[WCUSP] Dershowitz (again): Is self-defence a war crime?

[KATHARLOW at aol.com]

Is self-defence a war  crime?   
_http://www.canada.com/nationalpost/news/issuesideas/story.html?id=3a7d8573-88c8-4b3b-a6d8-886065f33fc0_ 
(http://www.canada.com/nationalpost/news/issuesideas/story.html?id=3a7d8573-88c8-4b3b-a6d8-886065
f33fc0) 

Alan M. Dershowitz  National  Post 

Saturday, October 14, 2006

         CREDIT: Christinne Muschi, Reuters  Michael  Ignatieff. 
Michael Ignatieff, the former Harvard human rights professor and current  
candidate for the leadership of the Liberal Party of Canada, has made two  
serious misstatements regarding the recent war between Hezbollah and Israel, and  
most particularly the Israeli military actions in the Lebanese town of Qana. 
Back in August, Ignatieff said that he was "not losing sleep" over the attack 
 in which 29 civilians, who had sought refuge in a building, were killed when 
the  Israeli air force fired a missile at what it believed was a Hezbollah  
rocket-launching site. Every humane person -- and Ignatieff is surely that --  
should lose sleep whenever innocent civilians are killed, regardless of who is 
 at fault. Many Israelis, including soldiers, lost sleep over Qana, as did 
many  friends of Israel around the world. Ignatieff was rightly criticized for 
his  insensitivity and later acknowledged that he was wrong in his choice of  
words. 
Now in an apparent effort to compensate for his insensitivity toward Lebanese 
 civilians, he has once again put his foot in his mouth. This time, he  
characterized "what happened in Qana" as "a war crime" and said that this was  
"clear." Ignatieff is not a lawyer, but he is an expert on human rights and he  
should know that for a military attack to constitute a "war crime" -- the most  
serious charge that could be made against a soldier -- there must be an  
intention to deliberately target innocent civilians. Civilians are almost always  
killed during wars, especially wars in which combatants -- who are legitimate  
military targets -- deliberately hide among civilians and fire their rockets  
from civilian population centres, as Hezbollah does. 
Ignatieff has surely seen the videos and other indisputable evidence that  
Hezbollah was launching rockets from areas near the building that Israel bombed. 
 He surely knows that Israeli intelligence was completely unaware that 
Lebanese  civilians were hiding in the building. He cannot reasonably believe that 
the  Israeli air force deliberately intended to kill the civilians in the 
building.  Why then would he characterize the resulting tragedy as a "war crime?" 
There are several possible answers. The first is that he simply misspoke in  
the course of an interview in which he wanted to make up for his past  
misstatement. If that is the case, he should be accused only of carelessness.  The 
second possible explanation has far greater implications for his candidacy  to 
lead a great political party. 
It is possible that he believes that even if the Israeli killing of Lebanese  
civilians was an unintended consequence of its efforts to prevent rocket 
attacks  against its own civilians, it was still a war crime. Such a view would 
reflect a  perverse and dangerous approach to international law that would make 
it nearly  impossible for democracies to protect its civilians from terrorists 
who launch  rockets from civilian population centres. It would also encourage 
other  terrorist groups to emulate the tactic employed by Hezbollah in its 
recent war  against Israel: to use local civilians as human shields behind whom 
the  terrorists fire their rockets at enemy civilians. This gives the 
democracy only  two choices: to protect its civilians by destroying the rocket 
launchers even if  that means some civilians will inevitably be killed; or do nothing 
and allow its  own civilians to be targeted. Faced with this choice of evils 
imposed by the  terrorist, every democracy would chose to protect its own 
civilians, as Israel  did. 
Yet there are some who would deem such legitimate self-defence to be a war  
crime. Most prominent among them is Canada's own Louise Arbour, a former 
justice  of the Supreme Court of Canada and currently the United Nations 
Commissioner for  Human Rights. Even before the war in Lebanon was over, Arbour rushed to 
judgment  and threatened "personal criminal responsibility" against Israeli 
generals and  political leaders for their attacks on areas in which civilians 
live. Her  benighted view is that any shelling of cities -- regardless of the 
threat posed  to Israeli civilians by rockets being fired from these cities -- 
"constitutes a  foreseeable and unacceptable targeting of civilians." Let's be 
clear what this  means: If Hezbollah (or Iran) were firing nuclear or 
biological weapons at a  democracy from Beirut (or Tehran), the democracy would be 
committing a war crime  if it tried to destroy the enemy rockets by pinpoint 
bombing, as long as there  was any "foreseeable" risk to civilians. This 
formulation would make war  criminals out of the United States, Canada, Great Britain 
and all the Allies  during the Second World War and in the current war against 
terrorism. 
Democracies simply cannot protect their citizens against terrorist attacks of 
 the kind launched by Hezbollah without some foreseeable risk to civilians. 
There  cannot be any absolute prohibition against such self-defensive military 
actions  so long as they are proportional to the dangers and reasonable 
efforts are made  to minimize civilian casualties. 
I know and like Michael Ignatieff from his years at Harvard and am willing to 
 give him the benefit of the doubt, but if he agrees with Arbour's position 
on  what constitutes a war crime, then the people of Canada, as well as of the 
rest  of the world, have a right to a clear statement of what actions he would 
be  willing to take in the war against terrorism if he is elected prime 
minister of  Canada. 
Alan Dershowitz is a professor of law at Harvard. He is the author, most  
recently, of Preemption: A Knife That Cuts Both Ways. _www.alandershowitz.com_ 
(http://www.alandershowitz.com/) .
© National Post  2006

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