An Irish Dershowitz: Tom Cooney

In my next article, I'll attempt an analysis of the speech in honour of Raoul Wallenberg made on 12^th September by the Irish Minister for Justice, Equality and Defence Alan Shatter. As a preface, here is an unpublished article I wrote in 2006 in the wake of Israel's onslaught on Lebanon. This was partly a response to an article published in the Irish Times by the law lecturer Tom Cooney, one of Israel's most loyal propagandists in Ireland. This is topical, because Mr Cooney is now a special advisor to Minister Shatter. I have changed the title (originally A European Dershowitz), added a few links and made a few other adjustments.

An Irish Dershowitz

Raymond Deane

The July 16th 2006 G8 statement on the Middle East crisis was a shameful abdication of responsibility on the part of some of the world's most powerful leaders. Once again the West, with Japan and Russia in expedient if apparently reluctant tow, determined that Israel may continue to violate international law, while resistance to its criminality was demonised.

In reality, the G8 statement and that of the EU foreign ministers onMonday 17th (which, according to the Guardian newspaper, "was diluted after pressure from Britain and Germany, Israel's closest EU allies") constituted a blank cheque for Israel to attempt the destruction of both Hamas and Hizbullah. This is because the West acknowledges militant Islam as the only force capable of bringing down the Arab dictators whose bought compliance is necessary to ensure Western hegemony in the region.

In an opinion piece in the Irish Times (Terrorists and their planners are a lawful target, July 18 2006)  University College Dublin law lecturer Tom Cooney made the groundless claim that the G8 statement "has brought a shift in how international law views states which are linked to terrorism", as if a single statement by a cohort of opportunistic politicians could instantaneously transform a legal consensus elaborated over generations. Given that Cooney is a regular mouthpiece for Hasbara - Zionist propaganda - it's probable that his line of argument will crop up elsewhere, hence it's worth looking at it more closely.

A primary problem is his blanket acceptance of Israeli terminology, referring consistently as it does to Hamas and Hizbullah as "terrorists" and to their actions as "terrorism". This constitutes an illicit attempt to smuggle in conclusions without elaborating premises. While others might dub Hamas and Hizbollah "freedom fighters" or "the Islamic resistance" and call Israel "a terror state", such language, whether correct or not, similarly presupposes a specific ideological stance and would be inappropriate in a discussion of international law.

If the G8 statement is important because, in Cooney's words, "it recognises Israel's right under international law to use military force to defend itself", then its importance is negligible indeed: this right is already recognised, as is the right of all peoples - including the Palestinians or the Lebanese - to defend themselves forcefully against assault.

Mysteriously, the first conclusion Cooney draws from his hollow premise is to assert that the statement in some way rebuts "the International Court of Justice's stance", presumably when in its advisory opinion of July 9th, 2004, the ICJ condemned Israel's construction of a wall on Palestinian territory. However, the court explicitly accepted Israel's right to self-defence while condemning the route of the wall, hence it's unclear wherein the rebuttal lies.

His second conclusion is that "Israel may hold Lebanon directly responsible for the attack".

Even were such a conclusion justified in strict legality, in geo-political reality Lebanon's chaotic multi-sectarian and impotent government is "directly responsible" for very little. To suggest that it can disarm Hizbollah in accordance with UN SecurityCouncil resolution 1559 - while Israel is encouraged to disregard scores of UN resolutions - is entirely disingenuous.

Whatever the pretext for its recent actions, Israel has no right to target civilians or civilian infrastructure, whether in Lebanon or the Occupied Palestinian Territories. Article 6(b) of the NurembergCharter prohibits the "wanton destruction of cities, towns or villages, or devastation not justified by military necessity . . .", the latter being defined by the laws of war. The 1907 HagueConvention prohibits the penalisation of "the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible," a prohibition repeated by Article 33 of the Fourth Geneva Convention of 1949. Hence Israel's wanton proceedings in both Gaza and Lebanon are war-crimes, and no rhetoric from the G8 or the EU can alter that fact.

Cooney further concludes that "Since 9/11, the threat of international terrorism has forced states to recognise that a state that culpably fails to prevent terrorist attacks or facilitates terrorist groups is directly responsible for the attacks. The underlying principle is that states must counter international terrorism." As a result, Lebanon is deemed not to have lived up to its obligations and hence to be, in effect, a legitimate target.

