Dershowitz on legality of Jewish settlements


The United States should veto a United Nations resolution that calls Israeli settlement building in the West Bank "illegal," writes legal scholar Alan Dershowitz in The Wall Street Journal.

First, because the resolution misinterprets U.N. Resolution 242 (the basis of the "illegal" claim), which calls for Israel to return "territories" (and not "the" terrories) it captured during the 1967 Six-Day War.

Even partial return of captured territories is conditioned on "termination of all claims of belligerency" and "acknowledgment of the sovereignty . . . 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."
Resolution 242 does not mention the rights of nonstates, such as the Palestinian Authority, Hamas or Hezbollah, the latter two of which do not accept the conditions of the resolution. (Nor do Iran and several other states in the region.) It would be wrong for the Security Council retroactively to rewrite Resolution 242, which is the foundation for a two-state solution—Israel and Palestine—44 years after it was enacted.
Second, because the resolution is inconsistent with U.S. policy, which has called for a negotiated settlement to the Arab-Israeli conflict.

A negotiated resolution will require the Palestinian Authority to acknowledge that some of the land captured by Israel from Jordan, after Jordan attacked Israel, rightfully belongs to Israel. These areas include the Jewish Quarter of Jerusalem and the Western Wall—which were illegally captured by Jordan in its aggressive and unlawful 1948 war calculated to undo the U.N.'s decision to divide the area into Jewish and Arab homelands. Additionally, there will have to be land swaps that recognize the realities on the ground. Areas such as Ma'ale Adumim and Gilo, for example, have become integral parts of Jewish Jerusalem.
Dershowitz also notes that the very text of the resolution, which claims that Israel "illegally" builds on West Bank land, is not accurate. The whole point of 242 was to negotiate an end to the conflict. Until the parties settle that conflict (the resolution also calls for Israel to earn "secure and recognized" boundaries) the application of the term "illegal" in this context is hyperbole.

Alan Dershowitz’s brief for Israel by Steve Kramer

Alan Dershowitz is one of the brightest and most quoted law professors in America. He recently announced his plans to retire from the faculty of Harvard Law School, one of America’s most eminent educational establishments. I haven’t always agreed with Dershowitz, who said last year that Israel should offer to freeze all building in West Bank settlements “as soon as the Palestinian Authority sits down at the bargaining table, and the freeze will continue as long as the talks continue in good faith.” He averred that Israel’s unilateral actions would leave the Palestinian side with “no further excuse for refusing the Israeli offer to try to resolve the conflict.” (Haaretz newspaper)

While I disagree with this point and think that Dershowitz is showing naiveté towards the Islamic world, he remains one of Israel’s most outspoken defenders in the United States and has written many books advocating for Israel.

Dershowitz recently spoke in Tel Aviv to the Institute of National Strategic Studies on International law. A video of his short “lecture” is available on YouTube and should be watched by all supporters of Israel, from the Left or the Right.


Initially, Dershowitz describes how the Iranians feel they have achieved a victory in the latest negotiations, giving up nothing, receiving a short term reduction in sanctions and, in the longer term, the beginning of the end of the entire sanctions process. The Iranians can continue to develop rockets that can carry nuclear weapons; they can still use centrifuges to enrich uranium; and there has been no cessation of the Arak heavy water plant’s activity.

In addition, Iran has succeeded in increasing the gap between Israel and America. Though there is no major difference in their intelligence estimates, the big gap between the US and Israel in this matter stems from the fact that the US is thousands of miles away from the Middle East, whereas for Israel, the Iranian threat is much more serious, said Dershowitz. He believes that Iran is mistaken in believing that Israel requires a “green light” to attack Iran. When President Obama personally told Dershowitz that he “has Israel’s back” and Israel need not worry about Iran achieving nuclear weapons, Dershowitz responded that he believed the president now, but he couldn’t predict what the president would do a year or two from now. Dershowitz then explained to his audience why international law must be ignored when its tenets are nonsensical.

For those who haven’t seen it, here is a summary of some of Dershowitz’s most salient points on the need for Israel to decide what’s best for itself:

“Israel must always retain an independent capacity to take whatever action is necessary for its own protection… Right now Iran believes that there is not a military option [against it] … I urge Israel not to base its decision [whether to attack Iran] on existing international law … International law is out of date … International law is a construct in the mind of a bunch of left wing academics … There is no basis for international law in any reality … It is the ultimate exercise in elitist non-democracy … History is blind, deaf and dumb – it doesn’t understand contingencies, it doesn’t understand the future … The argument that international law would prevent an attack because they [Iran] don’t yet have a nuclear bomb shows the absurdity of international law … You cannot attack a country once it has a nuclear bomb … You must attack a nuclear weapons program before the weapon is developed, otherwise you will cause immense international damage … I cannot imagine any rational government making a decision on its own survival based on a bunch of academics sitting in the Sorbonne, deciding in ivory towers what international law should be in a society of perfect beings … That’s not the way international law works today.”

Dershowitz gave several examples of nonsensical international law: If Winston Churchill had been the British prime minister in 1939 and attacked Nazi Germany  when it violated existing treaties, he would have been branded a war criminal, although scores of millions of lives would have been saved.

Mutually Assured Destruction (MAD) was the Cold War rationale that decreed if either America or Russia nuclear attacked the other, it would in turn be similarly attacked. Therefore, Russia and America violated international law during the Cold War. Why? Because retaliating against civilians was deemed a war crime, even if a country were attacked with nuclear weapons.

In 1967, Israel violated international law because it preemptively attacked the Arab nations poised on its borders to annihilate it. Afterwards, the United Nations decided preemptive wars may be justified.

Dershowitz’s advice is quite blunt and probably will upset many of his cohorts, who are intellectuals like himself. But Dershowitz doesn’t sit in an ivory tower. He recognizes that Israel, which probably takes into account international law more than any other country, must not be constrained by illogical and anachronistic dictates of world bodies when faced with an existential dilemma. Dershowitz is arguing against nonsensical laws that protect terrorists while handicapping civilized states such as Israel.

By the way, the Israeli “settlements” that Dershowitz opposes beyond the 1949 armistice line are an excellent example of laws which have been transformed by politics to achieve politically correct objectives.

I am very pleased to see a man of stature, like Dershowitz, throw down the gauntlet and proclaim Israel’s right to protect itself without falling victim to the whims of “a bunch of academics.”