Why Alan Dershowitz is wrong on Israel’s ‘rights’

Israel/PalestineUS Politics
on 22 Comments
DershGala 1
Alan Dershowitz accepting the In Pursuit of Excellence Award at Sheldon Adelson’s annual In Pursuit of Excellence Gala on Nov. 13, 2011 at The Venetian Las Vegas.
(Photo: The Main Event Photography)

Renowned torture enthusiast and perennial Israel apologist Alan Dershowitz was in Tel Aviv last week attending an annual business conference sponsored by Globes and, as usual, was busy equivocating for Israeli espionage, defending war criminals, and warmongering about Iran.

During a speech he delivered on Sunday December 11, Dershowitz opined, “Israel has the right morally and legally to strike Iran just as it did on [the Osirak nuclear facility] in Iraq in 1981.”

This is not a new line for the famous attorney who has worked tirelessly to acquit both aspiring and successful murderers and war criminals and defend billionaires who commit – and millionaires who cover-up – child rape. In April 2010, Dershowitz wrote, “I am asserting, in unqualified terms, that Israel has an absolute right — legally, morally, politically — to take such an action if it deems it necessary to protect its citizens from a threatened nuclear attack.” Even as far back as 2005, he told The Jerusalem Post, “Legally and morally both Israel and the United States would have the right to launch preemptive strikes against Iran’s nuclear program. Recall that leading Iranian mullahs have indicated that Iran would use its nuclear capacity to kill three million Jews. I also believe that targeted assassinations of criminals who are illegally building weapons of mass destruction, can, under certain circumstances, be justified morally. I think the legal case would be much harder to make.”

Like everything else The Dersh says, his statements are clearly out of step with the basic tenets of international law and, unsurprisingly, ignore both historical facts and current reality in order to draw his despicable and dubious conclusions. To understand Dershowitz’s warped concepts of morality, one can simply read his justifications for the murder of civilians, as long as they’re Arabs and/or Muslims.

First of all, the premise of Dershowitz’s appalling argument regarding an Israeli attack is the assumption that Iran is, in fact, hellbent on building nuclear weapons and threatening Israel with genocidal annihilation. Of course, neither claim is true. Both the IAEA and the United States government (after years of covert operations and aerial surveillance) continue to agree that Iran does not have an active nuclear weapons program. In early 2011, Director of National Intelligence James Clapper told both houses of Congress, “We continue to assess Iran is keeping open the option to develop nuclear weapons in part by developing various nuclear capabilities that better position it to produce such weapons, should it choose to do so. We do not know, however, if Iran will eventually decide to build nuclear weapons.” Dershowitz’s insistence that the summary execution of Iranian scientists can be “justified morally” demonstrates the depths of his depravity.

Furthermore, so-called “preemptive” military attacks are illegal and explicitly forbidden by Chapter I, Article 2.4 of the United Nations Charter. The UN Charter also makes clear that it recognizes the “inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” (Chapter VII, Article 51) Note that the Charter specifies that an aggressive, military response is allowed only “if an armed attack occurs…,” which undoubtedly rules out “preemptive,” “precautionary,” or “preventative” military action of one State against another. Dershowitz conveniently ignores this clear fact.

Beyond that, using the example of Israel’s June 7, 1981 airstrike on Osirak to argue for the legality of a similar attack on Iran’s nuclear facilities is not only disingenuous at best, it is deliberately deceiving and completely wrong. The Iraqi nuclear program before 1981 was peaceful and subject to intensive safeguards and monitoring. The Osirak reactor was, as Harvard physics professor Richard Wilson has explained, “explicitly designed by the French engineer Yves Girard to be unsuitable for making bombs. That was obvious to me on my 1982 visit.”

What Dershowitz omits from his ridiculous suggestion is that the Israeli attack, code named Operation Opera, took the lives of ten Iraqi soldiers and one French civilian researcher and was widely lambasted by the International Atomic Energy Agency (IAEA) and the international community, including the United States.

