Wednesday, March 22nd | 29 Adar 5783

March 1, 2023 11:18 am

Israel Is About to Turn 75; We Must Stop the ‘Lawfare’ Strategy Used to Attack It

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avatar by Gregory Rose and Andrew Tucker


The International Criminal Court, The Hague, Netherlands. Photo: Wikimedia Commons.

In May, the State of Israel will celebrate its 75th birthday. Yet attacks on the very idea of a Jewish state continue, predominantly in the form of “lawfare.” Below we explain what lawfare is, and how Israel and its supporters must respond to this threat to the Jewish State.

Lawfare is conducted through legal machinery, deploying tactics that misuse international laws by applying them in extraordinary ways, in order to isolate, demonize, and persecute the Jewish State.

For example, a Hamas lawfare tactic is to deliberately place civilians in harm’s way in armed conflict. The Israeli military — when targeted by this lawfare tactic — must either harm the innocent or abort combat. Of course, placing civilians in harm’s way undermines the purpose of international humanitarian law, which is intended to limit battlefield suffering of civilians. Hamas places its citizens in danger, and perverts the intent of the law. However, the lawfare tactic works, as it diminishes Israel’s ability to respond to Hamas’ terror, and is used to demonize Israel when Palestinian civilians are accidentally killed, despite Israel’s best efforts to prevent this.

Lawfare also occurs in civil, trade, and human rights law. For example, when the law is leveraged to draw a court into anti-Israel political matters  outside of a technical, civil, trade, or human rights mandate, a court’s legal authority is politicized, undermining its own integrity as a neutral arbiter.

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Nevertheless, judges who spend a lifetime analyzing international law are inclined to take even tenuous opportunities to apply it. For anti-Israel activists who try to use any tactic they can to demonize the Jewish state — and have many supporters in the international relations field  — lawfare is usually a winning strategy.

The UN’s International Court of Justice (ICJ) can be relied upon to serve lawfare. In 2003, the UN General Assembly (UNGA) requested the ICJ to provide advice on the illegality of the security barrier that Israel was building. The Court obliged. It was called on again, in  2023, to advise on “ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures.”

These allegations are political questions (self-determination, demographic change, holy cities, self-defense, disputed territory). It is a lawfare tactic to obtain an ICJ ruling for diplomatic, trade, and investment boycotts to be imposed by UN members.

Lawfare against Israel is waged in many other legal battle spaces. As Palestinian Authority President Mahmoud Abbas stated in 2011: “Palestine’s admission to the United Nations would pave the way for the internationalization of the conflict as a legal matter, not only a political one. It would also pave the way for us to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice.”

“Palestine” has since been admitted as an UN observer state, donors have provided hundreds of millions of dollars in legal training and resources for Palestine advocacy groups, and engaged thousands of people. Israel’s legal defense is 30 years behind the lawfare campaign waged against it, in terms of its capability, coordination, strategy, and personnel.

An example of emerging defenders on the legal playing field is The Hague Initiative for International Cooperation (thinc), which is an organization we run. Thinc is a European secular Zionist think tank, focused on international legal research and education seeking justice for Israel, and it occupies a unique niche, by engaging in outreach into the Christian world. At the end of March, thinc will host an international conference in The Hague, entitled “Israel on Trial.” The conference is a step towards building better defensive capabilities and alliances, as well as proactive strategies.

Successful lawfare attacks harm Israeli morale, trade supply, and international influence. They reinforce opponents’ hostility. Nevertheless, these harms are wanton. A graver harm of lawfare is its misuse of international law against its intended proper purpose. In the long term, this undermines both respect for the rule of law and the integrity of legal institutions. A better use of international law would seek approaches to Palestinian self-determination that also respect Israel’s legitimate rights and interests.

Gregory Rose is Director of Research at thinc. and professor of law at the University of Wollongong Australia. Andrew Tucker is the Director of thinc. and International Adviser for Christians for Israel International.

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