Legal Battles and Barricades: Defending Israel, Fighting Anti-Semitism in Court

This past week I attended a powerful legal forum sponsored by the Touro Law School, which is bringing together international jurists, legal experts, and Supreme Court justices to explore the legal system, democracy and the rule of law as means of combatting anti-Semitism and the defamation of Israel. It is also designed to enlighten a broad spectrum of the New York Jewish community on the beauty of the Israeli legal system.

Walking in the pouring rain that night from my class to the location, I wondered whether this session would resonate for me.  Not being a lawyer, I wasn’t sure how using litigation, case law, and legal proceedings could possibly have any impact on combating the  BDS movement.  In their stop-at-nothing dedication to devastate Israel’s economy, BDS advocates routinely ignore truth in favor of social and so-called high-moral ground polemics.  I was even more skeptical that legal means could help safeguard our world against violence and the deadly acts of terrorism that darken our lives as “practicing Jews” and “all Jews” simply for having the audacity of being born Jewish.

To our enemies, hatred of Jews and Israel is a just cause for a vehement campaign of attack. Three days ago, I attended a heart-breaking first commemoration of the death of the 11 victims of the Pittsburgh tragedy. That was a reminder of how reality operates outside the courts of justice.  In short, I needed to hear more to open the argument of using legal tactics to fight anti-Semitic acts.

And then, I heard the first speaker, Nitsana Dershan, Founder and President of Shurat Hadin, which uses the power of the courts to fight terrorism and safeguard Jewish rights worldwide. As Nitsana rose to the podium and began to speak, I unconsciously thought that this gentle, soft-spoken young woman could not possibly spearhead a movement. She could not have created a powerful “game changer” in Israel’s tactics towards combatting the BDS movement.  Even as Nitsana began to describe the new battlefront in which she and her colleagues engage a full-frontal counter- attack on Israel’s enemies, I realized how wrong I was to judge behavior based on appearance.

Nitsana spoke of using lawsuits and other legal tactics to choke Israeli’s enemies by “cutting off their oxygen supply.”  Along with a handful of other lawyers, Nitsana formed “Shurat Hadin,” during the height of the Intifada movement, in the early 2000’s.  The purpose was to initiate legal actions against the terrorists and their supporters on behalf of Israeli victims.  Then in 2008, as the Intifada movement began to die down and Israel’s enemies realized that they could not defeat Israel militarily or through terrorism, they learned from history other ways to defeat the enemy  (Napoleon’s use of boycott to undo Great Britain in the early 1800’s and Hitler’s more successful economic measures against Jews in the 1930’s.  Both were designed to first impoverish and then destroy their target.)

Shurat Hadin’s successes, like its recent case in 2018 against  Airbnb, which delisted Jewish homes from occupied territories in Israel, suggest the power of their strategy.  Initially the action by Airbnb to delist these homes seemed like a great victory for BDS.  However, Shurat Hadin waged a successful suit on the grounds of discrimination under Fair Housing Laws, and months later Airbnb relisted the Jewish homes and asked for an out of court settlement.  The outcome of this case, as well as others, can be considered groundbreakers for Israel’s fight against its foes.  Shurat Hadin aimed at Airbnb and its BDS support.  So too, social media such as Twitter, Facebook, and Google be can be challenged and sanctioned legally.

Abraham Foxman, formerly Executive Director of the ADL, and Rabbi Abaham Cooper, Director of the Global Social Action Agenda of the Simon Wiesenthal Center, spoke poignantly of the powerful history of the rule of law in overriding transgressors such as Adolf Eichmann and Franz Stangl, former commandant of Sobibor and Treblinka Death Camps. Eichmann and Stangl were hunted down by Simon Wiesenthal and brought to trial.  Ultimately they met their fate through the justice system, which recorded their atrocities in scrolls that will live in the “infamy” of the Holocaust.

Abraham Foxman’s struggle to survive the Holocaust as a young child has led to a lifelong commitment to preserving the rule of justice and law, not only through the legal system but also in the schools and on the streets.   Both Foxman and Cooper emphasized that the Jewish community should go on the offensive by building on the blessings and strengths of the Jewish people to create a new front.

At the end of the day, I was struck by the possibilities of enlisting the rule of law to combat challenges to Israel and the Jewish people.  As I reflected on the proactivity of Israeli law and jurisprudence, I wondered what things we Americans need to rethink about our own democratic institutions.  How can we use our laws and our Constitution to protect all citizens and serve the various causes of justice? Perhaps the next session will reveal more valuable insights for us non-legal minds to consider.