet from their rabbis. That’s the difference between bad apples and policy.

    • James Bradley
      January 19, 2010, 11:55 pm

      I love it when Israeli supporters point to American past crimes (genocide of the Native Americans) or present crimes (occupation of Iraq and Afghanistan) to nullify criticism of Israel.

      The “America did it! So we can too!” argument is just so… ugh..

  15. Citizen
    January 19, 2010, 6:26 pm

    On the macro level; here’s an article parsing the nature of fascism and concluding guess which two groups are the world’s most dangerous today?

    link to redress.cc

  16. Rehmat
    January 19, 2010, 8:02 pm

    What else one can expect from a member of Israel Hasbara Committee. They are groomed not be ashamed of lies and living in their self-denial.
    link to infoisrael.net

    It would be a shear waste of time for such Islamophobes to learn something from Norman H. Gershman’s movie, “God’s House” in which the producer-director says: ”To me Islam is poetry. is science, is to be with the Divine. Islam is beauty,” – Norman Gershman, founder of “BESA, a code of honor” project.

    link to rehmat1.wordpress.com

  17. kapok
    January 19, 2010, 10:31 pm

    Surprise,surprise! Jews are like everybody else: some are rat-bastards who aren’t fit for human society, let alone running a “state”.

    • Mooser
      January 20, 2010, 12:45 pm

      “Surprise,surprise! Jews are like everybody else: some are rat-bastards who aren’t fit for human society, let alone running a “state”.

      Persecution will do that to you. And I would venture that the idea that persecution will brutalise a people is much more easily documented on every level than the canard that persecution has enobled the Jews and made them just.
      Actually, by proclaiming the advanced and progressive ideas of Jewish justice all we do is trivialise the persecution. Hey, whatever.

  18. Sin Nombre
    January 20, 2010, 12:04 am

    Someone above averred to the idea that Dershowitz was acting as a lawyer to a court here as if that and that alone invalidated his arguments, but in fact I don’t think that Dershowitz’s article here was very lawyerly, nor that he would write the same way in any true brief to a court or to a courtroom. He’s a good lawyer, and the last thing that good lawyers do is make arguments to courts or juries that aren’t at least arguably true because the cost can be the loss of all your credibility as to all your other arguments too.

    Thus, as others have pointed out, it isn’t very lawyerly (or at least “good lawyerly”) to be making that argument about Israel having nothing to gain by doing as Goldstone said: Say that to a court and the response from the other side if not the court itself on its own is going to snigger immediately: “Theoretically at least, this is just obvious baloney. What about *revenge* for allowing those rockets to be launched from Gaza territory, for instance?”, and then of course you have all that Dahiya talk, and the talk from the Breaking the Silence soldiers and etc., etc.

    Just not the kind of argument a good lawyer would make to a court or to a jury as it’s just not reasonably arguable at all in such an adversarial setting when you can be called on your buffooneries immediately, and at great cost.

    Secondly, and where I think Dershowitz is taking most advantage of writing to a lay audience and not to other lawyers and judges and law-informed juries, is what I can only view as a conscious misuse of the word “evidence.” Thus, in what I saw as a very central passage in what Phil quoted, he said as follows:

    “But that is not the essence of what the report accuses Israel of deliberately planning—namely the deliberate targeting and killing of hundreds of innocent Palestinian women and children. On this most serious of charges, *not only is there absolutely no evidence that points to this conclusion,* what evidence there is points exactly the other way. ”

    (*Me supplying the emphasis.)

    Dershowitz knows full well that the law recognizes that all evidence isn’t “direct” evidence, and that circumstantial evidence is not only perfectly admissible but can, standing all on its own, validate a conviction. In fact, the prisons are full of people convicted solely via the use of circumstantial evidence, including for murder. And in fact he represented Claus von Bulow who I believe was largely convicted on circumstantial evidence.

    As I see it then the only conclusion is that he deliberately misuses the term “evidence” here so as to exclude the circumstantial sort because he knows he’s talking to a lay audience who may not think of this. But of course there was a entire *raft* of circumstantial evidence here: to wit, the bodies of all those women and children who *were* killed.

