Law School Discussion

Dershowitz on Israel

Dershowitz on Israel
« on: July 30, 2006, 04:38:26 PM »
Here is an opinion piece from the Wall Street Journal that seems particularly relevant to the nature of this board and many of the threads I have read...

Arithmetic of Pain

July 19, 2006; Page A12

There is no democracy in the world that should tolerate missiles being fired at its cities without taking every reasonable step to stop the attacks. The big question raised by Israel's military actions in Lebanon is what is "reasonable." The answer, according to the laws of war, is that it is reasonable to attack military targets, so long as every effort is made to reduce civilian casualties. If the objectives cannot be achieved without some civilian casualties, these must be "proportional" to the civilian casualties that would be prevented by the military action.

This is all well and good for democratic nations that deliberately locate their military bases away from civilian population centers. Israel has its air force, nuclear facilities and large army bases in locations as remote as anything can be in that country. It is possible for an enemy to attack Israeli military targets without inflicting "collateral damage" on its civilian population. Hezbollah and Hamas, by contrast, deliberately operate military wings out of densely populated areas. They launch antipersonnel missiles with ball-bearing shrapnel, designed by Syria and Iran to maximize civilian casualties, and then hide from retaliation by living among civilians. If Israel decides not to go after them for fear of harming civilians, the terrorists win by continuing to have free rein in attacking civilians with rockets. If Israel does attack, and causes civilian casualties, the terrorists win a propaganda victory: The international community pounces on Israel for its "disproportionate" response. This chorus of condemnation actually encourages the terrorists to operate from civilian areas.

While Israel does everything reasonable to minimize civilian casualties -- not always with success -- Hezbollah and Hamas want to maximize civilian casualties on both sides. Islamic terrorists, a diplomat commented years ago, "have mastered the harsh arithmetic of pain. . . . Palestinian casualties play in their favor and Israeli casualties play in their favor." These are groups that send children to die as suicide bombers, sometimes without the child knowing that he is being sacrificed. Two years ago, an 11-year-old was paid to take a parcel through Israeli security. Unbeknownst to him, it contained a bomb that was to be detonated remotely. (Fortunately the plot was foiled.)

This misuse of civilians as shields and swords requires a reassessment of the laws of war. The distinction between combatants and civilians -- easy when combatants were uniformed members of armies that fought on battlefields distant from civilian centers -- is more difficult in the present context. Now, there is a continuum of "civilianality": Near the most civilian end of this continuum are the pure innocents -- babies, hostages and others completely uninvolved; at the more combatant end are civilians who willingly harbor terrorists, provide material resources and serve as human shields; in the middle are those who support the terrorists politically, or spiritually.

The laws of war and the rules of morality must adapt to these realities. An analogy to domestic criminal law is instructive: A bank robber who takes a teller hostage and fires at police from behind his human shield is guilty of murder if they, in an effort to stop the robber from shooting, accidentally kill the hostage. The same should be true of terrorists who use civilians as shields from behind whom they fire their rockets. The terrorists must be held legally and morally responsible for the deaths of the civilians, even if the direct physical cause was an Israeli rocket aimed at those targeting Israeli citizens.

Israel must be allowed to finish the fight that Hamas and Hezbollah started, even if that means civilian casualties in Gaza and Lebanon. A democracy is entitled to prefer the lives of its own innocents over the lives of the civilians of an aggressor, especially if the latter group contains many who are complicit in terrorism. Israel will -- and should -- take every precaution to minimize civilian casualties on the other side. On July 16, Hasan Nasrallah, the head of Hezbollah, announced there will be new "surprises," and the Aska Martyrs Brigade said that it had developed chemical and biological weapons that could be added to its rockets. Should Israel not be allowed to pre-empt their use?

Israel left Lebanon in 2000 and Gaza in 2005. These are not "occupied" territories. Yet they serve as launching pads for attacks on Israeli civilians. Occupation does not cause terrorism, then, but terrorism seems to cause occupation. If Israel is not to reoccupy to prevent terrorism, the Lebanese government and the Palestinian Authority must ensure that these regions cease to be terrorist safe havens.

