Introduction

As part of the political war during Israel’s operation in Gaza, 50 NGOs issued more than 500 statements accusing Israel of “wanton killing,” “deliberately targeting civilians,” and “war crimes.”   Many of the documents called for boycotts and international sanctions against Israel and suspension of EU-Israel upgrade talks.  Another aspect included demands for international investigations and “lawfare”.  Although the vast majority of previous lawfare cases have been dismissed, the damage — including the public perception of Israel, the interference with Israel’s diplomatic relations, and the movement restrictions placed on Israelis singled out for this harassment — is considerable.

This NGO Monitor Report presents Frequently Asked Questions regarding NGO lawfare on Gaza.  An Indian newspaper reported on January 25, that the Palestinian Center for Human Rights (PCHR) is preparing cases in six countries, targeting 87 Israelis for harassment.  In the article, PCHR’s Director claims that “dozens of arrest warrants have already been issued.” Other NGOs calling for lawfare in the wake of the Gaza war include the Alternative Information Center, Adalah, Amnesty International, Ittijah, and the Arab Association for Human Rights.

See NGO Monitor’s monograph, NGO “Lawfare”:  Exploitation of Courts in the Arab-Israeli Conflict and “Lawfare Against Israel” for more information on this issue.

General FAQs

Q:  What is lawfare?
A:  Lawfare is the exploitation of courts in democratic countries in order to harass Israeli officials with civil lawsuits and criminal investigations using allegations of “war crimes,” “crimes against humanity,” and other alleged violations of international law.  While these cases claim to be about obtaining “justice” for Palestinian victims, they are part of the larger political war.

Q:  When did NGOs start using lawfare as a weapon in the Arab-Israeli conflict?
A:  The tactic of lawfare against Israel was adopted at the NGO Forum of the 2001 Durban Conference and is an integral part of the Durban Strategy which seeks to demonize and delegitimize Israel.  Although Israel is not the only country that has been subject to lawfare (the US and England have also been subject to suits arising out of the Iraq war), Israel is a primary target.

Q:  Where are lawfare cases initiated?
A:  NGOs exploit universal jurisdiction statutes in Europe and North America to bring these cases.  These statutes allow courts to preside even though the parties and events at issue are entirely foreign.  In some countries, such as Spain, an NGO can apply to a court directly for an arrest warrant or to launch a criminal investigation without the knowledge or approval of the government.

Q:  Who are the leaders of the lawfare movement?
A:  The Palestinian Center for Human Rights, FIDH, the Center for Constitutional Rights (New York), Al Haq, and Adalah.

Q:  Who funds these NGOs?
A:  These organizations are funded by the EU, European governments (Ireland, Norway, Sweden, Denmark), and prominent foundations such as the New Israel Fund, the Ford Foundation and the Open Society Institute.

Q:  What are the positions of NGO superpowers such as Amnesty International and Human Rights Watch?
A:  These NGOs support lawfare against Israel by providing publicity, organizing demonstrations, and issuing reports crafted as legal briefs to coincide with court hearings.

Q:  How many lawfare cases have been filed against Israelis?
A:  Since the adoption of the lawfare strategy, at least ten cases have been filed against Israelis in England, New Zealand, Spain, Belgium, Switzerland, and elsewhere.   Nine of the cases have been dismissed at the preliminary stages and one case is still pending in lower court.  Despite the dismissals, the damage — including the public perception of Israel, the interference with Israel’s diplomatic relations, and the movement restrictions placed on Israelis singled out for this harassment — is considerable.

Q:  Why don’t NGOs bring cases against Israel at the International Criminal Court or the International Court of Justice?
A:   Israel is not a party to the International Criminal Court or the International Court of Justice due to the overtly political nature of these bodies. The UN Security Council, however, can refer a case to the ICC and the UN General Assembly can refer cases for advisory opinions to the ICJ.  In 2004, the GA referred a case to the ICJ for an advisory opinion regarding the “legality” of Israel’s separation barrier.  Advisory Opinions issued by the ICJ are not legally binding.  In the wake of the Gaza War, NGOs such as the International Federation of Human Rights (FIDH (France)) are lobbying the UN for either a Security Council referral to the ICC or a General Assembly referral to the ICJ.  According to media reports, Amnesty International is transferring files to the ICC Prosecutor regarding alleged “war crimes” committed by Israel.  These reports make no mention of Amnesty transferring files to the ICC Prosecutor regarding Hamas war crimes aided by Iran and Syria.

Gaza War-related FAQs

Q:  What NGOs have been issuing calls for lawfare since the start of the Gaza War?
A:  PCHR is preparing for lawsuits to be filed abroad and appears to be focusing on filing a case for the killing of  Nizar Rayan, one of the leading architects of Hamas atrocities and who sent his son on a suicide bombing mission in 2001.  An Indian newspaper reported on January 25, that PCHR is preparing cases in six countries, targeting 87 Israelis for harassment.  In the article, PCHR’s Director claims that “dozens of arrest warrants have already been issued.” Other NGOs calling for lawfare in the wake of the Gaza war include the Alternative Information Center (“Barak and all Israeli Leaders—To the Hague“), Adalah (Statement to the UN Human Rights Council), Amnesty International (Oral Statement to the UN HRC, Open Letter to George Mitchell), Ittijah (Adalah is a coalition member — January 7, 2009 Press Release), and the Arab Association for Human Rights (“Israel is not above International Law,” January 7, 2009 Press Release).  One anonymous group established a website, entitled “Wanted,” with pictures of Israeli government and military officials.  The website asks those with “information about the suspect[s] when [they] are outside of the Israeli borders” to contact the Prosecutor of the ICC.

