Written January 28, 2009

Alan Dershowitz, the superstar apologist for Israeli crimes, makes the argument that Hamas has “ordered the firing of over 6,000 deadly rockets at Israeli civilians.” Therefore, “they have engaged in an armed attack against Israel under Article 51 of the United Nations Charter” which constitute a declaration of war.  This means that Israel has the right to defend itself under international law and the U.N. Charter. This is a common claim in circulation.

Not surprisingly, Dershowitz goes way beyond that argument by claiming the figures of over 1000 killed and multiple thousands wounded (majority civilians, women and children) are highly disputed. Instead, he claims that it is around 600 and he cites a “study” conducted by the Italian Newspaper Corriere Del Sera. According to BBC, Lorenzo Cremonesi quoted an unidentified doctor who worked in Gaza’s Shifa hospital who claimed that the deaths could not have exceeded 500 or 600. The doctor described that the dead included individuals aged 17 to 23 who were basically Hamas recruits sent to get massacred. Cremonesi also claims that when he visited the hospitals and they were not as full as he expected he became concerned. Nevertheless, he does add that Hamas fighters may not have been taken to hospitals, thus, not counted. Apparently, this passes for a credible in-depth analysis on the same level as other independent and impartial organizations that have been on the field for years – but, I will get into that later. [1]

You can find his full article here.

“Defense” & “Security”

As it relates to his claim that Israel has the right to self-defense, what he is saying goes far beyond what Article 51 of the U.N. Charter will allow. The wording is as follows:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” [2]

It is clear that Israel has never – in any “defensive” action -- waited “until the Security Council has taken measures necessary to maintain international peace and security” which essentially means they need a clearance. They have never even bothered bringing it to them in the first place. When they chose to attack Gaza in December 2008, they were well on their way in further establishing themselves in the halls of state terrorism and the Security Council was not even approached because Israel knew exactly what it would say (reflecting the international consensus).

The International Court of Justice handed down a landmark decision in 2004 highlighting what it thought of Israel’s ‘security’ and ‘defensive’ measures as it relates to the apartheid wall that it has constructed:

“Recalling that the Security Council described Israel’s policy of establishing settlements in that territory as a “flagrant violation” of the Fourth Geneva Convention, the Court finds that those settlements have been established in breach of international law.  It further considers certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine;  it considers that the construction of the wall and its associated régime “create a ‘fait accompli’ on the ground that could well become permanent, in which case, . . . [the construction of the wall] would be tantamount to de facto annexation”.  The Court notes that the route chosen for the wall gives expression in loco to the illegal measures taken by Israel, and deplored by the Security Council, with regard to Jerusalem and the settlements, and that it entails further alterations to the demographic composition of the Occupied Palestinian Territory.  It finds that the “construction [of the wall], along with measures taken previously, . . . severely impedes the exercise by the Palestinian people of its right to self‑determination, and is therefore a breach of Israel’s obligation to respect that right”.”

By a vote for 14 to 1, the landmark decision concluded that “Israel cannot rely on a right of self‑defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall.” [3] The World Court also labeled it not as an act of self-defense but a land-grab measure. [4]

As a careful reader would notice with Dershowitz’s article (in fact, you can be a total klutz and you should still see it), he completely removes the context of the conflict when he speaks of the notion of self-defense. According to U.N. Resolution 242, the West Bank, Gaza and East Jerusalem (the pre-1967 borders – territories illegally annexed by Israel after its war with Egypt) are all occupied territories. It specifies that it is inadmissible to acquire territory through war which is how these lands were taken. East Jerusalem and the West Bank were under Jordan’s control at the time. Israel has only given back the Sinai Peninsula in 1978 after a peace accord with Egypt. It was well understood amongst Israeli leaders that the resolution required full withdrawal. Moshe Dayan advised caucus members in the Israeli Labor Party in 1968 in a closed door session not to endorse 242 as it meant “withdrawal to the 4 June [1967] boundaries, and because we are in conflict with the SC [Security Council] on that resolution.” [5] Therefore, any talk that 242 does not mean complete withdrawal is not even consistent with what the first Israeli politicians that had to deal with it at the time thought.

