This page is also available in: עברית (Hebrew)

November 1, 2010 – Shortly after Sept. 11, 2001, former American general Charles Dunlap wrotean essay warning of the risk that “lawfare” — the application of international law to inflict strategic damage on an opponent with the aim of achieving military objectives — could be used against the U.S. in its emerging “war on terror.”

In a subsequent article, he elaborated on two mechanisms by which lawfare could be employed as an unconventional means of confronting democratic states off the battlefield: first, by exposing real or alleged violations of international law on the part of an opponent to weaken domestic public support, destabilize the government, and penalize decision-makers; second, by promoting an understanding of international law that results in the formulation of operational policy that is unnecessarily constrained and detrimental to the opponent’s military capabilities. The harm that results from both, he concludes, is ultimately self-inflicted and could be avoided by strict adherence to the rule of law.

The consequences envisioned by Dunlap constitute only part of lawfare’s potential impact. With increasing frequency over the last decade, litigation as a means of pursuing strategic military or political objectives has been employed in the Middle East conflict against state, non-state, and private actors alike.

The most common tactic involves attempts to indict Israel’s leadership in foreign or international forums for alleged breaches of international humanitarian law.

One of the most high-profile cases of this sort involved Israeli general Doron Almog, who fled prosecution for war crimes in the United Kingdom after learning upon his arrival there that an arrest warrant had been issued against him for his alleged role in demolishing houses in Gaza in violation of art. 53 of the Fourth Geneva Convention.

This incident and similar warrants issued against other Israeli officials in several European countries — including current opposition leader Tzipi Livni in the aftermath of Operation Cast Lead — have prompted Israel to take action, increasing its reliance on legal advisers during military operations and urging its allies to impose legislative limits on the doctrine of universal jurisdiction.

Legally dubious practices applied by Israel in the past, such as punitive house demolitions, use of incendiary munitions in populated areas, and targeted assassinations, have been halted or curtailed.

Another common use of litigation to achieve strategic political objectives with regard to the Middle East conflict involves the application of anti-terrorism legislation to target Palestinian actors. For example, the right-wing Israeli organization Shurat HaDin has been involved in litigating over a dozen cases, mostly in the U.S. and Israel, against banks, Palestinian charities, and Muslim leaders around the world for their alleged support of terrorism.

Many of these suits have been manifestly frivolous, such as a 2008 lawsuit against the government of Egypt, filed in an Israeli court, for not doing enough to prevent Hamas rocket fire from Gaza. Others have been less so: on the basis of expansive anti-terrorism legislation, U.S. courts have ordered the North Korean government to pay $378 million to victims of a joint Japanese Red Army-Popular Front for the Liberation of Palestine massacre at an Israeli airport in 1972; the Iranian government to pay $183 million to the victims of a Hamas bus bombing in Jerusalem; and the Palestinian Authority to pay $116 million to the Israeli victim of a West Bank shooting carried out by Hamas members wearing PA uniforms.

The obvious downside of such judgments is that they are generally impossible to collect. Moreover, such thinly veiled judicial forays into the realms of foreign affairs and international diplomacy threaten the constitutional separation of powers and risk harming the U.S.’ national interests.

In the case of the PA, the judgment resulted in $30 million of the Palestinian national bank’s assets in the U.S. being frozen while at the same time the U.S. government was continuing to pour money into PA accounts abroad in compliance with its international commitments. The freeze order was eventually overturned, but there is no question that it embarrassed the government diplomatically and set back the U.S. interest in developing the Palestinian economy. However, it apparently suited the political aims of Shurat HaDin; the organization seems to boaston its web site that its actions have contributed to the closure of all banks in Gaza, and its director has meanwhile petitioned the U.S. government to break off the peace process on the basis of PA president Mahmoud Abbas’ alleged ties to terrorism.

The third type of litigation relevant to the Middle East conflict comprises claims in tort against parties indirectly connected to the conflict. Such cases are liable to arise in regard to either Israeli or Palestinian actions.

In 2003, U.S. activist Rachel Corrie was crushed to death by an Israeli bulldozer while protesting house demolitions in Gaza. In 2005, her parents and four Palestinian families who had lost relatives in a similar manner initiated legal proceedings against bulldozer manufacturer Caterpillar in the U.S. The bulldozers were paid for by the Pentagon, which supplied them to Israel as part of a U.S. military aid package. The plaintiffs argued Caterpillar ought to have known that the bulldozers would be used in breach of international law. The suit was dismissed on the grounds that hearing the case would necessarily involve challenging U.S. foreign policy toward Israel, and would therefore overstep the limits of judicial authority.

In 2009, in a saga known as the “courtroom intifada,” the Palestinian village of Bil’in filed suit in Quebec Superior Court against Montreal-based companies Green Park and Green Mount. The two companies were allegedly involved in developing Israeli-occupied land belonging to Bil’in’s residents for use by Israeli settlers, in contravention of the Fourth Geneva Convention.

