Saturday, December 23, 2006

A response to Alan Dershowtz’s ‘Arithmetic of Pain’

Monday 21 August 2006

The following is an email exchange between myself (Stewart) and 'Frank' (fictitious name), an active member of the Jewish community in Sydney. I have used the name Frank for privacy purposes.

I incorporated my comments and his responses into one document.

I sent the collection of emails to Rabbi Michael Lerner from Tikkun to gain his opinion. He concluded (19/8):

“There are many interesting points raised in this discussion, but I do not have the time to involve myself in it. Let me instead urge you to read my book Healing Israel/Palestine (North Atlantic Press, 2003) since I think it gives you a framework quite different from that of Dershowitz and of 'Frank'.”

Now for the letter


Dear Frank,

Thank you for your article by Prof Dershowitz, Arithmetic of Pain, published in the Wall St Journal, July 19, 2006. I think it raises important reasons for anxiety by many members of the Jewish community in Israel and abroad. It is particularly an important article for members of Hamas and Hezbollah to consider.

However, please excuse me for taking issue with some of his comments. What I dislike about this article is:

(1) The historically narrow use of the label democracy

I take issue with people that repeatedly emphasise Israel’s current political system as a democracy without considering the historical democratic needs of the non Jewish community of the region.

What is that supposed to mean? Israel IS a democracy. Australia, the US, and every other country didn't begin as a democracy. It is ludicrous to suggest that you can start off a country as a democracy. The democratic needs of every Israeli - not matter what race or creed - are met. The democratic needs of no other people in the region are met. Is that Israel's fault?
This is a stupid comment.

The question is what lessons can we learn from the past to prevent future catastrophes?Australia and the United States had atrocious starts. Foreigners moving on mass to regions already inhabited, and establishing their control by military force, is characteristic of colonisation.

The difference is this Captain Arthur Phillip came in 1788 and Captain John Smith landed in 1607 and the establishment of Israel was 1948!

By this time Europe had long received the wisdom of the Enlightenment writers. Woodrow Wilson had spoken of his Fourteen Points in 1919.

Describing Israelis/ Jews as 'foreigners' to their own land is not only a distortion, it is offensive. The minute you describe the Jews as 'foreigners' you know you are not talking about peace between two native populations but you have chosen to label one of them so that their claim can never be as legitimate as the other.

Palestine during the time of the first aliyah from Russia in 1881 had indigenous Muslim, Christian, Druze and Jewish members.

The choice of the term foreigner was made to help understand the indigenous Palestinian Muslim, Christian and Druze perspective.

Many members of the Jewish community who emigrated to this region post 1880s came with no comprehension of Arabic or Turkish and were subsequently perceived as 'foreign' by the local population.

In contrast the indigenous Jewish community of Ottoman Palestine spoke Arabic and were in many ways culturally more similar with other indigenous Palestinians than the members of the Jewish community who came from Europe or Russia.

And once you acknowledge the FACT that Jews, too, have a native claim to the disputed land, the size of each population at any point in history, including today, is not relevant. Indeed, the test is how you accommodate the minority along with the majority.

Yes, the indigenous Jewish community has a claim to the region and yes the Jewish community that has emigrated post 1880s has a claim to the region.

However, this can only be said within understanding the claim of indigenous members of Palestine from Muslim, Christian and Druze communities.

We live in a post colonial world.

There is a strong moral need to acknowledge the wrongs of the past.

Democracies of today, be they in the US, Canada, Australia, South Africa or Israel, are based on the military defeat of indigenous communities.

Israel is based on the defeat of indigenous members from the Muslim, Christian, and Druze community.

Acknowledging this helps present communities understand the grievance felt by non-Jewish members of Palestine.

The question is NOT what we could have done better - it is how we live
together now.

A holistic approach to reconciliation demands coming to terms with the past as a means to create a new future together.

