ROBERT NICHOLSON: PALESTINIANS GO TO COURT
http://philosproject.org/palestinians-go-court/ http://mosaicmagazine.com/picks/2015/01/should-israel-fear-palestinian-lawfare/
The State of Israel is up in arms over the Palestinian Authority’s recent request for accession to the International Criminal Court and its plans to force a major war crimes trial against the Jewish state. “The Palestinian Authority has chosen confrontation with Israel and we will not sit idly by,” Prime Minister Netanyahu said on Sunday. “We will not allow IDF soldiers and commanders to be hauled before the International Criminal Court in the Hague.” Meanwhile it appears a trial is more likely than ever.
The fact that the Palestinian Authority – an entity that is wholly undemocratic, unjust, and unwelcoming to Jewish sovereignty next door – plans to use the ICC to criminally indict the Middle East’s only democracy stretches the bounds of absurdity even in our topsy-turvy 21st century world.
Still, many observers are confused by Israel’s reaction. Who cares about the International Criminal Court — especially these days? Would Israelis prefer real warfare to legal warfare? Don’t they see that Palestinians who spend time drafting legal papers won’t be building bombs? Ten years ago the PA helped commence the wanton bloodletting that was the Second Intifada. Today its leaders are donning briefcases and wing-tipped shoes. Doesn’t that signal an overall improvement in the situation?
Could it be that lawfare – the use of law as a political weapon – is actually preferable to warfare?
Well of course it is. Lawsuits are cheap, they don’t kill people, and despite their infamous reputation they are far more civilized than war. They proceed without violence. They operate on argumentation and deliberation. They invoke moral values. One might even argue that there is an inverse relationship between the judicialization and militarization of a conflict, and that Israel’s enemies will become less and less violent the more litigious they get.
Yes, lawfare is better than warfare. But that doesn’t mean it’s ideal.
Putting aside the economic critique of lawfare (frivolous lawsuits waste time and money) and the political critique (biased decisions from distant and unaccountable judges threaten sovereignty and democracy), let us consider the far more essential concern: the dangerous power of law when used for sinister ends.
Everyone knows that war is bad. Law and legal language, however, carry an air of dignity that tends to impress even the most skeptical onlooker. Invoking high-minded rhetoric and stressing only “the facts” (which are easily skewed in their articulation, analysis, or both), and playing on mankind’s laudable compassion for the weak, lawfare practitioners find little difficulty elevating their cases to global prominence and eliciting outrage from well-intentioned people.
Form is more importance than substance in the lawfare strategy. It’s not necessary that litigants present strong arguments or even win cases. What’s important is that they appear outnumbered and heroic, adhere to lofty vocabulary, and use the court’s noble reputation to delegitimize their opponent in the eyes of the world.
In 2010 Hassan Jabareen, the director of a well-known Palestinian advocacy NGO, wrote an article in the Yale Human Rights Law and Development Journal in which he cites international law (or “transnational law” as he calls it) as the perfect vehicle for battling a hegemonic power like Israel. This legal discourse operates on principles of virtue that stand above reproach, shielding him and his colleagues against charges of corruptibility that would cripple a purely political or military campaign.
Jabareen admits that he doesn’t need to win cases. He often files suit against Israel in Israel’s own courts with no expectation of winning, but still prevails by forcing the court to scrutinize the state’s behavior, make admissions of guilt, and awkwardly try to defend itself before the world. Sometimes the court tries to salvage its reputation by deciding in his favor. But even unfavorable rulings help his cause by exhausting local remedies and creating a historical record for later use in international fora like the ICC.
If everyone in the global audience appreciated the cynicism behind this strategy, lawfare would not be so worrisome. But well-meaning people are easily fooled by headlines of “war crimes” and “ethnic cleansing” and don’t have the time or legal training to investigate the facts. Shaking their head in disbelief, they walk away with just one thought: Israel is a flagrant human rights abuser that needs to be punished — international law says so.
And here lies the crux of the problem: lawfare uses a façade of morality to conceal and advance a subversive political agenda. Worst of all, good people can’t see past the façade.
Law will always be weaponized by some groups against others. It’s called litigation. Whether a major human rights trial or local slip-and-fall case, litigation provides a way to peacefully resolve conflicts between parties. That Israel’s opponents have invoked law to further their cause is not, by itself, surprising or wrong. Choosing the pen over the rifle is praiseworthy; but only when the pen is wielded in good faith.
International actors with an interest in Israel’s existence as a sovereign and secure country, Palestine’s future as a free state accountable to its people and peaceable toward its neighbors, and the continuing credibility of international institutions like the ICC should use their influence to prevent this institution from being hijacked by legal gamesmanship. This requires moral clarity and courage from world powers (courage that has already been demonstrated by the United States government, to its credit). It requires informed citizens who care about international society and the meaning of law. It requires Christians, who claim the ability to discern truth from fiction, right from wrong, to support their governments’ efforts to maintain the integrity of justice.
To do otherwise – to allow the PA’s circumvention of longstanding rules of diplomacy and its express agreement with Israel – will only be counterproductive to the cause of peace.
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