Realistically, What to Make of the UN's Special Commission Report on Gaza?

...What does one say about a report whose author forthrightly admits that, had she had real information, “it would have looked different”?

Benjamin Wittes/Yishai Schwartz..
Lawfare..
24 June '15..

The UN Human Rights Council’s Independent Commission of Inquiry report on the 2014 Gaza war, released last Monday, is a bad piece of work—bad in almost entirely predictable and boring ways, but no less bad for being bad and predictable. It is also no less important for being boring. Even if one has no great interest in the Israeli-Palestinian conflict, the standards and approaches the UN is embracing will not remain confined to that conflict. Israel is, as always, the canary in the IHL (International humanitarian law) coal mine. Approaches that begin as a way of constraining Israeli military action quickly migrate to constraining U.S. military action. The effort by the Special Commission to find war crimes in civilian deaths in urban targeting situations in which non-uniformed fighters exploit civilians for combat cover is thus worth some attention.

Let’s start with a basic fact: the commission’s job here was impossible. It is impossible rigorously to analyze whether a given strike or set of strikes complies with IHL without a detailed investigation of what the operators and commanders in the moment knew and why they decided to act as they did. It is always tempting to look at large numbers of dead civilians and assume that the fact of the bodies implicates a targeting decision. But that’s rarely right. Without knowing who the target was, what calculations as to civilian deaths commanders made, and what the expected military advantage of the strike was, a rigorous investigation simply can’t be done.

It is thus not simply an inconvenience but a debilitation that the commission got no cooperation from Israel, got no access to Gaza from Israel or Egypt, and did not have key questions answered by Hamas. That the commission received cooperation from Palestinian authorities—who do not control Gaza, in fact—is not much help.

The instinct of both Hamas and the Israelis to decline the privilege of addressing the commission’s concerns is understandable, though for different reasons. Hamas, having an entire strategy built around violation of IHL, cannot answer questions about its conduct without implicating itself. Israel, meanwhile, has a deep and well-founded suspicion of UN activity, particularly activity of the Human Rights Council. And there was reason to expect this commission to be worse than earlier ones, not better. The result was that the commission was left making judgments based on a combination of the public record and interviews with victims about matters the merits of which centrally depend on the viewpoints of commanders and operators. There’s no way to do this well.

There are a lot of ways, however, to do it badly.

The Israeli calculation was wrong in one key respect. The report is not worse than prior UN efforts. It’s better. It actually lacks the overt bias of prior UN investigations. It makes some notional effort at evenhandedness, finding information “pointing to serious violations of international humanitarian law and international human rights law by Israel and by Palestinian armed groups,” violations that “may amount to war crimes.” It criticizes the “inherently indiscriminate nature of most of the projectiles directed towards Israel by [these armed] groups and to the targeting of Israeli civilians.” And it spends a fair bit of space analyzing Palestinian conduct.

There are two major oddities, however, in the commission’s discussion of this conduct. The first is the degree to which the commission gives the benefit of the doubt to armed groups that made no secret about their intentional targeting of civilians. On page 18, for example, the commission introduces the subject of rocket attacks into Israel by describing Hamas’s military wing as focused chiefly on attacking military targets. “Security experts have noted that while the Al Qassam Brigades may have targeted civilians in the past as part of its military strategy, in 2014 its declared official policy was ‘to focus on military or semi-military targets and to avoid other targets, especially civilians.’”

If this does not sound like your memory of the Gaza war, we feel your pain. And It doesn’t take too many pages before the reality catches up with the wishful thinking. On page 21, for example, the commission notes a Qassam Brigades statement that it had launched rockets at the city of Dimona. Three pages later, it notes the announcement that the group had mortared Kibbutz Nirim and other communities. On page 25, the commission cites Israeli government statistics that 4,000 or 4,500 rockets and mortars were aimed at Israeli cities, towns and communities, and about half of the rest landed in Gaza. Yet the commission keeps coming back to uncertainty as to Hamas’s targeting aims and practices, despite at the same time repeatedly citing statements by Hamas that they were targeting Israeli cities and civilians (see pp. 26-27, in particular).

Who Might Ask Whether It's Misguided to Fight for Jewish Rights?

...Indeed, who is the only source Rudoren can produce to justify the headline about the Law Center’s efforts being “misguided?” The Israeli attorney who had been defending the Palestinian Authority in cases relating to its financial support for terrorists described her as a “nuisance.” I’m sure his clients and others who believe those who commit terrorism against Jewish Americans and Israelis feel the same way. But it’s hard to see why anyone else would view her activities in that same light.