    Of course that’s not to say that this *proves* the charge, it might just as well go to something else at work. And indeed I myself doubt that much if any “deliberate” targeting of innocents took place and instead suspect that in the main it was more of an extreme indifference at work. (Bad enough, and still a possible war crime.) But, still, there’s not a lawyer or a judge or a law-informed jury that wouldn’t say that when you are charging someone with intentionally killing someone that the dead body of someone you killed is not a circumstantial fact and is not therefore circumstantial evidence. And Dershowitz knows this.

    What he also knows I have to believe is how crucial this is, which explains the reason behind his verbal sleight of hand: By their very nature many crimes—including the most serious, in which “intent” is an element—could only rarely be found if only direct evidence was allowed. Of *course* most people accused of first degree murder and who clearly did kill someone are *never* going to admit their intent to kill. But they still go to jail because juries are specifically instructed that they can rely on circumstantial evidence to prove intent. (And indeed to prove the killing too if needed.)

    Same it seems to me goes for war crimes. Of *course* people and government are rarely if ever going to admit to the intent elements that are necessary to prove such crimes. Nor are they even likely to have left other direct evidence lying around: Most spectacularly for instance, just look at the amazing paucity of direct evidence that Hitler himself ordered the Holocaust even though of course he must have. Just not something you put into memos.

    If one parses Dershowitz’s clever path however, the only real “proof” for him would indeed be on the order of something like a written message signed by Netanyahu directing every single soldier who deliberately killed an innocent to do so.

    While being as cleverly disguised as possible then this is still so profoundly obvious, and so profoundly faulty, that it would not be the kind of thing that you’d see a lawyer arguing in a court. Indeed it might be said that almost the entirety of what Dershowitz is banking on in this piece is the idea that, unlike the law, the people reading it have *not* thought through what constitutes evidence and what doesn’t. And it is then in essence an argument to ignorance.

    • Donald
      January 20, 2010, 1:12 am

      “I myself doubt that much if any “deliberate” targeting of innocents took place and instead suspect that in the main it was more of an extreme indifference at work”

      Given what various Israelis said about punishing the Gazans, I think there’s a blurring of the categories of extreme indifference and deliberate targeting. When they fired into an urban area with a lot of civilians present, they might not be targeting any specific group of civilians, but they have to know that civilians will be killed or injured and that might have been part of the plan. That’s almost certainly the case if there are no Hamas fighters shooting back.

    • Citizen
      January 20, 2010, 8:22 am

      Evidence is taught as a course all by itself in law school. And for good reason.

    • David Samel
      January 20, 2010, 9:05 am

      I think you’re right about Dershowitz’s role, but I would put it another way. He is acting as legal advocate for a client, but with one important exception. When submitting papers to a court, a lawyer may present the facts skewed in favor of his client, but may not present falsehoods. If a court catches a lawyer in an outright lie, there can be severe consequences (though that doesn’t happen very often). In what Dersh would call “the court of public opinion,” there are no potential sanctions, which he has used to great advantage throughout his career of defending Israel. In other words, he’s a lawyer who frequently resorts to lying.

      That being said, the paragraph you quote about evidence being in his client’s favor would pass muster in a court. I think it’s implicit that he’s talking about circumstantial evidence of intent. Where I disagree is that he ignores the overwhelming evidence of intent to kill civilians, and the evidence to the contrary consists mostly of self-serving statements by Israeli leaders and spokespersons that they don’t, supplemented by meaningless drivel such as training manuals that tell soldiers not to kill civilians. I recently attended a lecture by the Dersh at Fordham Law, in which he said that Israel has tried so hard to minimize civilian casualties, despite Hamas’s efforts to maximize them, that it had succeeded in achieving a ratio of terrorists to civilians killed of 29:1 (he was talking pre-Gaza). Where the fuck did he get that number?! Some Israeli, no doubt, who has joined the chorus about the most moral army in the world. Dershowitz takes such statements not only at face value but as gospel truth, and ignores public statements by others about the Dahiya doctrine and Israel’s long history. There is no doubt in my mind that when Israel plans these operations militarily, it devotes considerable effort to how it will portray its killing in public statements to minimize its own culpability and blame everything on either the victims themselves or Hamas or Hezbollah. Dershowitz may or may not take part in this planning (I doubt he does) but he performs the invaluable role of spreading this nonsense in the public arena that counts the most. And I think he’s quite good at it.

