In the following segment from Piers Morgan Uncensored, Harvard law professor Alan Dershowitz debates author and political scientist Norman Finkelstein on Israel’s ongoing military operation in Gaza, dubbed “Operation Swords of Iron”, a retaliatory response to Hamas’s “Operation Al Aqsa Flood” on October 7. Finkelstein accurately points out that Israeli leaders have openly declared their genocidal intent and have followed up their words with actions on the ground in Gaza. Dershowitz maintains that Israel is not engaging in indiscriminate attacks in Gaza, and that all civilian deaths are the fault of Hamas for using Palestinian civilians as “human shields”.
Dershowitz’s claim is beyond ludicrous. The facts on the ground in Gaza speak for themselves. You can literally see for yourself what a malicious lie his claim is by viewing my article from three days ago, “Visualizing Israel’s Goal of Making Gaza Uninhabitable”.
Simply stated, Israel is observably targeting the civilian population. Its operation simply is not targeting Hamas. It is observably targeting the civilian population with openly genocidal intent.
Dershowitz made the same claim back during Israel’s “Operation Cast Lead”, which was a 22-day full-scale military operation in Gaza from December 27, 2008 to January 18, 2009. While Dershowitz’s present insistence that Israel is not committing war crimes in Gaza, much less genocide, is even more untenable, the fact that he is a liar who shamelessly defends brazen war crimes by Israel was patently obvious even during that much more limited operation.
I documented Dershowitz’s willingness to try to deliberately deceive the public in my book Obstacle to Peace: The US Role in the Israeli-Palestinian Conflict, in Chapter 5, titled “The Goldstone Report”, in the chapter section titled “‘An Evil, Evil Man’”. Following is that full section excerpted from my book demonstrating just what an evil man Alan Dershowitz is, according to his own logic.
For brief context, this chapter deals with the report of a UN fact-finding mission into Operation Cast Lead headed up by the respected former South African judge Richard Goldstone, who is a self-described Zionist Jew. The mission’s report is commonly referred to as “The Goldstone Report”.
Note that while Israel’s operative aim during that prior massacre was explicitly to use deliberately disproportionate force to punish the civilian population (the “Dahiya Doctrine”, also explained in my book), during its current operation, its aim has been openly genocidal. But even with the prior lesser aim, the claim that Israel was doing everything it could to prevent harm to civilians was patently untenable.
With that said, here is the excerpt:
‘An Evil, Evil Man’
While they could not credibly resort to the usual charge of “anti-Semitism” in response to criticisms of Israel’s actions, defenders of its war crimes spared no effort in attacking Richard Goldstone’s character and attempting to discredit the UN report. Prominent among them was Harvard law professor Alan Dershowitz, who went so far as to call Goldstone a traitor to the Jewish people and to describe the report as “a defamation written by an evil, evil man.”[1]
Dershowitz went to great lengths to try to prove his case in a paper published on the Harvard University website titled “The Case Against the Goldstone Report: A Study in Evidentiary Bias”. (A summary of his central accusations therein was later published in the Jerusalem Post.[2]) An examination of this paper, considered by Harvard to be a “scholarly article”, illustrates just how impossible it was proving for Israel’s defenders to substantively challenge the report’s central findings. Dershowitz’s own difficulty in this regard could be gleaned just from the paper’s introduction, where he began with a series of ad hominemarguments. He attacked Goldstone as “biased” without even attempting to substantiate the charge. He dismissed the report itself as “a shoddy piece of work, unworthy of serious consideration by people of good will, committed to the truth.” Among his complaints was that it was “poorly written” with “overall poor craftsmanship”.[3]
Dershowitz rejected the report’s conclusion that a primary purpose of Operation Cast Lead was to punish the civilian population and insisted that Israel’s goal was to stop Hamas’s rocket attacks. In order to sustain this assertion, he naturally made no mention anywhere in his forty-nine-page paper of the fact that it was Israel that violated the ceasefire and refused Hamas’s offer to renew it, etc. Rather than addressing the substance of the report, Dershowitz from the start created a strawman argument that served as the foundation for his entire paper. He lied that the report concluded that Israel’s primary purpose “was to target innocent Palestinian civilians—children, women, the elderly—for death”. He repeated this falsehood throughout his paper: “the report accuses the Jewish state of having implemented a policy in Gaza that borders on genocide”; “its real purpose: namely the killing of Palestinian civilians”; “a carefully planned and executed policy of deliberately targeting innocent civilians for mass murder”; “a governmental policy of deliberately maximizing civilian deaths”; “the explicit policy of the IDF to target Palestinian civilians and to maximize civilian deaths”, etc. He proclaimed that “the report presents no hard evidence to support its serious accusations of a governmental policy of deliberately maximizing civilian deaths”. Focusing his energy on arguing this strawman allowed him to attack the report in an attempt to discredit it while avoiding altogether the need to address the report’s actual conclusions.[4]
To support his lies about the report, Dershowitz willfully and deliberately quoted portions of it out of context. For instance, he wrote that “The report found these serious charges ‘to be firmly based in fact’ and had ‘no doubt’ of their truth.”[5] Neither of these two quotes from the report, however, was in reference to a conclusion that Israel set out to deliberately kill as many civilians as possible. The first quote rather referred to the finding that “the operations were in furtherance of an overall policy aimed at punishing the Gaza population for its resilience and for its apparent support for Hamas, and possibly with the intent of forcing a change in such support” (emphasis added). The second came from a sentence noting that the Mission was left with “no doubt that responsibility lies in the first place with those who designed, planned, ordered and oversaw the operations”—hardly a controversial finding.[6]
Self-conscious that he was employing a strawman fallacy, Dershowitz went out of his way to assure readers: “Lest there be any doubt that thisis the accusation being made, read the words of the report itself.” (Underlined emphasis in all instances is Dershowitz’s.) He proceeded to quote the report’s finding that, “While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self-defense, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole.”[7] This supposed proof of Dershowitz’s, if one bothers to take his advice and actually read all the words of the report in context, reveals the full extent of his intellectual dishonesty. The very next sentence in the report—omitted by Dershowitz for the obvious reason—was the finding noted above that it was Israel’s intent to punish the civilian population, not to commit mass killing on a genocidal scale. The very next page of the report reiterated that Israel’s operation “was a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population” (emphasis added).[8]
This conclusion was one Dershowitz didn’t trouble himself to challenge. He argued, “If Israel’s intention was truly to kill civilians, why was the combatant to civilian casualty ratio only one to less than two? Certainly if one of the world’s most advanced military forces intended to kill civilians it could have made that ratio one to five or even one to ten.” In other words, the fact that “only” “1.885” Palestinian civilians were killed for every combatant, “even according to one of the most biased and skewed sources available” (by which he meant the Palestinian Center for Human Rights), proved that Israel didn’t set out to commit genocide, since civilians would have accounted for an even greater proportion had that been the case.[9] Of course, the fact that nearly twice as many civilians were killed as combatants would very much suggest a disproportionate use of force intended to punish and terrorize the population. The reason Dershowitz found it necessary to resort to strawman argumentation in his effort to debunk the report becomes painfully obvious.
