Lawfare Against Israel
By ANNE HERZBERG | From today's Wall Street Journal Europe
Israeli and Spanish officials engaged in a flurry of secret talks last month to avoid a diplomatic crisis. The reason? A Palestinian nongovernmental organization, or NGO, filed suit in Madrid, seeking arrest warrants against seven former Israeli officers allegedly involved in the 2002 targeted killing of Hamas leader Salah Shehadah in Gaza. Israel's foreign ministry warned the men against travel to Spain for fear of arrest while Madrid tried to defuse the tensions.
This lawsuit is just the latest front in the anti-Israel "lawfare" strategy -- the frivolous exploitation of Western courts to harass Israeli officials. The detractors of the Jewish state are increasingly using civil lawsuits and criminal investigations around the world to tie Israel's hands against Palestinian terror by accusing Jerusalem of "war crimes" and "crimes against humanity." In the process, the NGOs also subvert and interfere with the diplomatic relations of Western countries with Israel.
These lawsuits typically ignore the difficulty Israel faces in fighting terrorists who target Israeli civilians while hiding among their own civilian populations. The accusations also ignore the measures Israel takes to avoid civilian casualties, including the strictest rules of engagement for any Western army. While Israel is not the only country that has been subject to this sort of lawfare -- several prominent NGOs have filed similar suits against U.S. officials in France and Germany -- it is a primary target.
Apart from Spain, anti-Israeli cases have been filed in Belgium, Switzerland, New Zealand, the U.K., Denmark, the Netherlands, Canada and the U.S. by exploiting "universal jurisdiction" statutes. These laws allow courts to rule on cases even though the parties and events at issue are wholly foreign. The honorable intent was to provide relief to victims of real mass murderers in countries that don't respect the rule of law. Instead, these statutes have been co-opted by NGOs to advance an anti-Israel agenda.
The NGOs leading the lawfare strategy are the Palestinian Center for Human Rights (PCHR), the Ramallah-based Al Haq and the Center for Constitutional Rights (CCR) in New York. They are funded by various European governments, the European Union, the Ford Foundation, George Soros's Open Society Institute and others. Many of the cases are filed in the very countries that have provided the organizations with financial aid.
NGO superpowers with budgets in the tens of millions of dollars, such as Human Rights Watch, Amnesty International and the International Federation of Human Rights (France), have supported these efforts by providing publicity, organizing demonstrations and issuing reports crafted as legal briefs to coincide with court hearings.
PCHR, for example, was responsible for the case in Spain mentioned above and for seeking arrest warrants against several Israeli officials as "war criminals" in the U.K. (2004, 2005) and New Zealand (2006). Like the Spanish case, at issue in these countries is the 2002 targeted killing of Shehadah, the head of Hamas's military wing. PCHR says 15 Palestinian bystanders were "deliberately" killed in the operation.
Nothing could be further from the truth. Israel tried its utmost to limit collateral damage. Its ability to do so, though, was frustrated by Shehadah himself, who hid in a residential neighborhood. Shehadah was responsible for the deaths and injuries of hundreds of Israelis and was planning more attacks when he was killed. That made him a legitimate target. The Geneva Conventions make clear that the possibility of civilian casualties do not render a military target immune. If these cases were to succeed, all Western democracies, not just Israel, would be rendered powerless against terrorists in urban warfare.
CCR, with assistance from PCHR, filed a civil lawsuit in the U.S. in 2005 against a former chief of staff of the Israel Defense Forces, Moshe Ya'alon, for "murder" and "crimes against humanity" allegedly perpetrated during a 1996 battle with Hezbollah at Qana, Lebanon. At the time, the IDF tried to stop the terror organization from launching Katyusha rockets against Israeli civilians. During the battle, Israel accidentally hit a United Nations compound, leading to a hundred casualties.
CCR's pleadings ignored Hezbollah's targeting of Israeli civilians as well as the fact that the terrorists placed their artillery batteries next to the U.N. compound. U.S. President Bill Clinton said at the time that the incident was a "tragic misfiring in Israel's legitimate exercise of its right to self-defense" against the "deliberate tactics of Hezbollah in their positioning and firing."
In several countries, NGO "lawfare" has led to arrest warrants against former Israeli military officers. Most of these actions, though, have been dismissed during the preliminary stages. A February 2008 decision by the U.S. Court of Appeals in Washington, D.C., for instance, found that these cases "concern acts allegedly done by the military of the state of Israel in the conduct of hostile operations" and that the NGOs illegitimately seek to engage courts "in the micro-management of military targeting decisions." The court added that these are not the sort of cases the U.S. statutes were intended for, such as prosecuting "an Idi Amin or a Mao Zedong."
Nevertheless, the propaganda impact of charging Israeli officials with war crimes and securing arrest warrants is enormous. It further delegitimizes the Jewish state. The threat of future lawsuits restricts the foreign travel of Israeli officials and strains diplomatic relations. Many countries have begun to re-evaluate their laws and the ability of private groups to initiate these lawsuits to prevent future abuse.
The "lawfare" against Israel raises troubling questions: Why do NGOs supposedly promoting "universal" human rights only target Israel and fail to hold responsible Palestinian or Hezbollah terrorists for hiding among civilians -- turning their neighborhoods into legitimate military targets? Why do these NGOs fail to seek "justice" for Israeli terror victims? Why do the EU and European governments fund these NGOs under ironically named programs like the "Partnership for Peace"? Europe's taxpayers may want to ask their leaders why they are footing the bill for these frivolous lawsuits.
Ms. Herzberg is the legal adviser of NGO Monitor.
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