Terror Tunnels The Case for Israel's Just War Against Hamas (20 page)

The fact that it has withdrawn its troops from permanent occupation does not undermine the fact that it remains in effective control by other means and that it is therefore an occupying power, and it is simply suppressing people who vote from a rebellious occupied people.

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Male Audience Member:
Israeli authorities have confirmed that no tunnel actually exits closer than two miles from any Israeli civilian population center. Question to Professor Dugard in particular, what are the limits of legitimate resistance against occupation? What is allowed, what is not allowed, from a military and civilian resistance point of view?

Professor Dugard:
As I said in my presentation, an occupied people is entitled to resist the occupation. History says that this has always been done, and occupied people will continue to resist occupation.

One must bear in mind that in the same way Israel is subject to the rules of the international humanitarian law, so too is the occupied people. It is bound to refrain from firing rockets indiscriminately into civilian areas, however ineffective it may be.

There may be a right to resist, but it is subject to the rules of international humanitarianism.

Professor Dershowitz:
First, let me correct a categorically false statement that was made by the questioner, namely that no tunnel exits are closer than two miles away from Israeli population centers.

The statement can’t be true, because Israel doesn’t know where the exits are. The exits are still secret. They only know where the entrances are. But several tunnels that they have discovered have exits that are much, much closer to civilian areas.

The one I was in was merely yards away from a kibbutz, which is a population center. It may not be a city, but it was far less than two miles away from cities and towns, so that’s just a categorically false statement.

It’s those kinds of statements that are repeated in the media over and over again, and repeated at events like this. Second, even Professor Dugard concedes that [Hamas] is not allowed to fire rockets. That automatically gives Israel the right of self-defense against those rockets, and they can’t build tunnels to go into Israel to kill Israelis.

Israel has the right to self-defense. You want to call it a police action, want to call it self-defense, it makes absolutely no difference. The only way Israel can stop the tunnels, which Professor Dugard acknowledges they have a right to do, is to send in ground troops.

They tried desperately to minimize civilian casualties by giving warnings, by knocking on the roof, by making phone calls, but because Hamas put these tunnels in mosques, in schools, in very densely surrounded areas, in order to avoid them being caught by Israelis. Professor Dugard is right. If they were put in the open fields, then Israel would attack them. But that’s what the law requires. It doesn’t allow you to put them in densely populated areas in order to avoid attack militarily.

Israel had the right to destroy the tunnels, and again I challenge Professor Dugard, what would you have done if the only way of closing the tunnels was by sending in ground troops? Would you send in ground troops? Professor Dugard, please answer my direct question.

Professor Dugard:
The question as I understand it was, there was an admission by the Israeli government apparently, that there were no tunnel exits sufficiently near civilian parts.

Professor Dershowitz:
It’s a totally false statement. It’s a lie. No Israeli official has ever said that. None of the tunnels have exits within two miles of any civilian population. I will donate money to your favorite charity if you can find a statement by an Israeli official that says that none of the tunnels exits are within two miles of any civilian populations. It’s false. It’s just false, I’m sorry.
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Professor Dugard:
There was a debate on this matter. There, Israelis stated very clearly that no tunnel exited close to [civilian areas]. It is a question of fact, and I think this should be referred to international tribunal.

Secondly, as far as how Israel should proceed, it should proceed to close the tunnels, but it should not in the process indiscriminately kill civilians, and Israel has deliberately, I believe, targeted hospitals, schools, and mosques, and civilian homes.

It has shown no regard for human life. It has behaved in a callous, disgusting manner. I’ve carried out an investigation of operations across maybe 2009. I was appalled by the level of destructions that I saw, and by the stories that I heard of coldblooded executions carried out by members of the IDF.

I don’t think that one should disregard the fact that the Israeli forces have not complied with the laws of war, and they have committed war crimes.

Professor Dershowitz:
That’s your opinion, and that’s not based on fact at all. I recommended in an article I wrote, that there should be an ad hoc investigation both of Hamas, and of Israel, but it shouldn’t be done from the UN Council on Human Rights, which is biased, and it shouldn’t be chaired by somebody who before hearing any evidence has already said, “Netanyahu ought to be put in the dock, and brought before the International Criminal Court.”

It should be chaired by somebody like Luis Ocampo, who was the first prosecutor of the International Criminal Court. Objective people who have stated no positions, not Professor Dugard, not myself, but people who have never stated any positions on this. Not people who have already shown a bias.

If any Israeli soldier ever engaged in a cold-blooded murder, he’d be court-martialed. He’d be brought in front of a court.
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Some have been disciplined, but in every army there are bad apples. You don’t judge a country by what his worst soldier does, you judge a country by how it responds to what its worst soldier does.

In Hamas’s case, they glorify and name parks after murderers of children, after the Vogel family murderers, that killed a group of people in their beds. Was that legitimate self-defense? Is that legitimate opposition to an occupation? No. Israel, according to Colonel Kemp, a British military expert [who] said, “No country in history has ever shown more concern for civilians, and has ever done more to avoid civilian casualties, than Israel.”

Israel has done better than my own country, done better than England, done better than NATO. Of course it’s made mistakes, but the idea of using words like “genocide” and words like “war crimes” is just outrageous, and shows a particular bias against the nation-state of the Jewish people.

Professor Dugard:
Dershowitz supports Luis Moreno Ocampo as a judge, and he was a prosecutor of the ICC. I cannot understand why both Israel and the United States so vehemently oppose International Criminal Court for this matter.

Professor Dershowitz:
Three good reasons. Number one, Palestine has to earn its right to be declared a state, and to be recognized by the International Criminal Court as an actual state. The United Nations can’t do that through its General Assembly.