Jonathan S. Tobin..
Commentary Magazine..
25 January '15..

Lawfare is the term for the practice of employing legal proceedings to wage a kind of war on a country or cause. For the most part, the State of Israel has been on the receiving end of this effort as non-governmental organizations and others purporting to support the cause of human rights have attempted to delegitimize Israel’s right to exist and to self-defense with specious efforts to arraign before the bar of justice. But not everybody in Israel believes the best way to counter these attacks is to play defense or simply ignore it. Attorney Nitsana Darshan-Leitner founded Shurat HaDin—the Israel Law Center in 2004 to use the law to not only work for the rights of Jewish victims of terrorism but also to make the terrorists, state sponsors, and enablers in the business world pay for their crimes. For this she was rewarded with an article profiling her activities in yesterday’s New York Times that posed the question in its headline as to whether her work was “misguided,” a clear indication of the opinion of the paper’s editors. But that verdict can only be sustained if you believe those who support terrorism deserve legal impunity.

The piece by Jodi Rudoren does provide us with yet another tortured food metaphor from the paper’s Jerusalem bureau chief. In describing her relentless efforts to keep probing legal foes for weaknesses and to adopt the best strategies, Darshan-Leitner made an analogy to baking challah for the Sabbath. Rudoren uses that one line to attempt to gain some insight on her subject’s career but it doesn’t work.

Even less convincing is Rudoren’s effort to put down Darshan-Leitner as either a worthless publicity hound/profiteer or an impediment to the peace process. Indeed, who is the only source Rudoren can produce to justify the headline about the Law Center’s efforts being “misguided?” The Israeli attorney who had been defending the Palestinian Authority in cases relating to its financial support for terrorists described her as a “nuisance.” I’m sure his clients and others who believe those who commit terrorism against Jewish Americans and Israelis feel the same way. But it’s hard to see why anyone else would view her activities in that same light.

Can You Imagine? Europeans Fund Lawfare Against “Allies” Israel and Canada

...Quite simply, the primary function of this organization appears to be to wage “lawfare” against Israel’s judicial system in an effort to sabotage its legal process and subvert the democratic structures for determining Israeli policy.

Tom Wilson..
Commentary Magazine..
23 March '14..

The growing European hostility toward the Jewish state is well publicized, as is the corresponding European support for the Palestinians and their agenda. The Palestinian Authority’s largest funder is not the oil-rich and supposedly sympathetic Arab world. It is not even the United States. No, despite its own critical financial situation, the largest single funder of the dubious Fatah-run mini-state in the West Bank is the European Union. Given the way in which the PA is known to squander huge sums of money through corruption, that it is guilty of torturing and persecuting political opponents, openly incites genocidal levels of Jew-hatred among its population and generally obstructs the peace process at every turn, this level of European funding ought to raise some eyebrows.

Yet, in addition to this direct funding to the PA, European countries are also channeling large amounts of money to highly politicized activist groups, and in doing so financing the legitimacy war being waged against Israel. In a report released by NGO Monitor earlier this month, it has been exposed that the EU, along with several other European governments, is paying for the waging of what has come to be known as “lawfare” against Israel. More noteworthy still is the way this funding is also being used by one particularly hostile and activist NGO to even pursue Canada, a close of ally of Israel, at the UN. The large body of evidence here really does have to be seen to be believed. Yet there is no denying it: European countries are indeed financing “lawfare” against two nations that they purport to consider friends.

The Palestinian NGO in question is the cryptically named Norwegian Refugee Council, a title that offers few clues as to the group’s actual activities. Quite simply, the primary function of this organization appears to be to wage “lawfare” against Israel’s judicial system in an effort to sabotage its legal process and subvert the democratic structures for determining Israeli policy. NGO Monitor reports that NRC has financed at least 677 cases that received full legal representation in court and other administrative bodies in Israel. According to an eyewitness report, the strategy here is to “try every possible legal measure to disrupt the Israeli judicial system… as many cases as possible are registered and that as many cases as possible are appealed to increase the workload of the courts and the Supreme Court to such an extent that there will be a blockage.”

Brodie - A message for Abbas regarding his plans for September 2011: be careful what you wish for

Tuvia Brodie
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.

