“Lawfare” and the Middle East

March 31, 2010

by: Joshua Spurlock, BFP Israel Mosaic Radio

In the Almog case, which was covered by the BBC, Ha’aretz, and Ynet, the Israeli general faced the legal nightmare because he ordered the destruction of more than 50 homes in the Gaza Strip in 2002. While the case obviously never went to trial to determine if a crime had taken place, the UK’s foreign secretary at the time, Jack Straw, apologized for the incident. However, the principle of universal jurisdiction, where one nation’s courts can punish a foreigner for foreign crimes, has been misused enough that it has its own name: lawfare.

Understanding Universal Jurisdiction

According to “Curbing the Manipulation of Universal Jurisdiction,” a publication from the Jerusalem Center for Public Affairs by Justus Reid Weiner and Diane Morrison, universal jurisdiction is defined as the ability of a state to judge an act so “universally condemned” that, despite it being committed abroad by a foreign national against a foreigner, the state has “an interest” in dealing with the issue. In other words, the act is so heinous, the state can actually take legal action against someone it would normally have no authority over. Examples of such acts include genocide and war crimes.

While the principle can undeniably be abused, it has also been put to great good. Israel took Adolf Eichman to trial for crimes in the Holocaust under universal jurisdiction, and in more recent times, genocide in Rwanda and war crimes in former-Yugoslavia have also led to universal jurisdiction trials. The last two, however, are slightly different. Instead of one nation using its courts to try criminals from another state, the genocide cases used internationally-created courts. Today, a permanent one exists—the International Criminal Court (ICC), located at The Hague in the Netherlands.

The International Criminal Court

Though the United Nations Security Council can bring cases to the ICC, the court is not part of the UN. According to the ICC Web site, the court is “the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.” Like universal jurisdiction in a general sense, the court’s focus is on major atrocities such as genocide and war crimes. Created in July of 2002, it did not bring Israel to criminal trial during its first seven years of existence—a stretch covering portions of the Second Intifada (starting in 2000) and the 2006 Second Lebanon War.

A key reason is that Israel is not a signatory to the treaty. One of the clauses that allows the ICC to intervene is if a member of a signatory state is accused of the crime or if it took place in such a state. Since that clause does not directly apply to Israel, perhaps the simplest way for Israel to end up before the ICC would be a decision by the UN Security Council to bring them to trial, an action requiring at least passive support from the United States, the UK, France, and Russia. The Goldstone report, which accused Israel of war crimes in Gaza during Operation Cast Lead (Dec. 2008–Jan. 2009), threatened to bring Israel before the ICC if they did not adequately investigate the accusations. As of press time, it was unclear if the ICC would get involved.

Even if the ICC does get involved against Israel, the full reach of their enforcement powers remains unclear. Despite issuing an arrest warrant against Sudanese President Omar al-Bashir, the leader has traveled freely in friendly nations and has yet to face the ICC. Still, it would probably be unwise for a person accused by the ICC to travel to the UK and other nations who could try to enforce the court’s decisions.

The issue of self-investigation is an important one for the ICC, which says on their Web site that they initially leave crimes up to the individual nations to handle unless they are “unwilling or unable genuinely to investigate or prosecute.” Of course the definition of “unwilling or unable” is not always clear. And outside the ICC, arguments that Israel is not adequately investigating themselves—despite an independent judiciary that is no stranger to challenging the Israeli government—have caught on.

Abusing the System

Here are just a handful of the situations in which Israelis were threatened with apparently overzealous universal jurisdiction:

• Opposition leader Tzipi Livni had to cancel a trip to the UK in 2009, apparently over arrest threats for her involvement as foreign minister during Operation Cast Lead. (The Guardian)
• Then-Defense Minister Shaul Mofaz in 2004 and current Defense Minister Ehud Barak in 2009 both needed diplomatic immunity to escape legal threats in the UK. (Haaretz, Ynet)
• A former legal advisor in the Israeli military cut short a visit to South Africa in 2009 over legal concerns related to Operation Cast Lead. (Haaretz)
• A Spanish judge considered charges in 2009 against Israeli military leaders for the killing of 14 civilians in the assassination of a terrorist leader in 2002. The case was later dropped over lack of jurisdiction. (World Jewish Congress)

While all of the above cases were dismissed due to jurisdiction issues rather than Israel’s proven innocence, it should be noted that, as of early February, none of these cases had been taken up in an international tribunal established by major governments.

Of course, should a future incident result in the arrest of an Israeli official, a diplomatic disaster would result. In the UK, for example, it appears the diplomatic branch of the government is opposed to the excessive use of universal jurisdiction against Israelis, and it would cause quite an incident in Britain if an Israeli was arrested and detained. It seems difficult to imagine an Israeli official being convicted and sentenced to prison in the UK. However, universal jurisdiction has been taken that far in Europe before, most notably in connection with the Nazi war crimes trials. In the current political environment, anything more than a brief arrest and detention of an Israeli official in the UK, alongside a major diplomatic embarrassment, seems unlikely. Nations less friendly to Israel than the UK are more difficult to predict.

