Anti-Israel ‘Lawfare’ in Europe

From the desk of Soeren Kern on Tue, 2010-07-06 20:49

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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.

On June 23, two Belgian lawyers representing Palestinians filed suit in Belgium against 14 Israeli officials on charges of war crimes 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, also codenamed 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.”

On June 13, pro-Palestinian activists in France said 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 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 with Spain and critics say the judges are interpreting the concept of universal jurisdiction too loosely.

Calls to reign 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.

So far none of the lawsuits filed against Israel in European courts have reached the stage of a trial where Israeli leaders have appeared before a foreign judge. But 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.

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.

 

Soeren Kern is Senior Fellow for Transatlantic Relations at the Madrid-based Grupo de Estudios Estratégicos / Strategic Studies Group

Lessons learned? (Probably not)

Submitted by Atlanticist911 on Sat, 2010-07-10 09:46.

Re: Baby steps 1 & 2.

Kappert's failure to respond to baby steps 1 and 2 is hopefully indicative of some lessons learned.

 

Lesson 1

 

You can't embark upon a process of nation building without first identifying and securing your borders.

 

Lesson 2

 

You don't do that by replacing your platoons with poltroons.

Baby step 3

Submitted by Atlanticist911 on Sat, 2010-07-10 09:35.

@ kappert

 

Try comparing article by article, line by line, The Hamas Charter with The UN Charter of Human Rights, then get back to me with your weasel words explaining to me how the former is  remotely comparable or, indeed, compatible with the latter.

 

Start with article(s) 7.

I think you'll find it's like the song says, It's unexplainable. Kind of unattainable.

Cant' read, can't think? # 2

Submitted by marcfrans on Fri, 2010-07-09 15:33.

How should current Russian, Chinese, Burmese, Egyptian, etc... (remember the list is very long) "crimes" ever get to a "legal" court?

Note the crucial (yet arbitrarily applied) importance of the words "crimes" and "Legal", and its implications!  What is the particular reason for the exclusive focus on "Israeli and Hamas crimes" by a nonthinking naive-left Westerner? Could this be related to any 'Arab' agenda?

While, I repeat, Mr Kern's article did NOT concern itself with international law, how come the principle of "universal jurisdiction" is never applied to "Hamas crimes" in the domestic legal systems of various European countries, but only to presumed Israeli and American crimes? Could it be that the abusers of such domestic legal systems have an ideological agenda which has nothing do with 'justice'? Could it be that they have a very shallow (and mistaken) understanding of the terms "crimes" and "legal"? And, even worse, could it be that they are not 'equipped' (given the extreme moral-relativism that permeates Western education systems today) to grasp the concept of 'justice'?

many questions no answers

Submitted by kappert on Sat, 2010-07-10 09:16.

The focus on Israeli and Hamas crimes is due to the author's article. The definition of 'crime' and 'legal' (in the Western world) should be clear since Roman times. If the current European legal system does not grasp the terms 'crime' and 'legal' (due to naiv-lefties, of course, never to nationalists), and if it does not even apply the notion of 'justice', I wonder why you mention Russia, China, Myanmar, Egypt, ... they surely do not have the same latin notion of 'crime'. Only the compromises of international law can link international jurisdiction, condemning crimes, dictatorship, state-terrorism and genocides.

The First Spanish Inquisition

Submitted by Capodistrias on Thu, 2010-07-08 16:17.

"Activist judges and the groups that bring cases to them seem to be an authoritarian and inquisitorial movement sanctioned by that 'international community'. How ironic that these inquisitons began in Spain - will future children of any surviving free society be taught of the Second Spanish Inquisition allowed under the all-conquering Church of the EU."

@siegetower

Even more ironic is that implicit in the statement above is an accepted historic consensus on the 1st Spanish Inquisition between the accuser, the accused, and of course Monty Python.  I prefer to see an inspiration for activist Spanish socialist judges in the Soviet show trials of a later period in history.  

Baby Steps (2)

Submitted by Capodistrias on Thu, 2010-07-08 16:01.

What says Lady GooGoo GaGa?

 

(I still like to think of Kappert as an asexual being, unless the opportunity for making a bad pun arises.)

Can't read, can't think?

Submitted by marcfrans on Thu, 2010-07-08 14:41.

The subject of the article concerns the use and abuse of the principle of "universal jurisdiction" in various European DOMESTIC legal systems. It does not concern "international Law" (which largely does not deserve the term "law", but that is not at issue here), and has nothing to do with prosecutions of Milosevic, Rwanda clans etc.... 

If Kappert cannot make that distinction, because he does not read carefully, then he does not know what he is writing about.

 

advo-gates

Submitted by kappert on Fri, 2010-07-09 10:56.

