‘Lawfare:’ Another Weapon in the Jihad Against Israel

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." 

This legal decision, though not binding and merely an “advisory opinion” by the Court to the UN General Assembly at the request of the Arab states, has been exploited ever since by Israel’s worldwide critics who still reflexively refer to the security barrier as being “illegal” and “in violation of international law” on the basis of this decision. In this instance, says Jeremy Rabkin, professor of government at Cornell, lawfare had an insidious effect and the International Court of Justice unfortunately “admonished that the nations of the world are obligated not to pressure Palestinians to abandon terrorism, but to pressure Israel to dismantle its security fence.”

With their one-sided ideological approach to mediating legal and diplomatic issues that might better be left to state actors whose actions reflect the will of the populaces they represent, NGO’s use of lawfare against Israel also strengthens the efforts of Israel’s enemies by providing the cover of propaganda and distortion of actual facts on the ground in Gaza and the West Bank, for instance. Amnesty International and Human Rights Watch, two NGO ‘superpowers,’ have regularly chimed in with respect to Israel’s alleged offensives regarding its treatment of Gaza leading up to the present incursions by the IDF against Hamas. Even though Israel fully disengaged from Gaza in 2005, offering the Palestinians free reign to demonstrate their state-building potential and turning over all governmental control, Human Rights Watch continues to assert that Gaza’s social and economic dysfunction is Israel’s fault, that the Jewish state still is an occupying force. “Israel continued to occupy the Gaza Strip,” HRW says,  “by virtue of its effective control over Gaza’s borders, airspace, territorial waters, tax collection, and population registry."

The International Court of Justice, parroting many in the world community, refers to Israel’s actions related to Gaza a "siege" and further suggested, even before the December incursions, that Israel employs "indiscriminate and disproportionate use of force" against Palestinians. After Israel began clamping down on border crossings to shore up weapons smuggling and as a response to incessant shelling by Hamas into Israeli towns, it was not long before loud cries went out about the ‘humanitarian crisis’ being caused by Israel, not Gazans themselves, how, according to Amnesty International, Israel’s "blockade has prevented the entry into Gaza of all but the minimum and insufficient quantities of fuel, food and basic necessities." 

NGO Monitor’s Executive Director, Professor Gerald M. Steinberg, says that his organization’s reports expose “the NGO bombardment of the world’s courts with bogus claims against Israel. Given that not one court has upheld their complaints, it is clear that NGOs continue to manipulate judicial systems, not out of concern for human rights, but as part of the campaign to demonize Israel.” More telling is the fact that the investigations reveal that while Israel is hypocritically and repeatedly singled out for legal actions, “NGO Monitor was unable to find a single suit initiated by the self-proclaimed ‘human rights’ NGOs  . . .  against Hamas, Hezbollah, and Al-Qaeda; against their leaders such as Yassir Arafat, Khaled Mashal, and Hassan Nasrallah; or against their government sponsors such as the Palestinian Authority, Iran, and Syria.”

As proof that lawfare against Israel can embolden and even provide moral and legal cover for some of the world’s most egregious human rights offenders, Iran has inanely announced that it was establishing a special court to try Israeli officials, in absentia, for their war crimes committed in the current Gaza operations. Justified by a 1948 U.N. convention on the prevention of genocide to which Iran is a signatory, Iranian Foreign Minister Manouchehr Mottaki asserted that Israel obviously was committing "genocide against humanity" in Gaza, and that Iran, one of the world’s most deficient nations for the protection of human rights, would now stand in judgment of Israel. "The court is in a special branch in Tehran,” crowed judiciary spokesman Alireza Jamshidi, “and entrusted with the task of dealing with the executors, planners and officials of this [Israeli] regime who have committed crimes."

In an inverted moral universe where enemies of the Middle East’s only democratic state regularly seek its destruction, the tactic of lawfare—with its once-meaningful language of genocide, international human rights, and war crimes—is now being used, by state and non-state actors alike, as an alternate, but equally dangerous, weapon in the unrelenting jihad against Israel.