Harvard law professor to advise Israeli leaders on legality of terror-fighting tactics.
By HAVIV RETTIG GURdershowitz 224 (photo credit: AP)
The clear distinction between civilian and combatant breaks down in a war against terrorists, and international law must acknowledge and deal with this, according to Harvard law professor Alan Dershowitz.
"The anachronistic theory that you can clearly tell the difference between civilian and combatant must be updated to deal with the new reality in which terrorists use civilian populations for fighting purposes," Dershowitz told The Jerusalem Post ahead of a two-week visit to Israel.
During the visit, he will meet with Israel's political leadership, including Foreign Minister Tzipi Livni, Defense Minister Ehud Barak and opposition head Binyamin Netanyahu, and some of the country's most renowned jurists, including former Supreme Court president Aharon Barak, Israel Prize laureate Amnon Rubinstein and another visiting scholar, Canadian MP and law professor Irwin Cotler.
Dershowitz will discuss redefining the concept of civilian to "what I call the 'continuum of civilianality.' You can rank people on a scale of one to 10, one being an infant baby, 10 being a grown man with a shoulder rocket about to fire. In between, there are those people who allow their homes to be used for rocket launches or storage, imams who encourage suicide bombing, people who make the [explosive] belts."
He does not expect his Israeli discussion partners to agree fully. On redefining the question of "civilianality" he disagrees with Barak, "my dear friend," who "is prepared to define many terrorists as civilians under laws of war. He's written rulings, particularly on targeted killings, suggesting the rules here apply to civilians. I define combatant more broadly than he does. Of course, I may learn and change my mind."
The plan is part of a broader effort in which Dershowitz is seeking to redefine the international laws of war.
"International law is a barrier to democracies fighting fairly against tyrants," he told the Post. "There are exceptions, but in general, international law is part of the problem and needs revision."
Currently, "there is no mechanism for deciding international law," he said. "On the International Court of Justice, the justices are just pawns of their countries. Look at the two decisions regarding the [West Bank] security barrier. The Israeli decision is far more intelligent and compelling, and reality-based, because [unlike on the international court] justices in the Israeli Supreme Court are sworn to do justice."
"We need to construct a new jurisprudence in which the old notion of deterrence - achieved by massive superiority - plays less of a role than prevention," Dershowitz said, outlining the new initiative. "You can't deter a person who wants to die or a nation prepared to sacrifice itself, as some in Iran have suggested they're prepared to do."
The issue is not one of preempting an immediate and obvious threat, a situation which international law and the UN Charter already permit. Rather, it is about "prevention."
"An attack on Iran would be a preventive war, not a preemptive one," Dershowitz believes. "If Britain and France had fought a preventive war against Nazi Germany," it could have prevented the Holocaust.
Preventive war is already recognized in a limited way by international law. "The UN is not opposed to this idea. It just argues that preventive wars need the approval of the Security Council," he said.
During his two weeks in Israel, Dershowitz will teach a special seminar on the intersection of human rights and counterterrorism at the Interdisciplinary Center in Herzliya, sponsored by the American Jewish Congress's Steinberg Charitable Trust.
"I often use my audiences in Israel as a sounding board" for new legal initiatives, he explained, "because they're so involved in these things. I started my campaign on torture warrants in Israel in 1988."
Yet, while he admits the US is learning from Israeli fighting techniques and tactics - "the US in Iraq and Afghanistan has borrowed many of Israel's tactics, from targeted killings to some forms of collective accountability" - the Harvard scholar is skeptical about importing Israeli legal models to America.
The concept of specialized American courts, which has been discussed in recent years, including the existing wiretapping court or a proposed "administrative detention court" that would place judicial review in places such as Guantanamo where current lacunae prevent it, is not a useful model, he argued.
Despite a surface similarity to the Israeli Supreme Court's judicial review powers over even real-time military operations, America's "national security courts" are actually very different.
"You don't have [an inclusive idea of] standing, so, for example, the ACLU can't bring cases before these courts," Dershowitz said.
Furthermore, when judicial review is conducted in specialized lower courts, rather than a general Supreme Court, they "tend to become subject to the influence of the people over whom they have jurisdiction. The Delaware corporate court is known for this. The wiretap court as well has always been a place to which conservatives get appointed to validate wiretapping requests."
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