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. …