As Mark Liebler, Co-Chair Reconciliation Australia said at the HRLRC Seminar, 1 August 2006, "Achieving Social Justice for Indigenous Australians".:

“Social justice is, of course, an absolute pre-requisite for reconciliation. As we make progress in one, by definition we will be making progress in the other. Reconciliation without social justice just doesn’t make sense and anyone who pretends otherwise, underestimates the significance of the task and the vision of what’s possible…

What I understand of the aspirations of Indigenous Australians is that, apart from securing their just recognition as the First Peoples of this country, what they seek is to be full participants in Australian society while maintaining their cultural traditions and status.

I feel that this is what the Jewish community has been able to accomplish in this country, and it should be seen by all Australians as an absolutely reasonable and absolutely achievable objective for our First Peoples.”

How could a state (in this case a ‘Jewish’ State) be created in a region where the rights of the majority of the inhabitants were not considered? Where was the opportunity for self determination?

Yes, a trend in history has been countries do not start as democracies. But yes, there is a liberal ideal that countries should start as democracies.

I am not justifying the failure of ‘democracies’ that developed in, for example, post-colonisation Africa, but I do take issue that ‘democracies’ do not take the holier than though approach and ignore that their very foundation is based on the oppression of another. It is our responsibility as democracies to acknowledge, apologise and seek reconciliation for those who were disempowered.

Israel was not created by democratic processes, but by military means and external decisions.
No plebiscite was given in 1947 (or 1919) - as the UN had done for Greece, Kashmir, Korea and Czechoslovakia. Instead the non-Jewish members of the community were subject to the decisions made by foreign powers.

So were the Jewish members! Again, a pretty stupid comment. First, the UN didn't exist in 1919, so why mention that date in this relation?

Agreed! Jewish members were subject to decisions made by foreign powers.

Yes, the UN did not exist in 1919. However, the reason I mentioned 1919 was this was the year of the Treaty of Versailles. During the Paris Peace Conference Allied powers decided how to carve up (among other places) the Middle East. The Balfour Declaration was given force during this meeting.

This stood in contrast to the McMahon-Hussein letters (July 1915-16), the motivation for the Arab Revolt led by ‘Lawrence of Arabia’ and Feisal, Hogarth’s message to Hussein (4 Jan 1918), The Allenby Declaration (Oct. 1918) and the King-Crane Commission (1919).

This stood in contrast to Woodrow Wilson’s point 5 (of his 14 points) i.e. “A free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.”

And I don't think the examples you give have any relevance - Greece already existed and the issues are not parallel in any way, Kashmir is still very much under dispute and the cause of many more deaths each year than occur in Israel-Palestine, Korea - I assume that there is some suggestion that this is one happy country, Czechoslovakia - no longer exists (because its population didn't want to be one country)! So how did plebiscites help?

The reason I gave the examples of Greece, Kashmir, Korea and Czechoslovakia was to indicate that within existing international law the plebiscite was an established option for allowing questions of sovereignty to be determined by the people living within that region (i.e democracy).

The context of these regions today is not the issue.

Greece did not exist as we understand it today in 1920 (remember Greece sided with Germany until 1917). With the defeat of the Ottoman Empire, there was a dispute about how Greece should be ruled. The Greek plebiscite of 1920 returned the King back into power. However when the King lost his attempt to assert control over Greek territories in Turkey a new plebiscite was called in 1924. The King lost and the Greek republic began. Greece received 1.2 million Greek refugees from Turkey in 1922. The Greek plebiscite in 1935 returned the King (however there is dispute about whether there was some foul play). The plebiscite of 1946 favoured the king, because he was anti-communist. The plebiscite in 1974 finally rejected the monarchy.

My comment on Kashmir is that both India and Pakistan perpetuate the trauma by using violence to solve the dispute; instead of meeting basic needs.

The problem with Korea was, the US and the Soviet Union agreed to divide Korea along the 38th parallel without consulting the Koreans (August 1945). When the UN decided to hold a plebiscite, it was too late -- the Soviet Union did not want to concede any territory and refused the plebiscite. The only plebiscite that took place was in South Korea.

