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Recent developments in lawfare

Recent developments in lawfare


“Lawfare” is the use and misuse of law and legal systems to advance political and military interests. Not all lawfare is illegitimate. But using law to destroy a UN member state is definitely unacceptable. The fact is that there are many actors on the international stage that aim to either destroy or hurt the Jewish State of Israel. Most Islamic states, for example, do not even recognize Israel’s existence, and many of them actively seek its destruction. Using law to achieve those goals is illegitimate.

Our mission as thinc. is to challenge the use and misuse of law to delegitimize the State of Israel. 

Whatever political views one may have, and whatever criticism one may have of the current government, and whatever view one may have of the military administration of the occupied territories – the Jewish State of Israel is a legitimate member of the United Nations and of the international community. It is unacceptable that so many states and non-state actors are endeavoring to destroy the Jewish state and/or compromise its vital security interests. 

Update on recent developments in “lawfare” against Israel 

There are many things happening in this area. Here are some highlights – 

The International Court of Justice (ICJ) in The Hague is considering the UN General Assembly’s request for an Advisory Opinion to condemn Israel’s occupation of Palestinian territory. This legal process is being used as a weapon by Israel’s enemies. The resolution was prepared by the Palestinian Liberation Organization (PLO), in collaboration with the Organisation of Islamic Cooperation (OIC). The goal of the PLO is to liberate the whole of Palestine from a Zionist entity (“from the river to the sea”). The OIC comprises 56 Islamic states, and its agenda includes the liberation of lands that belong to the Islamic world (“umma”) – especially Jerusalem. The OIC has effectively hijacked the UN. Most states in the world did not favor this request; the resolution was adopted with only 87 votes in favor. There are 193 UN member states, so this means 106 member states either voted against, abstained, or were absent in the vote on 30 December 2022. The OIC’s anti-Israel agenda is being pushed by a minority of Islamic states who manage to manipulate other states, like the Netherlands, who are unwilling to push back. 

Last February, the ICJ asked all UN Member States to make submissions to it on this matter. The deadline was 25th July 2023. Fifty-seven states and international organizations made submissions by that date. The vast majority of these submissions are hostile towards Israel, promoting the narrative that Israel is nothing more than an illegal occupier of Palestinian land. However, a number of states make submissions that defend the rule of law, and Israel’s right to a fair hearing – they include USA, UK, Canada, Czech Republic, Fiji, and Nauru. It is extremely likely that the court will deliver a ruling within the next months that will declare Israel’s occupation of the West Bank and control of Jerusalem to be illegal. 

Media and political leaders continue to spread lies about Israel, often twisting or misrepresenting the law. For example, this week Belgian International Development Minister Caroline Gennez was quoted in a national Belgian paper as saying: “In the occupied Palestinian territories, for example, the situation is becoming untenable. Entire villages are wiped off the map by the Israelis. The periods of escalating violence are shorter than before, but more frequent and intense. As a result, the population no longer has room to catch their breath. Since the beginning of this year, more Palestinians have been injured and killed in violence than in the whole of 2022.”  

As Itamar Markus (Palestinian Media Watch) responded: “This is outrageous libel. Israel has destroyed some illegally built houses. There is one illegally built Bedouin village Khan al-Ahmar at a very strategic place near Maaleh Adumim that the Supreme Court ruled years ago should be destroyed. Even so, every Israeli government keeps asking the Supreme Court for an extension so as not to destroy the village. It may also be true that the PA with EU money built a few illegal houses together and created instant “political villages” that Israel destroyed. But the image trying to be created that Israel is going and wiping out villages is completely libelous.”

EU Parliament in July adopted a very one-sided “expert” report condemning Israel, and failing to condemn Palestinian terrorism. Although some MEPs were able to introduce amendments, the report heavily criticized Israel and made little mention of Palestinian breaches of international law. Amongst other recommendations, the European Parliament’s Foreign Affairs Committee called for the EU to help the International Criminal Court to prosecute Israel for war crimes.

The Australian government recently announced a new policy on the “Occupied Palestinian Territories”.  Foreign Minister Penny Wong declared that Australia – which just months ago rescinded its recognition of Jerusalem as Israel’s capital – would henceforth be referring to “East Jerusalem” (ie. the Old City including the Western Wall, the Temple Mount, and their environs), together with the “West Bank” (ie. Samaria and Judea) and the Hamas-controlled Gaza Strip, as “Occupied Palestinian Territory” (OPT). According to Wong, all Jewish towns and neighborhoods in Judea and Samaria, home to over half a million Jews, are “illegal settlements” under international law. This is typical misuse of legal rhetoric by those in the West who consider Israel the cause of all conflict in the region, and either naively think that condemning and pressuring Israel to make concessions to the Palestinians will somehow bring an end to terror and hatred in the region, or wantonly offer Israel’s security as the price for appeasing those who hate them.

Other developments:

Several countries have recently announced that they will move their embassy in Israel from Tel Aviv to Jerusalem. Sierra Leone, Paraguay, and Papua New Guinea have all announced such a move in recent weeks. It is understood that Fiji also plans to move its embassy. 

The Netherlands Supreme Court has ruled in a recent court case that Israel’s former head of the IDF Benny Gantz cannot be the subject of civil proceedings for damages relating to his role in leading Operation Protective Edge in the Gaza Strip in 2014. A Dutch citizen of Palestinian descent sued Gantz for damages, as he lost family members in the operation. The Court ruled that a state enjoys immunity from jurisdiction when a civil action is brought against it before the courts of another state and it concerns acts of the former state in the exercise of its public function (so-called acta iure imperii). No exception to this will be accepted if it has been established that war crimes have been committed or if a breach of mandatory norms of general international law (so-called ius cogens) or the absence of an alternative remedy is invoked. It is not disputed that officials of a foreign state are entitled to functional immunity for acts committed in the performance of their duties. Nor is an exception to this recognized in civil law cases where war crimes are involved. In view of this rule existing in civil law, there is insufficient reason to rule differently on the basis of a comparison with criminal law. The functional immunity of public officials does not constitute a disproportionate restriction on the right of access to justice guaranteed by Article 6 ECHR. In this context, it is immaterial whether an alternative remedy is available to the claimant. There is therefore no reasonable doubt that customary international law as it currently stands means that in civil proceedings against a public official, no exception to functional immunity should be made because of the seriousness of the facts underlying the claim. 

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