Since January 1976, all resolutions have been supported by nearly every single major Arab state, the PLO, Europe, the rest of the world and now Hamas. In 1987, the U.S. and Israel even barred a resolution condemning “terrorism wherever and by whomever committed”, taking hypocrisy to extraordinary levels, for obvious reasons. [6]

All the settlements that are continually being built are also illegal under international law. Lastly, the Palestinian refugee issue must be settled (‘The Right of Return’ issue: return to their homes or the environs of their homes, if they choose not to, receive compensation from Israel). There is no controversy when it comes to all this. It is voted on every single year and the United States and Israel are the only ones voting against it in virtual isolation. [7]

Going back to Dershowitz's reference to the 6,000 something missiles that were fired by Hamas, those had nothing to do with the current conflict (when Israel attacked in December 2008). It was recognized by Israeli intelligence that there was a 98% decrease in the rocket attacks, during the six-month ceasefire, which mainly came from rogue groups like Islamic Jihad (download report here -- keep in mind that I am only referring to their numbers and that the entire month of November, even after the 4th, is considered part of the ceasefire in the report which is completely ludicrous). They were even complimented for doing a good job in being careful in maintaining the ceasefire by handling these groups effectively (download report here). Israel’s brutal attack on Gaza was planned even before the ceasefire that they broke on November 4/08. According to Barack Ravid of Haaretz:

"Sources in the defense establishment said Defense Minister Ehud Barak instructed the Israel Defense Forces to prepare for the operation over six months ago, even as Israel was beginning to negotiate a ceasefire agreement with Hamas." [8]

I have not even pointed out the blatant hypocrisy yet in Dershowitz’s article. There is plenty of talk regarding stopping the flow of arms to Hamas but there is not even a mention of the fact that Israel is armed to the teeth by the United States. Every single piece of high-tech military technology that they have utilized to punish the Palestinian people is credited to U.S. manufactured weapons. On a January 15/09, Amnesty International stated that:

“Tenders for two other arms shipments totalling 325 containers of US munitions were approved by the Pentagon on 31 December, four days after the start of Israel's current attacks on targets in Gaza. These two consignments were due to be shipped to Ashdod from Askatos in Greece, but they have now been cancelled, according to information provided to Amnesty International by the US Military Sealift Command. Tender documents show that these shipments contain white phosphorus, known for its potential to cause severe burns and an indiscriminate weapon when used as an airburst in densely-populated civilian areas as now alleged in Gaza.” [9]

Instead, Dershowitz’s and other like-minded people do not even rise to the simple moral integrity of: Applying to themselves, what they apply to others. Hamas and all other government that preceded them (ie. The ‘terrorist’ PLO that they met at the negotiating table) have a much stronger claim to self-defense than Israel but that does not even enter the realm of discussion. They have been illegally occupied by Israel – in complete defiance of international law and consensus – and are subjecting them to the most brutal forms of colonization. The recent brutality exercised against the Palestinian people is an excellent example of that. In light of the very recent historical record, it is very clear who is defending themselves with very little success against one of the most powerful military in the world thanks to the United States.

If you are occupying a land that is not yours and the people are resisting, that is not self-defense on your part. You can call it whatever you want but that is not self-defense. When the entire world is telling you that your programs are not ‘security’ or ‘defensive’ measures, it just adds even more weight to the arguments against such notions. It is a blatant act of aggression. Aside from that, for observers, it just takes a simple exercise of common sense and a logical necessity to recognize.

Questioning the Number of Casualties

On January 15/09, Amnesty International accepts the death toll and number of casualties in the recent attacks on Gaza as follows:

“At least 900 Palestinians have so far been killed, more than a third of them civilians, including some 200 Palestinian children …” [10]

Of course, that number is much higher now.

According to the BBC, “the Al-Mazen Centre for Human Rights has been working to verify the number of fatalities” and the numbers they are coming up with are close to the Palestinian Ministry of Health’s and basically the other numbers that are being released and officially recognized by separate organizations. The Al-Mazen Centre points out that “it only confirms a death after it has interviewed individual families, and methodically checked names, ages and addresses.” [11] In a January 18/09 press release, it confirmed the following:

“With these casualties, the number of Palestinians killed by the IOF in the Gaza Strip since the start of Operation Cast Lead on 27 December 2008 has risen to 1,253; including at least 280 children and 95 women. Another 4,009 people were injured; including 860 children and 488 women.” [12]

B’Tselem in a January 15/09 press release pointed out that:

“So far, over one thousand Palestinians have been killed, among them at least 300 children and ninety-five women; at least 4,800 Palestinians have been injured, more than 400 of them seriously. Tens of thousands have been forced to abandon their homes, without knowing if they will have a place to return to. The damage to civilian infrastructure is unprecedented, many of the injured are prevented access to medical treatment and the electricity, water, and sewage systems are barely functioning.” [13]