The former republics of Czechoslovakia, Yugoslavia in the late 1980s were just coming out of a 50 year period of highly regulated and oppressive communist rule. Unemployment and inflation was high. Separatist groups emerged out of such a situation, where leaders irresponsibly blamed other ethnic groups for their woes, rather than look at creative ways for encouraging coexistence and prosperity for all.

And Israel was created because the Jewish people started returning to their traditional homeland in significant numbers in the late Nineteenth Century. They bought land (mainly from absentee landlords) and settled. That's not outsiders - the contrary!

In 1945 Jewish land ownership was 15%, public land 19% and ‘Palestinian’ land 66% (Palestine Government 1945).

Desmond Stewart (1972) puts the percentage of land owned by the Jews at a much lower figure, about 7% in 1948.

He summarised Jewish land ownership as follows “in the thirty one years from the Balfour Declaration to the establishment of the State of Israel in 1948, the Jews were only able to increase the proportion of Palestine they owned through purchase from around 2 to around 7 per cent of the total”.

And 'war' - only a perverted logic would suggest that Israel started the 1948 War,

In 1948 only 33% of the population of British mandate Palestine was Jewish.

Thirty years before 11% of this region was Jewish.

I believe war only breeds more war, but I can empathise that the community of
people in this region who were not Jewish would have reasons for grievance.
Also consider that if Jaffa had not been included as part of the Arab State
then greater than 50% of the Jewish State would have been non-Jewish
(Khan 23 April 1948).

after the international community had just granted her legitimacy,

The UN Security Council rejected the partition plan in March 1948 as it would endanger international peace and security. They called for a special meeting of the General Assembly in May 1948.

where she was ridiculously outnumbered and with a population totally unprepared to fight. Remember, many had just come as survivors of Hitler's Europe. They weren't exactly geared for another war.

Haganah, Irgun and Lehi had been fighting successfully against the British in 1946 (and before). If the Jewish Agency was unprepared to fight they would have been defeated. Wars are won through planning and military superiority. Whilst chance plays an element, the defeat of non-Jewish Palestinians, Egypt, Jordan and Syria can not be put down to luck.

And in this, how can you ignore the fact that there were supposed to be 2 states - a Jewish and an Arab?

Yes, the General Assembly Partition Plan of November 1947 did plan for an Arab and Jewish State and an international area in Jerusalem.

However, the Security Council vetted this idea four months later.

The problem is civil war had already broken out. The Palestinian Arabs would not agree to external arbitrators dividing up the country without consent. The Jewish Agency was not going to back-down as the concessions made by the General Assembly were so great.

The Anglo-American Commission of Enquiry in 1946 DID do a plebiscite of sorts. Jews wanted a state.

Sure, but a plebiscite is determined by considering the interests of the total population, not the minority. The majority said no to a Jewish state.

You are right about one thing - the Arab leaders did NOT want a Jewish state. So you would say, 'That's it. The one group doesn't want so the other can't have'.

Unfortunately, with all it’s faults that is a democracy.

A socially responsible democracy as suggested by Thomas Jefferson regards “though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression” (Jefferson’s inaugural address on March 4, 1801).

Having said that, the United Nations Security Council, in March 1948, proposed to suspend the General Assembly’s 1947 Partition Plan. The UN Security Council concluded that international peace and security could not be maintained by such a partition and called for a special meeting of the General Assembly.

However, the special General Assembly meeting coincided with the same week the United Kingdom was to terminate its mandate. As such the Jewish Agency had
already prepared for statehood. Consequentially, on 14 May 1948 the Jewish Agency proclaimed the state of Israel on the basis of the UN General Assembly’s
decision of November 1947. This was in defiance of the United Nations Security Council decision of March 1948. However, this decision was undermined by
President Truman (and the Soviet Union) recognising the State of Israel three days later.

Once again, wrong!! The Security Council failed to make a decision in March 48 - reread your own notes.

The Security Council did make a decision – Security Council Resolution 44 (1948).

This resolution called for a “special session of the General Assembly to consider further the question of the future government of Palestine.”