Q:  Are Israeli NGOs such as B’Tselem involved in lawfare?
A:  NIF- and EU- funded Israeli NGOs such as B’Tselem, Gisha, Yesh Din, Mossawa, and Physicians for Human Rights-Israel are not at this stage overtly calling for lawfare, but have issued tens of statements leveling charges against Israel such as “collective punishment”, “wanton” use of force, “deliberate” and “unprecedented” harm to civilians, “blatant violation of the laws of warfare,” and “suspicion” of “war crimes.”  B’Tselem even claimed that “it is hard to think of a clear military advantage which could be accomplished” by the killing of Rayan.  These one-sided statements, the distortions of international law, and the emotive “testimonies” collected by these organizations contribute to hostility towards Israel and can underpin any lawfare cases that are filed.

Q:  What is the Israeli government doing to combat lawfare?
A:  The Israeli government is taking the threat of lawfare seriously. The IDF has established a team of legal and military experts to collect evidence which can be used to exonerate its officials.  It has appointed an inter-ministerial team, headed by Justice Minister Prof. Daniel Friedman to defend any Israeli subject to suit.  The army is also protecting the identities of battalion and brigade commanders who participated in the war.  However, the government is largely reactive and has not addressed the core role of NGOs and their funders.

Q:  Is there merit to the NGO claims against Israel?
A:  The NGOs calling for lawfare base their allegations on faulty legal premises, factual distortions, and unreliable “eyewitness” testimony.  These NGOs do not possess the military or other factual information necessary to level their charges.  Many NGOs claim Israel breached the laws of war by attacking the Hamas government and its police force on the basis that these are “civilian” entities.   There is no basis, however, for labeling the Hamas government or its police force as civilian, and there is clear evidence that members of these institutions have been involved in attacks.

These NGOs also distort international law by claiming Israel committed “war crimes” by attacking military targets located within civilian infrastructure such as homes, schools, mosques, and hospitals.  Under the Geneva Conventions, the presence of civilians does not render military targets immune, and any civilian deaths resulting from Hamas’ use of human shields in these areas are the responsibility of the terror organization and not Israel.

Many NGOs claim to have greater military knowledge than the IDF, questioning the military advantage of various targets.   In fact, former British army colonel Richard Kemp noted on the BBC that there has been “no time in the history of warfare when an army has made more efforts to reduce civilian casualties and the deaths of innocent people than the [Israel Defense forces did in Gaza.]”   (For more faulty legal claims against Israel, see NGO Monitor’s report: “The NGO Front in the Gaza War:  Exploitation of International Law.”)

Q:  Amnesty International and Human Rights Watch claim that their researchers in Gaza have found “prima facie” evidence of “war crimes”. Is this evidence reliable?
A:  No.  NGOs researchers are not trained professionals in evidence or forensic collection.  These NGOs rarely name their researchers, specify the collection methodology, or identify witnesses.  There is no way of ensuring that this “evidence” is preserved according to forensic standards or that NGO researchers have maintained a recognizable chain of custody.  Due to the absence of any standards or publication of their methods, NGO “evidence” is impossible to corroborate or verify.  The New York-based NGO Human Rights First, has criticized NGO involvement as actually being harmful to a criminal investigation because, “[m]ost NGOs do not employ trained criminal investigators” and this “untrained collection of physical or forensic evidence” can “limit its value” before a court.

Q:  Have these same NGOs called for lawfare against Hamas, Iran or Syria?
A:  No.  In contrast to the many appeals for lawfare against Israel, very few, if any, of these NGOs call for the filing of cases against Hamas.   Hamas war crimes, such as deliberately attacking Israeli civilians with thousands of rockets and mortars; the widespread use of human shields within Gaza; and the killing and maiming of Gazan civilians from premature denotation of Hamas weaponry and “work accidents” are completely ignored.   These NGOs also remain silent regarding the violation of Gilad Shalit’s rights under the Geneva Conventions as a prisoner of war.  Similarly, Iran and Syria — Hamas’ sponsors and conspirators in its legal violations — are not called to account.

For Further Background Reading:

“Lawfare,” David B. Rivkin and Lee A. Casey The Wall Street Journal, February 23, 2007

“Israel, Gaza, and International Law,” Alan Dershowitz, The Jerusalem Post, January 27, 2009

“Amnesty International’s anti-Israel stance undermines human rights and international law,” Prof. Avi Bell, Jurist Hotline Blog, January 5, 2009

“International Law and the fighting in Gaza,” Justice Reid Weiner and Avi Bell, MESI, December 29, 2008