Not all confrontations will be won with tanks, F16s, and iron domes

When Mahmoud Abbas went to the United Nations last month to request non-member state observer status for his Palestinian Authority, his real objective was quite different.  He wanted to achieve access to the International Criminal Court (ICC), which he hoped would enable the Palestinians to request international indictments against Israeli citizens.  The ICC, he knew, would be a most valuable addition to the Palestinian armory.

Using the law as a weapon is called lawfare, and it is an excellent way to harass Israeli officials when they travel abroad.  It’s done through a principle of law called universal jurisdiction, which enables states to prosecute foreign nationals for war crimes committed anywhere in the world.  It was under that principle that Israel claimed the right to prosecute Adolf Eichmann.

In Britain, for example, until recently, virtually anyone could submit a complaint to the authorities against a foreign national, claiming he had committed war crimes, and demanding his arrest.  That act alone would be enough for a foreigner to be branded an accused war criminal against whom Britain had issued an arrest warrant.

Clearly, the Palestinians would be delighted if they could prosecute a senior Israeli official under the same principle of law that was used to prosecute Eichmann.  Even if the accusation were ultimately thrown out of court, the Palestinians could still claim some measure of victory.

Anne Herzberg, legal advisor to NGO Monitor, recounted in The Wall Street Journal one such case which was dismissed by the US courts:

In several countries, NGO “lawfare” has led to arrest warrants against former Israeli military officers. Most of these actions, though, have been dismissed during the preliminary stages. A February 2008 decision by the U.S. Court of Appeals in Washington, D.C., for instance, found that these cases “concern acts allegedly done by the military of the state of Israel in the conduct of hostile operations” and that the NGOs illegitimately seek to engage courts “in the micro-management of military targeting decisions.” The court added that these are not the sort of cases the U.S. statutes were intended for, such as prosecuting “an Idi Amin or a Mao Zedong.”

Herzberg summarizes the situation succinctly in stating that the propaganda impact for the Palestinians of charging Israeli officials with war crimes and securing arrest warrants is enormous. It further delegitimizes the Jewish state, she says, restricts the foreign travel of Israeli officials, and strains diplomatic relations with other countries.

The Palestinians exploited the international law battlefield against Israel with varying levels of success for several years.  Eventually, though, they made the classic mistake of the gambler on a roll.  They didn’t know when to stop.

They got a British court to issue an arrest warrant for war crimes against former Israel foreign minister, Tzipi Livni.  For many in Britain this went way too far.  Livni was widely liked and respected and was generally viewed as a moderate and an advocate of the two-state solution.  Though she steered clear of Britain, the warrant, which was ultimately withdrawn, became a glaring example of the abuse of universal jurisdiction.

Following the Livni affair, the Israel foreign ministry issued restrictions on official travel by Israelis to Britain, and demanded that the venue of the annual strategic dialog meeting, hosted alternately by Israel and Britain, be changed to Israel, despite it having been Britain’s turn to host the meeting.

These Israeli measures led to considerable tension between the two countries (Israel rebuffed Britain’s assurances that it would ensure the immunity of visiting Israeli dignitaries), and in the end Britain followed the lead of Belgium and Spain, and changed its universal jurisdiction law.  Now, the Director of Public Prosecutions in Britain must give his consent whenever a complainant petitions for an arrest warrant to be issued on grounds of universal jurisdiction.

That clipped the wings of the Palestinian lawfare assault for a short while until Abbas came up with the brilliant idea of getting Palestine recognized as a state by the UN General Assembly, thus unlocking the doors to the ICC.

Now, with Palestinians having achieved a victory of sorts, Israel must assume that the ICC or some other international forum of law will be the scene of one of the next major confrontations with the Palestinians.  Abbas has laid the foundations for such a confrontation.  The question is, has Israel laid the foundations to deal with it?

Obviously, a major international law confrontation will not be won with tanks, F16s, and iron domes.  To prevail on this new battlefield Israel will need a dedicated organization that will unite the piecemeal activities that exist today among various government and non-government groups and individuals. None of this can be achieved without allocating a substantial slice of Israel’s defense budget for that purpose. That will probably be the most difficult new reality for Israel’s defense chiefs to accept.

But accept it they must. Times have changed and strategic thinking must change too. A major battle lost in the international law arena could have strategic consequences comparable to a defeat on a conventional battlefield.  Mahmoud Abbas and his Palestinian Authority understand this perhaps better than we do.