Alan Dershowitz on the "Yassin case" on TV

(Sunday Programme March 28, 2004 - JANA WENDT)

Interview with Alan Dershowitz
Reporter :Jana Wendt

Alan Dershowitz is an American civil rights libertarian, Harvard University law professor and a leading defence attorney, as well as a supporter - sometimes a critical supporter - of Israel. In his latest book The Case for Israel, Professor Dershowitz defends Israel's right to exist, and its right to protect its citizens from terrorism and its borders from hostile enemies. Professor Dershowitz, who will be visiting Australia this week, talks to Jana Wendt from Boston about whether he believes Israel was right to target and kill Sheikh Ahmed Yassin.

Transcript JANA WENDT: Alan Dershowitz, thank you very much for joining the Sunday program. Do you believe that Israel was right to target and kill Sheik Ahmed Yassin?

ALAN DERSHOWITZ, HARVARD UNIVERSITY LAW SCHOOL: Israel was morally and legally correct to kill a combatant terrorist leader. The laws of war permit a killing of a combatant and there's no question that he is a combatant. He's the man who turned on and off the terrorist button.
Indeed, his replacement, Dr Rantisi, announced, immediately upon being replaced, quote: "the door is open for you", that is, the Hamas military wing, "to strike all places all the time and using all means." It's a perfectly appropriate target to kill a military commander.

JANA WENDT: So I presume you would say that Mr Rantisi, his successor, is also now a perfectly appropriate target?

ALAN DERSHOWITZ: Absolutely, along with Osama bin Laden. The US Congress and committees are now having hearings, condemning both the Clinton Administration and the Bush Administration for not succeeding in targeting Osama bin Laden before 9/11. There is absolutely no difference between Osama bin Laden and the head of Hamas.

JANA WENDT: In the case of Sheik Ahmed Yassin, Israel dropped shrapnel-packed missiles on a cripple, albeit a Hamas cripple, he was being pushed along in a wheelchair. Was it not possible to arrest him?

ALAN DERSHOWITZ: Oh no, not at all. He has purposely put himself surrounded by many, many civilians in the busiest part of Gaza and he's basically said, "If you try to come and arrest me, hundreds of innocent civilians will die," and so it was much better to find him alone in an alley with his bodyguards, where only combatants could be killed rather than try to arrest him which would have caused major collateral casualties.

And the world would have condemned Israel, had they tried to arrest him as well. And after all, he was arrested once before, and all Hamas does, is it takes hostages and then bargains for his release. So killing him was unfortunately the least worst alternative. The other alternative was to let him remain as a commander of terrorists and to turn off the on and off switch, mostly the on switch, and endanger the lives of innocent Israelis.

JANA WENDT: Why is it so difficult for Israel, with its military capacity, to arrest, as I say, a single Hamas cripple?

ALAN DERSHOWITZ: It's virtually impossible. The West Bank is different, and in fact targeted killings are not used on the West Bank for the most part, arrests are used on the most part in the West Bank. Targeted killings are used in the Gaza because the Israeli military is not in presence in large numbers. If the Australian Government could have targeted and killed the people, the terrorists who killed so many Australians in Bali, days or weeks before they had engaged in that terrorist act, everybody in Australia would have applauded that action. It would have been the right thing morally.

JANA WENDT: All right, well, killed along with Yassin were, we understand, three of his Hamas bodyguards as well as four others, with 16 people wounded. Now I presume that those others are acceptable human collateral damage?

ALAN DERSHOWITZ: No, I think any time there is the killing of any people who are not combatants, that's a terrible tragedy. But under international law, when a combatant hides among civilians and an appropriate attack is made on the combatant, the responsibility for the civilians dying lies with the combatant who hid among the civilians. It's as if I robbed a bank and took a hostage and held the hostage in front of me and I was shooting from behind the hostage, and the police shot me to try and kill me and killed my hostage, I would be the one who was held guilty of first-degree murder, not the policeman who was trying to get at me through the hostage. So it was the responsibility of Hamas for placing terrorists among civilians, in violation of international law. International law does not permit combatants to hide among non-combatants, which is exactly what Hamas does.

JANA WENDT: Professor Dershowitz, the Israeli cabinet made this decision.
Hypothetically, would you like to be a member of a cabinet that makes the decision whether or not to terminate a life?

