Op-Ed: Lawfare - The Abuse of the Law to Harm Israel
Dr. Manfred GerstenfeldThe writer has been a long-term adviser on strategy issues to the boards...
“‘Lawfare’ is a term describing the misuse or exploitation of law, judicial and quasi-judicial frameworks, in order to achieve military objectives that cannot be achieved through conventional military means. This expression was coined in the early 2000’s by U.S. military officials. It concerned the abuse of law in the anti-American tactics of Al Qaeda and other terrorist organizations.
“Terrorist organizations and Palestinian activists are using similar methods against Israeli officials and corporations. It is one of the ways they try to delegitimize Israel and hamper its ability to fight terrorism. NGO’s which claim to promote human rights, aid them directly and indirectly. Following the intensification of the Palestinian terrorism campaign in 2000, NGO’s like Human Rights Watch (HRW) and Amnesty International became the primary actors using lawfare against Israel.”
Anne Herzberg is Legal Advisor of NGO Monitor. Prior to moving to Israel, she was a litigator in New York. NGO Monitor was the first organization to identify and combat lawfare against Israel.
“Lawfare cases cover areas of international law including international human rights law, laws of armed conflict, laws of statehood, borders, sovereignty, and treaty law. Lawfare against Israel takes many forms. First, it involves the distortion of international law and use of legal rhetoric, accusing Israel of ‘war crimes,’ ‘ethnic cleansing,’ ‘crimes against humanity,’ ‘collective punishment,’ ‘apartheid’ and so on.
“Second, lawfare refers to co-opting and abuse of the United Nations and other international frameworks like the U.N. Human Rights Council and the human rights treaty bodies to issue sui generis condemnations against Israel. It also involves pressing for quasi-judicial investigations and international ‘fact-finding’ missions like the Goldstone one.
They... aim at creating an immoral equivalence between mass scale atrocities and counter-terror operations.
“Third, lawfare involves exploiting international courts such as the International Court of Justice and the International Criminal Court as well as taking advantage of universal jurisdiction statutes in foreign – mostly European – courts to bring civil and criminal ‘war crimes’ cases against Israeli officials, or those doing business with Israel.
“All three methods erase the history and context of terror attacks on Israeli civilians. They often involve false factual and legal claims, and aim at creating an immoral equivalence between mass scale atrocities and counter-terror operations.
“The Palestinian Authority, Arab states, terrorist groups, and non-governmental organizations exploit these legal frameworks to limit the ability of the IDF to defend against terror attacks. They want to circumvent direct negotiations with Israel in order to avoid having the Palestinians make the difficult compromises necessary to end the Arab-Israeli conflict. Many of those practicing lawfare against Israel seek to eliminate Jewish self-determination and Israel as the nation state of the Jewish people.
“An important part of the lawfare strategy was developed at the World Conference Against Racism in 2000 in Durban South Africa. This ‘Durban Strategy’ operates as follows: Palestinians launch mass terror attacks on Israeli civilians such as waves of suicide bombings in March 2002, or rocket attacks from Gaza. As the attacks escalate and Israel employs increasingly intense counter-terror measures to prevent those attacks, NGO’s begin a public relations blitz by issuing countless press releases and reports under a façade of research, condemning Israel for alleged ‘war crimes’ and other violations of international law.
“These claims are then picked up in the media without any independent verification. In conjunction with the Arab League, these NGO’s then lobby various U.N. bodies to issue condemnations, to establish ‘fact-finding’ investigations and to hold ‘war crimes’ trials. These groups also lobby the European Union and other governments, primarily European ones, to impose sanctions on Israel. They also file lawsuits seeking to have Israeli officials arrested abroad, or to have high criminal and financial penalties imposed on corporations for aiding Israel’s military.
“Lawfare is only possible because of the large amounts of funding provided annually by the European Union, European governments, church groups, George Soros’ Open Society Foundation, and to a lesser extent the New Israel Fund. In one particularly egregious case, the European Union granted Dutch NGO Oxfam Novib 300,000 Euro to stop the use of the death penalty in the Palestinian Authority.
“Instead, Oxfam Novib transferred the money to the Palestinian Center for Human Rights (PCHR), which used it to finance lawfare strategy conferences in Spain, the United Kingdom and Cairo. PCHR used these events to prepare lawsuits against Israeli officials. The Israeli NGO Adalah, attended one of these conferences and prepared an affidavit attacking the Israeli justice system, which was then submitted to the court by PCHR in its case in Spain.
“PCHR’s Cairo conference was broadcast on Al Jazeera with a banner prominently displaying the E.U. logo as a funder of the conference. When an independent evaluation team was hired by the E.U. to evaluate the project, they were unable to do so, because all substantive documentation relating to the grant in the E.U. files was missing.”