Muslim Legal Defense Fund files complaint against Dershowitz

[Volokh, Eugene]

    Well, if Prof. Martin is correct in his view that Dershowitz's writing
his op-ed is criminal under international law, then this makes me even
happier that the U.S. has taken a much firmer view on free speech than the
international law has.  And it reinforces my view that the U.S. must resist
any attempts to remold our First Amendment law in the image of the European
system.

    Whether and when collective punishment (or for that matter torture) are
permissible responses to repeated mass murder, and to other grave national
security threats, is an important and difficult question.  The moral, legal,
and pragmatic arguments on both sides of this question deserve to be
publicly debated -- not suppressed through the threat of criminal
punishment.  Such suppression both violates fundamental principles of
democratic self-government (surely Meiklejohn's arguments are fully
applicable here), and seems likely to ultimately be counterproductive.

    But, some may ask, isn't it good that people are trying to prohibit,
say, the incitement of outright genocide, in the traditional sense of mass
murder?  Well, it seems to me that Prof. Martin's theory shows the weakness
in that scheme:  These speech restrictions may be sold as being focused on
the most extreme, appalling speech that most of us would likely to find some
way of punishing -- but they then end up being applied to a much wider range
of speech, including much that needs to be aired.  That's what we saw with
attempts to suppress Communism in the 1950s, campus speech codes in the
1980s and 1990s, and European "hate speech" restrictions; that's what we
seem to be seeing here as well.

    Eugene


Francisco Martin writes:

-----Original Message-----
From: Francisco Martin [mailto:ricenter at IGC.ORG]
Sent: Sunday, November 24, 2002 1:19 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Muslim Legal Defense Fund files complaint against Dershowitz


Prof. Weinberg wrote in relevant part: "I agree with you, of course, that
advocacy is protected by the First Amendment.  Moreover, although the
conduct advocated might constitute war crimes when engaged in by an
aggressor, I am not clear that any or all of it would necessarily constitute
war crimes when used to deter, or in defense against, actual crimes of
terror and murder.  "

It is not relevant as a matter of the law of armed conflict whether someone
is or is not an aggressor for them to be liable for the commission of war
crimes.  The crime of aggression is different from war crimes under
international law.

Prof. Weinberg continues: "Moreover, some of Dershowitz's suggestions would
fall far short of any reasonable definition of a war crime."

What Prof. Dershowitz is suggesting would clearly constitute a war crime.
GC4, art. 33.  However, it is unclear whether his direct and public
incitement of such would constitute a war crime. However, Prof. Dershowitz
probably would be liable for "direct and public incitement" (see Prosecutor
v. Ruggiu (ICTR)) of the commission of crimes against humanity by the
forceable transfer of civilian population and torture (ICC Statute,
arts.7(d) and (f)).

Prof. Weinberg continues: "The government of Israel could publish a list of
Palestinian villages slated for destruction should there be a future act of
Palestinian terror against the lives of the innocent, for example.  Although
such a list might constitute a true threat, it might also constitute a
humane warning to the innocent; and in either case seems to fall short of
conduct that might constitute a war crime."

This would be a war crime because it violates the Proportionality Rule under
the law of armed conflict.

Francisco Forrest Martin

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