In another enlightening example, he wrote (italicized emphasis added):
The report’s final argument, made implicitly at various points in the document, goes something like this: Israel deliberately targeted non-human civilian targets, such as a flour mill and a wastewater plant; this proves that the IDF wanted to punish civilians who relied on these facilities; it follows therefore that the IDF deliberately intended to hit human civilian targets and kill as many civilians as possible. . . . But even if it were true that Israel sought to punish the civilian population of Gaza by attacking food and sewage facilities, it would not follow that Israel intended to kill civilians. . . . Just as American sanctions against Iran would cause the Iranian “people [to] suffer,” so too do Israeli sanctions. But it is a far cry from sanctions to murder, and it is a non-sequitur to argue that the destructions of non-human civilian targets proves an intention to target human beings for death.[10]
Notice that everything up to the emphasized clause is accurate, but by falsely attributing a logical fallacy of his own invention to the UN Fact-Finding Mission, Dershowitz avoided having to substantively address the report’s actual findings, including that Israel deliberately targeted the civilian infrastructure—which he tacitly acknowledged—and that this was done to punish the population—which he allowed might also be true.
A further illustration of Dershowitz’s intellectual bankruptcy (emphasis added):
Reasonable people may disagree as to whether the deaths that resulted from Israel’s military objects were proportional or disproportional to risks its civilians feared from Hamas rockets. Reasonable people could also disagree about whether Israel’s policy of destroying Hamas buildings, tunnels and industry should be permissible under international law. But that is not the essence of what the report accuses Israel of deliberately planning—namely the deliberate targeting and killing of hundreds of innocent Palestinian women and children.[11]
Dershowitz thus acknowledged that the report’s actual conclusions, that Israel engaged in a disproportionate use of force and that its destruction of the civilian infrastructure was a war crime, were indeed reasonable. Once again, the reason he felt it necessary to employ strawman argumentation is palpable. Such dishonesty was the essence of Dershowitz’s “scholarly” paper.
In yet another example, he falsely claimed that “the Goldstone Report takes the alleged instances of Israeli soldiers intentionally targeting civilians and claims it was the policy of Israel to intentionally target civilians”. Again we see that employing his strawman allowed him to deny that this was a matter of policy without actually addressing the report’s conclusion that there were clear instances in which IDF forces intentionally targeted civilians.[12]
Elsewhere, Dershowitz inadvertently confirmed conclusions of the Goldstone Report. He acknowledged, for instance, that Israel’s “Dahiya Doctrine” was implemented in Operation Cast Lead. He admitted that it was a policy consisting of the deliberate use of “disproportionate force”. But he claimed this policy was solely “intended to destroy infrastructure” and “says nothing about specifically targeting civilians for death”. Of course, the admitted fact that Israel deliberately engaged in disproportionate force with the intent of destroying civilian infrastructure said a great deal indeed about the validity of the report’s conclusion that Israel’s purpose was to punish the civilian population.
He insisted that the numerous quotes in the report from Israeli officials declaring their intent to use disproportionate force only referred to destroying infrastructure and killing members of Hamas. “Ordinary people, civilians, are not mentioned” in the quotes, Dershowitz lied. “Their exclusion is significant. Yet the report misused this doctrine and these quotes to try to prove that the object of Operation Cast Lead was the killing of civilians.”[13]
In truth, what the report rightly used these quotes to prove was that Israel’s policy was one of deliberate use of disproportionate force to punish the civilian population—a fact that, as just noted, Dershowitz admitted. As for his claim that civilians were not mentioned in the quotes, firstly, this is a perfectly meaningless observation since disproportionate force by definition includes any use of force that puts civilians at risk of death or injury in a manner disproportionate to any military objective. Secondly, Dershowitz was not merely making a disingenuous argument; he was lying outright. There was in fact explicit mention of civilians accompanying the Israeli declarations of intent to punish them. For example, Retired Major General Giora Eiland, who was also a former head of Israel’s National Security Council, was quoted as saying that one of Israel’s goals, in addition to “the destruction of the national infrastructure”, was to create “intense suffering among the population” and cause “the suffering of hundreds of thousands of people”.[14]
“The report itself admits that it does not know ‘whether Israeli military officials were directly influenced by these writings’”, Dershowitz continued. “But it reaches the conclusion that ‘What [sic] is prescribed as the best strategy appears to have been precisely what was put into practice.’ Yes! The destruction of physical infrastructure. Not the targeting of civilians.”[15] Examining the full paragraph of the report from which Dershowitz was selectively and inaccurately quoting, one finds (portions he omitted emphasized): “The Mission does not have to consider whether Israeli military officials were directly influenced by these writings. It is able to conclude from a review of the facts on the ground that it witnessed for itself that what is prescribed as the best strategy appears to have been precisely what was put into practice.”[16] But even more significant than the dishonest means by which he attempted to discredit the report was his enthusiastic acknowledgment that the Mission’s actual conclusion was indeed valid. Were the quotes from Israeli officials evidence of Israel’s intent to commit war crimes by engaging in the deliberate and systematic destruction of civilian infrastructure in Gaza? “Yes!”
