- “Lawfare” combines “law” and “warfare,” denoting the use of the law as a weapon of war.
- It involved illegitimate use of the legal system to attack Israel and dates to the NGO Forum in Durban in 2001.
The term “lawfare” is a combination of “law” and “warfare”, describing the use of the law as a weapon of war, or the pursuit of strategic aims through aggressive legal manoeuvres that cannot be achieved through traditional military means.
In the context of its use against Israel, lawfare involves the abuse and illegitimate exploitation of legal institutions in order to attack the state. Lawfare has been used to delegitimize and diminish Israel’s sovereignty and to inhibit the right and ability of Israel to defend itself.
Lawfare is the willful misuse of the legal system to achieve political ends undermining the legal institution’s intended purpose and weakening the institution’s credibility as a tool for the true pursuit of justice.
The strategy of abusing legal forums as a weapon of war against Israel can be traced to the NGO (Non-Governmental Organization) Forum of the 2001 UN World Conference against Racism held in Durban, South Africa. While the Durban Conference’s purported aim was to combat racism worldwide, it was instead hi-jacked by antisemitic participants with an obsessive focus on demonizing Israel, singling it out for opprobrium and labeling it an “apartheid” and “racist” state.
The NGO Forum called upon its participants to seek:
the immediate enforcement of international humanitarian law…to investigate and bring to justice those who may be guilty of war crimes, acts of genocide and ethnic cleansing… that have been or continue to be perpetrated in Israel and the Occupied Palestinian Territories.
This statement sparked the use of lawfare tactics to advance a political war against Israel. The legal initiatives that followed are, consequently, fruit of the poison tree first cultivated at the 2001 Durban Conference.
The UN Human Rights Council commissioned the Goldstone Report, released in 2009, which further instructed the world’s nations to pursue lawfare and seek criminal charges against Israelis under universal jurisdiction and at the International Criminal Court. The accusations contained in the Goldstone Report were not based on balanced evidence, and its mandate accused Israel of wrongdoing in advance of any finding of fact. This was in sharp contrast to the Commission’s silence regarding Hamas, perpetrators of rampant human rights abuses during the hostilities under investigation. As noted by Brooke Goldstein, Director of The Lawfare Project, “lawfare actions work to shift legal accountability for the murder of civilians killed as human shields from the terrorists that hide behind them to the soldiers that fight terrorism.” The Goldstone Report is evidence of this shift.
One of the most aggressive forms of Lawfare against Israel has been the abuse of domestic criminal law to prosecute Israeli leaders for military and civilian action. Recently, Western NGOs have sought to obtain arrest warrants against visiting Israeli political and military officials in Western countries. They have successfully obtained these warrants based on the legal doctrine, mentioned above, known as universal jurisdiction. Normally, in order for a court to have jurisdiction to prosecute an individual for criminal activity, there must be a connection between the respective forum and the criminal activity. And so, European courts could not ordinarily prosecute Israeli officials for alleged crimes perpetrated in the Middle East.
Universal jurisdiction allows a court jurisdiction over criminal conduct that occurred outside the state or region if the activity is deemed so severe that it affects the international community as a whole. After World War II, Western legal systems began incorporating forms of universal jurisdiction into their laws in order to tackle the worst forms of war crimes and genocide. Now, under the guise of the pursuit of justice, universal jurisdiction has become a popular tool for attacking Israel. Organizations engaging in lawfare have used these domestic laws to target Israeli officials who have participated in counter-terrorism operations. Claiming that these operations constitute war crimes, they initiate legal action to investigate and prosecute Israeli leaders, not with any expectation of obtaining a conviction but with the objective of smearing their character and tarnishing Israel’s image. Criminal law is merely a vehicle to achieve this result.
Spanish and British examples illustrate the effectiveness of this form of domestic criminal lawfare. At the behest of the Palestinian Center for Human Rights (“PCHR”), an NGO in Gaza City, Spanish Courts launched an investigation against two Israeli officials, former Defense Minister Binyamin Ben-Eliezer and former IAF and IDF Chief of Staff Dan Halutz, for alleged “crimes against humanity” stemming from the assassination of a Hamas leader in 2002. It should be noted that the PCHR also condemned the 2010 rededication of the Hurva Synagogue in the Jewish Quarter of the Old City of Jerusalem as a ‘war crime;’ however, it refers to indiscriminate attacks on Israeli civilians as ‘resistance’. Since Palestinians have standing before Israeli courts, the Palestinian NGO could have petitioned the Israeli High Court to investigate the conduct of their own officials. Their decision to exploit another country’s universal jurisdiction is evidence of their true motives: the delegitimization of the Israeli legal system and Israel’s military and the abuse of universal jurisdiction for the purpose of lawfare.
In a December 2009 report of the Times of London, Diya al-Din Madhoun, a Hamas official, stated that his organization was behind the 2009 arrest warrants issued for Israeli officials in the United Kingdom. Madhoun bragged that, after the first Gaza campaign, Hamas provided a group of independent lawyers in Britain with documents, information and evidence. The Israeli newspaper Ma’ariv corroborated this story and reported that Hamas was working with local lawyers in Europe to launch these suits. The use of public international and foreign legal actions against Israeli officials provides Hamas with an added advantage in their public relations war against Israel: legal credibility. Moreover, these types of initiatives have successfully created a chill, causing Israeli officials to think twice before travelling abroad to certain countries whose law is prone to this type of abuse. British Foreign Secretary William Hague referred to this as “political abuse of our legal procedures” and “an appalling situation.” As a result, the British government changed the regulations governing universal jurisdiction in the UK to prevent politically motivated cases and ensure all cases had a basis in solid evidence.
Lawfare has also been manifest in lawsuits filed at international courts, as demonstrated in the International Court of Justice’s (“ICJ”) non-binding advisory decision against Israel regarding the construction of its Security Barrier. In 2004 and 2005, the Israeli High Court heard petitions regarding the Security Barrier between Israel and the West Bank. The Israeli government was instructed by the Court on two occasions, in 2004 and 2005, to alter the route of the barrier in order to minimize the negative impact on Palestinians. The Israeli High Court was the natural court with competent jurisdiction to deal with this issue, its impartiality and independence manifest in its rulings against the Israeli government. Yet, in 2004, NGOs launched an international campaign at the UN General Assembly against the Barrier. Instead of awaiting the Israeli High Court’s response to the many petitions before it, they encouraged the UN General Assembly to refer a request to the ICJ for an advisory opinion on the Security Barrier. The request’s language accused Israel of wrongdoing from the start. Since Israeli domestic courts were already considering this issue, it is clear that the intention of the NGO campaign at the UN General Assembly and the subsequent referral to the ICJ was not to acquire a legitimate ruling from a court of competent jurisdiction but to exploit the International Court of Justice to delegitimize the State of Israel’s courts and its counter-terrorism actions.
Domestic civil litigation is also used as a tool for lawfare, as demonstrated in the Green Park case in Montreal, Quebec. Al Haq, an organization active in the global Boycott Divestment and Sanctions movement against Israel, filed suit on behalf of Bil’in Village in 2008 against two Quebec corporations that built condominiums in an Israeli settlement. Bil’in Village Council v. Green Park Int’l, Inc. was filed in the Superior Court of Quebec, one of a series of cases that sought to bolster the BDS movement and to undermine the legitimacy of the Israeli justice system. Evidence of the organization’s motives in filing the suit became clear when Al Haq’s Israeli attorney admitted on a TV program that the purpose of the lawsuit was to keep Bil’in in the news. The case was later dismissed and the plaintiffs were accused of “forum shopping” and using the Quebec courts to suit their interests.