Mr. Dershowitz is a professor of law at Harvard.

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Re: Dershowitz on Israel
« Reply #1 on: July 30, 2006, 04:45:05 PM »
awesome post.. while i disagree with him almost completely as far as politics go, he is spot-on about israel  :)
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Re: Dershowitz on Israel
« Reply #2 on: July 30, 2006, 05:16:32 PM »
I really liked the comparison he made between U.S. law and the Israel predicament, which of course I am in no way qualified to have an opinion on..yet.
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Re: Dershowitz on Israel
« Reply #3 on: July 30, 2006, 07:48:38 PM »
Dershowitz is spot on.

Arab Majority May Not Stay Forever Silent


Re: Dershowitz on Israel
« Reply #4 on: July 30, 2006, 11:19:48 PM »
I guess this just shows how religion can cloud even the most brilliant minds.

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Re: Dershowitz on Israel
« Reply #5 on: July 31, 2006, 02:04:08 AM »
There's been some discussion of this in the main (misspelled) Israel/Lebanon thread, beginning around here if any of you are interested.
That's cool how you referenced a case.

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Re: Dershowitz on Israel
« Reply #6 on: August 07, 2006, 02:07:31 PM »
Read the first few paragraphs just to confirm this was a Wall Street Journal sure is.

Re: Dershowitz on Israel
« Reply #7 on: August 08, 2006, 01:23:14 PM »
I am not sure where I stand on the conflict in Lebanon right now, but I don't buy narratives like this that are being thrown out there.  He says...

 "There is no democracy in the world that should tolerate missiles being fired at its cities without taking every reasonable step to stop the attacks. The big question raised by Israel's military actions in Lebanon is what is "reasonable."   

But what I thought happened was Hezbollah killed six Israeli soliders and kidnapped two more, it was only after Israel invaded Lebanon that the missiles were fired at cities...I think, I can't say I have followed this situation all that closely.  If I am remembering correctly then the question is what is reasonable to stop Hezbollah's operations in southern Lebanon including attacking Israeli soliders and whatever acts they had been doing-not what is reasonable to stop them from firing missiles into cities.

As for the main point of the article, that Hezbollah is responsible for the Lebanonese civilian causalities, there is some truth to the accusation.  I think Israel and Hezbollah share the moral responsiblity for their deaths, I seen conflicting evidence on tv about how careful Israel is actually being, but even assuming they are being careful, as I said earlier we must judge Israel's actions as a pre-emptive strike against Hezbollah who was amassing missisles in southern lebanon-they had to make a choice get Hezbollah out of there and allievate the risk to their own citizens and military, but put into danger Lebanonese civilians or let hezbollah do what it was going to do and bet they wouldn't dare shoot the missisles at them-Israel cannot escape all moral responsiblity for its choice, just like they could not have if they made the other choice and lots of Israeli citizens had died, being a politician or militiary leader means making the hard decisions where nobody what you do somebody will be a loser-they can't claim total innocence. 

On the other hand the article is right in that Hezbollah does deserve some of the moral blame for the death of the civilians.  By operating where they are they too are consciously making a choice to put the needs of their organization above the lives of Lebanonese civilians and deserve some of the blame for the civilians death. 
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Re: Dershowitz on Israel
« Reply #8 on: August 10, 2006, 03:37:12 AM »
I guess this just shows how religion can cloud even the most brilliant minds.

Dershowitz is on the money.  Whoever posted the foregoing, open your mind.  This isn't about religion from the Israeli perspective -- it's about survival.  From the Muslim side, religion all the way -- everybody's the infidel.
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Re: Dershowitz on Israel
« Reply #9 on: August 10, 2006, 04:00:14 AM »
As always Dershowitz is spot on. As much as it pains me, all the rhetoric we've been spouting about terrorism and guerrilla warfare in Iraq actually apply in spades to Israel. Its painful to me that the so many people and nations can't see it this way.