His argument descended from there even further into absurdity. He made completely nonsensical statements such as that Israel’s proclaimed intent to use “disproportionate” force “does not constitute an admission that unlawfully disproportionate force would be employed under the standards of international law”. Of course, outside of the rabbit hole the Harvard law professor had dug for himself, disproportionate force was by definition a war crime.
As the ICRC [International Committee of the Red Cross] points out, “The principle of proportionality in attack is codified in Article 51(5)(b) of Additional Protocol I, and repeated in Article 57.”[17] As a reminder, that clause prohibits any attack “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” Again, disproportionate force is included within the definition of “indiscriminate attacks”, all of which are war crimes. Drawing on Article 51 of Additional Protocol I, the Rome Statute of the International Criminal Court defines as “war crimes” grave breaches of the Geneva Conventions, including “Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”. Other serious violations of international law include: “Intentionally directing attacks against civilian objects, that is, objects which are not military objectives”; “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects . . . which would clearly be excessive in relation to the concrete and direct overall military advantage anticipated”; “Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives”.[18]
Dershowitz himself correctly explained that “the harm collaterally inflicted on civilians must not be disproportionate to the military objective”. But he nevertheless attempted to deny that the quotes from Israeli officials showed unlawful intent with the gibberish argument that “there is no prohibition against using overwhelming—that is disproportionate—military force against a legitimate military object.” His use of the word “disproportionate” here was, of course, meaningless and irrelevant. One may stipulate that there is no prohibition of “overwhelming” force against military targets. Yet it remains true that, under international law, disproportionate attacks are by definition not limited to military objects and constitute war crimes.[19]
Dershowitz himself referred to the statement from Major General Gadi Eisenkot that “in every village from which Israel is fired on”, Israel would “apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases.” So, to further his argument, Dershowitz simply adopted Israel’s own standard of redefining entire villages as “a legitimate military object”. We observe further that, setting aside the Orwellian redefinition and considering what international law actually has to say about it, the kinds of attacks that Dershowitz admitted Israel carried out with intent were indistinguishable from “war crimes”.
For a forty-nine-page paper purporting to debunk the Goldstone Report, Dershowitz included astonishingly few references to the specific incidents in which the UN Mission concluded that Israel had committed war crimes. In the few instances where Dershowitz did actually cite such incidents, he contented himself with simply parroting Israel’s position. He mentioned the case of the Abd Rabbo family, for example. He naturally didn’t bother to explain the details—that the grandmother and three daughters were shot while carrying a white flag—but simply referred to the “incident” and the Mission’s finding that “the Israeli armed forces were not engaged in combat or fearing an attack at the time of the incident.” He rejected this finding by citing a Time magazine article in which the reporter relayed that most residents insisted “there were no Hamas fighters in the area at the time”. One resident farmer, however, took him aside “and said, in a near whisper, that Hamas had been firing rockets from the vicinity where the episode took place.” Dershowitz didn’t relay the first sentence of that same paragraph in the Time article, which said, “Whether the Israeli troops believed they were under threat when they opened fire is unclear.”[20]
Just taking the Time report on its face, even if it was true that Hamas had fired rockets where the incident took place, did the farmer mean that they were firing rockets when it happened? It seems that the reporter misinterpreted and that the farmer was referring to an earlier time. While it may have been unclear at the time to the reporter whether the Israeli forces felt under threat, any ambiguities were dispelled by investigations into the incident from not only the UN Mission, but also Amnesty International and Human Rights Watch.