In a press release on January 27/09, Human Rights Watch recognized the numbers:

“The fighting in Gaza from December 27, when Israel began its military operation, until Israel and Hamas unilaterally declared ceasefires on January 18, left some 1,300 Palestinians dead and more than 5,000 wounded, 40 percent of them children and women. In addition, the casualties included an undetermined number of male civilians not taking part in hostilities.” [14]

In UNICEF’s ‘Humanitarian Action Report 2009’ it highlights the humanitarian toll of Israeli brutality:

“Since 27 December 2008, Israel’s military offensive on Gaza has exposed the already vulnerable population to even more physical and psychological damage. As of 18 January 2009, 1,300 people were reported dead, more than 410 being children. Over 5,300 people had been wounded and some 38,000 people were seeking shelter from the violence in 41 United Nations Relief and Works Agency (UNRWA) centres. Basic services had almost completely collapsed. Children account for some 56 per cent of the population of Gaza and they carry the brunt of the suffering. Health, education, water and sanitation, and psychosocial needs are at critical levels, with a risk of further deterioration.” [15]

While the Red Cross has not officially recognized any of these numbers yet like these other organizations, they will most likely follow suit as it did in Lebanon in 2006.

On the one hand we have the mainstream numbers with Amnesty International, Al-Mazen Centre for Human Rights, B’Tselem, Human Rights Watch and UNICEF (surely, this list will continue to grow as numbers are corroborated). These recognitions are juxtaposed with a study that comes up with estimates through questioning a doctor and 'first-hand' observation (most likely tried to count with his fingers) at a Gaza hospital as opposed to actual field work. Perhaps if the Red Cross joins the Italian publication I might get sold. Aside from that, it is clear what the credible numbers are based on scientific reasoning and, again, common sense.

“Collateral Damage” – Not Willful Disregard

Similar to claims that the widely accepted numbers regarding Palestinian casualties is highly contentious (in fact, put out by Hamas and its ‘allies’), the same can be said about the claim that Israel took every bit of care in ensuring that civilians are not harmed. Again, there is a very easy way to test out how truthful that claim is, look at the reports from independent organizations that were on the field.

When it comes to this issue, the Red Cross made no hesitation in condemning Israel for its lack of care when they unusually lambasted them for unacceptable delays citing some horrific examples of being unable to get to civilian casualties. [16] B’Tselem cites horrific examples as well and makes the same forceful criticism. Everything can be found on their website.

As it relates to the use of white phosphorous, it was at first denied by the Israeli army but it eventually became well known that they were using it because of the pressure exerted by people on the field. Nevertheless, Israel contends that it was utilized ‘legally’.

While still unwilling to make a conclusive statement on whether or not Israel has used the substance illegally as it is still being investigated by field personnel, according to the Red Cross:

“Using white phosphorous as an incendiary weapon, i.e. to set fire to military targets, is subject to further restrictions. The use of such white phosphorous weapons against any military objective within concentrations of civilians is prohibited unless the military objective is clearly separated from the civilians. The use of air-dropped incendiary weapons against military objectives within a concentration of civilians is simply prohibited.” [17]  

Amnesty International is absolutely certain that white phosphorous was used in a way that the Red Cross described as illegal. According to a January 19/09 press release, “the Israeli army used white phosphorus … in densely populated civilian residential areas of Gaza City” based on “indisputable evidence.” [18] Amnesty is demanding for Israel to disclose the weapons that they used during their attacks on Gaza and Israel continues to refuse. [19]

In addition to using white phosphorous, the Israeli army used flechettes against Gaza civilians. On January 27/09, Amnesty states that:

“An anti-personnel weapon designed to penetrate dense vegetation, flechettes should never be used in built-up civilian areas. The Israeli army has used them in Gaza periodically for several years. In most cases their use has resulted in civilians being killed or injured.” [20]

 When it comes to Human Rights Watch, they make the same condemnations and demands – in particular, calling for an independent, international commission inquiry. [21] The Israeli government responded to these calls by stating that it would legally protect any soldiers that are accused of war crimes. In light of these, it is clear that protecting Palestinian civilians is anything but a priority, it is not even a secondary one.

A Hindrance to Peace? Really?

