Wall of reason: Alan Dershowitz v. the International Court of Justice.

• Author: Rostow, Nicholas

1. INTRODUCTION

   The work of Alan Dershowitz spans a great deal of the law: criminal, of course; civil liberties and international human rights; and international humanitarian law as well. A notable theme in the Dershowitz oeuvre is his relationship to Israel and Judaism. (1) Again and again he returns to it, both as a Jew and as an advocate. (2) In the tradition of Voltaire, (3) Dershowitz lives the First Amendment but in terms of its particular meaning for Jews: "If I were asked to defend the right of a Holocaust denier to express his perverse views," he wrote, "I would agree to defend his right, but I would insist on exercising my own right to call his views anti-Semitic and false." (4)

   Nowadays, it is common to read that one must have courage to criticize Israel, much less Jews. (5) Indeed, an article in the Chronicle of Higher Education Review (6) argues this point, taking up the cudgels for Tony Judt's advocacy of abolishing Israel, (7) Juan Cole's assertions that Iran's President has not called for wiping Israel off the map, (8) and Mearsheimer's and Walt's (9) twisting of history and common sense to argue that the United States shed blood and expended treasure in Iraq at the behest of the pro-Israel lobby if not the Israeli government--in short, the Jews. (10) In most academic circles outside the United States, and in many academic circles inside the United States as well, it is much easier to stand against Israel than for it, particularly with respect to Israel's relations with Palestinians and the occupied territories. The abuse heaped on Dershowitz the man--not on what he says and the evidence supporting his arguments--shows that defenders of Israel face no easy task. (11) So, Alan Dershowitz's stand is brave. There are more voices today for Israel than there were thirty years ago, and one of the reasons is because of Alan Dershowitz. From his perch at Harvard, he has demonstrated again and again why academic tenure is so important and why respect for evidence is important as well.

   Dershowitz is an advocate whose tone is combative. He is not afraid to use the evidence at hand; he is not a pedant. By his own account, these qualities have been with him throughout his career. In his first trial, defending a young Jewish Defense League member named Sheldon Seigel, Dershowitz demonstrated the ability to outmaneuver his opponents through the use of evidence. During the cross-examination of the prosecution's main witness, Dershowitz used homemade tape recordings of some conversations between Seigel and the witness to create the illusion that he could prove Seigel's version of all of the conversations between the two. (12) This tactic demonstrated that the witness had committed perjury and led to his subsequent admission that the defense's version of the conversations was indeed correct "[i]n substance," despite the fact that the tape recorder had actually failed to capture the parts of the conversations most damaging to the prosecution's case. (13)

   Since that first case, Dershowitz has demonstrated a consistent willingness to use the other side's case to his client's advantage. The O.J. Simpson trial, for example, turned into a trial of evidence. The glove, the sock, the testimony of the racist detective--all this evidence was originally the prosecution's, but Dershowitz made it work for the defense. (14) These examples illuminate the "Dershowitz method" and are not isolated occurrences.

   To shed more light on the Dershowitz approach and jurisprudence, imagine him in an argument--not a name calling exercise, however apropos that might appear to be (15)--with the International Court of Justice.

2. THE INTERNATIONAL COURT OF JUSTICE AND ISRAEL

   In response to a request from the U.N. General Assembly, (16) on July 9, 2004, the International Court of Justice (I.C.J.) issued an Advisory Opinion (17) addressing the legal implication of Israel's construction of a wall. (18) in the Occupied Palestinian Territory. The title of the opinion came from the General Assembly request, (19) and the court opined that Israel's wall was a violation of international law to the extent it was outside the Green Line--the 1949 Armistice Demarcation Line between Israel and Jordan--because it impeded the exercise by the Palestinian people of their right of self-determination. (20) The court said that the wall created a fait accompli that could become permanent, including within it "Israeli settlements in the Occupied Palestinian Territory ... established in breach of international law." (21) The court further opined that military necessity or requirements to provide security against attack did not justify the construction of the wall. (22) The court concluded that the international law of self-defense was inapposite as well. (23) The court spelled out what it considered to be the legal consequences for other states of Israel's actions. It noted, of course, that its opinion was advisory only. (24) At the same time, the opinion touched on, if it did not cover, the legally relevant history of Palestine, including the League of Nations Mandate for Palestine; (25) the Arab-Israeli conflict, especially the history of that conflict since the Six Day War of June 1967; (26) and the international law of self-defense, terrorism, and the boundaries of Israel, among other things.