The father, Khaled Abd Rabbo, told Amnesty that Israeli forces had moved into the area around his home on January 3. Four days later, the Israeli forces called through a megaphone in Arabic to order everyone to leave their homes. A tank was parked ten meters from their door, with two other tanks nearby. Two soldiers were standing in their garden “eating chips and chocolate”. The family stood there for a while, waiting to be told what to do, when a soldier emerged from the top of the nearest tank, took aim at them, and opened fire. Khaled’s mother told Amnesty the same story.[21]
Other residents likewise told Human Rights Watch that Israeli forces had been in control of the area since January 3, the day Israel launched its ground operation. Initially, Palestinian militants engaged the IDF, but “quickly retreated to the west as Israeli armor approached together with air support.” Fighting continued in the area over the following days, but was “concentrated a few hundred meters to the west” of the Abd Rabbo home. Seven neighborhood residents told Human Rights Watch “that major fighting in the area had stopped by the morning of January 7”, when the family emerged from their home on the instruction of a soldier calling for them to do so through a megaphone. Waving white flags, they awaited further instructions. After several minutes, a soldier opened fire on them. The nine-year-old, Souad, was killed instantly. The grandmother described how the three-year-old girl, Amal, “was hit in the chest and abdomen and her intestines came out.” She was taken inside, but died there “because the ambulance could not come.” Samar lived, but was paralyzed. (Human Rights Watch also documented three cases in which the IDF detained male residents of the neighborhood and used them as human shields to search Palestinian homes.)[22]
Witnesses also told the UN Mission about the Israeli soldiers eating a snack at the time, including one who specifically said they were eating chips and chocolate.[23] The Time article cited by Dershowitz, incidentally, also quoted one witness as saying, “Two Israeli soldiers were beside their tank, eating chocolate and potato chips”.[24] This would seem very odd behavior indeed for Israeli soldiers under threat from nearby combatants. Moreover, Israel itself had never claimed that Hamas was firing from the vicinity at the time of the attack or otherwise that the Abd Rabbo family was attacked mistakenly in the “fog of war”. The evidence is rather clear that an Israeli soldier intentionally fired directly at the family.[25]
In reply to the UN Mission’s request that Israel cooperate with its investigations, Israel’s UN ambassador, Aharon Leshno Yaar, stated in a letter, “Reports that the members of the Mission were accompanied at every stage of their visit to Gaza by Hamas officials gives serious reason to doubt that any true picture of the situation in Gaza . . . can possibly emerge.” Goldstone replied to this charge by writing that such reports were untruthful and categorically denying “the allegation that Hamas officials accompanied Members of the Fact Finding Mission at all, let alone ‘at every stage of their visit to Gaza.’” This exchange of letters was included in an appendix of the Goldstone Report.[26] Dershowitz charged that Goldstone “lied about the role Hamas played in escorting and presenting evidence to the Mission.” After quoting the relevant portion from Goldstone’s reply letter, Dershowitz asserted, “The actual truth is quite different.” To support this, he cited a news report alleging that “Hamas security often accompanied his team during their five-day trip to Gaza”. How did Dershowitz rule out the hardly farfetched possibility that the news report was indeed simply parroting misinformation, as Goldstone credibly contended? He didn’t, of course, but that was no obstacle for him to draw the desired conclusion.[27]
Dershowitz elsewhere in his paper seemed to borrow from the US House of Representatives’ resolution denouncing the Goldstone Report. But whereas that resolution had taken out of context Goldstone’s remark, “If this was a court of law, there would have been nothing proven”, Dershowitz took the distortion a step further by lying that “Goldstone has himself acknowledged that there is no actual ‘evidence’ that the report’s conclusions are correct”.[28]
He also parroted the House resolution’s criticism that the Mission “deliberately chose to ignore” the “expert testimony” of Richard Kemp. He quoted Goldstone’s remark about how the Mission “did not deal with the issues he raised” concerning problems arising from “the fog of war”. Then he declared, “That is a willful lie. The report dealt specifically with precisely that issue.” Of course, it was Dershowitz who was willfully lying, deliberately choosing to ignore the very next sentence of Goldstone’s e-mail, in which he explained that the Mission “avoided having to do so” in the incidents of direct attacks on civilians that it decided to investigate since in each case there was no possible military objective.[29]
Dershowitz falsely attributed to the Mission the logic that “because the IDF uses such advanced weaponry, whenever civilians were killed, they must have been killed intentionally”. He criticized that its report “paints the IDF as a military force that, unlike any other military force in the world, simply does not commit errors.” In fact, it was not the UN Mission that painted this image of the IDF. Rather, the Mission had merely observed that Israel itself had in only one instance attributed the deaths of civilians to “error”.
This was abundantly clear from Dershowitz’s own supporting example, where he took issue with the Mission’s statement that Israel’s January 6 attack on the Daya family’s home in Zeytoun “appears to be the only incident that has elicited admission of error by the Israeli authorities”. This statement was “not made in good faith”, he argued, because “the Israeli government claims that an attack on an oxygen truck that killed four civilians and four Hamas militants was a mistake of fact error. The IDF erroneously believed the oxygen canisters to be rockets and targeted the truck for destruction.”[30] So his charge of bad faith on the part of the UN Mission boiled down to Israel having attributed not one but two incidents involving civilian deaths to “error”.
Moreover, the fact that it was Dershowitz who was arguing in bad faith is evident in the fact that the Mission did discuss the incident with the truck and explicitly clarified why it was considered different in this regard from the attack on the Daya home. Israel in its own self-investigatory reports had admitted that, “In fact, the truck was carrying oxygen tanks and not rockets.” Yet Israel defended the attack as reasonable because of the truck’s alleged “proximity to terrorist sites used for rocket launches”. And with that, Israel dismissed the incident and said there were “no grounds to open a criminal inquiry”.[31] The UN Mission observed that Israel’s comments about the attack on the truck were “somewhat more equivocal” than its explanation for the attack on the Daya home. Israel had notattributed the civilian deaths to its “error” of mistaking oxygen tanks for rockets, but rather to the location of the truck. In the case of the Daya home, Israel described the attack as a “mistake”. In the case of the truck, what Israel described as an “error” was not the attack itself, which it rather attempted to justify.[32]
Unable to come up with any other examples where Israel had admitted that it killed Palestinian civilians in error, Dershowitz irrelevantly added, “Four out of the nine IDF deaths were caused by friendly fire. Of course these deaths were errors. Surely there were many more errors, as there always are in war.” Then he nonsensically remarked, “To assume that all deaths caused by errors were, in fact, deliberate, begs the critical question and reflects the bias of the report.”[33] The Mission had made no such assumptions, and it was, of course, Dershowitz who was again begging the question by treating as axiomatic that “alldeaths” were “caused by errors”. One can hardly fault the Mission for observing that in only one case did the government of Israel itself attribute civilian deaths to an attack it judged to be a “mistake”, or for understanding this to mean that Israel “does not consider the other strikes brought to its attention to be the result of similar or other errors.”[34]
