The legal war on Israel
Op-ed: Israel’s judicial system under attack as part of Palestinian de-legitimization campaign
In contrast, a group of NGOs, primarily funded by European governments, the EU, and the New Israel Fund (NIF) have initiated a campaign to denigrate the Israeli justice system in order to bolster efforts to have Israelis arrested for “war crimes” in Europe, and in order to support the PLO’s application to the International Criminal Court for an investigation of Israel.
They also play an integral role in the PLO strategy to use UN frameworks, not to resolve the conflict, but to “internationalize the conflict as a legal matter” and to “pave the way for (the Palestinians) to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice” as Mahmoud Abbas tellingly revealed in a May 17 New York Times op-ed.
Whether these strategies succeed hinges on the concept of “complementarity,” in which courts examine whether Israel has sufficient investigatory and judicial mechanisms in place, negating the need for international prosecutions. As a result, many NGOs have intensified their political attacks of manufacturing claims against the Israeli justice system and maligning its capacity to investigate wrongdoing.
Adalah, an Israeli NGO heavily funded by the NIF and the EU, is a leader of this strategy. At a 2008 conference in Brussels funded by the Swedish government, Adalah’s General Director Hassan Jabareen recommended that Palestinian activists “should try to portray Israel as an inherent undemocratic state” and “use that as part of campaigning internationally.”
Adalah has implemented this strategy in many submissions to UN committees, including the Human Rights Council. Additionally, in 2009, Adalah filed an “expert” opinion on behalf of the Palestinian Center for Human Rights (PCHR) in a lawsuit brought by the group in Spain seeking the arrest and imprisonment of seven Israeli officials for alleged “war crimes” arising out of the killing of a senior Hamas terrorist, Salah Shehade. In the opinion, Jabareen claimed that there was a “lack of impartiality of the Israeli legal system towards Palestinians and the lack of an effective remedy before Israeli courts for Palestinians in Gaza.”
In 2010, Spain’s Supreme Court wholly rejected Adalah’s claims, noting that Israel’s judicial system is “substantive and genuine.”
Assistance from Jewish groups
Another tactic employed by NGOs is attempting to sabotage the Israeli Supreme Court. In a November 2010 publication, Ramallah-based Al Haq accused the Court of “perverse application of international legal standards (and) masquerading behind a superficial façade of humanitarian and human rights.” As a solution, it advocates “(t)he legal community flooding the Court with petitions in the hope of obstructing its functioning and resources.”
Al Haq has also filed “war crimes” cases against Israelis and those doing business with Israel in the UK, Canada, and the Netherlands. As with Adalah’s Spain opinion, Al Haq’s foreign lawsuits often center on lurid allegations against the Israeli courts’ validity.
The Israeli justice system has also been smeared by PCHR. In addition to the abovementioned lawsuit in Spain, PCHR has filed similar suits in the UK, New Zealand, and the US. To bolster its cases, PCHR claims that the “Israeli judiciary was used as a legal cover for the perpetration of war crimes, and as a tool to deliberately hinder international jurisdiction under the pretext of a ‘fair’ national judicial system operating in Israel.” It issued a document in 2010 entitled, “Genuinely Unwilling,” claiming that “Israel’s judicial system is also unable to investigate senior government and military officials, and assessing criminal responsibility for violations.” Due to these outlandish charges, all of PCHR’s cases abroad have been tossed out of court.
Ironically, despite its claims that Palestinians are denied “access to justice” in Israel, PCHR frequently avails itself of Israeli courts.
While Adalah, Al Haq, and PCHR are quite open about advancing Palestinian political goals and the Palestinian narrative, they may be receiving assistance from Jewish Israeli groups. Yesh Din, an NIF grantee, claims to protect human rights by issuing reports on human rights abuses in the West Bank and petitioning the Israeli High Court of Justice, particularly on security issues. In December 2010, however, leaked internal documents from Yesh Din revealed efforts to file police complaints against Israelis knowingly without proper evidence.
Other documents exposed Yesh Din’s plans to advance “war crimes” accusations against Israeli soldiers. Still other tactics included plans to “turn to foreign courts” to sue the Israeli government. Yesh Din’s legal advisor, Michael Sfard, has represented PCHR and Al Haq in Israeli courts as well as in their efforts abroad.
These campaigns by fringe activists are unfortunately not surprising. What is shocking, however, is the degree to which European governments, the EU, and the New Israel Fund are paying for these activities. Far from promoting a negotiated solution to the Arab-Israeli conflict, these highly offensive campaigns simply entrench it, making tolerance, coexistence, and reconciliation that much harder to achieve.
Anne Herzberg is the Legal Advisor of NGO Monitor and the author of “NGO ‘Lawfare’: Exploitation of Courts in the Arab-Israeli Conflict”.
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