Therefore the law is paralyzed, and justice never prevails. The wicked hem in the righteous, so that justice is perverted. Habakkuk 1:4

Lawfare against Israel ?

Six months after the combat ended in Gaza, the political and legal assault against Israel began.

Using NGOs

Gerald Steinberg - chairman of the Political Science Department at Bar-Ilan University and executive director of NGO Monitor.

Last week, three superpowers - the International Committee of the Red Cross (ICRC), Human Rights Watch (HRW), and Amnesty International - published reports condemning Israel for "war crimes" and for the suffering of Gaza's population. In parallel, Richard Goldstone's UN inquiry was in Gaza taking testimony from anti-Israel NGOs (non-governmental organizations) and from Palestinian "victims."

The outcome is clear, and there is no reason to expect it to change if Israel decided to cooperate with an inherently biased process.

This onslaught highlights the difficulties that Israel faces in responding to efforts to criminalize legitimate defense in asymmetric warfare. In contrast, the answers provided by government officials are generally vague and defensive. The IDF, the Foreign and Defense ministries and the Prime Minister's Office still have not developed a coherent strategy or allocated the resources necessary to defeat this attack.

Examination of these NGO publications highlights the façade of research without any substance. While frequently invoking the language of human rights and international law, reports by Amnesty and HRW demonstrate the absence of research expertise in this area.

These international NGOs were founded in the 1970s to campaign for the release of political prisoners, and have gone far beyond their mandates and capabilities, particularly when dealing with Israel. Instead, they cut and paste civilian casualty claims from biased sources such as the Palestinian Center for Human Rights (PCHR.)

The three reports published and publicized last week, like dozens that have come before, combine pseudo-legal rhetoric, technical allegations regarding Israel's defense against terror attacks, automatic sympathy for Palestinian victims, and condemnation of Israel. The images and the titles reflect these biases - Amnesty's is headlined: "Operation Cast Lead: 22 Days of Death and Destruction."

Researchers led by Donatella Rovera claim they could not find evidence of the use of human shields by Hamas. In fact, the entire population of Gaza was one massive human shield, with weapons stored and fired from schools, mosques, hospitals and similar civilian structures (in one infamous case, during a live video broadcast widely viewed on YouTube.)

Similarly, the 10-page ICRC publication ("Gaza: 1.5 Million People Trapped in Despair") consists largely of pictures of Palestinians and none of Israelis in Sderot - the rights of Israelis are irrelevant, as they are in the case of the UN and the Goldstone commission.

Gilad Schalit has also been erased (Amnesty buried him in a footnote referring to Israeli policy.) The kidnapped Israeli soldier is also the missing man what has been referred to as Goldstone's "kangaroo court." Such sins of omission belie the moral claims that are the foundation of international law.

In addition to the moral facade, HRW's report ("Precisely Wrong") uses hi-tech language to attack the IDF's use of advanced drones. Here, the "war crimes" charges are based on six carefully chosen cases. The "evidence" comes from Palestinian claims of having heard and seen the arrival of these tiny and soundless weapons - a superhuman feat.

HRW's "military analyst" Marc Garlasco added dubious assumptions regarding the "impact mark of the missile and the fragmentation pattern" consistent with Spike missiles. Although a few reporters were professional enough to investigate the details, check with independent experts, and expose the dubious claims, most reports copied Garlasco's mix of fact and fiction without question. (They also omit mention of HRW fund-raising in Saudi Arabia that cites their anti-Israel campaigns.)

These events, as well as the ongoing Goldstone inquiry, are part of the broader strategy of demonization adopted at the NGO Forum at the 2001 UN Durban Conference. The goal is to brand and isolate Israel as the new "apartheid" state.

This strategy was applied in 2002 in the "Jenin massacre" myth, in 2006 in the wake of the Lebanon War, in the attempt to portray the "apartheid wall" as a violation of international law, and now in Gaza. In addition, numerous "lawfare" cases are being launched against Israelis by the same NGOs, and although one case in Spain was dismissed, hundreds of others will follow.

In each wave, the UN's Human Rights Council, in which Iran and Libya play a central role, established biased "inquiries" providing NGOs with additional platforms.

In Goldstone's inquiry, a statement submitted by seven Israeli groups (ACRI, Gisha, PCATI, HaMoked, Yesh Din, Adalah, and PHR-I) funded by European governments and the New Israel Fund, also invoked rhetoric like "collective punishment used against the civilian population," and "a disproportionate military assault."

In contrast, Israeli leaders have belittled the exploitation of human rights and international law in this way. Few resources have been devoted to finding an effective response. But as in other forms of warfare, a counter-strategy will only succeed if it cuts off the resources and inflicts a cost on the perpetrators.

Published in the Jerusalem Post

Posted here 06/07/09

Using Overseas Courts

United Kingdom

12th December 2009

Prime Minister Benjamin Netanyahu's office condemned the arrest warrant issued in the UK against Opposition leader Tzipi Livni. 