Dershowitz repeatedly parroted Israel’s own untenable positions throughout his paper as though fact, such as proclaiming that the Gaza police not engaging in hostilities were legitimate military targets. “It is sad that so many innocents died during the Gaza war,” he wrote, “but numbers alone do not prove that Israel intended to kill civilians, especially in light of how Hamas used civilians as shields.” He decried the Mission’s “half-hearted findings” in this regard and argued that its bias was indicated in its choice of language. “The Mission only ‘believes’ that there are ‘indications’ of firing from urban areas”, he wrote. “It only ‘suffices to say’ that ‘in some cases’ there ‘was evidence.’” Following these selected partial quotations, he continued at great length to argue that Hamas fired from urban areas.[35] He need not have troubled himself so much, as Hamas’s firing of rockets from urban areas was in fact regarded by the Mission as uncontroversial. As stated in the Goldstone Report, “The Mission finds that the presence of Palestinian armed fighters in urban residential areas during the military operations is established.”[36]
He took issue with the Mission describing as a “possibility” that combatants had fired from nearby the UN school in Jabaliya, rather than accepting it as hard fact. He cited three news reports of witnesses saying there was rocket fire from nearby the school. “Although two of these three sources are cited in the report,” he argued, “little credence is granted to them because, according to the interviews the Mission conducted, ‘No witness stated that he had heard any firing prior to the Israeli armed forces’ mortars landing.’”[37] Dershowitz declined to provide the very next sentence from the Goldstone Report, which continued, “On the other hand, the Mission is aware of at least two reports that indicate local residents had heard such fire in the area” (emphasis added).[38] We thus see that, contrary to Dershowitz’s accusation that the Mission simply dismissed them, it was in fact entirely on the basis of those two reports—both of which cited anonymous witnesses—that the Mission concluded that, despitethe unanimous testimony to the contrary from its own interviews, it was possible that militants had fired from the vicinity. Even more instructive than Dershowitz so deceitfully quoting the report out of context was the fact that he declined to address the Mission’s main findings with regard to the attack on the UN school in Jabaliya: the IDF’s repeated claim that the alleged firing had come from withinthe school compound and its claim that two “senior Hamas militants” responsible for the alleged rocket fire were killed in the attack were both categorically false.
“Unsurprisingly,” Dershowitz complained further, “the report does not address Hamas’ clear pattern of using schools to launch attacks. It makes a single mention of a rocket fired from a school.”[39] In the mention he was referring to, the Mission was citing Amnesty International, which interviewed residents who said they witnessed militants firing a rocket from a school, but “at a time when the schools were closed.” The Amnesty report had also said “that it had seen no evidence that rockets had been launched from residential houses or buildings while civilians were still in them” (emphasis added).[40] Dershowitz offered no evidence to the contrary in support of his assertion that there was a “clear pattern” of Hamas using civilians as human shields by firing from schools.
Dershowitz further charged that the report “ignores evidence that hospitals may have been used for military purposes” (emphasis added). He thus tacitly acknowledged that there was no proof that hospitals were used by Hamas for military purposes. What evidence did the Mission ignore, according to Dershowitz? “The Mission,” he wrote, “even though it is in possession of a Newsweek article suggesting otherwise, does not make factual findings whether there were militants operating in the vicinity of the Al-Quds Hospital when it was attacked by Israeli forces.”[41] He was referring to the Newsweek article cited by Israel in its attempt to justify attacking the hospital. Of course, the Mission didn’t need to make any factual findings about whether militants were operating “in the vicinity of”the hospital, only whether they were operating from the hospital grounds itself, since it was apparent that the hospital itself had been “the object of a direct attack by the Israeli armed forces”—and Israel did not claim that the hospital had been hit in error.[42]
Beyond that, he attempted to characterize as sinister the fact that the Mission did not investigate Israel’s claim that the Al-Shifa Hospital was used by Hamas as a military base of operations, asking why it would “avoid” investigating “one of Israel’s most serious allegations”. How he judged that this was among the “most serious” of Israel’s claims when it was virtually obligatory for Israel to claim that any civilian objects struck were targeted because Hamas was operating there is something he made no attempt to elucidate. It was enough for him to attribute this to some malevolent intent to willfully ignore evidence, rather than accepting that the Mission couldn’t possibly investigate every single such allegation made by Israel—or that it was unnecessary to do so in light of Israel’s failure to present evidence to support them in the first place.
Dershowitz further criticized the report for concluding that, if there were any incidents of militants using ambulances during their operations, it was “the exception, not the rule.” He ended this section of his paper by noting that the report cited “an article in which an ambulance driver says militants ‘ordered me to get them out, to put them in the ambulance and take them away. . . . And then one of the fighters picked up a gun and held it to my head, to force me.’”[43] He offered no further comment, apparently figuring that this would suffice to prove that the Mission was being willfully dishonest in its conclusion. That it was yet again Dershowitz who wasbeing dishonest becomes apparent by turning to the actual context in the Goldstone Report. After relaying this incident of the attempted hijacking of an ambulance, the Mission observed that the same news article
also describes how the PRCS ambulance teams managed to avert this misuse of ambulances. According to this report, relied on by the Israeli Government, the attempts of Palestinian combatants to exploit ambulances as shield for military operations were not successful in the face of courageous resistance of the PRCS staff members. This is consistent with the statements of representatives of the Palestinian Red Crescent Society in Gaza who, in interviews with the Mission, denied that their ambulances were used at any time by Palestinian combatants. Finally, in a submission to the Mission, Magen David Adom [Israel’s national emergency medical service, a member of the International Federation of Red Cross and Red Crescent Societies] stated that “there was no use of PRCS ambulances for the transport of weapons or ammunition . . . (and) there was no misuse of the emblem by PRCS.”[44]
Dershowitz similarly accused the Mission of “willful blindness” for investigating “only one instance in which the Israelis alleged mosques were used for military purposes. Had they been interested in the truth, surely the Mission would have performed more investigations.”[45] Unsurprisingly, Dershowitz commented no further on that one incident, which was Israel’s attack on the Ibrahim al-Maqadmah mosque, a case in which Israel had not argued that the mosque was being used for military purposes, but simply denied that any such attack occurred while contradictorily and falsely claiming that those killed in the attack were not civilians. (As we will come to, Israel later admitted to attacking the mosque.) The Mission explained that while it was “not able to investigate the allegation of the use of mosques generally by Palestinian groups for storing weapons”, there was in this particular case “no evidence that this mosque was used for the storage of weapons or any military activity by Palestinian armed groups.”[46] Had he been interested in the truth, surely Dershowitz would have at least briefly mentioned the facts about the one case that the Mission did investigate.