The council could not concile their mandate to maintain international peace and security with the General Assembly Resolution 181 (II) (The Partition Plan).

[However, this decision was undermined by President Truman (and the Soviet Union) recognising the State of Israel three days later.]

Don't you think the US and USSR had anything to do with the Security Council? Think about it!

The United States Administration in 1947-1948 had a mixed stance on the partition plan.

Obvious supporters for partition included Eleanor Roosevelt among others. She was very much for the creation of a Jewish state given the horrors of the holocaust.

The vote for the UN General Assembly Partition Plan (29 Nov 1947) was initially to be on 26 August 1947, but the vote was postponed on two occasions until it was clear the necessary two-thirds majority (including abstentions) would be gained.

The decisive votes were obtained from Haiti, Liberia and Philippines. According to Lawrence Smith (1947) there was questionable lobbying by the certain members of US administration to ensure their support for partition. Notably the Philippines is on record as speaking against partition only a few days before the vote.

Members against the partition plan included Secretary of State George Marshall and many members in the State and Defence Department.

On March 19, 1948, Warren Austin, the United States representative to the United Nations Warren announced to the United Nations Security Council that the United States position is that the partition of Palestine was no longer a viable option.

This was followed by Marshall’s statement a day later again in support of placing Palestine under UN trusteeship.

President Truman was furious as he had met with Chaim Weizmann on 18 March and had promised support for partition. To try and assure Weizmann that he was a man of his word he spoke on 25 March 1948 in favour of a UN trusteeship, but cautioned this would be only a temporary measure.

On May 12, 1948, Clark Clifford, Robert Lovett and George Marshall presented opposing arguments in an Oval Office debate over whether the United States should recognize the Jewish State.

For further comments on this issue see:

Sources of conflict

[The next section continues my comments on Alan Dershowitz’s piece. I have not received a response from Frank on these comments]

(2) The mis-held belief that war will solve long term human relationship desires for peace

Members of Hamas and Hezbollah do not stand for peace if they look to wipe Israel off the face of the map.

But attacking villages using howitzers, or firing onto Beiruit from ships five kilometres off the coast is not a precise method for addressing the fundamental problem of racial incitement for violence and the kidnapping of Israeli military personnel.

These examples of violence will only lead to the creation of new acts of violence, not the cessation of violence.

Guerrilla warfare is strengthened by such acts of violence.

How can Israel win the hearts and minds of her neighbours? Fear is a short term solution for building stability and has no place in building friendship and good neighbourly relations.

The following are great quotes espousing the power of non-violence:

‘Who is the hero?’ Ask the rabbis of the Talmud. Their answer: ‘One who changes an enemy into a [friend].’
Jay Rothman, Resolving Identity-based Conflict, 1997, p. xiii.

I object to violence, because, when it appears to do good, the good is only temporary; the evil it does is permanent.
Mohandas K. Gandhi “On the Verge of It”, Young India, 21 May 1925—as cited in Jim Wallis, The Soul of Politics: A Practical and Prophetic Vision of Change, London: Fount, 1994 p. 205.

Must the sword devour forever? Don’t you realize this will end in bitterness? For how long before you order your men to stop pursuing their brothers?
2 Samuel 24:26.

For further quotes see:

Nonviolent quotes

(3) The fallacy that peace will result simply from withdrawing troops from Gaza.

A precipitating factor to World War II was the merciless Treaty of Versailles which left Germany in financial ruin. Such a situation was the perfect breeding ground for the Hitlers of this world.

The Allies learnt from this following World War II by pouring billions of dollars into rebuilding the economy and infrastructure of Germany and Japan. The Marshall Plan was such a notable initiative.

The Oslo Peace Accords called for a similar economic initiative for Gaza. However, not enough has been done to improve the economic situation of Gazans.

For further comments on this issue see:
Global Peace Building

(4) The bank robber-hostage analogy

The analogy has some value, however, it breaks down as the people being killed are not necessarily being held by the bank robber. The police officer is in a difficult situation, they are scared and not sure who the bank robbers are. Not all robbers have their guns out and drawn. The police consequentially are edgy and shoot a large number of people in the bank who have nothing to do with the robbery, including the security guard and a doctor.

