Guest Post
05 July '11
Wading today through the howls of protest against Shurat HaDin/The Israel Law Center, and the damage caused to the "Flotilla", and Melanie Phillips advocating Israel going to the offensive, including lawfare, this piece by Tuvia Brodie arrived in a most timely fashion. Not the only way to go, but with adequate preparation ... Yosef
Almost two months ago, Palestinian President Mahmoud Abbas published an op-ed essay in the New York Times entitled, ‘The Long Overdue Palestinian State’.
While many readers were justifiably outraged by two untruths-- that Muslims in Israel are denied access to their Holy places, and that Arab armies in 1948 attacked (“intervened”) only after Jews expelled Arabs at Israel’s birth in order “to ensure a decisive Jewish majority in the future state of Israel”-- the overlooked news story here was the legal twist Abbas suggested in that essay-- to internationalize the Arab-Israel conflict “as a legal matter.”
Such a suggestion contains both good news and bad news. The bad news is, this announcement reminds an observer of the malodorous 2009 UN Fact-Finding Mission on the Gaza Conflict (known as the Goldstone Report, after head-of-Mission Richard Goldstone): the Goldstone Report could serve as the foundation for legal attacks against Israel.
The good news is, If Abbas looks at Goldstone, so can Israel.
Goldstone?
The backround: for decades, the Left has tried to label Israel as guilty of human rights violations, violations of international humanitarian law, war crimes and crimes against humanity; but they didn’t get much traction. The Goldstone Report changed that because it not only appeared to validate their general claims, it gave those claims specificity and legal punch.
As I have written elsewhere, Goldstone lays out at least twelve portals to sue Israel, with detail. In Goldstone, Israel has violated Articles 2, 4, 10 of the International Covenant on Civil and Political Rights; article 42 of the Hague Regulations; Articles 6, 23, 59, 146, 147 of the Fourth Geneva Convention; article 75 of the Additional Protocol I; articles 8(2) (a), 8 (2) (b) and 8 (2) (b) (iii) of the Rome Statute of the International Criminal Court—in addition to other International conventions and rules.
The specific code to cite when making accusations, the language to use—and the way to go to court—are all there. It is a lawyer's guidebook for suing Israel. Moreover, in January 2009, the self-identified Palestinian state told the International Criminal Court (ICC) that it recognizes the jurisdiction of ICC “for the purposes of identifying, prosecuting and judging the authors of acts committed in the Palestinian territories”, which means that it is not only the State of Israel that could be sued, but individuals as well--the "authors" of acts committed in the 'territories'.
Abbas’ call to pursue “legal matters” echoes Goldstone’s gratuitous suggestion that a court could indeed find Israel guilty of a variety of international crimes and violations.
From Goldstone’s descriptions and rhetoric, every Arab ever questioned or arrested (Goldstone estimates this number at over 700,000) might be able to sue Israel (and, possibly, individual police officers) for rights violations.
How many defense lawyers are there in Israel?
Remember, too--Goldstone talks about reparations.
Abbas’ call to take legal action on the international scene is, therefore, not just talk. Through Goldstone, all of us—Arab and Jew—can see what lawsuits Abbas can attempt against Israel.
To read Goldstone is to learn precisely and exactly how to sue the state of Israel—and, too, every Israeli citizen who has signed any state report concerning the ‘territories’.
Do Israelis who have been state employees—and soldiers—have the money to hire lawyers?
Goldstone contains that kind of mischief.
Of course, the good news is, the knife that slaughters the goose can also slaughter the gander—if Israel takes off its blindfold.
Hamas in Gaza and the PA in the West Bank receive their own sections in Goldstone. For Goldstone, the Arab was not exactly an innocent victim in Operation Cast Lead. Both before and during that fighting, Arabs violated Human Rights and International Humanitarian laws. Arabs may also have committed war crimes. They, too, are described as potentially prosecutable, with details.
Will Arab civilians bring individual lawsuits for human rights violations against the PA, or Hamas?
Probably not.
But Israel can.
How?
Goldstone has the answer: universal jurisdiction. Universal jurisdiction means being able to sue anywhere in the world—so that, for example, if a state will not open criminal investigations where international rights laws have been violated, that case can be brought in any country whose laws allow for such lawsuits.
If the PA threatens to bring potentially thousands of lawsuits in Palestinian courts (which they might be able to do)—or at the ICC or in any country where universal jurisdiction is available-- I suggest first that someone in the US Congress should stand up immediately to pass legislation to expand the definition of universal jurisdiction in US courts, not only to assist Israel, but to protect America from cases being brought against it overseas in countries using more permissive definitions. Why? America should remember, the best target in a lawsuit is the defendant with the deepest pockets; furthermore, the US should not forget that the Muslim world has two enemies, little Satan (Israel) and Big Satan (America); and Big Satan has Big Money.
Israel must also re-examine its own definition of universal jurisdiction (it used it to prosecute Eichmann), to account for these new realities; she should prepare to fight back.
If Abbas wants peace (he says he does), then he should back off this legal threat, not only to demonstrate his commitment to peace, but also to protect himself from getting hoisted by his own petard.
Additional articles can be found at Tuvia's views of the news
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