As “hard evidence” that Hamas fighters stored weapons in mosques, Dershowitz cited US media reports written by journalists who weren’t even in Gaza—two filed their reports from Jerusalem and the third from Sderot. Both journalists were simply following the customary procedure of uncritically parroting the unsubstantiated claims made by government officials.[47] The rest of his “hard evidence” consisted of claims from the IDF that could not be independently verified. The potentially most damning example he presented was a video showing a rocket being fired from just outside a mosque in Gaza on January 7, 2009, according to the IDF.
He cited a second video showing what Israel claimed were “secondary explosions” from weapons stored inside a mosque it attacked on December 31, 2008. However, in the video, the aerial view of the mosque was obscured by cloud cover, and there may just as well have been additional bombs dropped on it.
A third video he cited was the same one discussed previously, in which a second bomb can be seen dropping on the mosque and causing the secondary explosion that Israel falsely claimed was from weapons stored inside.
The fourth was a video of Israeli soldiers claiming they were fired on from a mosque. The video and accompanying photographs claimed to show weapons inside a mosque, such as an anti-aircraft gun stored in a dimly lit stairwell and rockets in a dark room with concrete walls, but with nothing to indicate that the location where the video was shot was actually even a mosque in Gaza.
Fifth, he cited a report showing photographs of a single AK-47 and ammunition laid out on the floor of a mosque near a pulpit where the IDF claimed the weapon had been found.
His sixth piece of evidence was an aerial photograph showing a mosque where the IDF claimed there was a rocket-launching site nearby.
His seventh was another photograph, taken from a much higher altitude (such that buildings are tiny and roads thin lines) and marked with labels and variously colored triangle symbols shown in the key as “Bunker”, “Hidden Position”, “Rigged Explosives”, etc.—images amusingly reminiscent of the satellite images that Secretary of State Colin Powell presented to the UN Security Council in February 2003 as “evidence” that Iraq had WMDs.
Dershowitz’s final piece of “damning evidence”, which he humorously described as “particularly convincing”, was the IDF’s claim to have in its possession “a seized Hamas intelligence map”, which was nothing more than a rough sketch of buildings and streets marked up with various colored lines allegedly showing “areas of operation” and dots the IDF claimed were locations where Hamas had planted explosives throughout the neighborhood depicted in the drawing.[48]
All of these videos could be said to be “hard evidence” only so long as one was willing to take the IDF’s word for everything.
Dershowitz also made much of the report’s statement that “The Mission found no evidence that members of Palestinian armed groups engaged in combat in civilian dress”. He argued that “the hard evidence contradicts the report’s conclusion.” But the Mission in that very same paragraph also stated, “Their failure to distinguish themselves from the civilian population by distinctive signs is not a violation of international law in itself. . . . What international law demands, however, is that those engaged in combat take all feasible precautions to protect civilians in the conduct of their hostilities.”[49] Dershowitz proceeded to cite numerous examples from media reports where reporters said militants were dressed in civilian clothing, only two of which suggested the combatants were engaged in hostilities with civilians nearby. Of those two, neither were written by reporters who were actually in Gaza. Both were filed from Jerusalem. Both were simply doing what most mainstream journalists who know what is good for their careers do, which is to unquestioningly parrot whatever official narrative is handed to them from government officials.[50]
Dershowitz rejected the Mission’s statement that it was presented with no evidence that Hamas had used human shields. “Here, again,” he wrote, “the hard evidence points to the opposite conclusion.” To support this contention, he cited a London Times report of a man whose family was forced to stay in their home while Hamas militants set up a position on their rooftop. The man was instructed, “If soldiers come, you must send your children to warn us. Tell them there is no one here and we will escape somewhere else.”[51] That same article also happened to tell the story of another male civilian who was used as a human shield—by Israeli soldiers. “There were maybe a dozen of us being used”, the man told the Times. “Different men were doing different things for soldiers. We were forced to hammer holes through walls, then check rooms to see if there were any fighters.” He was sent on one “special mission” where he was forced by Israeli soldiers to go out and confirm kills for them and bring back the weapons of the Palestinian militants they had shot. “There is no way to verify independently either man’s story”, the Times noted.[52] There was naturally no mention by Dershowitz of what, by his own standard, constituted “hard evidence” that Israeli soldiers had used human shields.
His next exhibit was a Knight Riddernews report in which a woman told her story about how the IDF warned four brothers who were members of Hamas that their home would be a target. The article stated, “Leaders at the local mosque urged neighbors to converge on the apartment building and act as human shields, she added. No one heeded the call, however, so the Hamas militants fled” (emphasis added). Dershowitz had no explanation for how a case in which it is clear that there was no actual use of civilians to shield military operations could at the same time constitute “hard evidence” to the contrary.[53]
His only other two pieces of “hard evidence” were edited videos from the IDF. Both were uploaded to the IDF’s YouTubechannel on September 17, 2009. The first showed what appeared to be a rocket being fired from the roof of a building. The video then cut to a different angle to show a man emerging from the door of the building. A nearby group of seven people, including children, ran to him and followed him back into the building. The IDF claimed in a caption that this man was the militant who fired the rocket, and that what is seen in the video is him calling the civilians “to help him leave the house”—both of which claims are impossible to determine from the video, particularly given how it was edited. It seems a dubious proposition that the civilians would have so willingly hurried to join the man inside had he actually been calling to them to shield him from an Israeli counterstrike immediately after having fired a rocket from the roof. Surely, he could just as well have been calling the others inside for shelter from the Israeli aircraft spying down on them from above. It was only after another cut to a more distant shot that the group of people was seen to emerge and, in contrast to their earlier race to get inside, began walking rather nonchalantly down the road. The IDF caption claimed that “the terrorist” was among them, which was also impossible to determine from the video given the distance.
