Dershowitz Misstates the Facts, Part I

By Franklin Lamb – Beirut

"Israel is leveling Gaza to strike at Hamas, just as they pulverized south Lebanon to strike at Hezbollah. Yet in both cases civilian populations were attacked, countless innocents killed or injured, infrastructure targeted and destroyed, and civil law enforcement negated. All this was, and is, disproportionate, indiscriminate mass violence in violation of international law. Israel is not exempt from international law and must be held accountable. It is time for the UN to not just call for a cease-fire, but for an inquiry as to Israel’s illegal actions." — US Congressman Dennis Kucinich, 12/29/08

Typically, within the first ten days or so of enrolling in an American law school, in this observer’s case, Boston University School of Law, a student will begin to receive from professors or seasoned upper classmates, plenty of gratuitous but well intentioned advice. One bit that still rattles around in my ever-shrinking and increasingly over-crowded brain came from our Law School Librarian, Mr. Taylor.

More than once, during my three year stint, I heard the sometimes crotchety Mr. Taylor, a brilliant former Boston trial lawyer, intone, with sometimes lavish flair to law students in the Pappas Library trying to concentrate on writing their Briefs for the Homer Albers Moots Court Competition:

"Future lawyers! Remember well! If, God forbid, some miserable wretch on this green earth should have the misfortune or exceedingly poor judgment to hire you to represent them in Court, heed this!

“If you find yourself arguing a case before a skeptical judge or jury and the law is clearly against you, for Christ’s sake jump up and down and argue all the facts you can think of in your client’s favor!"

Then Mr. Taylor would invariably add, "On the other hand my dears, if the facts of the case are clearly against you, for Christ’s sake jump up and down, but this time ignore or deny every single material fact and argue only the law. Look the judge or jury straight in the eye, with tears in yours, lower your voice and softly rant about the technicalities of the law and how the very survival of Western Civilization, which came to us, after all, with our mothers milk, depends on strictly applying it in your clients favor".

Harvard Law Professor Alan Dershowitz, in his latest Arab-phobic, ultra-Zionist screed, in last week’s Wall Street Journal in defense of Israel’s ongoing slaughter in Gaza, having neither the law nor the facts in his favor, figuratively at least, just jumps up and down and rants.

Harvard Law School sources, including the student newspaper, the Harvard Law Record, indicate that Alan is just acting out again and being ‘lawyerly’ as he cozies up to various right wing power centers in Israel with his eyes peeled wide on being President of Israel when he retires.

Some faculty colleagues and law students are encouraging him to retire sooner rather than later, as Harvard wearies of his witch hunts and hysterics and the disrepute he has brought on that institution with his myriad smear campaigns. Among his long list of victims have been against the likes of President Carter, Noam Chomsky, Howard Zinn, Norman Finkelstein, Nelson Mandela, Kofi Annan, the Dali Lama, Bishop Tutu, and all manner of supporters of the Palestinians right and obligation to resist the Israeli occupation and struggle to reacquire their stolen land. Not to mention his ex-girlfriend.

In his January 2, 2009 article in the Wall Street Journal entitled ‘Israel’s Policy Is Perfectly Proportionate’, Professor Dershowitz defends Israel’s operation "Molton Lead" and while doing so consistently misstates the Facts and the Law.

Dershowitz Misstates the Facts

Alan Dershowitz:

"Hamas knew that Israel would never fire at a home with civilians in it."

Fact Check:

On the contrary, Hamas and every person over 7 years old in the 1.5 million Palestinians in Gaza, as well as in Lebanon and Palestine know that Israel will for sure "fire at a home with civilians in it." And also ambulances, convoys fleeing a war zone with prior UN and IDF approval and waving white flags, homes with only five children and their mother inside as they did in Nabysheet, Lebanon on July 19, 2006, destroying the family of my friend Abu Mohammad Chokr. History has shown that is what Israel does regularly and why it is increasingly a Pariah State.

Virtually every human rights organization including Human Rights Watch, Amnesty International and relevant UN Agencies, the European Union, objective Israeli and international investigative journalists digging beneath the mainstream Zionist media headlines has documented hundreds of cases of Israel targeting "a home with civilians in it". No fewer than 234 cases of firing on civilians in South Lebanon alone during 2006, and hundreds of others in Palestine. In the past week in Gaza (29 December 2008- 6 Jan 2009), Israel fired on more than 54 homes with civilians in them.

Alan Dershowitz:

"Terrorists firing at Sderot are so proud of their actions that they sign their weapons."

