The long history of “Lawfare” use by NGOs is in jeopardy due to a change in Spanish universal jurisdiction laws. Pressure by foreign governments including Israel caused the move as NGOs respond with upset and claims that impunity will increase.
“Lawfare” has been a popular NGO tool for political campaigns against Israel since the first UN Durban conference where the NGO Forum solidified the “Durban Strategy” for international isolation and demonization of Israel. This included calls for “war crimes tribunals” to “investigate and bring to justice those who may be guilty of war crimes, acts of genocide and ethnic cleansing and the crime of Apartheid which amount to crimes against humanity that have been or continue to be perpetrated in Israel and the Occupied Palestinian Territories.” Since 2001, NGOs have adopted “Lawfare” as a major element of their mandates and campaigns although thus far no cases have been upheld. (See NGO “Lawfare” Exploitation of Courts in the Arab-Israeli Conflict, NGO Monitor, September 2008).
Spain specifically has some of the most liberal universal jurisdiction laws and has therefore been a target for NGO Lawfare campaigns against Israeli military and political figures. On May 19, 2009, however, Spainish lawmakers voted to change the universal jurisdiction laws to allow only cases where the victim is Spanish or the accused is physically in Spain. (Spain Is Moving to Rein In Its Crusading Judges, Wall Street Journal, May 20, 2009) This would significantly hamper NGO efforts to abuse Spanish courts to bring Israeli officials to court for alleged “war crimes” or “crimes against humanity.”
NGOs are up in arms about the change. Human Rights Watch (HRW) has called the move “a step backwards.” HRW added:
“Spain’s law is generous and it became a magnet for victims who did not find justice in their own countries. This amendment is very disappointing,” the spokesman for U.S.-based Reed Brody said in a statement. “There is no excess of universal jurisdiction in the world, there is an excess of impunity,” he said, adding he believed Spain was taking steps to change its law due to diplomatic pressure just like Belgium did in 2003. (Rts Group Blasts Spanish Move To Curb Foreign Judicial Probes, AFP, May 20, 2009)
HRW also claimed:
“The cases brought in Spain are a way of persuading or forcing the courts of others countries to deal with the crimes they are not dealing with at home,” Reed Brody, an international law specialist for Human Rights Watch in Brussels, said by telephone on Wednesday. (Push in Spain to Limit Reach of the Courts, NY Times, May 20, 2009)
Amnesty International responded with disappointment as well:
The move to limit the judges alarmed human-rights campaigners. “There will be more impunity,” Hugo Relva, legal adviser for Amnesty International, said before Tuesday’s vote. (Spain Is Moving to Rein In Its Crusading Judges, Wall Street Journal, May 20, 2009)