The second video showed a man running down a road and then through a farm field. There was nothing to suggest he was a combatant except the IDF’s caption claiming he was a “terrorist”. At one point, he ran past three other people, apparently children. He appeared to stop for a moment as if speaking to them. Then they all ran off in different directions as he resumed his run across the field. Having left the children some distance behind, he tripped and fell, while the IDF’s caption read, “Terrorist feigns being wounded.” (Had it been more imaginative, the IDF could have also informed in a caption how the children had been instructed to wait in the field for the runner, who passed them a series of communiques with instructions to relay them to different Hamas commanders stationed nearby.) Rather strangely, for someone supposed to be faking an injury, the man quickly picked himself up again and continued running past some cows (bovine shields, perhaps?). He slowed as he neared a building and, just before the video faded out, another person the caption identified as an “innocent bystander”—not to be automatically presumed a fellow terrorist, mind you (far be it from the IDF to consider every Palestinian a “terrorist”)—walked to meet him. The video, in sum, was evidence of absolutely nothing.[54]
Dershowitz accused the Mission of having “applied totally different standards” in its evaluation of Israel’s intent as compared with Hamas’s. He argued that the Mission was “content to rely on extremely weak circumstantial evidence to infer Israeli intent” to perpetrate a “mass murder” that “borders on genocide”. On the other hand, its conclusion that Hamas “did not intend to use Palestinian civilians as human shields” depended on the much higher standard of lacking “direct evidence” to the contrary. Let us dissect this argument. One, Dershowitz falsely attributed said conclusions to the Mission (his usual strawman). Two, the Mission’s actual conclusion that Israel’s intent was to use disproportionate force was emphatically not inferred on “extremely weak circumstantial evidence”. Three, the Mission had not made any judgment about whether Hamas members ever intended to use human shields, only whether they had actually done so—something Dershowitz’s argument tacitly acknowledged there was no “direct evidence” of.
Continuing in this vein, he criticized the Mission for refusing to infer intent on the basis of a Hamas official’s statement after the end of Operation Cast Lead that the Palestinian people “have formed human shields of the women, the children, the elderly, and the mujahideen, in order to challenge the Zionist bombing machine.” But neither had the Mission inferred the intent of Israeli officials solely on the basis of their declarations that the IDF would use disproportionate force. As the report explained, it “did not have to” since it was apparent from “the facts on the ground” that a deliberate policy of disproportionate use of force to punish the civilian population is “precisely what was put into practice”.
Delving even more deeply into the absurd, he next criticized the Mission for not considering incidents of Hamas firing rockets from mosques and hospitals prior to Operation Cast Lead as proof that Hamas did so during that operation.
Finally, he quoted the report’s statement that, “While reports reviewed by the Mission credibly indicate that members of Palestinian armed groups were not always dressed in a way that distinguished them from civilians, the Mission found no evidence that Palestinian combatants mingled with the civilian population with the intention of shielding themselves from attack.” He then launched into a tirade about this “maddening reasoning”, and rhetorically asked what other reason combatants could have had for mingling among the civilian population in civilian dress.[55] The attentive reader will notice that this wasn’t actually what the Mission said, there being not a trivial difference between “members of Palestinian armed groups”, who may or may not have been participating in hostilities, and “combatants”, who by definition must have been. In the sentence just prior to the one Dershowitz quoted here, the Mission explained that there were no clear and specific cases from the information it had of combatants in civilian dress engaging in “combat activities in urban residential areas that would have placed the civilian population and civilian objects at risk of attack” (emphasis added).[56] To illustrate the point, recall the example cited by the Mission of militants firing rockets from a school that was unoccupied.
Dershowitz concluded by accusing the members of the Mission of being “biased ‘experts’” with “limited experience” who “lack the expertise” as well as “the neutrality and objectivity” to make legal determinations. The UN as a whole, he further charged, was “an organization with a long history of anti-Israel bigotry”, and “the methodology employed in this report is fundamentally flawed”.[57]
Given Dershowitz’s hypocrisy, himself being guilty in abundance of the dishonesty and bias he projected onto Richard Goldstone and the UN Mission, and applying his own standard, one must conclude that the Harvard law professor is “an evil, evil man” indeed.
[1] “Dershowitz: Goldstone is a traitor to the Jewish people,” Haaretz, January 31, 2010.
[2] Alan Dershowitz, “The case against the Goldstone Report,” Jerusalem Post, January 28, 2010.
[3] Alan Dershowitz, The Case Against the Goldstone Report: A Study in Evidentiary Bias, Harvard Law School, Public Law & Legal Theory Working Paper Series, Paper No. 10-26, January 2010.
[4] Ibid., 2, 5, 6, 7.
[5] Ibid., 2.
[6] Goldstone Report, paras. 1884, 1895.
[7] Dershowitz, The Case Against the Goldstone Report, 6.
[8] Goldstone Report, para. 1893.
[9] Ibid., 19-20.
[10] Ibid., 20-21.
[11] Ibid., 26.
[12] Ibid., 27.
[13] Dershowitz, The Case Against the Goldstone Report, 10.
[14] Goldstone Report, para. 1196.
[15] Dershowitz, The Case Against the Goldstone Report, 11.
[16] Goldstone Report, para. 1199.