While 9/11 may well have changed perceptions of the dangers of international terrorism, it has not effected significant changes in international law. The "underlying principle... that states must counter international terrorism" already existed. Undoubtedly many states were and are remiss in countering it, but their negligence breached and still breaches no international laws. As with his conclusions from the G8 statement, Cooney is again pretending that international law has changed when this is not in fact the case.

Cooney again illicitly adopts Israeli language when he refers to Israeli soldiers having been "kidnapped" rather than "captured". He fails to mention the hostages Israel tookwith it when it withdrew from Lebanon in 2000 after its long, bloody, and illegal occupation of that country. He fails to mention the vexed question of the Sheba'a Farms, which Israel still occupies. Nor does he mention Israel's failure, despite repeated requests, to provide the Lebanese authorities with maps of where it had laid landmines. Nor does he mention the regular kidnapping of Palestinian civilians by the Israeli army, nor the thousands of Palestinian civilians rotting without trial - and often subject to atrocious torture - in Israeli prisons.

If "an Israeli rescue mission is an act of self-defence under article 51 of the UN Charter" as Cooney maintained, then the Palestinians and Lebanese would be within their rights to invoke the same article. Of course in the eyes of such "experts in legitimation" (Gramsci's useful phrase), only Israel has rights.

Mr Cooney claims that because "neither the Palestinian Authority nor the Lebanese government has tried to rescue" the soldiers, "diplomatic means have failed", hence Israel's military onslaught was some kind of final resort. But Israel invariably eschews diplomatic means if there is any possibility of their pre-empting military action, and has pointedly avoided diplomacy in Gaza and Lebanon. Similarly, the US, G8 and EU have been quite content to let Israel do its worst prior to any call for a ceasefire with concomitant diplomacy.

Cooney has the chutzpah, or perhaps black humour, to claim that Israel could not attempt to arrest the captured soldier Gilad Shalit's captors in Gaza as it "would cause many civilian casualties". In reality, of course, Israel wreaked destruction and slaughter in Gaza from the very outset, without in the process retrieving its soldier. One suspects that finding him was the last thing on Ehud Olmert's mind, as it would have deprived him - and his Defence Minister, the "Peace Now" veteran Amir Peretz - of a plausible excuse for further butchery.

Cooney truly oversteps the boundaries when he describes Palestinian and Hizbollah fighters as "unlawful combatants" who could justifiably be denied "the benefits of prisoner-of-war status", thus once again removing any taint of illegality from Israel's actions, however outrageous.

The term "unlawful combatant" has no existence in international law. According to US legal expert Nathaniel Berman, its use seems "designed to put detainees beyond the reach of any law", something that Cooney apparently wishes upon Israel's victims in symmetry with his conviction that Israel should itself be blessed with impunity.

What is being espoused here is the Bush/Rumsfeld stance concerning the alleged al-Qaeda prisoners held without trial in Guantánamo. Unfortunately for this argument, in June 2006 the US Supreme Court ruled by a 5-3 majority that, contrary to the US government's view, Article 3 of that pesky 1949 Geneva Convention "relative to the treatment of prisoners of war" applies to the prisoners in Guantánamo and other US-run concentration camps such as Bagram. Perversely, Cooney wishes to withhold from Palestinians and Lebanese the rights that the US Supreme Court has judged inalienable and universal.

According to his byline, "Tom Cooney teaches law at University College Dublin's law school." This description significantly fails to mention that his field is medical law, not international law as the unwary reader might be led to assume. Here, his twofold thesis can be easily summarised: all who resist Israel's assaults and illegal policies are criminals under a new legal dispensation stemming from 9/11 and the recent G8 statement, and everything that Israel does is, by definition, legal. Neither contention stands up either legally or logically, so it is clear that Cooney is using, if not abusing, his academic status to promote Israel's policies and actions right or wrong. Clearly his role-model is Harvard law professor Alan Dershowitz, author of a continuous stream of turgid and sophistical best-sellers defending Israel's sacred impunity.

It is an open secret that Israel had planned its reoccupation of Gaza long before the capture of Corporal Shalit, and equally well known that the army had long been yearning for another crack at Lebanon. The actions of Hamas and Hizbullah merely provided the necessary pretext. Uri Avnery, veteran founder of the Israeli peace bloc Gush Shalom, maintains bluntly that "The real aim is to change the regime in Lebanon and to install a puppet government . . . Everything else is noise and propaganda." Unfortunately, particularly when it emanates from professional lawyers with an axe to grind on Israel's behalf, such noise often drowns out the truth.

Raymond Deane is a founding member of the Ireland Palestine Solidarity Campaign.