Fear of Fair Trials Fuels the Israeli Offensive Against 'Lawfare'

The first anniversary of Israel's large scale military operation in Gaza came two weeks after a judicial arrest warrant was issued in London against former Israeli Foreign Minister, Tzipi Livni. Instead of provoking a timely debate on the serious allegations faced by Tzipi Livni, the embarrassed response of British politicians to the grant of the arrest warrant (e.g. Gordon Brown reportedly rang Ms Livni's office to tell her she would be welcome in the UK) ensured that Israel's concerns about UK courts exercising universal jurisdiction over suspected Israeli war criminals took centre stage. It is no accident, therefore, that the UK's Attorney General, Baroness Scotland, is addressing the Hebrew University on 5th January on the subject of "Lawfare - Time for Rules of Engagement?"

For the last couple of years, die-hard supporters of Israeli policies have adopted and championed the term 'lawfare' in a concerted effort to bring into disrepute the non-violent actions of Palestinians in seeking justice outside the Israeli legal system. Cases in third countries, whether civil or criminal, some consider to be politically motivated 'legal terrorism', with no legal merit whatsoever. It seems that anyone who tries to focus on the substance of such cases is labeled as anti-Semitic and/or supporting terrorism. The lawyers involved are charged with manipulating the legal systems of naïve countries who should know better than allowing pro-Palestinians cheap publicity. Why are foreign courts allowing such cases to get anywhere, say supporters of Israel, when people know full well that as a functioning democracy Israel's legal system can be the fair arbiter of genuine grievances by Palestinians? The word 'lawfare' is thus given darker and darker connotations, while viciously attacking anyone who supports the rule of law in all circumstances, Justice Richard Goldstone included.

Never mind that the Israeli legal system appears to some as being subservient to the grinding machine of occupation and repression, from the illegal wall to the siege of Gaza and alleged war crimes.

In fact, as Palestinians increasingly seek justice abroad it seems that Israel is increasingly threatened by the merits of the cases in question. However, until now, case after case has been defeated by successful political pressure by supporters of Israel, which has shut down access to justice and inflicted procedural defeats on Palestinians seeking a fair hearing of their grievances. It is arguable that Israeli legal successes abroad have had nothing to do with the core merits of the cases concerned. Meanwhile, the alliances created by these Israeli tactics are breathtaking. For example, in a test case coming before the US Supreme Court in March 2010 on the issue of sovereign immunity, Yousuf v. Samantar, some supporters of Israel appear to have joined hands with the Saudi Government to support a Somali defendant (a former defence minister and top official in the regime of President Siad Barre, denounced by international groups for its systematic use of torture and arbitrary arrests, and for the rape and murder of political rivals and dissidents) in a bid to block civil claims against former government officials on procedural grounds. Supporters of a change to the law on arrest warrants in England and Wales will likewise doubtless include the most repressive regimes in the world.

Just as sinister as the 'lawfare' offensive, is the closely connected sustained attempt to create a broad alliance with the USA, its NATO allies and powerful countries such as Russia, in favour of changing the law on the use of force by states against non-state actors. Israeli leaders argue that this needs to be updated to cope with the challenges of the 'war on terror'. Among other things, they want it to become lawful to use disproportionate force against civilians where they are proximate to what state actors identify as legitimate military and quasi-military targets. This is one of the major arguments being used by Israel to block the implementation of the recommendations of the UN Fact Finding Mission on the Gaza conflict, which reported in September ("the Goldstone Report"). As the Jerusalem Post reported on December 31, Israel's military advocate-general, Major-General Mandelblitt, explained to a gathering of the Israel Bar that the true purpose of the Goldstone Report was not to attack Israel, "but against all countries fighting terrorism. The report is not aimed at Israel. It is aimed at the West, at any country fighting terrorism. It is meant to tie their hands and cause them to lose wars." This, he continued, was the main reason he opposed Goldstone's demand to conduct an independent investigation of the military operation in Gaza. He said that by refusing to comply, "Israel was defending the West's war against terrorism".

Of course, this strategy seems to require the blurring of any distinction between peoples fighting for self-determination or struggling against foreign occupation or internal repression and al-Qaeda or similar terrorist organisations. Fusing 'lawfare' and the need for the law to support the 'war on terror' was a significant feature of Tzipi Livni's response to the arrest warrant against her, when she said that "what needs to be put on trial here is the abuse of the British legal system. This is not a suit against Tzipi Livni, this is not a lawsuit against Israel. This is a lawsuit against any democracy that fights terror."

Equality of access to justice and the efficacy of universal justice will be put at grave risk if such arguments hold sway. Victims of alleged war crimes and torture, and crimes against humanity need to not only be able to continue to ask police forces outside their own countries, including the UK, to investigate their cases, when they are denied remedies in their domestic courts and seek the protection of international law, but they also need to be able to seek judicial arrest warrants to secure the chance of investigations leading to prosecutions. The exercise of universal jurisdiction and the arrest warrant procedure in England and Wales has become an increasingly important part of the protection which international criminal law was designed to create. It will have a significant deterrent effect to future regimes which might otherwise resort to mass murder, torture and war crimes.

Close political ties with another government mustn't over-ride the UK's proper duty to enforce the rule of law, nor must Israeli efforts to subvert the law itself be given any support. If Israel succeeds in persuading nations to both change international law along these lines and close down the exercise of universal jurisdiction, the era of rampant state terrorism lies ahead and Palestinian self-determination will be one the first victims, but far from the last.

An earlier version of this article will appear in the forthcoming edition of Red Pepper.