Writing in The Guardian in 2002, Jonathan Steele reminded readers that “[t]he world was outraged by Israel’s raid” and recalled some reactions:

“Armed attack in such circumstances cannot be justified. It represents a grave breach of international law,” Margaret Thatcher thundered. Jeane Kirkpatrick, the US ambassador to the UN and as stern a lecturer as Britain’s then prime minister, described it as “shocking” and compared it to the Soviet invasion of Afghanistan. American newspapers were as fulsome. “Israel’s sneak attack… was an act of inexcusable and short-sighted aggression,” said the New York Times. The Los Angeles Times called it “state-sponsored terrorism”.

Within two days of the attack on Osirak, the Reagan administration suspended the shipment of F-16 fighter jets to Israel because of its contention that Israel had “violated its commitment to use the planes only in self-defense.”

Ambassador Kirkpatrick, addressing a June 19, 1981 meeting of the United Nations Security Council, stated

the Reagan administration’s official views on the attack by condemning it as an “act of violence” that “gravely jeopardizes the peace and security” in the Middle East, “undermines the stability and well-being of the area,” and “threatens global peace.” Despite noting the “strength of United States ties and commitment to Israel” and insisting that the U.S. government “would approve no decision that harmed Israel’s basic interests, was unfairly punitive or created new obstacles to a just and lasting peace,” Kirkpatrick also told the Council,

Nonetheless, we believe the means Israel chose to quiet its fears about the purposes of Iraq’s nuclear program have hurt, and not helped, the peace and security of the area. In my Government’s view, diplomatic means available to Israel had not been exhausted and the Israeli action has damaged the regional confidence that is essential for the peace process to go forward. All of us with an interest in peace, freedom and national independence have a high stake in that process. Israel’s stake is highest of all.

That very day, the Security Council unanimously adopted a resolution expressing that the body was “[d]eeply concerned about the danger to international peace and security created by the premeditated Israeli air attack on Iraqi nuclear installations.”

The resolution (S/RES/487) also “[s]trongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct,” “[c]alls upon Israel to refrain in the future from any such acts or threats thereof,” warns that the attack undermined both the IAEA and NPT, calls on Israel to “urgently to place its nuclear facilities under IAEA safeguards,” and demands Israel provide Iraq with “appropriate redress for the destruction it has suffered, responsibility for which has been acknowledged by Israel.” (emphasis added, italics in original)

Later that year, after the Reagan White House had caved to Israeli pressure and resumed warplane deliveries, the UN General Assembly passed a similarly critical resolution (36/27) on November 13, 1981 that “strongly condemn[ed] Israel for its premeditated and unprecedented act of aggression in violation of the Charter of the United Nations and the norms of international conduct, which constitutes a new and dangerous escalation of the threat to international peace and security.” (emphasis added)

The resolution also reaffirmed Iraq’s “inalienable sovereign right” to “develop technological and nuclear programmes for peaceful purposes” and stated that, not only was Iraq a party to the Nuclear Non-Proliferation Treaty, but had also “satisfactorily applied” the IAEA safeguards required of it. Conversely, it noted “with concern” that “Israel has refused to adhere to the Treaty on the Non-Proliferation of Nuclear Weapons, and, in spite of repeated calls, including that of the Security Council, to place its nuclear facilities under International Atomic Energy Agency safeguards.”

In addition to condemning “the misuse by Israel, in committing its acts of aggression against Arab countries, of aircraft and weapons supplied by the United States of America,” the resolution reiterated “its call to all States to cease forthwith any provision to Israel of arms and related material of all types which enable it to commit acts of aggression against other States” and requested “the Security Council to investigate Israel’s nuclear activities and the collaboration of other States and parties in those activities” and “institute effective enforcement action to prevent Israel from further endangering international peace and security through its acts of aggression and continued policies of expansion, occupation and annexation.”

Furthermore, the General Assembly demanded that “Israel, in view of its international responsibility for its act of aggression, pay prompt and adequate compensation for the material damage and loss of life suffered” due to the illegal and lethal attack.

Only the United States and Israel voted against the resolution.

In August 2002, Mary Ellen O’Connell, law professor at the Moritz College of Law and Associate of the Mershon Center for International Security and Public Policy at Ohio State University, wrote an extensive analysis entitled “The Myth of Preemptive Self-Defense” for the American Society of International Law (ASIL) Task Force on Terrorism wherein she explicitly addresses the very misconception Dershowitz is attempting to put forward.