Melanie Phillips - The flotilla and the Third Intifada

Melanie Phillips
melaniephillips.com
29 June '11

http://melaniephillips.com/the-flotilla-and-the-third-intifada

Is a bunch of young Israeli lawyers working round the clock sustained only by Diet Coke, falafel and cigarettes about to pull off the legal equivalent of the Six-Day War?

Israel famously won that war before it even started by destroying the Egyptian air force on the ground. Now it’s beginning to look as if the Gaza flotilla of fools and fanatics may be holed below the waterline before it even sets off on its cynical and potentially murderous stunt.

It was supposed to have sailed by now. Today, however, it was reported that it now may not set sail before next week. The main reason is a series of unprecedented and ingenious manoeuvres by Israeli lawyers which have tied up the boats in legal actions mainly concerning insurance and registration issues.

And I can reveal that a separate legal move today threatens fourteen of the flotillistas with arrest if they enter Israeli territorial waters.

Two Israeli soldiers in the reserves are seeking to bring a private prosecution against those activists who took part in the first Gaza flotilla -- and who are planning to take part once again in the current one -- for the crimes of assault and soliciting aid for an attack.

The fourteen comprise one person from Ireland, two from the US, one from Cyprus, two from England, two from Spain, one from Greece, two from the Netherlands, one from Norway, one from Sweden and one from Qatar. Separately, the captains of the flotilla boats also face the possibility of criminal charges from a similar attempt at a private prosecution.

Tobin - Lawsuit Threat Slows Flotilla Launch

Jonathan S. Tobin
Commentary/Contentions
28 June '11

http://www.commentarymagazine.com/2011/06/28/lawsuit-threat-slows-flotilla-launch/

Most of the world has been looking on helplessly as pro-Hamas activists prepares to stage yet another naval photo op intended to besmirch Israel. But, as the New York Times reports today, one group of crafty lawyers has found a way to throw a monkey wrench into the plans of these anti-Israel agitators. Shurat HaDin-Israel Law Center, a group that has dedicated itself to holding the funders of terrorism accountable for the crimes they finance, has been contacting companies that have insured the ships that have been assembled to sail to Gaza to break the blockade of the Hamas-run strip to tell them they are leaving themselves open to prosecution for aiding terrorists. This ploy has understandably sent a chill down the spines of the some 30 maritime insurance providers who just assumed there would be no liability with their involvement in this farce.

While organizers claim their goal is humanitarian aid for the people of Gaza, their attempt to break the international isolation imposed on an area run by a bloodthirsty terrorist group will help no one but Hamas. That is especially so since no one disputes the free flow of food and medicine into Gaza, a place where not only is there no humanitarian crisis but which boasts a bustling mall and brisk car sales.

Shurat HaDin was founded in Israel in 2003 and models itself after the Southern Poverty Law Center, a group that used lawsuits to bankrupt racist groups. Shurat HaDin seeks to do the same thing to terrorists via legal work undertaken on behalf of terror victims. In the past eight years, they have sued Hamas, Hezbollah, Islamic Jihad, Fatah and other terror groups and won judgments that have helped slow the flow of funds to the murderers. Indeed, thanks in part to some of their lawsuits, Hamas is no longer able to use the international banking system to get cash but is instead forced to smuggle money into Gaza. That makes efforts like the flotilla to break the blockade and thus ease Hamas’s cash flow problems all the more sinister.

While the flotilla supporters say all ten of their ships are seaworthy and insured, Shurat HaDin has filed complaints with the Greek Coast Guard raising questions about the registration and insurance of seven of the vessels. Given Greece’s antipathy for Israel, it is far from clear the complaints will be fairly heard. But either way, Shurat HaDin has sent those businesses even tangentially connected to the flotilla a warning they face possible legal repercussions. Those who help fund and insure a stunt whose only purpose is to provide political support for the Islamist terror group need to know there may be consequences for their involvement in this travesty.

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Brooke Goldstein: Countering Lawfare

Pat Toensmeier
aviationweek.com
03 January '11

[Editor’s note: An abridged version of this interview appears in Defense Technology International’s January 2011 issue.]

Among the threats directed at Western democracies is lawfare, the manipulation of a legal system for strategic political or military goals, by groups and individuals who seek to build support for their positions through rulings by courts and international bodies. The fallout from lawfare can be wide and damaging, ranging from restrictions on individual speech to disruption of battlefield operations. The Lawfare Project, a New York City legal think tank, monitors and raises awareness about the use of the law as a weapon of war against the West. The organization’s founder and director is Brooke Goldstein, a lawyer with extensive experience in human rights law, and an award-winning filmmaker whose documentary, “The Making of a Martyr,” focused on the recruitment of Palestinian children as suicide bombers. Contributing Editor Pat Toensmeier interviewed Goldstein via e-mail about lawfare and its implications for the U.S., Israel and other target nations.