The killing of UN soldiers and the firing on Red Cross/Crescent vehicles is an obvious error without excuse.

The Israeli military cannot excuse itself from error or abuse of military power.

The repeated shelling of the UN compound in Qana is inexcusable. The killing of Rachel Corrie and Tom Hurndall (Peace activists), James Miller (British photo-journalist), and the shootings of people like Brian Avery all exemplify the imprecise, arbitrary or abuse of military power.

Similarly the firing of Katyushas into Israel or Qassim rockets by members of Hamas is equally culpable, and serves no advantage in long-term peace.

For my thoughts on resolving the Palestinian-Israeli-Arab conflict. These come from my Masters Thesis.

All the best,




Khan, Sir Mohammed Zafrullah, United Nations General Assembly Official Record Second Special Session, April 1948, p. 70.

Palestine Government, Village Statistics, 1945—as cited in Khalidi, Walid, Before the
Diaspora: A photographic history of the Palestinians 1876-1948.pp. 237.
Institute for Palestine Studies. Washington DC, 1984.

Smith, Lawrence, US Congressional Record - House. pp.11652-11658, 18 December

Stewart, Desmond, The Middle East: Temple of Janus, New York: Double Day and Co., London, 1971, p. 289.

Online references

Eleftherios Venizelos (Answers)
(born Aug. 23, 1864, Mourniés, Crete, Ottoman Empire-died March 18, 1936, Paris, France) Greek revolutionary leader.

Greek plebiscite 1920 (Answers)

Greek plebiscite 1924 (Answers)

Greek plebiscite 1935 (Answers)

Greek plebiscite 1946 (Answers)

Greek history (World66)

South Korea (Memory)

Thomas Jefferson (Yale)

Security Council Resolution, 1 April 1948
S/RES/44 (1948)
S/714, II

‘President Harry S. Truman and US Support for Israeli Statehood’
Ami Isseroff
(MidEastWeb Trusteeship)

Remembering General George Marshall’s Clash With Clark Clifford Over Premature Recognition of Israel
By Dr. Alfred M. Lilienthal
June 1999, pages 49-50


Israeli Soldier in Bil’in: “This is Lebanon!” (TomHurndallDOTorg)
Sunday, August 13th, 2006
Israeli activists have uploaded a video of the shooting of Lymor an Israeli peace protestor.
Video by Yoni Massey
Edited by Eran Vered

Silenced witnesses (CriticalconcernDOTorg)
In a seven-week period this spring, two overseas observers were killed by the Israeli army in the Gaza Strip, and a third left brain dead. But has the truth yet been told? John Sweeney investigates
30 October 2003
IndependentDOTcoDOTuk News


BBC documentary proves Israeli army murdered Rachel Corrie
by Christopher Bollyn
The documentary is titled ‘When Killing is Easy’
Produced by John Sweeney

Interview with Patricia Naylor: When Journalists Become Targets
March 2003

Reporters Without Borders
Israeli army kills second journalist in two weeks
3 May 2003

Cameraman 'shot in front'
8 May, 2003
The death of James Miller




British peace activist was ‘intentionally killed’
April 11th, 2006

The ten-strong jury at the inquest into the death of Mr Hurndall, a Manchester Metropolitan University student, also expressed its “dismay with the lack of cooperation from the Israeli authorities”.

Mr Hurndall was shot a mile away from where the award-winning cameraman James Miller had died three weeks beforehand. Last week, a jury ruled the Israeli defence force had deliberately killed the 34-year-old during the incident in May 2003.