“Preemptive self-defense,” O’Connell writes, “is clearly unlawful under international law.” She explains, “The right of self-defense is limited to the right to use force to repel an attack in progress, to prevent future enemy attacks following an initial attack, or to reverse the consequences of an enemy attack, such as ending an occupation” and also points out that “the United States as a government has consistently supported the prohibition on such preemptive use of force.” O’Connell continues, “the reality is that the United States has no right to use force to prevent possible, as distinct from actual, armed attacks. The further reality is that the United States does not advance its security or its moral standing in the world by doing so.” Throughout her paper, O’Connell stresses that all nations are bound by these same rules.

Though O’Connell was writing in anticipation of an unprovoked US attack on Iraq, the parallels to the current American and Israeli bellicosity toward Iran are obvious and identically relevant. “There is no self-appointed right to attack another state because of fear that the state is making plans or developing weapons usable in a hypothetical campaign,” she states, elaborating that “a state may not take military action against another state when an attack is only a hypothetical possibility, and not yet in progress—even in the case of weapons of mass destruction” since even “possession of such weapons without more does not amount to an armed attack.”

In her eerily prescient analysis, published eight months before the US bombing, invasion, and occupation of Iraq, O’Connell suggests that “if an official argument is given at all for an invasion of Iraq, it is likely to be ‘preemptive self-defense’”, and continues:

The preemptive use of military force would establish a precedent that the United States has worked against since 1945. Preemptive self-defense would provide legal justification for Pakistan to attack India, for Iran to attack Iraq, for Russia to attack Georgia, for Azerbaijan to attack Armenia, for North Korea to attack South Korea, and so on. Any state that believes another regime poses a possible future threat— regardless of the evidence — could cite the United States invasion of Iraq.

O’Connell even uses the specific example of the Israeli destruction of Iraq’s Osirak facility to prove her point. “Many representatives were impressed by the testimony of the Director General of the International Atomic Energy Agency who testified that the IAEA had found no evidence of unlawful weapons development by the Iraqi government,” she writes. “Not only did the IAEA find no diversion of nuclear material, but Israel put forward no evidence that an attack was imminent, let alone underway.” With regard to the legality of such an unprovoked assault, she determines, “Permitting preemptive self-defense at the sole discretion of a state is fundamentally at odds with the [United Nations] Charter’s design.”

In defending Israel’s “right” to commit what the International Military Tribunal at Nuremberg described as “the supreme international crime” – namely, the willful initiation of a “war of aggression” – against Iran, Dershowitz also ignores the salient fact that the consequence of the Israeli bombing of Osirak was actually exactly the opposite of the stated goal of the operation. It was only after the Israeli attack that Iraq embarked on a nuclear weapons program.

The claims of Alan Dershowitz, in addition to being factually incorrect, legally unjustifiable and morally indefensible, are wholly unoriginal. Nuclear proliferation experts Leonard S. Spector and Avner Cohen, writing in the July/August 2008 edition of Arms Control Today, reveal that two days after the strike, “in a dramatic press conference in Tel Aviv, Israeli Prime Minister Menachem Begin took full responsibility for the operation, praised its execution as extraordinary, and justified it both on moral and legal grounds. Begin referred to the strike as an act of “anticipatory self-defense at its best.”

Mary Ellen O’Connell defines “anticipatory self-defense” as “armed responses to attacks that are on the brink of launch, or where an enemy attack has already occurred and the victim learns more attacks are planned.” Clearly, as Israel was in no imminent danger of being attacked in 1981 by Iraqi nuclear weapons which didn’t exist, Begin’s triumphant boast was nothing more than a propagandistic lie. The neoconservative, AIPAC-driven rhetoric, echoed consistently by Dershowitz, warning of the existential threat now posed to Israel by Iran is an updated example of this very same falsehood.