Lawfare as a concept dates to the 1970s. Why is it now of concern to Western and democratic nations?

Regardless of when lawfare is said to have first emerged (in fact, the manipulation of legal systems to achieve strategic military goals has existed since the birth of international law and the law of armed conflict) there is no doubt that the phenomenon poses an immediate threat to U.S. national security interests, and to the security of liberal democracies at large.

When I say lawfare, I denote the wrongful abuse of Western laws and judicial systems to achieve military or political ends that undermine the principles those systems stand for. I emphasize wrongful because lawfare is an inherently negative undertaking; it consists of the negative exploitation of the law to achieve a purpose other than or contrary to that for which the law was originally enacted.

Lawfare is not something that persons engage in the pursuit of justice and must be defined as such to have any real meaning, otherwise, we risk diluting the phenomenon and feeding the inability to distinguish between what is the correct application of the law on the one hand and what is lawfare on the other. Because that’s the essence of the issue here, how do we distinguish between that which constitutes a constructive, legitimate legal battle (even if the legal battle is against us and inconvenient) from that which is a counterproductive perversion of the law, which should be allocated no precedent? The delineation is not as simple as some may like to make it; that is, that lawsuits against terrorists are good, and legal actions against the U.S. and Israel are bad. The question is not ‘Who is the target?’ but ‘What is the intention?’ behind the legal action: Is it to pursue justice, to apply the law in the interests of freedom and democracy, or is the intent to undermine the very system of laws being manipulated?

Over the past 15 or so years, we have witnessed a steady increase in lawfare tactics being used largely to achieve three strategic goals. The first—and these are in no particular order—is to silence and punish free speech about issues of national security and public concern, including radical Islam, terrorism and its sources of financing, and to reinstate blasphemy laws especially as applied to Islam and its prophet Mohammad. This is what has been called libel lawfare or Islamist lawfare, which aims to impose Sharia law as a governing legal authority both in Muslim states and in the West and to impede the free flow of public information about the threat of Islamist terrorism, thereby limiting our ability to understand it, and destroy it.

The second goal is to delegitimize the sovereignty of democratic states, largely the U.S. and Israel.

(Read full "Brooke Goldstein: Countering Lawfare")

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Goldstone: Asymmetric legal warfare

Elder of Ziyon
27 July '10

The Goldstone Report was released last September.

The Goldstone Commission members were appointed on April 3. They first convened on May 4. They spent about 10 days in Gaza listening to testimony from people whose testimony was guaranteed not to offend Hamas, and another two days in Geneva listening to other people.

By the beginning of August, they were done with their investigation and started writing the report.

In those mere three months, they say they investigated some 36 incidents from thousands that occurred during a complex military action. These incidents were specifically chosen to make Israel look as bad as possible - in other words, they chose incidents for which they felt that there was overwhelming evidence that Israel was wholly in the wrong, based on the already biased evidence and testimonies.

As Goldstone said,

The Report contains an analysis of 36 specific incidents in Gaza as well as a number on the West Bank and in Israel.

In Chapter XI of the Report, for example we detail a number of specific incidents in which Israeli forces launched direct attacks against civilians with lethal consequences. These were, with only one exception, where the facts establish that there was no military objective or advantage that could justify the attacks

...These attacks amounted to reprisals and collective punishment and constitute war crimes.

The bolded statement is the linchpin of the Goldstone Report. Based on the Goldstone Commission's supposed military expertise, faced with incomplete evidence and biased testimonies, they determined that Israel engaged in numerous operations in Gaza that had no military advantage and therefore, in the view of the commission, must have been purely for reasons of punishing ordinary Gazan civilians.

Generalizing from these cherry-picked incidents, Goldstone then implies that the entire war was at least in part for that same purpose - a war to target Gaza civilians.



Generalizing from these cherry-picked incidents, Goldstone then implies that the entire war was at least in part for that same purpose - a war to target Gaza civilians. As the report said:

While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self defence, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole.

Since then, the Israeli government has released three reports about the Gaza war. These reports reflected painstaking investigations of the Goldstone 36 incidents as well as those alleged by various NGOs and others. Even a cursory look at the Israeli reports on the specific incidents shows that the number of man-hours spent in interviews and reviewing evidence far outweigh what Goldstone did, and that the seriousness with which they took these investigations likewise far outstripped Goldstone's.