So the labyrinth of law continues to attack: the principle of universal jurisdiction overwhelms 'domestic' (?) legal systems, not touching 'international law'. Bravo, that's a marcfrans fiver! How should Hamas or Israeli crimes ever get to a legal court?

Baby steps

Submitted by Atlanticist911 on Thu, 2010-07-08 13:44.

@ Kappert

"Secular democratic state" sounds fine to me in theory, but you'll need to give me some further clarification as to what YOU mean by these words. For example, when you use the term "state", are you referring to the conventional nation-state, or to some utopian concept of your own creation?

* How large would this new political entity be?  (ie define its borders).

 

* Would the new political entity have a standing army which could be used to protect its citizenry from any would-be outside aggressor?

 

I have other questions, but these will do to be going on with.

Kappert

Submitted by siegetower on Thu, 2010-07-08 12:23.

To Kappert, your contributions to this website have become the written equivalence of shrill screams when trying to make a point and hands-over-your-ears denials when things aren't to your liking. Is your time spent here meaningful to you? Perhaps you'd be better off commenting elsewhere?

You write: "As the author pleas for a castration of international law, genocides will become strictly national matter. What a progress of civilization!" - Treaties have existed between rulers since time immemorial - simple international law. When a nation descends into genocide no one gets involved because, surprise, it's a national matter. The only historical international bodies I can think of to meaningfully intervene in Genocide are a) The British Empire and b) The caliphate.

a) If anyone wants to bring back this empire of trade and largely self-governed consent with English/Scottish executives and army officers, go right ahead. The problems of Sudan, Zimbabwe and Burma would disappear at the point of a multiethnic bayonet charge, and the trade would make everyone richer.

b) Let's not consider the caliphate too closely, as any intervention by them, such as in the Egyptian civil war in the 7th century, just leads to islamic takeover.

To Soeren Kern, getting back on topic, thank you for this article. I have become increasingly frustrated over the years when the media speaks of the so-called 'international community' especially when it comes to the matter of Israel. The 'international community' doesn't reflect me or my views, on any issue I can think of. Activist judges and the groups that bring cases to them seem to be an authoritarian and inquisitorial movement sanctioned by that 'international community'. How ironic that these inquisitons began in Spain - will future children of any surviving free society be taught of the Second Spanish Inquisition allowed under the all-conquering Church of the EU.

Furthermore, it is worrying that so much activity in this area exists in England. With England being the home of the Common Law system, an opposing system to Napoleonic/continental Civil Law, this should not be possible. At the least, universal jurisdiction applied in a Common Law country seems to imply that the 'Palestinians' whom are initiating the cases are held on the same common legal footing as native Britons. Which is impossible given the British are supposed to be a sovereign people and the 'Palestinians' are really Arab Egyptians and Jordanians abandoned by their Arab peoples, sacrifices in the jihad.

____

Defend Christendom. Defend Jewry. Oppose socialism in Europe.

progress of civilization (2)

Submitted by kappert on Thu, 2010-07-08 06:21.

@Atlanticist: a 'destruction' of Israel would not lead to a solution. Neither would a two-state solution. In my point of view, only a secular, democratic state might reconcile the peoples in the Middle East. Your second question reveals that you are a convinced dualist. I am not.
@debendevan: Israel may be a democratic state for Jews, but non-Jews hardly recognise democratic and transparent procedures (see comments from  Arab Israelis, Haaretz newspaper). Some have the guts to accuse: "The [Israeli military] censor exercises draconian power over the content in the media, licenses newspapers, and fines and suspends newspapers if, in his view, they have violated secrecy. He does not have to explain the reasons for his decision; indeed one paragraph in the law obliges newspapers to publish free ads by military censor denying or correcting information that papers themselves published. . . . Thus one of the [Israeli military] censor's main functions is to keep Israelis ignorant of what everybody else knows" (Martin van Crefeld). Of course I agree that the war crimes of Israel and Hamas should be investigated by international means. Whereas we can read condemnation of Hamas in many news, Israeli inflictions are tolerated or described as self-defence, which is rather ridiculous. Jews are not my bête-noire, but governments who ignore international good conduct are.
@marcfrans: I hardly believe that international law undermines democracy. I do not share your understanding of 'genuine democracy' which you apply to Israel, and 'undemocratic-authoritarian international community', which underlines your desire of human segregation. I have no knowledge that international law persecutes Americans or Israelis or other 'democrats'. I only see the persecution of war losers like Saddam, Milosevic and the Rwanda clans. Nevertheless, I agree with you that well-documented atrocities like bio-chemical warfare, murder of civilians, forced population movements, predominated starving, agricultural devastation, etc will not enter international legislature due to 'national interests' and common authoritarian structures.
Thank you for your comments.

Too big a step

Submitted by marcfrans on Wed, 2010-07-07 15:55.