Spector and Cohen continue:

The message that Begin conveyed was that the raid on Osiraq was not a one-time operation but rather a long-term national commitment. He ended his press conference with these dramatic words:

We chose this moment: now, not later, because later may be too late, perhaps forever. And if we stood by idly, two, three years, at the most four years, and Saddam Hussein would have produced his three, four, five bombs.… Then, this country and this people would have been lost, after the Holocaust. Another Holocaust would have happened in the history of the Jewish people. Never again, never again! Tell so your friends, tell anyone you meet, we shall defend our people with all the means at our disposal. We shall not allow any enemy to develop weapons of mass destruction turned against us.

A few days later, in a CBS News television interview, Begin reiterated this doctrinal point: “This attack will be a precedent for every future government in Israel.… [E]very future Israeli prime minister will act, in similar circumstances, in the same way.” (emphasis added)

The countdown to an imaginary Iraqi and Iranian nuclear bomb is a three decade-old staple of Israeli and American fear-mongering. Naturally, the exploitation of Holocaust analogies and endless Hitler comparisons is all part of the routine, along with ad nauseum repetitions of long-debunked mistranslations of cartographic proportions.

In April 2010, Dershowitz, after following the lead of George W. Bush by accusing Obama of “appeasement”, fulminated that, even if “the United States is prepared to accept a nuclear Iran…it has no right to require Israel to accept the risks posed by a nuclear armed country that has overtly threatened its destruction.” He continued, “Every country in the world has the inherent right to protect its citizens from a nuclear attack. Israel, a nation that Obama has himself acknowledged was built on the ashes of one Holocaust, certainly has the right to take military action to prevent a second Holocaust, especially at the hands of a country that has explicitly threatened to wipe it off the map.”

Still, Dershowitz wasn’t finished:

The world ignored the explicit threats of one tyrant who threatened to destroy the Jewish people in the 1930s, and he nearly succeeded in the 1940s. Israel cannot be expected to ignore Hitler’s successor, who while denying the first Holocaust, threatens a second one.

Dershowitz’s own usage of Menachem Begin’s “Never Again” nonsense should come as no surprise considering The Dersh’s obvious affinity for plagiarizing propaganda.

It is no wonder that Dershowitz treats the Osirak attack as a successful and necessary mission to be emulated, if not overtly duplicated, with regard to Iran. The reason is that Israel never pays a price for its constant contravention of international law, denial of human rights, and indifference to, if not outright contempt for, any human life that doesn’t fully support ethnic cleansing, apartheid, colonization, occupation, and institutionalized racism and discrimination against a displaced, dispossessed, devastated and demonized indigenous population.

Clearly, Israel has never followed through with its obligations as determined by the UN Security Council in 1981 and has continued to act aggressively and criminally ever since, with complete impunity and diplomatic protection from its superpower patron. The supposed “moral right” Dershowitz ascribes to an unprovoked and illegal Israeli attack on Iran – a sovereign nation of nearly 74 million people whose government consistently declares it has no intention of building a nuclear weapon or starting a war against the region’s strongest military – isn’t even worth discussing.

With his noxious comments in Tel Aviv, as with most everything else he says, writes, and does, Alan Dershowitz has once again revealed himself to be incapable of telling the truth or demonstrating even the most basic elements of reason or humanity in his obsessive determination to defend, and in this case encourage new, Israeli war crimes.

22 Responses

  1. seafoid
    December 22, 2011, 10:54 am

    The Dersh is a good example of Israel’s generational problem. Israel has massive support amongst people aged 60 and beyond. But it is losing support amongst the younger generation. Mostly because it is impossible to cover up the wanton cruelty of the occupation. And this is a systemic trend that isn’t going to get any better…

    • pabelmont
      December 22, 2011, 11:36 am

      We American old-folks are not, however, dying off fast enough to undo the bad effects of mindless and evidence-ignoring hard-right-wing-Zionism among Americans as a whole (or American Jews as a whole).

  2. pabelmont
    December 22, 2011, 11:20 am

    “I am asserting, in unqualified terms, that Israel has an absolute right — legally, morally, politically — to take such an action if it deems it necessary to protect its citizens from a threatened nuclear attack.”

