Muslim Legal Defense & Education Fund files complainturgingthat Dershowitz be disciplined based on his op-eds

[Francisco Martin]

Prof. Wolff writes in relevant part:

> The notion, however, that Professor Dershowitz could be "prosecuted" for
> his recent statements is rather overblown.
> First, with only a very few exceptions, treaties (including the Geneva
> Convention) and principles of international law bind states, not private
> persons.  Harvard occupies a lofty position in the world community, to be
> sure, but it has not yet been recognized as an independent sovereign; and
I
> take it we can all agree that Professor Dershowitz's essay, whatever else
> one might say, does not rise to the level of a "jus cogens" norm like
slave
> trading or genocide.

Crimes against humanity  do have the status of jus cogens and apply to
private persons.

Prof. Wolff continues:
> Second, a take it that there must be a showing of causation in a claim
that
> one has "facilitated" a disproportionate retaliatory response.

You are mixing up war crimes and crimes against humanity.  The incitement
offense under the international law governing crimes against humanity does
not require the actual occurrence of the forcible transfer of the civilian
population.  See Prosecutor v. Akayesu (ICTR).  Disproportionality is only
relevant to war crimes.

Prof. Wolff continues:
>I think it
> safe to say that Israeli intelligence was in possession of the information
> about Palestinian villages that Professor Dershowitz included in his
essay,
> and that Dershowitz neither gave Israel any new ideas nor "incited"
Israeli
> forces to a higher state of action.  His statements may help to lend
> legitimacy to the idea of retaliation, but that's a far cry from
incitement.

This is not relevant as a matter of the law governing crimes against
humanity.  It would still be a crime against humanity.  See Prosecutor v.
Ruggiu (ICTR).

Prof. Wolff:
> Third, while Professor Dershowitz is a brilliant scholar, I'm unaware of
> any particular credentials that he has as an expert either on foreign
> policy or on moral philosophy.  His statements received attention because
> he is a prominent public intellectual.  I think it merely confers further
> legitimacy upon those statements to engage in an extended discussion about
> whether they constitute prosecutable offenses under international law.

The fact that he is a "prominent public intellectual" and a prominent legal
scholar on civil liberties would support the claim that his authority fa
ciliates the commission of crimes against humanity.  However, as I pointed
out above, this element is not necessary for proving up the commission of a
crime against humanity.

Francisco Forrest Martin