To be fair, Israel is not alone in facing legal attacks abroad. Weiner and Morrison note in their publication on universal jurisdiction that the legal approach has been misused against former US Secretary of Defense Donald Rumsfeld, former US President George W. Bush, and former British Prime Minister Tony Blair. If a misapplication of universal jurisdiction isn’t apparent just from the above examples, there is another factor that raises questions about the cases being politically-motivated: the involvement of special interest groups or non-governmental organizations (NGOs).

NGOs Join the Fight

An NGO is not necessarily biased. In fact, many NGOs have done good work in the past, and some continue to do it. However, questions are raised when NGOs with a bent of anti-Israel work and criticism spearhead legal actions taken against the Jewish state. There have been a number of cases that were pushed not by national governments or judicial systems, but by organizations such as the Palestinian Center for Human Rights, which worked against Maj. Gen. Almog, and Al-Mezan, another Palestinian human rights organization in the West Bank  (Judea and Samaria), which pushed for the arrest of Barak in the UK.

NGO Monitor, an Israel-based organization that analyzes NGOs for perceived anti-Israel bias, has harshly critiqued Al-Mezan and other similar NGOs behind lawfare against Israel. In a press release connected with the Barak case, NGO Monitor said, “Under the facade of judicial processes, NGOs utilize universal jurisdiction provisions to promote and justify the isolation and boycotts of Israel and its leaders.”

As proof of the lack of legal standing for the cases, NGO Monitor lists on their Web site 12 instances from 2001 to 2009 of what it believes to be lawfare against Israel that have been either initially dismissed or otherwise canceled. Prior to Operation Cast Lead, back in October of 2008, NGO Monitor Executive Director Prof. Gerald Steinberg was quoted by Ynet as saying that “not one court has upheld” NGO complaints against Israel.

It should be noted that at least one of the cases listed on their Web site went to appeal following an initial decision declining the case, and that at least some of the examples were dismissed more due to legal issues related to jurisdiction than the merits of the case, such as Almog’s leaving the UK. In “NGO ‘Lawfare,’” by legal advisor Anne Herzberg—a publication posted on the NGO Monitor Web site—she notes that the involved NGOs cannot pretend that their only concern is for universal human rights, as they fail to push for the prosecution of cases against terror groups.

NGO Monitor says in their Web site section, “While NGOs claim these cases are about obtaining ‘justice’ for Palestinian victims, they are actually part of the larger political war against Israel. The tactic of lawfare was adopted at the NGO Forum of the 2001 Durban Conference [UN anti-racism conference] and is an integral part of the Durban Strategy, which seeks to demonize and delegitimize Israel.”

Even more disturbing than the involvement of NGOs in lawfare is the involvement of Hamas. According to a report in the UK’s The Times, Diya al-Din Madhoun claimed Hamas was working to encourage alleged victims to press charges against Israelis in various European states. Hamas had not filed charges nor hired any lawyers at the time, but they did provide evidence and information to UK lawyers.

According to Weiner and Morrison’s research, nations that have sought to limit universal jurisdiction in their countries include France, Spain and Belgium. Canada requires their cases to be approved by the attorney general or deputy attorney general. Still, despite limits placed on the court’s jurisdiction in some areas, that will not prevent inappropriate cases from appearing. For example, though Spain’s legislation curtails lawfare, it doesn’t appear to close the door completely.With the issue of universal jurisdiction becoming a serious concern, especially in the UK, finding a way to put an end to frivolous lawfare is an obvious need for Israel. Although the UK government has apparently been embarrassed by their lawfare instances against Israel, the law had not been noticeably changed as of early February. However, other governments have taken healthy steps.

Weiner and Morrison recommend, among other things, that one method to reduce lawfare could include judicial use of awards and penalties for inappropriate cases. The example they give would be awarding heavy legal costs in favor of the nation or person harmed by the fraudulent case. “Not only will such costs be a step towards redressing the injustice done to such individuals—in time lost, reputation harmed, and legal expenses—but will also deter future abusive claimants.”

The problem with each of these solutions is that they require European and North American governments to take the steps to prevent lawfare. Israel can use diplomatic pressure to encourage these nations to act against lawfare, while also finding ways to escape legal concerns through jurisdiction issues. Nonetheless, they ultimately rely on other countries to handle the issue correctly. And until nations such as the UK take those steps, Israeli officials like Almog will continue to be faced with what should be a simple question: whether or not to get off the plane.