"We refuse to see a situation in which (former Prime Minister) Ehud Olmert, (Defense Minister) Ehud Barak, and Tzipi Livni are summunded to trial. We will not agree to have IDF soldiers and commanders, who defended their country and its citizens so bravely and ethically from a nefarious enemy, called war criminals. We reject this absurdity," the statement said.

The Guardian reported Monday that a warrant for Livni's arrest had been issued by a British court, but was rescinded once it was discovered that she was not in the country. The warrant was issued following a complaint that the former foreign minister had been responsible for war crimes during the Israeli operation in Gaza about a year ago. The PM's Office said Netanyahu's National Security Advisor Uzi Arad made it clear to British Ambassador Tom Phillips that Israel expects the UK to act against this "unethical" phenomenon, which is aimed at "violating Israel's right to defend itself."  

Earlier, the Foreign Ministry released a first official response to the reports of an arrest warrant against Livni. "Israel would like to note that both Israel and Britain are in the midst of a joint battle against global terror and that British soldiers are working to defeat it in many arenas in the world. Israel calls on the British government to fulfil, once and for all, its promises and prevent an abuse of the British legal system against Israel and its citizens by anti-Israel elements," read the statement. (Extracted from Ynet News)

In Summer 2005, Maj. Gen. (reserve) Doron Almog tried to go to London. But once his El Al plane landed he was alerted by the Israeli embassy that if he alighted at Heathrow he would likely be arrested. Anti-Zionist British-Israeli "human rights" lawyer, Daniel Machover, in cooperation with the Israeli group Yesh Gvul, filed a lawsuit against Almog charging him with "war crimes " in a British court. So alerted, Almog stayed on the plane and went home. - (These "war crimes" charges did not concern killing or wounding people, but the demolition of buildings.)

(See also Israel against Israel)

This is ludicrous, but why do we not obtain arrest warrants for Arab statesmen from countries standing behind Hamas and the Fatah who visits the UK? Might that highlight the absurdity?

October 2011

Tzipi Livni met with British Foreign Secretary William Hague at the Foreign and Commonwealth Office in London. Hague described Israel as an 'important ally' and said it was an 'appalling situation' where political abuse of legal procedures prevented Livni travelling legitimately to the UK. Livni thanked the foreign secretary for the government's swift move to prevent the political abuse of legal procedures through the Police Reform and Social Responsibility Act.
The visit was made possible by an amendment last month to British universal jurisdiction law, which prevented pro-Palestinian organisations from applying for a warrant for Livni's arrest on war crimes charges.

Despite the amended law, pro-Palestinian lawyers issued a request to the Crown Prosecution Service to have Livni arrested when she arrived in London. Hague, however, intervened - issuing a certificate which designated Livni's visit a 'special mission.' According to a previous High Court ruling, a visit by a dignitary that includes functions that would normally be taken care of by a diplomatic mission can be designated a 'special mission.' No court can question this designation once it is made by the Foreign Office.
From a BICOM report

Criminal damage against those supporting Israel is Legally justified

During Summer 2010, a UK judge found seven activists who caused British pounds 180,000 damage to an arms factory that sells arms to Israel outside Brighton not guilty on the "excusable" grounds that they had taken their action against the company following Operation Cast Lead, out of conviction that war crimes were being committed by Israel against the Palestinians.
The judge in the case highlighted the friend of the court testimony by Caroline Lucas, the newly elected Green MP for Brighton Pavilion, that "all democratic paths had been exhausted" before the activists embarked on their action.

The judgment led an exasperated Robin Shepherd, director of European affairs for the London-based Henry Jackson Society, to write on his website, "Bigotry against the Jewish state is now so entrenched in contemporary British society that juries have begun to acquit criminals merely if they can show that they acted against Israeli interests. No other defense is necessary."

2011 - Palestinian State push

Haaretz reports on legal concerns from an expert that says Israeli officials could be brought before the International Criminal Court (ICC) in the Hague if a Palestinian state is recognised at the UN vote later this month. The claims against the Israeli officials would be over Israel's settlement policy in the West Bank. Prof. Robbie Sabel, a former legal adviser to the Foreign Ministry, said that the ICC works on a complementary jurisdiction that will not allow the court to intervene when the country is investigating the issue and prosecuting those responsible. "The settlements are a prime example of this, since in theory one could say that we are talking about a war crime, that Israel is not investigating it and not bringing those responsible to justice. Thus, the court could get involved and investigate," Sabel said.

Lawfare against individuals supporting Israel

As experienced by Daniel Pipes
The American Spectator - November 2012 - extracts

Hamad brought himself to my attention in early June 2006 by sending me, via certified mail, a summons to appear in court in Austin. The document bore a scrawled, unkempt handwriting on a form issued by the U.S. District Court, Western District of Texas, informing me that Hamad was suing me and Campus Watch for libel. (Campus Watch being a project of the Middle East Forum, he was effectively suing the Forum.)