    If it (in its own sole discretion) deems it necessary. Out with the illegality of aggressive warfare, in/onwards with the theory of the legality of anticipatory self-defense (against no attack whatever,and against no threat of attack whatever).

    But The Dersh is on solid grounds, here in the USA, where anyone world-wide accused of terrorism (by whom? on what evidence? reviewed by whom?) will be subject to detention by USA forces without trial (and probably also without communications or H/R protections of the prisoner // torture) is being enacted into law (in the “defense” authorization bill) as I type (my bad-choice-of-words-quotes on “defense”).

  3. MHughes976
    December 22, 2011, 11:54 am

    The argument seems to create rights of aggression for all against all, as Hobbes would have said. ‘All’ would include Israel, the United Kingdom, everyone in both its instances.

    • Avi_G.
      December 22, 2011, 12:27 pm

      Although Dershowitz may not admit to it, one could argue that the political doctrine of preemption comes from the biblical edict on self-defense: Ha-bah Le-Horgecha Hashkem Le-Horgo (הבא להורגך השכם להורגו), which translates to, “He who comes to kill you, rise up early to kill him.”

      And that is why, in his view, the argument is wholly moral.

      • eljay
        December 22, 2011, 1:27 pm

        >> And that is why, in his view, the argument is wholly moral.

        I love it when hateful hypocrites like Dershowitz and eee and others define an action as just and moral…but refuse to allow said just and moral action to be applied against them.

      • Talkback
        December 23, 2011, 8:19 am

        So someone should have told Arab Palestininians before 1948 that it’s morally justfiable to kill Jews in advance?

      • eljay
        December 23, 2011, 8:26 am

        >> So someone should have told Arab Palestininians before 1948 that it’s morally justfiable to kill Jews in advance?

        According to Dershowitz’s “reasoning”, this would have been an entirely justifiable course of action.

  4. American
    December 22, 2011, 12:12 pm

    If this is what Dershowitz and Israel assert, fine.
    Let’s apply the same to them.
    Targeted assassinations of Israelis and US zionist like Dershowitz.
    And preemptive war on Israel because they already have nukes.

    Every time I hear the holocaust excuse for the annihilation’s they want to carry out I don’t whether to laugh, cry or gag….they are begging, begging, begging to be wiped out.

  5. Avi_G.
    December 22, 2011, 12:12 pm

    Furthermore, the General Assembly demanded that “Israel, in view of its international responsibility for its act of aggression, pay prompt and adequate compensation for the material damage and loss of life suffered” due to the illegal and lethal attack.

    Only the United States and Israel voted against the resolution.

    At the time of the attack, the U.S. was supplying Iraq with weapons for its sponsored war against Iran (See Iraq-Iran war). Israel’s actions interfered with that.

  6. American
    December 22, 2011, 12:22 pm

    “The reason is that Israel never pays a price for its constant contravention of international law, denial of human rights, and indifference to, if not outright contempt for, any human life ”

    And the reason it doesn’t is the US.
    Israel won’t be cured in Israel by Israelis, it has to be cured here in the US where it’s power comes from.

  7. DICKERSON3870
    December 22, 2011, 1:32 pm

    Allan Dershowitz and Likud-governed Israel are an “existential threat” to the very concept of ‘international law’. They invite every nation to become a law unto itself; they invite international anarchy!
    As Supreme Court Justice Louis D. Brandeis elaborated in Olmstead v. United States (1928):

    “In a government of law, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.”

  8. David Samel
    December 22, 2011, 3:32 pm

    Thank you, Nima Shirazi, for that detailed analysis. Many people laugh at Alan Dershowitz, but I think he remains a popular and charismatic and even influential commentator. The past few days I have had his The Case for Peace as my bedtime reading, and virtually every single page contains one or more obvious lies, a treasure trove of dishonesty I had seen in The Case for Israel and The Case against Israel’s Enemies. It’s not only amazing that he gets away with it, but also that he counted on getting away with it.

    While I agreed with almost all of your analysis, I do have one gentle criticism of your insertion of a few lines disparaging his work as a criminal defense attorney. He has represented some loathesome characters – so have I – but I think that his career as a defense attorney, in which one is dutybound to do one’s best for one’s client, should be separated from his I/P punditry, where fundamental notions of fairness and justice should control.