Fact Check:

Goodness Professor, since the days of cave men, the armies of Greece, Rome, Genghis Khan, to cowboys in the American west notching or ‘signing’ their six-guns and rifles, one imagines virtually every army in history has been done this. We do know the ‘most moral’, ‘elite’ and ‘purity of arms’ guys and gals in the Israeli Occupation Forces (IOF) do it as well. Yet it is a bit less sinister for lonely scared fighters to sign their weapons as a ‘security blanket’ than for the Public Information unit in the Israeli Ministry of Foreign Affairs to herd Israeli youngsters onto buses, as was done in 2006 in Lebanon, to visit IDF artillery bases and be given felt pens and told to sign the 155 mm cluster bomb rounds containing US supplied M-24, M-77 bomblets, before they are fired into South Lebanon in to kill and maim fellow school children.

And indeed, sorry to be indelicate, but it is also a bit more civilized to sign one’s weapon than the traditional practice of the Israeli forces entering civilian houses in numerous villages in South Lebanon in 2006 (they did the same this in during their wars against Lebanon in1978, 1982, 1993, and 1996— and rubbing their faeces over walls, inside water tanks, in pillows, beds etc poisoning wells and booby trapping children’s toys (apparently it’s an Occupation thing that warrants psychological study).

Alan Dershowitz:

"Since Israel ended its occupation of Gaza, Hamas has fired thousands of rockets."

Fact Check:

Israel never ended its occupation of Gaza. Following the September 2005 dismantlement of its illegal colony/settlements, Israel maintained nearly total control of Gaza’s borders, airspace, territorial waters (preventing most fishing), electricity, life-lines and economy, turning it into a sealed prison resembling the Warsaw Ghetto, according to UN Special Rapporteur, Richard Falk.

Palestinians living in Gaza have not only the right but the obligation to resist Israel’s continuing illegal occupation. Indeed, the very existence of Gaza is a historical reminder of those hundreds of thousands of Palestinians who lost their homes to Israel. Gaza is a Palestinian refugee camp—all of it. More than 80% of its inhabitants were victims of Zionist terrorism that pushed them off their land—many from Askalaan (Ashkelon), their heritage from that now Jewish town nearly erased, as Robert Fisk reminds us.

Alan Dershowitz:

"Barack Obama visited Sderot this summer and saw the remnants of these rockets, he reacted by saying that if his two daughters were exposed to rocket attacks in their home, he would do everything in his power to stop such attacks. He understands how the terrorists exploit the morality of democracies."

Fact Check:

President-elect Obama feels the very same that every parent does including the parents of the 800,000 Palestinian children in Gaza including the parents of more than 147 children killed during the past seven days.

Alan Dershowitz’s claim of Israel as a ‘moral democracy’ is not backed by the facts. The 20% of its population that are Arabs are not included in this myth. Countless studies by Israeli and international human rights organizations, researchers and on the scene journalists have painstakingly documented the Apartheid nature of Israel. When it comes to education, housing, employments, medical services, government loans, travel, marriage, Israel’s Arab population does not share in the "moral Democracy" of Israel, only in its immoral, racist Apartheid system.

Alan Dershowitz:

"Hamas knows from experience that even a small number of innocent Palestinian civilians killed inadvertently will result in bitter condemnation of Israel by many in the international community."

Fact Check:

And well should such killings, even if inadvertent, be condemned. But Professor Dershowitz’s ‘small number’ is not a small number for the rest of the World. During the July 2006 War (not the "Second Lebanon War" as Israeli apologists like to refer to it while overlooking the Israeli Wars against Lebanon in 1978, 1993, and 1996) an estimated 82% of those killed in Lebanon were civilians, more than one-third children under age of 15. A ‘small number’ only in Alan’s World. In Gaza the same pattern may or may not hold. Either way, the World, and not just Hamas, is getting tired of Israel inadvertently killing ‘small numbers’ of those it occupies or attacks.

Alan Dershowitz:

"Israel goes to enormous lengths to reduce the number of civilian casualties — even to the point of foregoing legitimate targets that are too close to civilians."

Fact Check:

Nonsense, Professor. If the targets are "too close to civilians" such as their homes, schools, cars, places of worship, hospitals etc. they are, by definition, not legitimate. But there is no evidence that "enormous lengths to reduce the number of civilian casualties" have ever been taken by Israel when attacking its neighbors. The absence of Zionist concern for civilians has been the case going back more than 70 years, since the Zionist gangs in pre-Nakba Palestine, between December 12, 1947 at Haifa and Ramla to November 2, 1948 at Arab al-Mawasi, not quite one year, committed 27 massacres of civilians in Palestine. This practice continues until today in Gaza with the weekend’s killing of three rescuers in an Israeli attack in Tal el-Hawa, killing two medics in an ambulance in Hay al Zaytoun, and five children from one family near al-Shifa Hospital.

– Franklin Lamb is a former adjunct Professor of international law at Northwestern College of Law in Portland, Oregon. He is currently doing research in Lebanon. He contributed this article to

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