Curbing the Manipulation of Universal Jurisdiction

Diane Morrison/Justus Reid Weiner
Global Law Forum
20 January '10

In the past decade Israeli officials have been bombarded by both criminal and civil lawsuits for their political activities in the Israeli government and/or their military activities in the Israel Defense Forces. Examples of this are the criminal complaints that were filed in Belgium in 2001 against former Prime Minister Ariel Sharon and in the United Kingdom in August 2005 against Major General (res.) Doron Almog, as well as the arrest warrant that was issued in New Zealand in 2006 against former Chief of Staff Moshe Ya’alon. The most recent instance was the arrest warrant issued in the United Kingdom against Israeli opposition leader Tzipi Livni for alleged war crimes committed during Israel’s Gaza Operation when she was Israel’s foreign minister. Similar civil suits have also been launched in the U.S. against, for example, Avi Dichter, the former Director of the Israel Security Agency.

Israel’s supporters have pointed to these legal acrobatics as a clear abuse of the principle of universal jurisdiction, a new tool in the toolbox of Israel’s detractors and critics. Advocates of the Jewish state have coined the term “lawfare” to describe this situation. They define lawfare as “a strategy of using or misusing law as a substitute for traditional military means to achieve military objectives.”

While sounding far-fetched to the neutral observer and hysterical to those wary of claims of international anti-Semitism masked as anti-Israel sentiment, warnings of the possible abuse of the principle of universal jurisdiction pre-date these Israeli claims. For instance, in an article published in Foreign Affairs in 2001 entitled “The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny,” former U.S. Secretary of State and Nobel Laureate Henry Kissinger commended advocates of universal jurisdiction for their commitment to bringing to justice human rights violators, but warned of “pushing the effort to extremes” and risking “substituting the tyranny of judges for that of governments.”

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