Number two, if it were brought before the International Criminal Court, Israel would be found to have a completely legitimate legal system, and complementarity would deny jurisdiction to the Criminal Court.

Third of all, I think Israel would be vindicated by any fair and objective evaluation, but it was taken before the International Court of Justice—which is not international, it’s not a court, and it knows nothing about justice—Israel has never served on the Court of Justice. When it decided the security barrier case, it barely mentioned the fact that the security barrier had prevented thousands of acts of terrorism. If you’re prepared to present a fair court, I am prepared certainly to recommend to Israel that it have a fair hearing in front of a fair court.

But to be indicted based on the kinds of speculation that you just set out, of course not. Nobody would ever agree to be put in the dock for engaging in an act of self-defense.

I would say that the International Court of Justice is to justice for Israel what Southern courts were, headed by Klan members, in relation to justice for blacks in the South. Or what apartheid courts were in South Africa in relation to a black defendant.

Israel cannot, under any circumstances, expect to receive justice by that disgraceful institution, run by the United Nations, which has shown its bias and bigotry against Israel for many years.

The United Nations has condemned Israel more often than they have Iran, Cambodia. Even during the Cambodian killings, where three to five million people were killed, there was not one condemnation by the UN, but that was the same year that the UN voted that Zionism was a form of racism. How do you expect Israel to receive justice in front of what is essentially an apartheid court?

I think people in South Africa should realize that there was no justice in South Africa prior to Mandela’s release from prison, and there is no justice in United Nations courts when it comes to Israel.

Professor Dugard:
The International Criminal Court is not the United Nations Court. Would you be prepared to submit the matter to the International Criminal Court? If so, why does Israel and the United States resist it so strongly?

Professor Dershowitz:
First of all, the United States is not a member of the International Criminal Court, and Israel is not a member of the International Criminal Court, and for very, very good reasons. The International Criminal Court has not yet proved its credibility to do objective justice.

I was invited to speak to the International Criminal Court a few years ago, when prosecutor Ocampo was there, and although he himself was extremely fair and unbiased, I found many staff members had very predisposed views regarding the United States, Israel, and the West in general.

I would accept an ad hoc commission, headed by Luis Ocampo, with its members to be picked by people like Luis Ocampo, without anybody who’s ever expressed any view regarding the Middle East conflict, international scholars of renown, with an equal claim against Hamas and against Israel.

Let them look at the facts and decide whether Hamas has committed double war crimes, whether Israel has acted in self-defense, whether Israel has satisfied the rules of proportionality, distinction, and opposition to collective punishment.

I am confident that any fair court would convict Hamas, and acquit Israel.

Male Audience Member:
My question simply is do you continue to entertain that acts of ethnic cleansing were not committed in the process of the emergence of the State of Israel?

Professor Dershowitz:
No country in modern history has ever been established in a more lawful manner. Starting with the Balfour Declaration, the Peel Commission Report, the UN Declarations, the League of Nations Declarations, Israel was established in 1948 absolutely lawfully.

It was then attacked by all the Arab countries. Had it not been attacked, the Arab population would have remained exactly where it was. There would have been no refugee problem. The Arabs attacked and told their people, leave and they would come back victorious. About seven hundred thousand or eight hundred thousand left.

Some under pressure, some voluntarily, some people were going to come back victoriously.

At the same time about eight hundred thousand Jews were expelled from Arab countries. From Iraq, from North Africa, there was essentially an exchange in population. No, there was no ethnic cleansing at all.

As far as the negotiation posture, just ask Bill Clinton, or Hillary Clinton. They both recently made statements saying that it was absolutely Yasser Arafat who turned down the opportunity for a two-state solution.

If not for Yasser Arafat’s untimely death—I say untimely because had he died four years earlier, we would today be celebrating the fourteenth anniversary of Palestinian statehood. He was given an enormous opportunity to help his people.

The prince of Saudi Arabia said he committed a crime against the Palestinian people by not accepting the offer at Camp David and Taba by Clinton and Barack. Not only do I stand by my position, but I reiterate it.

You want to see the documentation in support of it, I have it in the five books I’ve written about this subject with documentary proof that Israel did not engage in any kind of ethnic cleansing. Look, you can find historians in any country that will dispute historical accounts.

You can find historians in South Africa that would dispute accounts that Nelson Mandela has made. The question is not what do individual historians say, but what the truth is.

You are challenging Israel’s legitimacy as the nation of Jewish people, you’re shaking your head saying yes, and that is a nonstarter. Israel is not going away.

Israel is as legitimate as South Africa, as legitimate as the United States of America, as legitimate as New Zealand, which did ethnically cleanse its population, or Australia, which did ethnically cleanse its population.

Israel is here to stay, no matter how much you shake your head.

Professor Dugard:
First of all, I think the historians convincingly [demonstrate] that there was Israeli cleansing, so I think the historical record is very clear on that. Secondly, as far as Israel’s own system of justice is concerned, Professor Dershowitz had suggested that the principle of complementarity would prevent the International Criminal Court from hearing any dispute.

Israel has no [good] record when it comes to prosecuting crimes committed by the IDF. Take, for instance, the events after the 2008–2009 Operation Cast Lead. Several reports showed convincingly that Israel had committed international crimes.

They identified the victims and the assailants, but all Israel did was to prosecute someone for theft of a credit card from the Palestinian. There was no prosecution whatsoever for real crimes. That was a disgraceful example of Israeli justice.

I would like to just comment on the question of occupation. I think it’s very clear that Israel is not only in occupation of Gaza, but it’s in illegal occupation of Gaza, because it refuses to carry out its obligations.