(Read full article)

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Moral Collapse: Amnesty International in 2009

NGO Monitor
26 May '10
Posted before Shabbat

Amnesty International’s ideological bias and double standards were exposed by the suspension of senior staff member Gita Saghal, after she condemned Amnesty’s alliance with an alleged Taliban supporter. “Like all tyrants - whether of the right and left, Amnesty International raised the spectre of an assault on human rights to avoid answering questions and to imply that Amnesty International was under attack.”

Longtime Secretary General Irene Khan left Amnesty in December 2009. Her interim replacement, Claudio Cordone, was centrally involved in the Gita Saghal controversy including the response that “jihad in self-defence” is not “antithetical to human rights.”

In the Middle East, while Amnesty’s main focus in 2009 was Iran’s post-election crisis, arrests, and executions, Israel and the January 2009 Gaza war were given disproportionate and distorted attention.

During the war, AI led NGO campaigns accusing Israel of “unlawful,” “disproportionate,” and “indiscriminate” attacks against Palestinian civilians, releasing more than 20 statements criticizing Israel.

After the war, AI called for an arms embargo against Israel, continued to promote “lawfare” against Israeli officials, and labeled Israel’s treatment of Gaza as “collective punishment under international law.”

Analysis of AI’s 2009 Middle East activities reflects a disproportionate and unjustified focus on Israel. AI issued more in-depth reports (seven) on Israel than on any other country in the region.

The data indicate that ideology, rather than universal human rights, continues to propel AI’s resource allocation. With the exception of Iran, AI devotes little coverage to other chronic Mideast human rights abusers.

AI’s October 2009 report “Troubled Waters – Palestinians Denied Fair Access to Water,” coincided with a campaign alleging that “Israel’s Control of Water [is] a Tool of Apartheid and a Means of Ethnic Cleansing.”

The sections in AI’s Annual Report for 2009 on the Palestinians include token mentions of kidnapped Israeli soldier Gilad Shalit and condemnation of indiscriminate missile attacks from Gaza, without significant “action items,” in contrast to the targeting of Israel.

This analysis of Amnesty’s 2009 activities demonstrates the continued exploitation of human rights principles, and the degradation of these moral values.

While Amnesty International’s (AI) main Middle East focus in 2009 was Iran’s post-election crisis, arrests, and executions, it also allotted a disproportionate amount of attention and resources to the January 2009 Gaza war.

Israel’s military operation in Gaza was a major and disproportionate focal point for Amnesty International (AI) in 2009. AI virtually erased the context of terrorism in the Gaza war, the continuing violation of Gilad Shalit’s rights, and minimized Hamas rocket attacks on Israeli civilians. Its reports consistently accused Israel of “collective punishment” and promoted international isolation of Israel, including a call for an arms embargo.

NGO Monitor’s analysis shows that AI’s reports alleging Israeli violations and “war crimes” lack credible evidence, distort international legal terms, use data selectively, and function as part of a larger demonization campaign.

(Read full report)

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Britain to announce no early remedy for universal jurisdiction procedures used against Israelis

Robin Shepherd
Robin Shepherd Online
04 March '10

According to a report from the Times of London this morning, the British government is “in no hurry” to change the legal procedures under which Israelis have been targeted for “war crimes” using universal jurisdiction laws.

Several Israeli officials including former Foreign Minister Tzipi Livni have in recent months cancelled visits to Britain after pro-Palestinian groups used the universal jurisdiction laws to get courts to issue arrest warrants against them. Universal jurisdiction means that warrants can be issued for alleged transgressions anywhere in the world and not just in the country over which the court would usually have jurisdiction.

According to the Times report, which was drawn from unnamed sources, the government will later today announce a consultation period on the subject, meaning that long delays to any remedy are highly likely:

“Today’s announcement…means that the issue will not be resolved until well after the election, expected in May… The delay is a victory for Jack Straw, the Justice Secretary, who has argued that the legal point at stake is too important to rush.

(Read full post)
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No, Goldstone Is Not a Threat to the Democracies

Noah Pollak
Contentions/Commentary
11 February '10

Peter Berkowitz, a commentator I admire greatly, has a piece at NRO that criticizes the “astonishing attempt to shift power from sovereign states to international institutions” being undertaken by the NGO/international-law community. It’s an excellent analysis, and Berkowitz has been doing important work on the subject, but I have one quibble:

It would be a mistake to think that Israel’s lawyerly self-defense is of purely legal interest. This battle reflects a continuation of war and politics by other means. Indeed, the battle is fraught with weighty implications for all liberal democracies struggling against transnational terrorists.

