In the midst of Israel’s ongoing bombardment of Lebanon, Harvard law professor Alan Dershowitz has claimed that not all "innocent victims" of war are truly innocent. For example, he points out that the Israeli army has dropped leaflets in the south of the country, advising the populace to flee, and argues that civilians "who voluntarily remain behind have become complicit (with Hezbollah). Some — those who cannot leave on their own — should be counted among the innocent victims."

As for the rest, Dershowitz proposes that international law experts and the media (!) devise a nuanced scale for judging the combat status of people who "choose" not to flee their homes when a foreign power announces it is going to destroy them. (Where hundreds of thousands of now-homeless and impoverished peasants are supposed to go, and how they’re supposed to get there, isn’t something Dershowitz explains.)

I confess I have difficulty imagining what such a scale would look like. On the other hand, drawing subtle analytic distinctions is what law professors do best, so I suppose we could give it a try: "You, sir, are an able-bodied young man. Your grandmother, by contrast, is an arthritic elderly woman, somewhat deaf in one ear. Therefore, while you are equivalent to 93 percent of a Hezbollah foot soldier, transforming her into a mangled corpse will add only one sixth of an enemy combatant to our kill ratio. A simple calculation reveals that together you constitute slightly more than one legitimate target and slightly less than one innocent civilian. Have a nice day."

Still, as Voltaire remarked, witticisms do not go well with massacres. Let us give serious attention to the professor’s proposal.

Note Dershowitz’s argument closely resembles that made by controversial University of Colorado professor Ward Churchill in his repugnant "little Eichmanns" essay, for which Churchill was properly excoriated by people all across the political spectrum. The office workers in the WTC were not truly innocent victims, Churchill claimed, because they had chosen to be part of the system with which al Qaeda was at war. Churchill also endorses something like Dershowitz’s sliding scale of culpability, arguing that his claims don’t really apply to the janitors in the building.

Indeed, both Churchill and Dershowitz are merely echoing the arguments of Osama bin Laden. Bin Laden has warned Americans many times that if we allow our government to enable what he sees as the violent oppression of Muslims, then we are, to use Dershowitz’s term, "complicit" in that violence, and become legitimate targets of al Qaeda’s military operations.

It’s striking how, when our enemies intentionally kill ordinary men, women and children, we have no difficulty recognizing that such acts are essentially monstrous _ yet when we or our allies commit similar acts we find it almost impossible to do so. (I’m using the word "intentional" in its precise legal sense: the commission of an act one knows will have certain consequences.)

It’s said the difference between soldiers and terrorists is that soldiers don’t want to kill civilians, while terrorists do. But it’s easy to overstate this difference. For one thing, given that sociopaths are rare, the average terrorist and the typical soldier would no doubt prefer to achieve their goals in less horrific ways. Each knows that what he does kills innocent people, but each has been taught to believe the greater good justifies his actions.

For another, throughout history, from the Roman legions who sacked Carthage, to Sherman’s march to the sea, to the firebombing of cities in World War II, armies have often not even pretended to draw distinctions between enemy soldiers and the civilians in their midst. (Such inconvenient facts are probably behind Dershowitz’s desire to legally transform as many Lebanese civilians into combatants as possible.)

War is always savage, disgusting and evil. It is better to admit that, if for no other reason than to avoid telling ourselves comforting lies. A better reason is to remind ourselves of how rare those occasions are when it truly is the lesser evil.

(Paul Campos is a law professor at the University of Colorado and can be reached at Paul.Campos(at)