If recent reports are true, Israel could be looking to procure the services of Alan Dershowitz—the esteemed attorney and Harvard Law professor noted (positively and negatively) for his reputation as a defender of civil liberties, his success as a high-profile defense attorney (including O.J. Simpson’s double murder trial), and his role on the defense teams of Harvey Weinstein and Donald Trump.
The government of South Africa filed a case in December with the International Court of Justice in The Hague, accusing Israel of committing war crimes in Gaza. On Tuesday, it was widely reported that Israeli Prime Minister Benjamin Netanyahu wants the lawyer sometimes known as “Dersh” to represent Israel at The Hague.
In the cases of some of Dershowitz’s more notorious past clients, you can make an argument that he was just doing what lawyers are supposed to do. Even clients whose guilt might seem obvious deserve a vigorous defense as part of an overall system dedicated to making sure justice is done.
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In this particular case, though, there’s no doubt that Dershowitz is acting not out of commitment to some abstraction about the legal system, but a deep commitment to Israel’s cause. He’s been an enthusiastic defender of Israel’s treatment of the Palestinians for decades. He’s written a number of books on the subject, starting with The Case for Israel (2003), and frequently debated critics of U.S. support for Israel like Noam Chomsky and Norman Finkelstein.
On Wednesday, Dershowitz laid out an initial response to the South African charges in an article in the right-leaning magazine Compact entitled, “Israel Has Committed No War Crimes—Hamas Has.”
The part about Hamas committing war crimes is certainly true—although entirely irrelevant to the case Israel is facing at the ICJ. A lawyer defending former Serbian President Slobodan Milosevic against charges of orchestrating ethnic cleansing in the former Yugoslavia, for example, would be providing no defense at all if he pointed out that Croatian forces also committed atrocities against civilians.
The real question is—does Dershowitz’s defense of Israel hold any water?
Wounded Palestinians receiving treatment at Al-Aqsa hospital in Deir al-Balah.
Majdi Fathi/NurPhoto via Getty ImagesThe Facts on the Ground
He says that “the Israel Defense Forces have made extraordinary efforts to target only combatants.”
What he doesn’t do is tell us what those efforts are. And he ignores the numerous statements from Israeli officials that strongly indicate that no such efforts are being made. At the beginning of the war, for example, IDF’s main spokesman, Daniel Hagari, said—and remember, he’s talking about a bombing campaign in one of the most densely populated strips of land on the planet—that Israel’s focus was “on damage and not accuracy.”
In early October, in an order highly reminiscent of the ethnic cleansing in the former Yugoslavia, Israel simply ordered half of the population of Gaza—well over a million people, including the elderly, the disabled, and patients on life support—to leave their homes and flee to another part of the tiny strip. And a recent New York Times investigation found that in the six weeks following this order Israel “routinely” dropped 2,000 pound bombs—one of the deadliest and most indiscriminate weapons in its arsenal—in the area the IDF had ordered all of those civilians to flee to. An IDF spokesman who gave a statement to The Times didn’t deny the charge but simply said that now wasn’t the right “time” to address “questions of this kind” since right now the emphasis had to be on winning the war.
What, you might wonder, does “winning” even mean at this point?
Multiple highly-ranked ministers in Netanyahu’s cabinet have suggested that it wouldn’t be enough to simply revoke the limited autonomy Gaza was granted—even as Israel continued to tightly control the strip’s airspace, land and sea borders, and everything allowed in or out—in 2005. Instead, most of the civilians in Gaza will have to be pressured to accept leaving their homeland.
Finance Minister Bezalel Smotrich, for example, openly advocated a postwar scenario where there are “100,000 or 200,000 Arabs in Gaza and not two million.” Minister of National Security Ben Gvir tweeted that the “migration of hundreds of thousands from Gaza” would be necessary for Israeli security.
The assumption that Israel’s goal is to create hellish enough conditions to induce “voluntary” mass resettlement is certainly a better explanation of the tactics Israel has used in the last few months than the assumption that they’re trying to take out known Hamas militants with surgical precision.
At least 22,000 Palestinians are dead—an estimated 70 percent of them women and children. (Compare that to the roughly 10,000 civilians Russia has killed in a much longer war in a much larger country—Ukraine—where no one thinks the Russians are taking “extraordinary measures” to preserve civilian lines.) Almost nine-tenths of the civilian population have been displaced from their homes. The U.N. has warned that half of the population of Gaza is in danger of starvation. A staggering 90 percent are already eating less than one meal a day.
Smoke rises above buildings in the Nur Shams camp for Palestinian refugees near the occupied West Bank city of Tulkarm.
Zain Faafar/AFP via Getty ImagesRecently, a member of Netanyahu’s Likud party in Israel’s parliament, the Knesset, unashamedly argued that mass starvation was a military necessity. “Without hunger and thirst among the Gaza population,” she said, “we will not be able to recruit collaborators, we will not be able to recruit intelligence, we will not be able to bribe people, with food, drink, medicine” in order to find hostages taken by Hamas.
If this Knesset member was somehow brought to The Hague, what could Dershowitz say in cross-examination to soften the impact of those words?