This point has been made by many people, including the Israeli government itself, and it is a form of the old adage that “first they came for Israel, and I did not speak out because I am not an Israeli.” But I don’t think it’s true in this case. If “lawfare,” as it’s known, were truly a danger to powerful democratic nations, there would be more done to push back against it. Instead, what we see today is democratic nations that pay lip service to its tenets, safe in the knowledge that, while carrying few downsides, endorsing the abstract concepts of international law wins approval from the self-appointed arbiters of international virtue.

This is a war that probably will never spread to the great powers or even to the medium powers. For lawfare to work, several conditions have to be met. The target of lawfare must be: 1) a small and diplomatically weak nation; 2) a democracy whose citizens desire international acceptance; 3) a country surrounded by enemies that force it to fight frequent and indecisive wars, providing a constant supply of fresh “evidence” of criminality.

(Read full post)
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NGO Monitor Calls on New Israel Fund to Draw “Red Lines”

NGO Monitor
11 February '10

JERUSALEM – The research and watchdog group NGO Monitor today called on the New Israel Fund (NIF) to implement clear “red lines” regarding the activities and rhetoric of the non-governmental organizations (NGOs) that it funds. NIF has been widely criticized for supporting advocacy groups that contribute centrally to demonization through allegations of “war crimes” and intense lobbying on behalf of the Goldstone Report.

“Instead of using its relationship with NGOs to advance constructive agendas, NIF has been supporting and defending campaigns that demonize and delegitimize Israel,” charged Prof. Gerald Steinberg, president of NGO Monitor. “In many cases, it appears that NIF donors are unaware of the activities of these groups and their damaging impact. It is essential that powerful organizations like NIF establish clear guidelines and implement them in a unequivocal and transparent manner.”NGO Monitor proposes that NIF adopt “red lines” that prevent funding for organizations that support activities designed to promote the NGO “Durban strategy” to isolate Israel:

(Read full article)
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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.”

(Read full report)

Thoughts on Lawyer Behind Much Lawfare Against Israel

Charlie Ettison
thoughts: a buck each
06 January '10

Daniel Machover, a lawyer from London and founder of Lawyers for Palestinian Human Rights, has published a salvo against "die-hard supporters of Israeli policies" who he argues have co-opted the term "lawfare" on the Huffington Post blog. His comments have prompted some thoughts.

Mr. Machover begins by suggesting that applying the term lawfare is meant to discredit non-violent resistance as politically motivated efforts with no legal merit. What Mr. Machover ignores is that these claims, while indeed non-violent, are politically motivated on their face and they often have no legal merit, as evidenced by them being thrown out of court by judges in reputable, western jurisdictions. Consider, further to this argument, that Palestinian Lawyers for Human Rights has as it's goal the furthering of a political aim, that being achieving Palestinian self determination. Mr. Machover as well has represented the Palestinian Centre for Human Rights who have launched an extensive legal fishing expedition in the hopes of finding just a single case with which they can point to a legal decision branding an Israeli as a war criminal.

More compelling, however, is the fact that courts in the west have been considering and throwing out these lawfare style cases that Mr. Machover suggests are legitimate. Cases in Canada, the Netherlands and Spain, have all been thrown out because the courts determined that there were no legal grounds to pursue them. Mr. Machover, as a person who seems to speak with true conviction, and as a lawyer being paid by a client, naturally disagrees with these courts and may think that the law should be otherwise, but the courts of liberal democracies disagree with him. His response to these legal victories is to suggest that these cases were decided the way they were because "It is arguable that Israeli legal successes abroad have had nothing to do with the core merits of the cases concerned." Mr. Machover, however, does not make this argument.

(Read full article)

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Universal jurisdiction — a really bad idea

FresnoZionism
24 December 09

Universal Jurisdiction sounds like such a great idea (well, to some people, anyway). One moral nation, acting for a moral world, can bring war criminals to justice, even when crimes are committed outside of its territory. You can understand why in principle this could be a good idea, especially if said war criminals are powerful enough in their own countries as to be untouchable. The concept has been supported by those watchdogs of international morality, the ‘human rights’ NGOs like Human Rights Watch, Amnesty International, etc.