   Alan Dershowitz has addressed a number of these subjects in his work.

   1. Occupied Territories

      The court's opinion addressed the legal character of the Occupied Territories and of the League of Nations Mandate for Palestine because analysis of legal claims to the Territories, or part of the Territories, and assertions regarding self-determination involve these subjects.

      As a result of the June 1967 War, Israel occupied territories previously under Arab control: the Sinai Peninsula and the Gaza Strip (Egypt), the West Bank and East Jerusalem (Jordan), and the Golan Heights (Syria). Unlike the Gaza Strip, the Sinai Peninsula had been an integral part of Egypt. (27) Israel restored Sinai to Egypt pursuant to the terms of the Israel-Egypt Peace Treaty of 1979. (28) The Golan Heights had been within the French Mandate and French protectorate of Syria since 1923, and independent Syria since 1943. (29) Jordan not only occupied the West Bank and East Jerusalem during the same period, but also annexed and governed the two regions as part of Jordan. (30) In 1988, Jordan renounced territorial claims to the West Bank and East Jerusalem in favor of the Palestine Liberation Organization. (31) Article 3 of the 1994 Israel-Jordan Peace Treaty established the Israel-Jordan border "without prejudice to the status of any territories that came under Israeli military government control in 1967." (32) In terms of Israel's bilateral relations, therefore, questions about whose land was occupied remained open.

      Characterizations of the Occupied Territories have changed over time. The term "territories occupied" itself is derived from the language of Security Council Resolution 242 (1967). (33) Resolution 242, among other things,

      Affirm[ed] that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles: (i) Withdrawal of Israeli armed forces from territories occupied in the recent conflict; (ii) Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.... (34) The Resolution further affirmed:

      [T]he necessity (a) For guaranteeing freedom of navigation through international waterways in the area [i.e., the Suez Canal and the Straits of Tiran]; (b) For achieving a just settlement of the refugee problem [i.e., refugees from Israel's war of independence]; (c) For guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones.... (35) Resolution 242 did not state whose territory was occupied. Nor did it specify the boundaries of Israel or endorse the 1949 Armistice Demarcation Lines as permanent borders. The General Assembly submission to the court contained an answer to both of these questions; the I.C.J. chose not to examine and analyze it.

   2. The League of Nations Mandate for Palestine

      The major premise of the Opinion is that Palestinians are entitled to self-determination because self-determination has been a central part of aspirations within international law, (36) at least since World War I. The court commenced its exposition by selecting from the legally relevant history of Palestine:

      Palestine was part of the Ottoman Empire. At the end of the First World War, a class "A" Mandate for Palestine was entrusted to Great Britain by the League of Nations, pursuant to paragraph 4 of Article 22 of the Covenant, which provided that: "Certain communities, formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone." (37) Yet the League of Nations Mandate for Palestine involved far more than this statement suggests. The League of Nations Mandate for Palestine was not a Class A Mandate in the literal sense set forth in Article 22 of the Covenant and quoted by the court; rather, it was created pursuant to, and to implement, the 1917 Balfour Declaration. (38) The Mandate provides:

      The Council of the League of Nations: Whereas the Principal Allied Powers have agreed, for the purpose of giving effect to the provisions of Article 22 of the Covenant of the League of Nations, to entrust to a Mandatory selected by the said Powers the...