February 7, 2010
LawfareBy Lawrence J. Siskind
Last month, Baroness Patricia Scotland, Attorney General of the United Kingdom, addressed the Hebrew University in Jerusalem and promised her audience that she would try to stop her country's police from arresting visiting Israeli dignitaries. The fact that a high British official deemed it necessary to provide such an assurance illustrates the latest manifestation in the sixty-year campaign to isolate the State of Israel: "lawfare."
Throughout the West, Israel's opponents have taken to the courts to obtain arrest warrants aimed at visiting Israeli political and military officials in a campaign whose origins may be traced back to the U.N. World Conference Against Racism, held in Durban, South Africa in 2001. A forum of non-government organizations (NGOs) drafted a "Declaration and Programme of Action" which branded Israel "a racist, apartheid state" engaged in "crimes against humanity." The Declaration called upon the attendees 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."
The attempts to secure arrest warrants are usually based on the legal doctrine known as "universal jurisdiction." Conventional notions of jurisdiction rest on a connection between the forum state and the alleged criminal activity. The crime may have occurred within the state (the Territorial Principle), or it may involve subjects of the state (the Nationality Principle), or it may generate effects within the state (the Effects Principle). Universal jurisdiction goes farther. It confers jurisdiction over criminal conduct so grave that it affects the fundamental interests of the international community as a whole, regardless of the forum state's connection to the activity. Genocide and war crimes are often cited as examples of conduct invoking the exercise of universal jurisdiction.
Most Western legal systems recognize some form of universal jurisdiction. Lawfare practitioners target Israeli officials who participated in controversial actions, such as the recent incursion into Gaza to stop the rocket attacks on Israeli communities. They claim that these actions constitute war crimes, and they initiate legal actions to investigate and prosecute the participants.
Relying on the universal jurisdiction doctrine, NGOs have filed lawsuits in Belgium, Switzerland, New Zealand, Denmark, Holland, and the U.S.
They have been particularly active in Great Britain. In 2005, a British district judge issued an arrest warrant for Doron Almog, former IDF Southern Command Chief. When Almog arrived at Heathrow en route to speaking at a charity event, he learned that the police were waiting to arrest him. He remained on his El Al plane and returned to Israel. Last December, a British court issued an arrest warrant for former Foreign Minister (and current Opposition leader) Tzipi Livni. She had to cancel her trip. In early January, an Israeli military delegation also canceled a trip after their British Army hosts informed them that they might be arrested upon their arrival.
The NGOs leading these efforts, such as Amnesty International and Human Rights Watch, consider themselves protectors of human rights. But they employ a double standard. Their court filings consistently ignore or downplay acts of terrorism directed against Israel. They never seek arrest warrants against visiting officials from Syria, Iran, or other sponsors of terrorism. Their record is not so much pro-human rights as it is anti-Israel.
Now it appears that these lawfare practitioners may be dupes as well as inconsistent. Diya al-Din Madhoun, a Hamas official, boasted to the Times of London that his organization was behind the arrest warrants.
He explained that after the Gaza campaign, Hamas set up a committee of legal specialists to compile cases of alleged war crimes, and to encourage the filing of charges against Israeli officials in Britain, Spain, Belgium, and Norway.
"We have provided a group of independent lawyers in Britain with documents, information and evidence concerning war crimes committed by Israeli political and military leaders, including Ms Livni," Madhoun said. He stressed that lawfare "has absolutely become our policy." At the same time, the Israeli newspaper Ma'ariv reported that Hamas was working with teams of local lawyers in Europe. Whenever an Israeli official arrives in a European country where the Hamas committee is active, Ma'ariv reported, an "'incrimination file' formed by Hamas on the respective senior official is then dispatched to the [lawyers], and from there it is sent to the court with a request for an arrest warrant."