Simple answers won't be forthcoming on Kappert's isle, for they would expose further the 'evil' that is being exposed by the article.  That evil consists of the abuse of European legal systems to undermine a genuine democracy (Israel) and to promote the undemocratic/authoritarian 'international community'.

To the extent that European legal systems recognise the "principle of universal jurisdiction" they are actively undermining their own democracy.  And the manifestly-observable fact that the principle is only being used to persecute democratic politicians - be they Israeli or American - in European courts, and never the world's multitude of 'sitting' tyrants, proves the point. The day when European courts will express 'judgments' on the current leaders of China, Russia, Venezuela, North Korea, Cuba, Iran, Burma, Egypt...(the list is quite long), leaders who are responsible for genuine (well-documented) atrocities, then the "principle of universal jurisdiction" may gain some respect. However, that day will never come...and both the arrogance and hypocrisy of the European legislatures in question remains exposed for everyone to see. Not that many would notice, though,...which helps explain why the 'international community' is authoritarian (like much of the world is).

@Kappert

Submitted by debendevan on Wed, 2010-07-07 15:49.

Your statements are hardly rational. Israel is a far more open society than any of its antagonists. If your premise is that they are guilty of war crimes then an investigation should include Hamas' extra-judicial executions, the launching of rockets into Israel and the perpetrators of those crimes, ad infinitum, ad nauseum. Rants about Israel and the Jews (which seems to be your bête noire) hardly qualifies as intelligent debate. In fact, your spittle-flecked pronouncements trigger automatic mind associations with a certain Austrian who took his own life in a Berlin bunker 65 years ago.

I don't understand why you are so hate-filled. But the energy you expend here, if channeled more positively, could be constructive to you and others.

@ kappert

Submitted by Atlanticist911 on Wed, 2010-07-07 15:45.

If you feel so passionately about the topics you comment upon, when questioned, why on earth are you so reluctant to express your true thoughts and feelings about these issues? Are you fearful somebody might catch you out in an endless series of moral and logical inconsistencies, or is that another question permanently off your intellectual radar?

One step at a time

Submitted by Atlanticist911 on Wed, 2010-07-07 14:45.

First, do you or do you not wish to see the complete and utter destruction of the modern state of Israel, to be replaced by what precisely? Yes, or No?

Second, do you now accept the validity of the concept of right vs wrong, goodness vs evil?

Again a simple Yes, or No will suffice.

 

Answer these questions and we'll take it from there.

 

enlightment

Submitted by kappert on Wed, 2010-07-07 14:26.

@Atlanticist: oh, come on, it seems you advogate that Israel is a rightous democracy ... and so on. If that is so, why would they deny any international investigation? 'No one is bad, despite how much evil is done' are words from Victor Hugo, which reminded me the other citations in my text. Do you fear that an international investigation on war crimes could guide to the destruction of Israel? Naaa, they have the A-Bomb!

Btw, you may have forgotten, but I haven't..

Submitted by Atlanticist911 on Wed, 2010-07-07 14:06.

"No one is bad, despite how much evil is done".

 

That's an interesting criticism of alleged Israeli behaviour towards its enemies coming from someone who spent the first few weeks of their time on TBJ trying to convince myself and others that there is actually no such thing as 'right' and 'wrong', 'good' and 'bad', or  'goodness'  versus  'evil'. 

What happened in the interim?

knock, knock, knock Kappert ...

Submitted by Atlanticist911 on Wed, 2010-07-07 13:00.

Re: progress of civilization

 

I fail to see how anything you write here has ANY bearing WHAT-SO-EVER on your ultimate ambition which is to see the complete and utter destruction of the modern state of Israel. Am I wrong? If so, kindly enlighten me. 

progess of civilization

Submitted by kappert on Wed, 2010-07-07 10:19.

The author laments that European justice systems were used to harass current and former Israeli political and military leaders (how dare they?), targeting a conviction of Israeli war crimes in the Gaza strip (legally occupied?), as Israel refuses to conduct a credible investigation. He argues that the problem of frivolous lawsuits and freewheeling judges ignores that Israel was already investigating its attacks and found no infraction of law (that is as if Nazi governments would investigate the disappearance of Jews), concluding that Europe should protect their justice systems from malicious abuse (not war crimes, but adjudication). Malicious abuse – a windy argument when the state of Israel ignores the definition of humanity and constantly deceives the concealment of truth - no one is bad, despite how much evil is done. Sounds like Voltaire: "The great war is that each general has to bless their flags and solemnly invoke his God before he exterminates his neighbour”, or Thomas Jefferson: "I fear for my species when I think God is just. Never a human being does evil so completely and with as much pleasure as when you do so in religious conviction.” The violation of UN resolutions and the aggressive occupation of land cannot be judged by international law as Israel ignores international law. As the author pleas for a castration of international law, genocides will become strictly national matter. What a progress of civilization!