I may be out nearly $33,000 in court costs, but it was not all lost; Hamad's legal assault inspired me to expose this malign excrescence of anti-Zionism.


Lawfare against the Prime Minister of Israel

Does it not seem strange that so much police time and judiciary time is being devoted to attempting to discredit, prosecute and thus depose Binyamin Netanyahu at a time when Israel needs a strong leader.

Caroline Glick discussed this with Josh Hasen on Land of Israel Radio. Click here.

But Lawfare could be used against Israel's enemies

A small legal team in the Israeli NGO Shurat HaDin — Israel Law Center has been busy compiling damning files against Palestinian Authority leaders, documenting their supposed involvement in terror activities in recent years.

The purpose of this endeavor, Israel Law Center chairwoman and founder Nitsana Darshan-Leitner told The Times of Israel this week, is to deter the Palestinian leadership from joining the International Criminal Court (ICC) and legally pursuing Israeli leaders at The Hague, as Palestinians have been threatening to do for months.

In September, Darshan-Leitner and her team launched this proactive approach by filing a lawsuit against Hamas political leader Khaled Mashaal at the ICC for Hamas’s execution of suspected collaborators with Israel during Operation Protective Edge. On November 10, they filed a second suit against PA President Mahmoud Abbas for attacks carried out by his Fatah movement from Gaza. Both leaders are Jordanian nationals, and therefore fall under the court’s jurisdiction.

“The crimes of the [Second] Intifada are crimes against humanity. Daily, systematic rocket fire directed at civilian populations is an international crime,” she said. “We’re preparing indictments against PA leaders for the day the PA applies for membership in the ICC. We’re essentially warning PA leaders that ‘the moment you become members, we’ll be waiting for you there with a handful of indictments on war crimes, directed at you personally.'”

Darshan-Leitner stressed that the purpose of the war crimes complaints against the Palestinian officials was to deter them from joining the ICC, to “tell them they’re playing with fire.” If that purpose is met, she noted, the ICC can stall the case proceedings, or the Israel Law Center can withdraw the complaints altogether. “But the moment they join, it’s game over. It will be like sniper fire.”

Judging by Abbas’s recent statements, Darshan-Leitner’s tactic may be working. Addressing the Arab League on November 29, Abbas began his speech by informing the gathering of “an Israeli claim pending against me personally at the ICC now. The Israelis beat us to it and filed the first claim against us,” Abbas continued. Israeli officials contacted by The Times of Israel at the time had no idea what Abbas was referring to.

Darshan-Leitner acknowledged that her group was working independently of the Israeli government, which, she claimed, “was sticking its head in the sand. “The Israeli government is acting like an ostrich. I can’t really explain its ineptitude. You can’t wait around here. The state is looking for good defense arguments [against criminal action], but I’m not sure it will ever have the chance to use them. We know that Israel has so far refused to cooperate with any international tribunal, such as the Goldstone Fact Finding Mission [following the Gaza war of 2009], or the Schabas Commission [following Operation Protective Edge in 2014].

“I imagine Israel won’t cooperate too closely with the ICC either, so I don’t know why it’s bothering with these defense arguments. Who will listen to them? These European judges, whose positions on IDF soldiers are well known? We have 15 jurists working at the international department of the State Attorney’s Office. What are they working on? Nothing.”

The lawsuits against Palestinian leaders had no diplomatic significance for Israel but merely “deterrent significance,” Darshan-Leitner adamantly argued, explaining why her organization was not cooperating with the government.

“Everyone in the world knows that Abbas and Mashaal are war criminals,” she said, noting that this was the first time a legal claim was being filed by her office against Palestinian political figures.

Founded in 2003, the Israel Law Center has been quite successful in winning significant compensation from international courts in terror-funding cases. In May 2012, a US court ordered the Syrian government to pay $330 million to the family of Danial Wultz, a 16-year-old American national who was killed in a 2006 Tel Aviv suicide bombing carried out by Islamic Jihad.

The organization has filed lawsuits over the past decade against international banks involved in terror funding, including the Bank of China, UBS, LCB and the Arab Bank. It has targeted states including Iran, Syria, Egypt and North Korea, as well as world leaders ranging from former Iranian president Mohammad Khatami to former US president Jimmy Carter.

In some cases, Darshan-Leitner argued, lawfare can even save lives. Ahead of a planned flotilla set to leave Greece for Gaza in May 2011, the Israel Law Center, in collaboration with the Israeli Prime Minister’s Office and the Israel Defense Forces, sent threatening letters to insurance and satellite communications companies informing them that they would bear criminal responsibility under US law for any service rendered to the pro-Palestinian activists.

“Eventually, we caused the cancellation of the flotilla,” she said.

“In the first flotilla [from Turkey in May 2010] there was a big battle on board, people were killed and soldiers injured. It was a disaster. So ahead of the second flotilla, we decided not to wait. You can’t just wait and remain on the defensive. Defense is no good when it comes to anarchists; they need to be attacked in advance.”


Updated 12/03/18

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