The revelation that Hamas is involved in the efforts to arrest Israeli leaders should not come as a surprise. Hamas is openly dedicated to the destruction of Israel. In the past, it has relied on terrorism -- killing as many Israeli civilians as possible -- to achieve its goal. Lawfare is designed not to replace terrorism, but to complement it. The two work together in a vicious cycle. Hamas engages in rocket and mortar attacks against Israeli population centers hoping to kill as many civilians as possible -- not because it supposes that such tactics will destroy the State, but because it hopes that they will provoke a response. And when a certain pain level is reached, they do: Israel retaliates with massive force. Since the terrorist attacks are launched by Hamas from densely populated Palestinian areas, the retaliation inevitably results in death and destruction. Hamas, with its NGO enablers, then springs into action, filing suit and seeking arrest warrants.
The result of this dual strategy is insecurity at home and isolation abroad. While Israeli citizens are confined to their bomb shelters in Sderot, visiting Israeli dignitaries are confined to their El Al jets on foreign tarmacs. This serves the Hamas agenda. If it cannot physically destroy Israel, it can at least transform it into a pariah state, unable to communicate effectively with the outside world. The object is to demoralize and isolate the State.
The Prussian military theorist von Clausewitz observed that "war is a mere continuation of diplomacy by other means." Lawfare, we now see, is a mere continuation of terrorism by other means.
When Baroness Scotland spoke at the Hebrew University, she floated the idea of giving her office a veto over the right of local courts to issue arrest warrants for foreign political leaders. The idea is troubling. A hallmark of the rule of law is judicial independence. In the U.K., as in the U.S., the Attorney General is the government's chief legal adviser and a member of the executive branch. Although he U.K. Attorney General, unlike her U.S. counterpart, is not an official member of the cabinet, she owes her job to the Prime Minister, and in practical effect, is a political appointee. Requiring judges to obtain approval from such an official would threaten the independence of the judiciary and thus undermine the rule of law.
When al-Qaeda terrorists used jet planes as weapons to crash into skyscrapers in 2001, the West did not abandon its airports and office buildings. Instead, it found ways to cope with danger without making fundamental changes to its business life. The fact that Hamas terrorists are cynically using another Western institution, the rule of law, as a weapon today does not mean that Western nations should abandon it. Instead, they must learn to adjust and cope.
Judicial independence is vital. But there is nothing sacred about the current boundaries of universal jurisdiction. Western nations should rethink their authorizing statutes and establish sensible limits to prevent the doctrine from being hijacked by those who are no friends to the rule of law.
First, before a foreign court may issue an arrest warrant, it should require some minimal connection between the forum state and the alleged crime. Under this test, the courts of Spain or Great Britain would not have a sufficient nexus to adjudicate the events in Gaza or Lebanon. On the other hand, Israel's judiciary could plausibly argue for the right to try Eichmann, since Israel was established, in part, as a haven for the Nazis' victims after their own states betrayed them.
Second, before exercising universal jurisdiction, a foreign court should require evidence that the courts in the country where the conduct occurred are incapable of adjudicating the matter themselves. While Cambodia was under the thumb of Pol Pot, it would have been proper for a foreign court to adjudicate criminal claims against the genocidal government officials of that nation. Today, however, Cambodia is relatively free, and its independent judiciary is conducting its own investigation. If the survivors of the Killing Fields wish to pursue claims, they should properly do so in their native country.
Under this test, Palestinians with legitimate claims against the IDF should pursue them in Israeli courts, not in British, Belgian, or American courts. The Israeli judiciary has shown, time and time again, that it is independent of the State's government. It has frequently ruled against the political and military establishments. The Israeli government just released an interesting paper describing, among other things, how its military and civilian justice systems review claims of misconduct made against its armed forces. There is no more basis for a British judge to evaluate the conduct of an Israeli commander in Gaza than there would be for an Israeli judge to evaluate the conduct of a British commander in Iraq.
The exploitation of lawfare by Hamas is opportunistic. But it is no reason to abandon the rule of law. The West can continue the struggle -- and win -- against terrorism without paying such a high price.