Wall of Reason: Alan Dershowitz V. the International Court of Justice

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I. 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.

II. 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.

A. 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.

B. 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 administration of 
   the territory of Palestine, which formerly belonged to the 
   Turkish Empire, within such boundaries as may be fixed by 
   them; and 
 
      Whereas the Principal Allied Powers have also agreed that 
   the Mandatory should be responsible for putting into effect 
   the [Balfour] [D]eclaration originally made on November 
   2nd, 1917, by the Government of His Britannic Majesty, and 
   adopted by the said Powers, in favour of the establishment in 
   Palestine of a national home for the Jewish people, it being 
   clearly understood that nothing should be done which might 
   prejudice the civil and religious rights of existing non-Jewish 
   communities in Palestine, or the rights and political status 
   enjoyed by Jews in any other country; and 
 
      Whereas recognition has thereby been given to the 
   historical connection of the Jewish people with Palestine and 
   to the grounds for reconstituting their national home in that 
   country; and 
 
      Whereas the Principal Allied Powers have selected His 
   Britannic Majesty as the Mandatory for Palestine; and 
 
      Whereas the mandate in respect of Palestine has been 
   formulated in the following terms and submitted to the 
   Council of the League for approval; and 
 
      Whereas His Britannic Majesty has accepted the mandate 
   in respect of Palestine and undertaken to exercise it on 
   behalf of the League of Nations in conformity with the 
   following provisions; and 
 
      Whereas by the afore-mentioned Article 22 (paragraph 8), 
   it is provided that the degree of authority, control or 
   administration to be exercised by the Mandatory, not having 
   been previously agreed upon by the Members of the League, 
   shall be explicitly defined by the Council of the League of 
   Nations; 
 
      Confirming the said Mandate, defines its terms as 
   follows: 
 
      ART. 2: The Mandatory shall be responsible for placing 
   the country under such political, administrative and 
   economic conditions as will secure the establishment of the 
   Jewish national home, as laid down in the preamble, and the 
   development of self-governing institutions, and also for 
   safeguarding the civil and religious rights of all the 
   inhabitants of Palestine, irrespective of race and religion. 
 
      ART. 6: The Administration of Palestine, while ensuring 
   that the rights and position of other sections of the 
   population are not prejudiced, shall facilitate Jewish 
   immigration under suitable conditions and shall encourage, 
   in co-operation with the Jewish agency referred to in Article 
   4, close settlement by Jews on the land, including State 
   lands and waste lands not required for public purposes. (39) 

The fact that the court ignored the terms of the Mandate for Palestine as well as part of the Covenant of the League of Nations pursuant to which it was adopted and implemented means that its consideration of the circumstances invoked by the General Assembly was incomplete.

The I.C.J. emphasized self-determination; Dershowitz points out that the international community already had acknowledged the Jewish right to self-determination. Professor Dershowitz wrote: "A de facto Jewish homeland already existed in parts of Palestine, and its recognition by the Balfour Declaration became a matter of binding international law when the League of Nations made it part of its mandate." (40) The silence of the Advisory Opinion is significant as well because the fourteen League of Nations mandates were governed pursuant to terms formally approved by the Council of the League to implement the League Covenant. As a legal matter, therefore, the court ignored more than half the relevant document in discussing what the Mandate for Palestine meant. Further, the Mandate is relevant because the U.N. Charter specifies that it does not alter the pre-existing rights "of any states or any peoples" under mandatory agreements or other existing international agreements. (41)

Despite the end of the League of Nations Mandate in 1948, when the British withdrew from Palestine, the Mandate retained its vitality in the sense of stating the purposes the international community had adopted for the disposition of the Mandate territory. By ignoring the totality of applicable law, the I.C.J. could avoid the issue of Jewish rights, rooted in international law, to settle within the territory of the Mandate west of the Jordan River, and focus almost exclusively on Palestinian rights of self-determination, which derive from the same international law. The court, thus, also could avoid having to analyze the wall in the context of efforts to protect the Jewish right of self-determination. The court had examined the character of League of Nations mandates as …