      It’s a little off-topic, but it reminds me of the story of Claudine Longet, the actress/singer who shot her skier boyfriend to death and claimed it was an accident (she mostly won in court). Sat. Night Live did a skit in which Claudine was on the ski slopes shooting skier after skier and turning to the audience, saying, “Whoops, I accidentally shot another skier.” How many times can Israel turn to its audience and say, “Whoops, we inadvertently killed some more civilians, even though we were trying hard not to?” Apparently, the number is infinite.

      • The Hasbara Buster
        January 20, 2010, 10:31 am

        In many cases, Dershowitz covers his ass by “lying by proxy,” i.e., not telling a lie himself, but quoting someone else who told it. For instance, in The case for Israel he states:

        A lead story in the “Ideas” section of the Boston Globe analyzed the ethical training received by Israeli soldiers and concluded, “The IDF army offers a model for us and other coalition forces.” It described the Israeli concept of “purity of arms,” which “requires that soldiers put their own lives at stake in order to avoid harming non-combatants.”

        He uses a Boston Globe article to tell the lie that Israeli soldiers are required to risk their own lives to spare civilians. Of course, the “purity of arms” concept included in the IDF’s ethical code does not make such a requirement of the soldiers (see here).

        David, could you write me at ibrahimibnyusuf æt gmail døt com? I’ve got a proposal to make to you.

  19. Richard Parker
    January 20, 2010, 3:39 am

    Cast Lead may not have been a deliberate attempt to massacre civilians, but it was certainly a major instance of intentional and indiscriminate terrorism, intended to be overwhelming and disproportionate, which has been a hallmark of Israeli military tactics from the outset.

    They are identical to the tactics used by the Nazis at Lidice, Oradour-sur-Glane, the Ardeatine Cave, and other massacres which have been forgotten. Apply overwhelming force, and don’t distinguish between the innocent and the guilty when conducting a reprisal.

    Cast Lead was simply that; a massive reprisal undertaken on an totally imprisoned population. It was planned in detail even before the agreement on a ceasefire between Hamas and Israel. The ceasefire was deliberately broken by Israel. The reprisal was carefully and deliberately timed to begin after Hanukkah and end before Obama’s inauguration.

    Goldstone didn’t mention the deliberate timing, and nor did he mention the imprisoned target population, who could take no refuge.

    He also didn’t mention that the IDF was unable to physically enter major population centres due to their fear of asymmetrical resistance. Instead they used long range weapons.

  20. Richard Parker
    January 20, 2010, 3:52 am

    Sorry, facts wrong there. Hanukkah began on 21 December and finished on 28 December, the second day of the surprise attack on Gaza.

    The timing was to take advantage of Western Christmas and New Year holidays, when most Westerners don’t want to see, hear, or read more war news.

  21. Citizen
    January 20, 2010, 9:01 am

    Historical perspective on the Gaza ghetto uprising:
    link to electronicintifada.net

    The article points out that the Gaza government is the only democratically elected government in the entire Arab world, and Hamas resistance is against the USA-EU-Israel & Arab despot regimes.

  22. Sin Nombre
    January 20, 2010, 9:03 am

    While many here—including me of course—have taken Dershowitz to task for his piece it seems to me it should also be recognized how potentially significant his step was in essentially trying to blame “rogue” soldiers.