The plaintiffs argued that, in addition to international law, the defendant companies’ actions violated Canada’s Crimes Against Humanity and War Crimes Act, giving rise to civil liability under Quebec’s regime of extra-contractual obligations. The court dismissed the suit on the basis of the doctrine of forum non conveniens, holding that the matter was best heard by an Israeli court.

Most recently, in July of this year, Shurat HaDin filed a lawsuit against the news network Al-Jazeera in the U.S. on behalf of 91 Israelis wounded by Hezbollah rocket fire, alleging that Al-Jazeera’s reports from within Israel during the 2006 Israel-Lebanon war assisted Hezbollah in aiming its rockets. The plaintiffs are seeking $1.2 billion in damages. Unsurprisingly, I do not have high expectations that this suit will succeed, not least of all because it would seem altogether impossible for the plaintiffs to establish causality.

Lawfare, it would seem from the above examples, can be a wildly asymmetrical — if often effective — means of waging conflict. While litigation based on international humanitarian law seems to fundamentally disadvantage Israel, suits based in private law actions seem to be (at least in many western countries) skewed in its favour.

As far as international humanitarian law goes, many commentators have noted the disadvantages faced by Israel, as a democratic member of the community of nations, in contrast with its non-state opponents. A prime example of this is the Goldstone Report, which brought allegations of war crimes against both Israel and Hamas. However, only Israel was subjected to massive internal and external pressure to investigate these findings, hold decision-makers responsible, and alter its actions in the future. Israel is bound by constraints which its opponents are relatively free to ignore.

Nonetheless, I would argue that this is as it should be; it in no way strikes me as illogical for a United Nations member state to be held to different expectations than a designated terrorist organization. The right-wing Israeli organization NGO Monitor apparently disagrees, accusing humanitarian non-governmental organizations of hypocrisy in its reports on anti-Israel “lawfare,” which it describes as harassment and exploitation.

It is worth noting that NGO Monitor uses the term lawfare in a slightly different manner than Dunlap does. While the latter considers it to be a form of ultimately self-inflicted damage best prevented by promoting adherence to international law, the former considers it to be merely an illegitimate external attack best prevented by suppressing accountability mechanisms. Moreover, NGO Monitor only objects to lawfare that is directed against Israel, opening itself up to the same sorts of accusations of hypocrisy and ideological agendas that it levels against others.

As for private law, its slanted application in Middle East lawfare is apparent when contrasting the case of Corrie v. Caterpillar Inc. with Ungar v. Palestinian Authority. Why is it that U.S. courts are more reluctant to step on the toes of the executive branch when foreign relations with Israel are concerned than they are when the interests at stake are foreign relations with the PA, Iran, or North Korea? I think the answer is likely at least somewhat political.

It is true that the latter cases involve specific anti-terrorism statutes, but it seems to me there are other statutes — such as the Alien Tort Claims Act — that might similarly apply to the former. Moreover, in Ungar, the court showed a willingness to hold the PA responsible for virtually any act of Palestinian terrorism taking place on its watch, a stringency I doubt it would have applied to Israel.

If courts are going to decide on politically motivated questions, as inevitably they must, they should do so keeping in mind the following two principles which underlie the Supreme Court of Canada’s decision in Canada (Prime Minister) v. Khadr:

1) Willingness to review the legal implications of foreign policy choices (Did Israel’s use of bulldozers contravene international law? Was the PA a supporter of terrorism as defined by domestic statute?)

2) Due deference to the executive branch when ordering a remedy likely to affect foreign affairs.

Embracing these principles, rather than seeking to curtail judicial intervention in questions pertaining to foreign conflicts, will promote the rule of law and increase compliance with international norms. Moreover, the increasing use of litigation to wage international conflict emphasizes the importance of incorporating diplomatic considerations into national legal frameworks in a uniform and consistent manner, for example through international agreements on the applicability of the universal jurisdiction doctrine.

To be sure, there is considerable room for the involvement of the law in the Middle East conflict beyond the ways discussed here. Most importantly, the Israeli judiciary serves an invaluable, if imperfect, supervisory role over state action and is frequently called on to balance the competing interests of the state with those of its citizens and subjects.

Finally, international forums, like the International Court of Justice, can provide impartial guidance, advising the international community as well as the actors themselves as to their rights and obligations in striving to resolve or manage the conflict through political means.

Daniel Haboucha, is a third-year law student at McGill University. A native Montrealer, he completed his undergraduate degree in McGill’s integrated arts and science program (with specializations in psychology, economics, and political science) while serving as a reserve infantry soldier in the Canadian Forces. This article originally appeared on the Legal Frontiers blog.