“My Client Says He’s Innocent, So He Is—Case Closed”
The only part of the facts mentioned above Dershowitz sees fit to address in his Compact article is the civilian death toll. He tries to insinuate that the overall number of 22,000 corpses in Gaza might be inaccurate by calling civilian health authorities in Gaza “Hamas-controlled”—never mind that the numbers provided by the beleaguered medical professionals staffing Gaza’s health ministry have been consistently accurate in past wars.
Dershowitz says that Israel claims that 7,000 of the 22,000 dead have been Hamas members, and that if this figure is even “close” to being true, the ratio of civilians to fighters in that vast pile of corpses is only about 2-to-1—which he apparently thinks is pretty good.
But he doesn’t say how Israel arrived at that “7,000 fighters” figure. To be fair, no one else can say either. As far as I can tell, it’s pulled out of thin air. Dershowitz argues that some of the women, and some Gazans young enough to be counted as children, might be Hamas fighters, but he provides no evidence to back up the speculation that these make up a significant fraction of either total. And without it, he would be left insisting that, in a bombing campaign that’s displaced the overwhelming majority of Gazans from their homes and which the IDF itself says aims at “destruction and not accuracy,” pretty much every single adult male who’s been killed has been a member of Hamas. This despite the usual estimate for Hamas’s total fighting force being 30,000 out of a Gaza population of millions.
In citing the IDF’s own completely arbitrary estimate and saying that if this number is correct Israel isn’t committing war crimes, Dershowitz is essentially saying that the IDF isn’t guilty of war crimes because it says it isn’t guilty. If that’s the caliber of argument he plans to bring to The Hague, Netanyahu may want to consider getting a better lawyer.
Dershowitz vs. International Law
It would seem impossible, but the rest of Dershowitz’s case is even worse. While he goes much further than this, badly stating at the outset of the article that “Israel has committed no war crimes,” Dershowitz is particularly interested in refuting South Africa’s charge that Israel’s crimes add up to “genocide.”
He correctly notes that the term “genocide” was first used to describe the Holocaust. Bizarrely though, he goes on to argue that “[a]ccusing Israel of genocide is a form of Holocaust denial, since no one even suggests that Israel has extermination camps, gas chambers, or other mechanisms that exemplified the Holocaust.”
The logical fallacy here is obvious on its face. Something doesn’t have to be a carbon copy of the most notorious instance of a category to count as an instance of it. And a lawyer of Dershowitz’s prestige should know that international law doesn’t require the use of gas chambers as a necessary condition for genocide. Instead, the U.N.’s Genocide Convention defines it as the crime of committing specific acts against a “national, ethnical, racial, or religious group” (such as “killing members of the group” or “deliberately inflicting on the group conditions of life calculated to bring about the physical destruction” of at least part of the group) with the intent to destroy the group “in whole or in part.”
It sounds to me like multiple senior members of Netanyahu’s Cabinet understand what Israel is doing in precisely those terms and have no qualms about saying so in public. Dershowitz mentions neither the legal definition nor these repeated confessions. Instead, he reiterates that he trusts Israel’s own estimates of the civilian death counts—and, well, they aren’t using gas chambers.
Bank Robbers and Human Shields
Finally, and least impressively, Dershowitz stresses the allegation that Hamas uses civilians as “human shields.” As a matter of fact, Amnesty International investigated this charge after the previous wars in 2009 and 2014 and, while it did accuse Hamas of other violations of international humanitarian law, it found no evidence to back up the specific accusation that Hamas had “direct[ed] the movements of civilians to shield military objectives from attacks.”
The IDF, on the other hand, does have a documented history of human shielding—forcing Palestinian civilians to approach houses where it suspects terrorists are present, for example, in the hopes that they’ll be less likely to be shot at than Israeli soldiers. Israel’s high court banned the practice in 2005, but Israeli human rights group B’Tselem reports that “soldiers continue to occasionally use Palestinians as human shields even after the court ruling, especially during military operations.”
If this is right, it wouldn’t justify Hamas doing the same thing, of course, but it would make the emphasis Dershowitz puts on this point more than slightly ironic.
Let’s assume for the sake of argument that the postwar investigation will turn out differently this time and it will turn out Hamas was using human shields. What would follow?
Dershowitz concocts a scenario he apparently considers analogous to Israel’s displacement of nine-tenths of the civilian population and killing of—even by his dubious estimate—14,000 Palestinian civilians:
“A bank robber starts shooting at customers. When the police arrive, the robber grabs one of the customers and uses her as a human shield. A policeman, in an effort to save the lives of customers, tries to shoot the robber. But the hostage suddenly makes a move, and then the policeman’s bullet hits and kills her. Under the law of every nation, it is the hostage taker, not the policeman who is guilty of killing the hostage, even though the bullet that killed her came from the policeman’s gun.”
It's telling that Dershowtiz has to add the part about the sudden movement. Even a propagandist as hacky as Dershowitz doesn’t have the stomach to follow the logic of his own analogy and say that the policeman would be justified in simply shooting the hostage-taker through the hostage. If the hostage-taker took the hostage to a safe house, would the police department be justified in dropping a two thousand-pound bomb?
You get the sense that Dershowitz hasn’t thought this through. Is he really the best Netanyahu can do?
In the 1980s and ’90s, it’s true, Dershowitz was sharp enough to get accused wife-killers Claus von Bülow and O.J. Simpson off the hook. But these days it seems like he’s barely trying.