Anybody that lives in the real world must know that the facts of international politics make the just application of this principle impossible. It would seem to me that anyone who has finished elementary school and read at least one history book would understand this, but apparently the people at the NGOs either don’t meet this standard or are dishonest. Judging by what they did with the war in Gaza, I vote for the latter.

The fatal defect of this idea is that it is based on analogy to criminal law inside a jurisdiction, where there is, at least in the best circumstances, a disinterested justice system and rules of evidence and of judgment intended to ensure fairness. For example, in our courts hearsay is not admitted as evidence, and juries are selected in ways designed to produce impartiality. Even rules for determining probable cause for an arrest are stringent. But this is exactly what isn’t the case in the international arena.

(Read full article)
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Until the very last Jew

Moshe Feiglin
Manhigut
03 Tevet 5770
20 December 09

"It is important to understand," I said to television interviewer Dan Margalit, "I am just the canary in the coal mine. More politicians will be receiving this letter." That television interview took place close to two years ago. I was reminded of it last week when Tzippy Livni had a close brush with arrest in England. I had the dubious distinction of being the first Israeli politician since Menachem Begin to be classified as a persona non grata by her majesty's government. The only other Israelis to receive this classification have been IDF officers whose war against Arab terror has turned them into war criminals in British eyes.

I had the privilege to be inducted into this exclusive club because of an article that I had written years ago. The article included a sentence that read "The Arab is not the son of the desert, but rather, its father." Interestingly, this sentence was penned by none other than the first British Commissioner of Sinai, Sir Claude Jarvis, in 1938 in his book, The Desert Yesterday and Today. In other words, my entry to Britain was forbidden because I quoted an important British official. No matter. What is clear is that the British, who allow terror chiefs to enter England and lecture as they please, have bowed before the Islamic offensive that has conquered their land - and they do not like people who remind them to whom they have surrendered.

As Divine Providence would have it, Israel's Foreign Minister at the time that I was barred from England was Tzippy Livni. Livni was no longer a member of the Likud and had completely abandoned the ideology of her patriotic parents, but it would still have been reasonable to expect that an official letter such as the one I, an Israeli citizen, received from the British government would draw some sort of response from the Foreign Ministry.

There is no dearth of professors and politicians in England who attack Israel as a matter of course. Livni could have announced to her majesty's government that if it would continue to interfere with the freedom of expression of Israel's citizens, Israel would also bar a long list of publicists and professors from entering its own gates. At the time I didn't ask Livni to fight my cause. But if she had done her job, she wouldn't have to fight her own cause today. Now Livni finds herself – perish the thought – in the same boat as Moshe Feiglin.

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Asymmetric Warfare: Hamas and the Livni Warrant

Alexander Meleagrou-Hitchens
Standpoint Magazine
22 December 09

The Times reported yesterday that Hamas is "masterminding efforts to have senior Israeli leaders arrested for alleged war crimes when the visit European countries." The recent arrest warrant issued for Tzipi Livni by a British Court is certainly tied to this, and it is no surprise that the UK is the first port of call in this latest act of Hamas asymmetric warfare.

Although Hamas were not directly involved, it seems that they have acted as key facilitators, and claim to have provided lawyers with evidence of Israeli war crimes. This has been done through a Hamas initiative founded by Ismail Haniyeh called "the central committee for documentation and prosecuting Israeli war criminals," also known as Al-Tawthiq. According to its chairman, the commission's mission is to document and gather "evidence connected with Israel war crimes, tracking war criminals and prosecuting them in international, national and local courts."

Over the years, Hamas have been exceptionally successful at waging (and winning) an antisemitic propaganda war against Israel. So successful in fact, that in this country professing support for Hamas - a proscribed Islamist terrorist group - is now considered a mainstream position, which is held by some prominent politicians and high profile thinkers. Israeli officials have not yet come to terms with the effect that Hamas asymmetric warfare in Europe has on their ability to completely neutralise the terrorist threat they face at home. This Israeli underestimation of Hamas' capabilities outside of Gaza is no better illustrated than by the almost successful attempt to have one of their leading politicians put on trial for war crimes.

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Exploting the language of morality and human rights

Gerald Steinberg
NGO Monitor
17 December 09

Trends in the Delegitimization of Israel in the International Arena, Global Forum on Antisemitism

Two days ago, a British judge issued a warrant for the arrest of Tzipi Livni, who served as Foreign Minister and is now the Israeli opposition leader, on charges of “war crimes”. Many Israelis responded by stating that “We are all Tzipi Livni” – in our democratic state with a citizens army, we share responsibility for defense. Israeli and British leaders correctly condemned such actions, speaking about the negative impact on the peace process and restating the importance bilateral relations.

