Thursday, March 20, 2008

Alan Dershowitz: At It Again

Harvard law scholar Alan Dershowitz believes that the civilian immunity norm should be revised. Instead of requiring weapons-bearers to distinguish between civilians and combatants, Dershowitz believes, treaty law should reflect "degrees of civilianality":

"You can rank people on a scale of one to 10, one being an infant baby, 10 being a grown man with a shoulder rocket about to fire. In between, there are those people who allow their homes to be used for rocket launches or storage, imams who encourage suicide bombing, people who make the [explosive] belts."
Dershowitz, who is most famous for advocating "torture warrants", is peddling his idea in Israel now, but has been making this case at least since the 2006 Israel-Lebanon war. The knee-jerk reaction is to see this as apologism for the murder of civilians, but Dershowitz' argument has some ethical merit:
"There is a vast difference — both moral and legal — between a 2-year-old who is killed by an enemy rocket and a 30-year-old civilian who has allowed his house to be used to store Katyusha rockets. Both are technically civilians, but the former is far more innocent than the latter."
But Dershowitz misreads the civilian immunity rule. It's not actually about protecting the morally innocent. If it were, civilian policymakers - the guiltiest of all in wars - would be fair game, and conscripts, many of whom are forced into the fight, would be "innocent." But the civilian/combatant distinction is not about innocence, it's about who poses an immediate military threat.

Civilians who support their troops don't count. But bin Laden would love it if that rule were changed. Then he could rightly claim that patriotic Americans are legitimate targets.


hank_F_M said...

How does he think that some one under extreme stress in combat can make the fine distinctions that Mr. Dershowitz would make in a detailed brief to the Supreme Court? First apply the KISS rule – “keep it simple (Dershowitz)”


From Strategy Page. I thought you might find it interesting.

March 21, 2008: Since the 1990s, the U.S. Army has banned the use of alcohol in combat zones. One side effect is fewer alcohol related disciplinary problems. That means there are fewer cases of U.S. troops getting in trouble with local civilians. Far fewer brawls, murders and rapes. For example, last year, the U.S. Army had 2.6 cases of sexual assault per thousand troops. But in Iraq and Afghanistan, the rate was .86. There were even sharper drops in the number of assaults and murders. The use of alcohol has not been completely eliminated in the combat zone, but it has to be obtained (from locals, or stills run by troops) and consumed clandestinely. That alone greatly reduces the amount alcohol related misbehavior.

Diodotus said...

I totally agree that there are huge practical problems with implementing his "continuum concept." However, it must be said that there are practical problems with implementing the immunity norm as it currently stands as well, which is why I decided to attack him on the basis of the ethical position he takes. Which is clearly self-serving and hypocritical, since he couldn't actually want our enemies to use the same logic on us.

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