ALAN DERSHOWITZ: Well, it's a very difficult position but somebody has to make the decision. If the Cabinet had decided not to kill Sheik Yassin, they would have been deciding essentially to allow the killing of their own civilians. These are tough choices, there was no option to simply not kill anybody, the option was kill or be killed. That's what self-defence is about, in military terms that's what military pre-emption or pre-emptive self-defence is about. It's permitted by international law as long as it's limited to combatants and a reasonable number of non-combatants are killed in the process with an attempt to minimise.

JANA WENDT: But not even the Israeli cabinet could unanimously decide to take this action. At least two members of that cabinet were told, I believe, that this is counter-productive. Now, speaking in those terms, what are the guarantees that this will stop the taking of Israeli lives?

ALAN DERSHOWITZ: Unfortunately, there are no guarantees but no member of the cabinet, not even Yossi Beilin, who is the most peace-oriented engineer of the Geneva Accords, thought that the action was either illegal or immoral. Yossi Beilin said it was both moral and legal. There is a debate about whether it's counter-productive. That's a tactical decision in a democracy appropriately made by the cabinet. It is not an appropriate decision to condemn that on moral grounds or legal grounds, when, in fact, the decision was both moral and legal but, maybe, unwise ? and that's for political people, who were elected officials, to make the decision and the decision was made and it was, I think, the correct decision.

JANA WENDT: Professor Dershowitz, Israel does argue that it is the shining democracy in the region, in a region that still in many ways lives in the dark ages. Yet, a senior Israeli minister is able to say, was able to say, Yassin was "marked for death," that he should, "hide himself deep in the underground where he won't know the difference between day and night." Is that really the language of an enlightened modern state?

ALAN DERSHOWITZ: It's exactly the language that George W. Bush has used in terms of Osama bin Laden. It's exactly the language that the US Administration has repeatedly used in relation to Saddam Hussein, before he was captured, and his sons. Remember, we targeted both Saddam Hussein and his sons for killing at the beginning of the war. Every democracy would do the same thing and announcing in advance that a combatant is a target gives him at least the opportunity to surrender, or an opportunity to cease being a combatant, an opportunity that, of course, they did not take advantage of. Rantisi announced that he hopes and wishes that he dies as a result of a rocket rather than as a result of a heart attack. He said that's the fondest wish of every member of Hamas.

JANA WENDT: Does this not tell you something about how effective these Israeli strikes might be, if there's an endless number of potential martyrs?

ALAN DERSHOWITZ: Well, we know that close to 900 Israelis have died, mostly civilians, but we also know that 10,000 or more were saved by preventive actions taken by the Israeli Government. In fact, Israel has been quite effective in preventing terrorism. Most recently, they blew up people who were planting bombs on the road and, just before Yassin was killed, he announced that it was a martyrdom operation and he was proud of the people who were planting the bombs. Israeli forces prevented that from happening.

Any military would do that if they had the option.

JANA WENDT: But you have not always supported these targeted strikes by Israel. You were critical of, I know, of at least one - the killing of the Hamas bomb-maker, Mohammed Deif, in 2002. Why were you critical of that?

ALAN DERSHOWITZ: Because in some cases it's done under circumstances where the collateral deaths are too many and Israel and every democracy, the US as well, has to be careful to make sure that the targeting is exactly that, targeted and a small or no amount of injured, or injury, occurs to people who are not combatants. And when a government, whether Israel or the US, engages in targeted killing and too many people who are innocent are killed in the process, I will continue to criticise and condemn that.

JANA WENDT: Professor Dershowitz, is there a point when these collateral deaths, these non-targeted, yet extremely dead people, will beginning to erode the moral high ground that Israel likes to adopt?

ALAN DERSHOWITZ: Well, I think it depends on who's responsible. If the responsibility is in the terrorists for living, for example, next to hospitals or surrounded by civilians and, essentially, challenging the Israelis, or the Americans in Iraq, "Look, either leave us alone or come and kill civilians." As a Western diplomat said, "The Palestinian leadership has learned the cruel arithmetic of death."

Every time an Israeli is killed, they win, and every time a Palestinian civilian is killed by Israel, they win, in the court of public opinion.

So they have created and calculated this kind of situation that Israel is placed in. Israel has, I think, over the years managed to minimise the number of deaths.
The first time they went after Yassin, they used a 500-pound bomb and missed him because they didn't want to use a two-tonne bomb that could have killed him because they wanted to minimise civilian casualties. That's been the approach - minimisation as opposed to maximisation of civilian casualties among Palestinian terrorists. There's simply no moral comparison.

JANA WENDT: Alan Dershowitz, I thank you very much for joining us.

ALAN DERSHOWITZ: Thank you.