The Israel Exception

Original article
By Alan M. Dershowitz
FrontPageMagazine.com | Wednesday, January 21, 2009

Every time Israel seeks to defend its civilians against terrorist attacks, it is accused of war crimes by various United Nations agencies, hard left academics and some in the media. It is a totally phony charge concocted as part of Hamas’ strategy—supported by many on the hard left—to delegitimate and demonize the Jewish state. Israel is the only democracy in the world ever accused of war crimes when it fights a defensive war to protect its civilians. This is remarkable, especially in light of the fact that Israel has killed far fewer civilians than any other country in the world that has faced comparable threats. In the most recent war in Gaza fewer than a thousand civilians—even by Hamas’ skewed count—have been killed. This, despite the fact that no one can now deny that Hamas had employed a deliberate policy of using children, schools, mosques, apartment buildings and other civilian areas as shields from behind which to launch its deadly anti-personnel rockets. The Israeli Air Force has produced unchallengeable video evidence of this Hamas war crime.

Just to take one comparison, consider the recent wars waged by Russia against Chechnya. In these wars Russian troops have killed tens of thousands of Chechnyan civilians, some of them willfully, at close range and in cold blood. Yet those radical academics who scream bloody murder against Israel (particularly in England) have never called for war crime tribunals to be convened against Russia. Nor have they called for war crime charges to be filed against any other of the many countries that routinely kill civilians, not in an effort to stop enemy terrorists, but just because it is part of their policy.

Nor did we see the Nuremburg-type rallies that were directed against Israel when hundreds of thousands of civilians were being murdered in Rwanda, in Darfur and in other parts of the world. These bigoted hate-fests are reserved for Israel.

The accusation of war crimes is nothing more than a tactic selectively invoked by Israel’s enemies. Those who cry “war crime” against Israel don’t generally care about war crimes, as such, indeed they often support them when engaged in by country’s they like. What these people care about, and all they seem to care about, is Israel. Whatever Israel does is wrong regardless of the fact that so many other countries do worse.

When I raised this concern in a recent debate, my opponent accused me of changing the subject. He said we are talking about Israel now, not Chechnya or Darfur. This reminded me of a famous exchange between Harvard’s racist president, Abbott Lawrence Lowell, and the great American judge Leonard Hand. Lowell announced that he wanted to reduce the number of Jews at Harvard, because, “Jews cheat.” Judge Hand replied that “Christians also cheat.” Lowell responded, “You’re changing the subject. We are talking about Jews.”

Well, you can’t just talk about Jews. Nor can you just talk about the Jewish state. Any discussion of war crimes must be comparative and contextual. If Russia did not commit war crimes when its soldiers massacred tens of thousands of Chechnyans (not even in a defensive war) then on what basis could Israel be accused of accidentally killing a far fewer number of human shields in an effort to protect its civilians? What are the standards? Why are they not being applied equally or selectively? Can human rights endure in the face of such unequal and selective application? These are the questions the international community should be debating, not whether Israel, and Israel alone, violated the norms of that vaguest of notions called “international law” or the “law of war.”

If Israel, and Israel alone among democracies fighting defensive wars, were ever to be charged with “war crimes,” that would mark the end of international human rights law as a neutral arbitrator of conduct. Any international tribunal that were to charge Israel, having not charged the many nations that have done far worse, will lose any remaining legitimacy among fair-minded people of good will,

If the laws of war in particular, and international human rights in general, are to endure, they must be applied to nations in order of the seriousness of the violations, not in order of the political unpopularity of the nations. If the law of war were applied in this manner, Israel would be among the last, and certainly not the first, charged.

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Alan M. Dershowitz is a Professor of Law at Harvard. His most recent book The Case Against Israel’s Enemies: Exposing Jimmy Carter and Others Who Stand In The Way of Peace is being published by Wiley at the end of this month.