Anti-Israel "Lawfare" in Europe
by Soeren Kern
Pro-Palestinian activists are launching a new round of anti-Israel lawsuits in European courts. The lawsuits, which exploit the legal principle of universal jurisdiction, are being used to harass current and former Israeli political and military leaders, with the twin aims of tying Israel's hands against Palestinian terror and delegitimizing the Jewish state.
Although so far none of the lawsuits filed against Israel in European courts has reached the stage of a trial in which Israeli leaders have appeared before a foreign judge, even short of actual prosecutions, pro-Palestinian activists have scored huge propaganda victories by charging Israeli officials with war crimes. This alone makes the pursuit of frivolous universal jurisdiction lawsuits a winning proposition for many activist groups.
On June 23, two Belgian lawyers, representing Palestinians, filed suit in Belgium against 14 Israeli officials on charges of war crimes allegedly committed during the Gaza War, a three-week armed conflict that took place in the Gaza Strip during the winter of 2008–2009. Those charged include Israeli opposition leader Tzipi Livni for her role as foreign minister during the war, former Israeli Prime Minister Ehud Olmert, Deputy Defense Minister Matan Vilnai, and other Israeli military and intelligence officials.
The 70-page lawsuit is based on a report by Judge Richard Goldstone, which claims that an Israeli attack on a mosque near the Jabalia refugee camp in the Gaza Strip killed 16 civilians, including women and children. The plaintiffs, who include one Palestinian-Belgian national and 13 Gaza Strip residents, were either wounded or lost relatives in the attack.
The Goldstone Report claims that Israel committed war crimes during the offensive, code-named Operation Cast Lead. The 575-page report calls for prosecuting Israeli officials in international courts should Israel refuse to conduct a credible investigation into its army's conduct during the war.
Georges-Henri Beauthier and Alexis Deswaef, the two lawyers representing the Palestinian plaintiffs, say Belgium's attorney general will evaluate the case "by the end of August" to determine whether it provides just cause to open formal proceedings against the Israeli officials for "committing crimes against humanity."
Pro-Palestinian activists in France said on June 13 that they would file a lawsuit against Israeli Defense Minister Ehud Barak both in France and at the International Criminal Court in The Hague. The International Civil Campaign for the Protection of the Palestinian People (CCIPPP) and Palestinian Charity and Aid (CBSP) are suing over the Israeli army's May 31 raid on the Gaza-bound Freedom Flotilla in which nine activists were killed. The groups say Barak should be held personally responsible for the deaths.
The lawsuit, which has been joined by three members of the French parliament, forced Barak to cancel a visit to Paris, during which he was scheduled to open the Israeli pavilion at the Eurosatory defence industry trade show on June 14-18. Pro-Palestinian activists had also called for French police to arrest Barak at the airport upon his arrival in the country. The Israeli Defense Ministry said Barak decided to remain in Israel "until the team of experts investigates the raid on the Gaza-bound flotilla."
The new lawsuits are the latest salvo in a long-running propaganda war against Israel that is being waged in European courts under the guise of universal jurisdiction.
In December 2009, a British court issued an arrest warrant for Tzipi Livni for her role in Operation Cast Lead. Livni, who had been due to address a meeting in London, ended up cancelling her attendance. The court issued the warrant at the request of lawyers representing Palestinian victims of the Gaza War. The 1988 Criminal Justice Act gives courts in England and Wales universal jurisdiction in war crimes cases.
In October 2009, Deputy Prime Minister Moshe Ya'alon cancelled a planned trip to Britain for fear of being arrested there. Ya'alon had been invited to London to attend a fund-raising dinner. As chief of staff of the Israel Defense Forces from 2002-2005, Ya'alon is one of several current and former senior officers being pursued by pro-Palestinian groups for so-called war crimes.
In September 2009, a British court was asked to issue an arrest warrant for Ehud Barak, who was attending a meeting at the Labour party conference in Brighton. He escaped arrest after the Foreign Office told the court that he was a serving minister who would be meeting his British counterparts. The City of Westminster magistrates' court ruled that as a minister, Barak enjoyed immunity under the 1978 State Immunity Act.
