Harvard University human rights expert Alan Dershowitz advised Israel on Wednesday not to appear before the UN International Court of Justice, charging that the judges took orders from their governments and did not administer justice.
"Israel cannot win a case at the ICJ," Dershowitz replied to a question as to whether Israel was wrong in not taking part in the court's hearing on the legality or illegality of its West Bank security barrier. He was speaking during the second day of a conference on Terror and Human Rights at the Interdisciplinary Center Herzliya.
The IJC determined that the barrier was illegal and should be removed. Soon afterwards, Israel's Supreme Court ruled that the barrier was being built for security reasons and was therefore legal, but that certain sections of it caused disproportional human rights violations to Palestinians and must be shifted to reduce the damage.
"It is an insult to kangaroos to call the ICJ a kangaroo court," Dershowitz said. "I wouldn't appear before it, just like I wouldn't appear before an all-white court in Mississippi."
Dershowitz's comments triggered the only burst of anger during the proceedings. Prof. David Kretzmer, who currently teaches international law in Belfast, strongly rejected the accusation. "I find it disturbing that an attempt is made to trash international institutions in the crude manner it was done this morning," he said.
According to Dershowitz, the key problem to be addressed is the way in which terrorists exploit their own civilians, forcing them against their will to serve as human shields or obtaining their agreement to serve as such. "International law must recognize that when human shields are used, those who agree to be used are combatants, and have chosen to die," said Dershowitz. "As far as involuntary human shields are concerned, the damage inflicted upon them must be proportional. Nevertheless, the terrorists are to blame for every civilian who is killed."
Bar-Ilan University Prof. Yaffa Zilbershatz raised the question of how a country is to fight against an enemy that does not observe human rights. International law on the conduct of war does not address an aggressor made up of civilians without an army. "There should be new rules to deal with issues such as reciprocity [whether one side has to observe international law restrictions if the other side does not], or situations in which civilians attack civilians and commit their actions from civilian centers against other civilian centers," Zilbershatz said.
"In that case, should we protect civilians as we did before when the war was out on the battlefield?" she asked. According to Zilbershatz, it was unlikely that the nations of the world would sit down and rewrite international law to address these questions. However, new interpretations of international law were forthcoming, including in many decisions made by Israel's Supreme Court.
"Israel should be praised for taking this route," said Zilbershatz, who protested the criminalization of international law and said the concept of universal jurisdiction should be halted because the laws of war are so unclear. "As long as a state is trying to abide by the rules of international law, instructs its army how to apply it and it brings to justice violators of these instructions, no other state should interfere in the matter," she argued.
Attorney Daniel Reisner, former head of the IDF's international law section, told the audience that "we in Israel are in total agreement that the current... law is insufficient and we think there should be a process of moving from what the law is to what it should be."
Having said that, Reisner added that while the development of human rights law was the crowning achievement of the 20th century, "human nature has not changed. In times of emergency, in times of stress and crisis, people tend to think about their own people."
"[The] fact that 75 percent of the world says 'you can't do that...' is something I have to take into consideration, but that doesn't mean we are wrong. We must try to reach a proper balance for us, and not for other countries," Reisner said.
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