These dimensions are significant, the main reason for rejecting such examples of lawfare is moral. This judicial theater exploits the principles, language and institutions, including courts, of international law in promote exactly the opposite -- denying the Jewish people the basic rights of self-defense and sovereign equality. This is grossly immoral.

The new antisemitism – directed at the Jewish collective rather than Jews as individuals –is most virulent precisely where the language of morality is used most frequently and stridently. When university professors and students promote this agenda through “Israeli apartheid week”, and refer to Israel as a “Nazi state” while seeking to dismantle the Jewish nation-state, this is immoral.

When “progressive” journalists and media publish cartoons with Israeli leaders, including Tzipi Livni, and that echo the images of der Sturmer, this is immoral. And when NGOs claiming to promote universal human rights and morality are silent as Gilad Shalit is held for more than three years in Gaza, but they join Libya and Iran in the Durban process and the United Nations Human Rights Council, to lead the campaigns using labels like “war crimes” and apartheid”, this is immoral.

Recently, Robert Bernstein, the founder of Helsinki Watch, now Human Rights Watch – an NGO superpower with a $42 million budget, wrote a very painful oped in the New York Times denouncing his own organization for its contribution in helping turn Israel into a pariah state.

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Judicial jihad: Engaging a new battlefront

Shimon Samuels
Columns/JPost
14 December 09

On December 6, 2001, three months after the Durban hatefest, I attended the last meeting of its NGO Forum International Steering Committee in Geneva.

Though I had been successively elected and expelled, I now became privy to an eight-point plan attacking Israel as the last bastion of apartheid. It included educational, economic, cultural, diplomatic and legal campaigns to demonize, boycott, embargo and isolate the Jewish state.

Legal measures began with sporadic and - so far unsuccessful - attempts to arrest IDF reserve officers in countries of universal jurisprudence.

In 2005, I was charged with criminal defamation by a Franco-Palestinian charity, designated by the US as a terrorist organization. My sentence was one symbolic euro, which was politically too expensive. I won on appeal, and was taken to the French Supreme Court, where, this July, I was finally acquitted.

This long, agonizing and costly experience was emblematic of an epidemic of such suits designed to intimidate and silence pro-Jewish/Zionist activity. The charges against me were replicated against seven other targets - journalists, authors and a Christian Website. Parallel were the suits and countersuits relating to Muhammad al-Dura - the Palestinian child presented by French television as an IDF victim, in terms redolent of ritual murder.

Some denote such cases as "lawfare." Perhaps more appropriate would be "juridical jihad," due to the clearly Islamist context of the most litigious plaintiffs.

(Continue reading)
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Lawfare Update: Al Haq Canada case dismissed with partial costs

NGO Monitor
September 2009 Digest: Vol. 8, No. 1
29 October 09

(Another one for the good guys!)

On September 18, 2009, a Montreal court dismissed a lawfare case brought by the Bil’in Village Council, with the assistance of the Palestinian NGO “Al Haq” (funded by Netherlands, Ireland, Norway, Sweden [via Diakonia], Ford Foundation, Christian Aid, Norway) and Israeli attorney Michael Sfard. The case was filed in June 2008 against three Canadian corporations involved in construction projects in the town of Kiryat Sefer (Modi’in Ilit). The village council and Al Haq claimed that these corporations were “aiding, abetting, assisting and conspiring with Israel, the Occupying Power in the West Bank, in carrying out an illegal act” and acting in violation of the Geneva Conventions.

The Court found that the plaintiffs had “select[ed] a forum having little connection to the Action in order to inappropriately gain a juridical advantage,” and that there was no basis to plaintiffs’ claim that it was impossible to obtain a remedy in the Israeli court system. It further noted that plaintiffs had relied on judicial statutes that require the consent of the Canadian Attorney General – consent the plaintiffs never obtained. In addition to dismissing the case, the Canadian judge awarded the defendants partial costs (part of the defendant’s legal fees), underlining the particularly frivolous nature of the case.

This dismissal is the latest rejection of Al Haq’s strategy to exploit Western courts for political goals (“lawfare”). Its two suits (2006 and 2009) filed against British government officials to stop weapons sales to Israel were also rejected.