U.S. Peace Activist Brian Avery Returns to Israel Two Years After Being Shot in the Face
February 25th, 2005


From Beirut to ... those who love us (Broadband Video)
"Video" writing from Beirut, Lebanon, Electronic Lebanon, 4 August 2006

Qassam Rockets -Wiki
Kafr Qasim massacre - Wiki

"Proportionate?"Arithmetic of Pain
Alan M. Dershowitz
July 19, 2006

There is no democracy in the world that should tolerate missiles being fired at its cities without taking every reasonable step to stop the attacks. The big question raised by Israel's military actions in Lebanon is what is "reasonable." The answer, according to the laws of war, is that it is reasonable to attack military targets, so long as every effort is made to reduce civilian casualties. If the objectives cannot be achieved without some civilian casualties, these must be "proportional" to the civilian casualties that would be prevented by the military action.

This is all well and good for democratic nations that deliberately locate their military bases away from civilian population centers. Israel has its air force, nuclear facilities and large army bases in locations as remote as anything can be in that country. It is possible for an enemy to attack Israeli military targets without inflicting "collateral damage" on its civilian population. Hezbollah and Hamas, by contrast, deliberately operate military wings out of densely populated areas. They launch antipersonnel missiles with ball-bearing shrapnel, designed by Syria and Iran to maximize civilian casualties, and then hide from retaliation by living among civilians.

If Israel decides not to go after them for fear of harming civilians, the terrorists win by continuing to have free rein in attacking civilians with rockets. If Israel does attack, and causes civilian casualties, the terrorists win a propaganda victory: The international community pounces on Israel for its "disproportionate" response. This chorus of condemnation actually encourages the terrorists to operate from civilian areas. While Israel does everything reasonable to minimize civilian casualties -- not always with success -- Hezbollah and Hamas want to maximize civilian casualties on both sides. Islamic terrorists, a diplomat commented years ago, "have mastered the harsh arithmetic of pain. . . . Palestinian casualties play in their favor and Israeli casualties play in their favor." These are groups that send children to die as suicide bombers, sometimes without the child knowing that he is being sacrificed.

Two years ago, an 11-year-old was paid to take a parcel through Israeli security. Unbeknownst to him, it contained a bomb that was to be detonated remotely. (Fortunately the plot was foiled.) This misuse of civilians as shields and swords requires a reassessment of the laws of war. The distinction between combatants and civilians -- easy when combatants were uniformed members of armies that fought on battlefields distant from civilian centers -- is more difficult in the present context. Now, there is a continuum of "civilianality": Near the most civilian end of this continuum are the pure innocents -- babies, hostages and others completely uninvolved; at the more combatant end are civilians who willingly harbor terrorists, provide material resources and serve as human shields; in the middle are those who support the terrorists politically, or spiritually. The laws of war and the rules of morality must adapt to these realities.

An analogy to domestic criminal law is instructive: A bank robber who takes a teller hostage and fires at police from behind his human shield is guilty of murder if they, in an effort to stop the robber from shooting, accidentally kill the hostage. The same should be true of terrorists who use civilians as shields from behind whom they fire their rockets. The terrorists must be held legally and morally responsible for the deaths of the civilians, even if the direct physical cause was an Israeli rocket aimed at those targeting Israeli citizens. Israel must be allowed to finish the fight that Hamas and Hezbollah started, even if that means civilian casualties in Gaza and Lebanon. A democracy is entitled to prefer the lives of its own innocents over the lives of the civilians of an aggressor, especially if the latter group contains many who are complicit in terrorism. Israel will -- and should -- take every precaution to minimize civilian casualties on the other side.

On July 16, Hasan Nasrallah, the head of Hezbollah, announced there will be new "surprises," and the Aska Martyrs Brigade said that it had developed chemical and biological weapons that could be added to its rockets. Should Israel not be allowed to pre-empt their use? Israel left Lebanon in 2000 and Gaza in 2005. These are not "occupied" territories. Yet they serve as launching pads for attacks on Israeli civilians. Occupation does not cause terrorism, then, but terrorism seems to cause occupation.

If Israel is not to reoccupy to prevent terrorism, the Lebanese government and the Palestinian Authority must ensure that these regions cease to be terrorist safe havens.

Mr. Dershowitz is a professor of law at Harvard.
URL for this article (OnlineWSJDOTcom)