    • Avi_G.
      December 22, 2011, 4:48 pm

      The past few days I have had his The Case for Peace as my bedtime reading,

      No nightmares?

      Now in all seriousness, David, I knew you would bring up Dershowitz’s work as a defense attorney.

      On the one hand I appreciate the fact that attorneys have a duty to defend their clients and to do so with integrity and professionalism, but on the other hand I have to ask you, isn’t it possible that in Dershowitz’s case, his amoral and criminal advocacy on behalf of Zionism and on behalf of Israel are guided by his inherently corrupt soul that allows him to seek out such clients? Surely, that possibility cannot be discounted, can it?

      • David Samel
        December 22, 2011, 6:16 pm

        Avi, the vast majority of my clients are indigent, and the court pays me a rather modest hourly fee to represent them. Of course, I take on all cases and do not reject any. The Dersh attracts the big guys who can pay a fortune for their defense. (Sometimes he’s worth it and sometimes not at all.) I have to admit that if someone offered me a fortune, I’d have a hard time turning it down on the ground that my client was reprehensible. As for the corruption in Dersh’s soul, I understand what you’re saying and think it quite reasonable, but still think it’s unnecessary to tie in his day job – his advocacy for Israel is quite reprehensible enough.

        I see that I’ve made this comment enough that you were expecting it. I hate to be so predictable. :-)

        As for nightmares, I had a very lovely dream last night, despite the fact that I find reading his books not only fascinating but infuriating. Just when you think he’s sunk as low as he can, he finds a new level.

      • Citizen
        December 22, 2011, 9:04 pm

        The adversary system in US depends on a neutral judge and/or jury, and application of the laws of evidence and burden of proof. Dershie’s propaganda in the realm of truth, facts, and ideas regarding Israel ignores even the slightest touch of any of such things. When’s the last time he debated his vision with an opponent before a neutral audience? How’d he do?

    • john h
      December 22, 2011, 4:53 pm

      Yes indeed, thankyou Nima Shirazi, for such a superb summary.

      What I have to confess was news to me, was the UN and US response to Israel’s pre-emptive 1981 attack. I must have been asleep at that time.

      Have we seen language like that since? Certainly not in the last decade…

      There should be an urgent reaffirmation of SC Resolution 487.

  9. Keith
    December 22, 2011, 11:57 pm

    In discussing Dershowitz and the law, we must keep in mind that “the law” has been rather successfully misrepresented as representing “justice.” The harsh reality is that the law is essentially the codification of the status quo designed primarily to protect the system of power and privilege of the elites. Justice only comes into play insofar as a certain appearance of justice is necessary to quell domestic discontent. For someone like Dershowitz, the law and power go hand in hand, and truth is what works to achieve your objectives.

    • Avi_G.
      December 23, 2011, 9:39 am

      Yes. In a sense, the Feudal system was never abolished.

  10. Peter in SF
    December 23, 2011, 4:42 am

    Ron Paul’s official website, in a page entitled “Ron Paul: The Most Pro-Israel Candidate”, says:

    “When Israel attacked a nuclear reactor in Iraq in 1981, almost the entire U.S. Congress voted to condemn the act. Ron Paul was one of the few dissenters: he voted against the condemnation and in favor of Israel’s right to self-determination.”

    What a different Congress back then, if true. But I have been unable to find this congressional resolution on the Library of Congress website. Anyone know how to find the resolution and the votes on it?

  11. talknic
    December 23, 2011, 8:07 am

    Dersh has lost the plot …. completely

  12. Hostage
    December 24, 2011, 5:14 am

    In August 2002, Mary Ellen O’Connell, law professor at the Moritz College of Law and Associate of the Mershon Center for International Security and Public Policy at Ohio State University,

    Update: Mary Ellen O’Connell is currently a Vice President of the American Society of International Law link to asil.org

    She is the Robert & Marion Short Chair in Law at Notre Dame Law School and is considered an expert on the topic of Laws of War and Armed Conflict by her ASIL peers. link to asil.org

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