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Sunday, Nov 8, 2009
‘Lawfare:’ Another Weapon in the Jihad Against Israel
By Richard L. Cravatts
Mr. Cravatts, Ph.D., director of Boston University’s Program in Publishing at the Center for Professional Education, is writing a book about the demonizing of Israel on college campuses.
As Israel launched strikes against Hamas strongholds in Gaza over the past week, putting down temporarily a relentless barrage of some 3000 Qassam rockets and mortars that have been lobbed into southern Israeli towns this past year alone, Israel’s many global critics immediately denounced what they termed the “disproportionate” military response against the Palestinians. Many also chimed in again about the “humanitarian crisis” being caused in Gaza as a result of Israeli blockades, bemoaned the continuing “siege,” and complained how military retaliation against Hamas for its unbridled terror against Israeli civilians would create a “massacre,” a “genocide,” and “crimes against humanity”—all in violation of human rights law.
One thing the enemies of the Jewish state have learned in their 60-year jihad against Israel is that Arab armaments alone have been insufficient to complete the task. Equally effective, at least since the 1990s with the creation of an International Criminal Court (ICC), has been the reframing and manipulation of concepts of international rights law to hobble Israel’s ability to secure its borders and citizenry and to defend itself against unrelenting Palestinian terrorism.
Led by non-government organizations (NGOs) with an obsessive mission of hobbling Israel, this new “soft” assault on the Jewish state has been termed “lawfare,” what the Council of Foreign Relations defined in 2003 as “a strategy of using or misusing law as a substitute for traditional military means to achieve military objectives.” Anne Herzberg, legal advisor to the watchdog group NGO Monitor, has more recently described in an extensive study how lawfare is now being used as a diplomatic weapon almost exclusively against Israel, how it has become “a non-military means of warfare to advance the Palestinian cause, and to deter future acts of Israeli self-defense against terror.”
While the International Criminal Court and assumptions of international human rights were implemented as a well-intentioned way to provide protection to victims of despots, autocratic regimes, dictatorships, and oppressive or criminal governments, lawfare has devolved into what has become a one-sided, ideologically-driven campaign to delegitimize and weaken Israel, not only in actual courts where litigation can stymie their military operations and leadership, but also, as important, in the court of public opinion—a place where Israel frequently suffers defeat.
Lawfare, Ms. Herzberg contends, empowers NGOs, “non-accountable, nondemocratic actors,” to litigate in European or American courts, and “to circumvent the foreign policy of a State’s executive branch insofar as it conflicts with the NGOs’ partisan agenda, and thus attempt to impose policy that could not otherwise be obtained through regular democratic channels.”
Lawfare enables NGOs to interfere with the military policy of nations with whom they arbitrarily disapprove, and its current use has been focused almost exclusively on Israel, framing the Jewish state as the abuser of human rights and engaging in criminal acts against the perennially victimized Palestinians. The danger, as Ms. Herzberg sees it, is that such litigation, initiated by groups like Human Rights Watch (HRW), Amnesty International, World Vision, Save the Children, Al Haq, and others, is often based on a very narrow and preconceived ideology about who deserves rights and protection and who does not, and this bias is almost universally against Israel. In fact, says Herzberg, the actions are particularly dangerous because they enable terrorism to continue unchecked, since “these legal suits regularly ignore Palestinian responsibility and culpability under international law, and seek judicial declarations that Israel’s self-defense policies are illegal.”
One such self-defense tactic was the construction of Israel’s security fence, necessitated not, as its many critics claim, for a “land grab,” but as a response to the murder of some 1000 of its citizens by Palestinian terrorism during the Second Intifada. But by the summer of 2004, even though the barrier had successfully reduced Israeli deaths by 90 percent, the International Court of Justice found that the “apartheid wall” “gravely” infringed on the rights of West Bank Palestinians, and that the barrier, in the words of the Court, "constitutes breaches by Israel of various of its obligations under international humanitarian law."
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