Prof. Alan Dershowitz Joins IDC to teach a course in the L.L.M program
Prof. Dershowitz and Prof. Aharon Barak participated in a conference held at the IDC Herzliya on the question of human rights versus state security in the war against terror
By IDC Magazine Professor Alan Dershowitz, of the Faculty of Law at Harvard University, a Jewish-American lawyer and jurist considered to be one of the most prominent and highly-regarded fighters for civil rights in the USA, was a guest at the IDC Herzliya as part of a conference on the subject of: "American-Israeli Dialogue 2008: Human Rights and Security". Also participating in the conference were the top legal figures in Israel, including Professor Aharon Barak and Professor Uriel Reichman. necessary in order to cope with terrorism." Relating to the new issues created by terrorism that are not dealt with by international or local law, Dershowitz claimed that "The old paradigm does not serve the new situation. It does not know how to handle a ‘ticking bomb’, or a terrorist who hides behind a civilian. Without a new theory of law, terrorism today is dealt with in an ad hoc way. The law is not static, it has to be changed. In this respect, we are just at the beginning." Professor Alan Dershowitz spoke about the difference in approach between Israel and the USA with regard to dealing with the problem of terror. According to him, in the United States things are assessed by whether they go against the constitution or not, while the approach in Israel is one of balancing between different rights. In his view, Israel's approach is better because it takes into account the question of time, the fact that things change from time to time, whereas in the current situation in the United States they are still working under laws that were decided many years ago. Relating to the use of ethnic profiling, one of the dilemmas faced by the USA, Professor Dershowitz said that creating profiles at the level of the individual person is possible, and is actually what each one of us does when we meet someone new. It
Professor Alan Dershowitz and Professor Aharon Barak at the "American-Israeli Dialogue 2008: Human Rights and Security" conference held at the IDC Herzliya Photograph: Yotam Frum
Dershowitz wanted to strengthen the role of the Supreme Court in Israel, and said that "A democracy, such as Israel, serves as an example to the world in the way it copes with terror. The Supreme Court has a vital and essential role in these circumstances: it must establish the legal change
becomes a problem when a particular group makes sweeping use of ethnic profiling. In relating to the question of harming innocent civilians, Professor Dershowitz said that it is not right for a democratic country to avoid killing the enemy's civilians if it has clear knowledge that it could prevent the killing of its own civilians. There is a need for new laws to allow Israel and the USA to fight terrorism. The court in Germany was categorically wrong when it ruled that a passenger plane should not be shot down, even if there was a chance that it had hundred passengers on board, flying at a building in which there were 10,000 people. Dershowitz added that the law had to change, the law had to recognize the fact that when civilians are used as a human shield there is a possibility that this could be a matter of choice. If indeed it is through choice, then these people are combatants in every respect and their lives should not be spared at the cost of the death of innocent Israeli civilians. And in cases where the use of civilians is coerced, each person killed by Israeli fire is a victim of the people who used him as a human shield. Professor Aharon Barak, a member of faculty of the Radzyner School of Law at the IDC Herzliya, and former president of the Supreme Court, spoke out to defend the court against attacks on its intervention in questions of security, and claimed that: "Security is not above everything, especially not at times of emergency". The role of the court in the war on terror is "to examine the legality of the fight against terror, and its rulings are not an expression of agreement or disagreement with the means taken. The role of the judge is to ensure that
there is a balance between human rights and security." Professor Barak added that we must not turn torture into an accepted technique. Today these techniques are applied against terrorists and tomorrow they could be used against any one of us. "I have been there, I have seen what breaches of human rights did to 6 million people, and the lesson to be learned is that we need a strong Israel and a strong army, but if we do not preserve human rights and carefully find a balance between security and human rights, we will not have a strong country and a strong army."
Professor Aharon Barak, Radziner Law School Photograph: Yotam Frum
Professor Barak added that democracy cannot make use of the same tools used by terrorist organizations. A terrorist organization uses bombs against Israeli citizens, just because they are Israelis. We, as a country, cannot act in this way. "I think that society in Israel will be a better society if we try to achieve an understanding with the other side - on the one hand, we are committed to keep protecting the continued existence of the state, since if the state does not exist there will be no human rights in it, but on the other hand, if we
are not sensitive to human rights we have no justification as a state." In his speech at the conference, Professor Uriel Reichman, president of the IDC Herzliya, related to the question of the use of force, and said that Israel should be guided by two principles: the first, actions intended to prevent terrorism and not as a punishment; and the second, minimizing collective harm to civilians. "It is obvious to everyone that it is necessary to use force against the force operated against us. The question is, what are the limitations on fighting terrorism, which aims to wipe out the Jewish state and deprive us of the rights of freedom, life and selfdefinition." According to him, "the only way to cope with these attacks is to set a high price on the strategy of attrition against us, and make it clear that this technique will not pay off".