In September 2005, retired Israeli Major General Doron Almog arrived in London on an El Al flight, only to learn that a British judge had issued a warrant for his arrest for allegedly violating the 1949 Geneva Convention in Gaza. Almog stayed on the plane and was allowed to return to Israel.
In February 2004, a London court rejected an application for an arrest warrant to be issued against Israeli Defense Minister Shaul Mofaz. District Judge Christopher Pratt argued that as a government minister, Mofaz qualified for immunity. Pro-Palestinian lawyers had asked Pratt to issue an arrest warrant for Mofaz for allegedly committing "grave breaches" of the Geneva Convention in dealing with the Palestinian uprising.
In January 2010, a group of Israeli military officers called off an official visit to Britain over fears they could be arrested on war crimes charges. The delegation had been invited to visit by the British Army.
The arrest warrants have provoked a furious reaction in Israel; and British officials have now vowed to change the law on universal jurisdiction to make it harder to arrest foreign officials. In May 2010, Britain's new coalition government said it would seek to prohibit private groups from seeking to prosecute crimes committed abroad. British Foreign Secretary William Hague said: "We cannot have a position where Israeli politicians feel they cannot visit this country. The situation is unsatisfactory [and] indefensible. It is absolutely my intention to act speedily."
Spain is also pushing back against mounting abuses of universal jurisdiction. In May 2009, the Spanish parliament approved a measure to limit the power of judges to prosecute people for crimes committed abroad under the concept of universal jurisdiction. The parliament acted on fears that activist judges were abusing the Spanish justice system for politically motivated prosecutions.
Spanish judges have gained a reputation for activism in recent years by using the principle of universal jurisdiction to pursue cases against suspected overseas human rights violators, most famously the former Chilean dictator General Augusto Pinochet. Until recently, judges at the Spanish National Court (Audiencia Nacional) were pursuing more than a dozen international investigations into suspected cases of torture, genocide, and crimes against humanity in places as far-flung as Tibet and Rwanda. But many of these cases have little or no connection to Spain, and critics say the judges are interpreting the concept of universal jurisdiction too loosely.
Calls to rein in the judges increased when Spanish magistrates announced probes involving Israel and the United States. In January 2009, for example, Spanish National Court Judge Fernando Andreu said he would investigate seven current or former Israeli officials suspected of "crimes against humanity" in a 2002 air attack in Gaza that killed Salah Shehadah, a top Hamas militant. The Andreu case involved former Israeli Defense Minister Binyamin Ben-Eliezer; former Air Force Commander Dan Halutz; former head of the National Security Council Giora Eiland, and four other senior officials. Had Andreu decided to issue an international arrest warrant for any of the seven Israelis, they could have been detained upon arrival in any EU member state.
Most of the universal jurisdiction lawsuits that have been presented in Spanish courts have been the handiwork of one Gonzalo Boyé, a Marxist-Leninist "human rights lawyer" who earned his law degree through correspondence courses while in a Spanish prison. He was serving a 10-year sentence for collaborating with the Basque terrorist group ETA, and for his participation in the kidnapping of Emiliano Revilla, a well-known Spanish businessman. Boyé is now the Spanish representative of a group calling itself the Palestinian Centre for Human Rights.
The problem of frivolous lawsuits and freewheeling judges came to a head after Andreu rejected requests by Spanish prosecutors to suspend his inquiry on the grounds that Israel was already investigating the attack. Attorney General Cándido Conde-Pumpido has warned of the risks of turning the Spanish justice system into a "plaything" for politically motivated prosecutions.
For now, Israel's best option for avoiding a messy and precedent-setting trial will be to exert diplomatic pressure on European authorities to persuade them that they have a vested interest in protecting their justice systems from malicious abuse. That strategy, which appears to be working in Britain and Spain, should now be applied in Belgium and France.