Finally, Dershowitz is adamant in the refusal to accept the possibility of talking to Hamas at the negotiating table. He points out their charter as a hindrance to peace. Before any further comment, it is important to understand that Hamas’s refusal to ideologically recognize Israel is rooted in the fact that they believe its creation is illegitimate in the first place. This fact is not alien to the founders of Israel.  ‘There is no example in history’, Ben-Guiron stated framing the root problem, ‘that a nation opens the gates of its country, not because of necessity … but because the nation which wants to come in has explained its desire to it.’ [22]

Dershowitz can question Hamas’s intentions all he wants but Israel is cognizant that it is not a hindrance to peace.

"[T]he Hamas leadership has recognized that its ideological goal is not attainable and will not be in the foreseeable future," a former Mossad head recently observed. "[T]hey are ready and willing to see the establishment of a Palestinian state in the temporary borders of 1967....They know that the moment a Palestinian state is established with their cooperation, they will be obligated to change the rules of the game: They will have to adopt a path that could lead them far from their original ideological goals." [23]

The African National Congress and Nelson Mandela were declared as terrorists by the United States during apartheid South Africa (which was a U.S. ally at the time). It is true that they did commit terror. Nevertheless, they were met at the negotiating table. The same can be said about the PLO. There is a very easy way to test out Hamas’s sincerity, negotiate with them.

There is a dilemma facing Israel and all apologists for its atrocities: Hamas, the ‘extremist’ faction of this entire conflict (evil personified), is recognizing the international consensus in substance (politically and geographically) while Israel refuses to do so. Or, when it does, it is nothing close to what the U.N. Resolution 242, the World Court and the International Court of Justice demands. Not to mention all the independent human rights organizations that have been condemning them consistently.

Things that are being discussed in Israel openly are completely alien to an apologist that we may find here in North America. They live in their own little world where opinions are formulated, not based on evidence, but on emotions and a fanatical loyalty to the state of Israel that is bent on the destruction of Palestine and on its own.

Of course, there is one easy way to counter all of this, widely utilized by the Anti-Defamation League: Every organization and individual mentioned here, including the writer, are all involved in a conspiracy to destroy Israel for political and personal gains and we are all anti-semites.

In the spirit of resistance,
Critical Mood

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[1] Bethany Bell, “Counting Casualties of Gaza’s War”, 1/28/09 (read here).

[2] Read Article 51 of the U.N. Charter here.  

[3] Read the entire 2004 International Court of Justice decision here.

[4]Chris McGreal, “World Court Tells Israel to Tear Down Illegal Wall”, 7/10/04 (read here).

[5] Daniel Dishon (ed.), Middle East Report, v. 4, 1968 (Jerusalem: 1973), p. 247.

[6] UN press release GA/7603, Dec. 7, 1987 (42/159).

[7] See resolutions: 242, 338, 446, 799, 1322 and so on.

[8] Barak David, “IAF Strike Followed Months of Planning”, 12/29/08 (read here).

[9] Amnesty International, “Arms embargo vital as Gaza civilian mounts”, 1/15/09 (read here).

[10] Same as the above citation.

[11] Same as citation 1.

[12] Al-Mezan Center for Human Rights, “IOF Unilaterally Ceases Fire: Redeploys inside Gaza – Dozens of Decomposed Bodies Found under Houses Rubble and Enormous Destruction in Neighborhoods”, 1/18/09 (read here).

[13] B’Tselem, “Stop the fighting immediately”, 1/15/09 (read here).

[14] Human Rights Watch, “Israel/Gaza: International investigation Essential”, 1/27/09 (read here).

[15] Download UNICEF’s ‘Humanitarian Action Report 2009’ here.

[16] Mark Tran, “Red Cross criticizes Israel for blocking access to Gaza injured”, 1/8/09 (read here).

[17] Read the International Committee of the Red Cross statement here.

[18] Amnesty International, “Israel Used White Phosphorus in Gaza Civilian Areas”, 1/19/09 (read here).

[19] Amnesty International, “Israel Must Disclose Weapons Used in Gaza”, 1/26/09 (read here).

[20] Amnesty International, “Israeli Army Used Flechettes Against Gaza Civilians”, 1/27/09 (read here).

[21] Read the HRW report on the use of white phosphorous here and the call for an independent inquiry here.  Read its call for an independent inquiry here.

[22] (As cited in Finkelstein's 'Image & Reality of the Israel-Palestine Conflict' - Zeev Sternhell, The Founding Myths of Israel (Princeton: 1998), pp. 43-4. Benny Morris, Righteous Victims (New York: 1999), p. 91 (Shertok). Simha Flapan, Zionism and the Palestinians (London: 1979), p. 143 (Ben-Guiron).)

[23] “What Hamas Wants,” Mideast Mirror – 12/22/08