    After all Dershowitz has to be regarded by the Israelis as an important bellweather of jewish-American thought, and yet look how hard it would be for Israel to go very far down that “rogue” path of an excuse of his. Soldiers don’t like to be hung out to dry, essentially told one thing (“show no mercy … take absolutely no chances … use disproportionate force” and etc.), but then have themselves or their colleagues called “rogues” by their political masters, much less prosecuted. Indeed, it doesn’t take much of this before whole armies become infected with such “stab in the back” ideas and become estranged from their political masters. Witness the U.S. army after Vietnam and, even worse, the German army after WWI.

    Not something Israel can easily afford to have happen given the centrality of the IDF in Israeli affairs, nor given all the other fault lines that are appearing now in Israeli society in general.

    So while we can criticize Dershowitz it also has to be admitted that in Tel Aviv there’s probably no lack of grumblings that he’s gone way too far: “What are we supposed to do,” I wouldn’t be surprised is the thinking of many, “start throwing our guys under the bus? How many? And for how long? And what are we gonna do when they and their friends start defending themselves by revealing what their orders were and what else they saw and etc….?”

    Not that it’s any huge sea-change by Dershowitz, but for all his appearances of instant and total defense of Israel he’s had to take a step back from that here I think, a potentially big and corrosive one. In short some evidence that Phil and Adam may be right that important things are shifting.

    • Richard Witty
      January 20, 2010, 9:12 am

      Shifting to what is the big question. And how?

      • Donald
        January 20, 2010, 9:21 am

        Shifting to a recognition that what the IDF did in Gaza was indefensible, so Israel defenders have to fall back on the bad apple defense. Or one can hope. Denial that anything bad happened that wasn’t Hamas’s fault (where have we heard that around here?) is probably still thought to be a defensible position. That particular lie still works well in the American political system and I’ll start to get excited about Dersh’s fallback position when some mainstream US politician starts talking about bad apples in the IDF.

      • Sin Nombre
        January 20, 2010, 11:42 am

        “Shifting to what is the big question.”

        Well I think that’s a good point Mr. Witty. One would hope—and what my logic at least would be if I was in the shoes of a Dershowitz or other American supporters of Israel—would be to telling Israel that time’s running out to be playing for territorial games and that a peace deal is every more urgently needed.

        After all probably even in the most expansionist of Israeli minds in the past they saw a point at which the expansion just could not continue. Well, I would think it obvious even to a Dersh, the time’s a comin’. They can’t keep having Cast Lead’s after Cast Lead’s. And something has to break cycle: look at the bottomless hate being stirred in ever more arab minds as evidenced by those quotes lower down noted by Baruch. At some point if it gets too late that’ll all that will be left for the arabs if you take too much.

        Hardly an unknown phenomenon the idea that some of the biggest historical blunders ever have been trying to push one’s advantage too far. Think about how Germany’s situation would have been in WWI if after Brest-Litovsk it has sued for peace with the Western powers. Almost certainly would have preserved itself in toto if not even gotten some gains in the West, would have been able to maintain Austro-Hungary, and been land rich beyond belief with what it had pried out of the Bolshies. Maybe something similar with Hitler too, and many many other historical situations.

        Oddly enough reaching too far often seems to cost not just those reaching fingers, but whole arms, legs and torsos even.

        I suppose it’s precisely because it seems that the only losses are going to be fingers why over-reaching is so common, but regardless of why, it’s true.

  23. Baruch Rosen
    January 20, 2010, 11:03 am

    Rehmat, your a fool. Your the same person that said anti Zionist Nurit Peled-Elchanan
    whose 13-year-old daughter who was killed by a Palestinian suicide bomber in 1997.
    You said this was a false flag operation by Israel.
    You are truly a sick demented person.
    Then the fact Citizen tries to agree with Rehmat that it was possibly a false flag Israeli operation shows the nut jobs on this site.

    • Mooser
      January 20, 2010, 3:21 pm

      Nut jobs, perhaps, but most of us know the difference between “your” and “you’re”.