[17] “Customary IHL > Chapter 4. Proportionality in Attack > Rule 14. Proportionality in Attack,” from the website of the International Committee of the Red Cross (www.icrc.org), accessed October 2, 2014.
[18] Rome Statute of the International Criminal Court, Article 8; available at the website of the International Criminal Court (www.icc-cpi.int), accessed October 16, 2014. The Statute entered into force on July 1, 2002.
[19] Dershowitz, The Case Against the Goldstone Report, 12.
[20] Ibid., 35. Tim McGirk and Jebel al-Kashif, “Voices from The Rubble,” Time, January 29, 2009.
[21] Amnesty International, Operation ‘Cast Lead’. See Chapter 4 notes.
[22] Human Rights Watch, White Flag Deaths: Killings of Palestinian Civilians during Operation Cast Lead, August 13, 2009.
[23] Goldstone Report, para. 773.
[24] McGirk and al-Kashif, “Voices from The Rubble.”
[25] Israel did discuss the attack on the Abd Rabbo family in a subsequent report, which we will come to.
[26] Goldstone Report, 448-449.
[27] Dershowitz, The Case Against the Goldstone Report, 5. For the AP article cited, see: “UN’s Gaza war crimes investigation faces obstacles,” Associated Press, June 9, 2009.
[28] Dershowitz, The Case Against the Goldstone Report, 7.
[29] Ibid., 23.
[30] Ibid., 14-15.
[31] Israel, The Operation in Gaza, paras. 398-400. Israel Ministry of Foreign Affairs, Gaza Operation Investigations: An Update, January 2010, para. 104 (see footnote 99).
[32] Goldstone Report, para. 1187 (see footnote 574).
[33] Dershowitz, The Case Against the Goldstone Report, 15.
[34] Goldstone Report, para. 1187.
[35] Dershowitz, The Case Against the Goldstone Report, 17, 20.
[36] Goldstone Report, para. 483.
[37] Dershowitz, The Case Against the Goldstone Report, 37.
[38] Goldstone Report, para. 674.
[39] Dershowitz, The Case Against the Goldstone Report, 37.
[40] Goldstone Report, para. 449.
[41] Dershowitz, The Case Against the Goldstone Report, 36, 38.
[42] Goldstone Report, para. 623.
[43] Dershowitz, The Case Against the Goldstone Report, 39.
[44] Goldstone Report, paras. 472-473.
[45] Dershowitz, The Case Against the Goldstone Report, 39.
[46] Goldstone Report, para. 465.
[47] Dershowitz, The Case Against the Goldstone Report, 40. Steven Erlanger, “Weighing Crimes and Ethics in the Fog of Urban Warfare,” New York Times, January 16, 2009. Sebastian Rotella, “Hamas rocket teams continue to launch,” Los Angeles Times, January 15, 2009 (cited by Dershowitz under the title “Hamas’ Weapon of Choice”). Craig Whitlock and Reyham Abdel Kareem, “Gaza Clan Finds One Haven After Another Ravaged in Attacks,” Washington Post, January 16, 2009.
[48] Ibid., 40-41. Israel Defense Forces, “Precision Airstrikes on Hamas Terror Targets,” IDFblog.com, January 7, 2009. Israel Defense Forces, “Weapons Hidden in Mosque Neutralized by Israel Air Force,” YouTube video, 0:48, posted on the official IDF YouTube channel (“idfnadesk”), December 31, 2008. Israel Defense Forces, “IAF Strike on Mosque used as Weapon Storage Site,” IDFblog.com, January 2, 2009. Israel Defense Forces, “Weaponized Mosque,” IDFblog.com, January 13, 2009. Israel Defense Forces, “Weapons Discovered in Zeitoun Mosque,” IDFblog.com, January 13, 2009. Meir Amit Intelligence and Terrorism Information Center, Evidence from Operation Cast Lead Shows Hamas Uses Mosques to Store Weapons and as Sites Launch Rockets and Mortar Shells File No. 3, February 16, 2009. Israel Defense Forces, “Intelligence Maps: Hamas Uses Mosques and Schools for Cover,” IDFblog.com, January 22, 2009. Israel Defense Forces, “IDF Maps Reveal Hamas Exploitation of Gazan Residents,” IDFblog.com, January 19, 2009. Israel Defense Forces, “Captured Hamas Intelligence,” IDFblog.com, January 9, 2009. US Department of State, Secretary of State Colin L. Powell Remarks to the U.N. Security Council, February 5, 2003; archived at http://web.archive.org, February 4, 2005, accessed October 16, 2014.
[49] Dershowitz, The Case Against the Goldstone Report, 41. Goldstone Report, para. 495.
[50] Dershowitz, The Case Against the Goldstone Report, 41-42. Erlanger, “Weighing Crimes and Ethics”. Joel Greenberg, “Israeli Army’s conduct questioned,” Chicago Tribune, January 26, 2009.
[51] Dershowitz, The Case Against the Goldstone Report, 43.
[52] Sheera Frenkel, “‘Human shields forced into Gaza front line by Israelis and Hamas,’” The Times, February 2, 2009.
[53] Dershowitz, The Case Against the Goldstone Report, 43-44.
[54] Ibid, 44. Israel Defense Forces, “Cast Lead Video: Hamas Terrorist uses Children as Human Shield,” YouTube video, 0:52, posted on the official IDF YouTube channel (“idfnadesk”), September 17, 2009. Israel Defense Forces, “Cast Lead Video: Civilians Flee Hamas Terrorist as He Attempts to Use Them as Human Shields,” YouTube video, 1:25, posted on the official IDF YouTube channel (“idfnadesk”), September 17, 2009.
[55] Dershowitz, The Case Against the Goldstone Report, 44-45, 47-48.
[56] Goldstone Report, para. 483.
[57] Dershowitz, The Case Against the Goldstone Report, 49.