  24. Baruch Rosen
    January 20, 2010, 11:18 am

    Here are the facts people!

    link to likud.nl
    Hamas Cleric Calls for Extermination of Jews
    Itamar Marcus and Barbara Crook
    April 19, 2009

    • David Samel
      January 20, 2010, 11:48 am

      Actually, Baruch, that is the allegation made by Itamar Marcus, who I would not trust without ironclad corroboration. But let’s say it’s true, and some unkown Muslim cleric actually uttered these despicable thoughts.

      What do you think of this article appeared in the Jerusalem Post, concerning the statements of an extremely prominent Rabbi – the former chief Sephardic Rabbi in Israel, in favor of mass murder of civilians. The JPost clearly did not invent this, as Marcus and Crook might have. You can find it here: link to jpost.com

      Here is the text of the article:

      All civilians living in Gaza are collectively guilty for Kassam attacks on Sderot, former Sephardi chief rabbi Mordechai Eliyahu has written in a letter to Prime Minister Ehud Olmert.
      Eliyahu ruled that there was absolutely no moral prohibition against the indiscriminate killing of civilians during a potential massive military offensive on Gaza aimed at stopping the rocket launchings.
      The letter, published in Olam Katan [Small World], a weekly pamphlet to be distributed in synagogues nationwide this Friday, cited the biblical story of the Shechem massacre (Genesis 34) and Maimonides’ commentary (Laws of Kings 9, 14) on the story as proof texts for his legal decision.
      According to Jewish war ethics, wrote Eliyahu, an entire city holds collective responsibility for the immoral behavior of individuals. In Gaza, the entire populace is responsible because they do nothing to stop the firing of Kassam rockets.
      The former chief rabbi also said it was forbidden to risk the lives of Jews in Sderot or the lives of IDF soldiers for fear of injuring or killing Palestinian noncombatants living in Gaza.
      Eliyahu could not be reached for an interview. However, Eliyahu’s son, Shmuel Eliyahu, who is chief rabbi of Safed, said his father opposed a ground troop incursion into Gaza that would endanger IDF soldiers. Rather, he advocated carpet bombing the general area from which the Kassams were launched, regardless of the price in Palestinian life.
      “If they don’t stop after we kill 100, then we must kill a thousand,” said Shmuel Eliyahu. “And if they do not stop after 1,000 then we must kill 10,000. If they still don’t stop we must kill 100,000, even a million. Whatever it takes to make them stop.”

  25. Baruch Rosen
    January 20, 2010, 11:19 am

    This is who the left wing Jews on here support?

    Hamas MP: A Palestinian Who Kills One Jew Will Be Rewarded As If He Killed 30 Million
    link to thememriblog.org
    9/29/2008,

    • Mooser
      January 20, 2010, 11:08 pm

      If that’s the neighborhood Israelis insist on living in, I can’t help them. They should move to a nice Jewish neighborhood, like America!
      And I have no interest in paying for them to stay where they are not wanted.

  26. Baruch Rosen
    January 20, 2010, 11:21 am

    This is who the wackos on here want a 1 state solution with.
    You people need some brain surgery.

    link to jihadwatch.org
    Hamas Foreign Minister “Zahar:”After we defeat the Zionists we will persecute them… we will persecute them to eternity”
    May 14, 08

    • Mooser
      January 20, 2010, 3:23 pm

      Oy gevalt For Baron Rosen it’s not enough we should be Zionist Jews, we should be right-wing Zionist Jews, too.

      • Mooser
        January 20, 2010, 11:04 pm

        Oh say, Baron Munchrosen, could you explain the quotes from the Rabbi that Mr. Samel includes in his comment? Are they anti-Semitic lies? I’m sure it wouldn’t be the first time an anti-Semite or neo-Nazi has impersonated an Orthodox Jew, gone all the way through cheder, yeshiva and Rabbinical training, just so they could come out with statements like that to embarrass Israel! Happens all the time, huh?
        Anyway, as one Jew to another, Baron, could you explain to me why I should accept those quotes, and use them as a guide to my Jewish conduct? Of course, if they are forgeries, don’t hesitate to declare them so. Cause the truth, you know, will set us free, and without vision, the people perish.
        So explain it to the perplexed, would ya?

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