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ANALYSIS: 'Lawfare' is the new battlefront for Israel-Palestine

US courtrooms may not be a level playing field for legal battles between pro-Palestinian and pro-Israeli lawyers
The Palestinians are set to join the ICC war crimes tribunal on April 1, opening the door on potential cases against Israeli officials for crimes dating back to mid-June 2014

NEW YORK - Palestinian efforts towards statehood and international legitimacy took a hit this week, with US jurors blaming Palestinian officials for terror attacks in Israel that killed or wounded American citizens a decade ago.

A New York civil court decision to award $218.5m in damages against the Palestinian leadership was a major setback in a battle against Israel and its supporters, a decades-old dispute that is increasingly being played out in law courts.

But the use of so-called “lawfare” - scoring public relations wins in courts - by Palestinians and Israelis has no clear frontrunner; and Palestinian membership of the International Criminal Court (ICC) later this year is likely to change the playing field.

In the Manhattan case, jurors said the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) had ordered or financed six terrorist strikes in 2002 and 2004 and awarded damages of $218.5m - which can be tripled under provisions of the US Anti-Terrorism Act.

The trial followed a decade-long wrangle over the US federal court’s jurisdiction and other issues. Bomb blast victims gave emotional testimony in a case that tackled whether pension payments to relatives of Palestinian “martyrs” amounted to financial support for terrorism or welfare.

After the verdict, Palestinian officials denied ordering or paying for the attacks, even if they were carried out by employees. PLO official Hanan Ashrawi said the Palestinians could only afford to settle the damages bill with “furniture from our offices in Washington”.

With Palestine’s ICC membership fast approaching, Middle East Eye (MEE) takes a look at the courtroom battles being fought between pro-Palestinian and pro-Israel lawyers through a wide range of legal mechanisms around the world.

Was justice served in New York?

Attorneys for the plaintiffs hailed the decision as “historic”. Emmanuel Nahshon, a spokesman for Israel’s Foreign Ministry, told MEE of a “moral victory for the victims and an endorsement of our position that the PA has been fully and willingly behind terror attacks”.

Morton Klein, President of the Zionist Organization of America, went further. “We’ve known for 20 years that the PA pays pensions to families of terrorists who were killed or are in prison; and the more Jews they killed, the bigger the pension,” he told MEE. “It’s shocking it took so long to bring this barbaric and Nazi-like regime to justice.”

Not everyone agrees. Pro-Palestinian lawyers say US jurors are biased towards Israel - evidenced by a Gallup survey this month, which found that 62 per cent of Americans said they sympathized more with Israelis than Palestinians.

“The case stinks from beginning to end,” Michael Ratner, president for the Center for Constitutional Rights (CCR), told MEE. “I’m sympathetic with people who are killed in suicide attacks. But this was a real stretch to get to the PA and PLO, and they exploited all kinds of loopholes in a court, in a city and a country that is overly sympathetic to and protective of Israel.”

George Bisharat, a Palestinian-American law professor at California University, said there is “nothing illegitimate” in using courts to score political points.

“What’s unfortunate to me is that US courts operate with laws and assumptions that don’t provide a level playing field on Israel-Palestine,” he told MEE. “The record of judgments going back to the First Intifada shows sympathy for Israel and hostility for Palestinians, both by courts and jurors,” he said. 

Which side is winning in “lawfare”?

Shurat HaDin, a pro-Israel law group that was involved in the New York trial, uses “court systems around the world to go on the legal offensive”, according to its website, including such US remedies as the Anti-Terrorism Act and Alien Torts Statute.

When a pro-Palestinian flotilla of ships planned to break Israel’s blockade on Gaza in 2011, Shurat HaDin delayed vessels by warning maritime insurers not to help terrorists. It warns US colleges of prosecution if they permit “rampant anti-Semitism” on campus. The group, which did not answer MEE requests for an interview, even filed a case against Jimmy Carter over the former US President’s book Palestine: Peace Not Apartheid.

Pro-Israel lawyers chalked up a victory in New York last year when jurors agreed that Arab Bank was liable for materially supporting Hamas. Damages will be decided in a later trial. Other US civil cases from pro-Israel groups have been thrown out for lack of jurisdiction.

Pro-Palestinian cases have fared poorly. In 2005, Ratner, the CCR President, brought a US class action suit against Avi Dichter, Israel’s former security chief, over a one-tonne bomb hitting a Gaza City apartment block in 2002. Dichter was granted immunity from prosecution.

Last year, Britain granted Israeli justice minister Tzipi Livni temporary diplomatic immunity so she could attend peace talks in London without a repeat of efforts by a pro-Palestinian group to seek a warrant for her arrest on war crimes charges.

Survivors of the 1982 massacres in Lebanon’s Sabra and Shatilla refugee camps brought a case in Belgium against Ariel Sharon, Israel’s defence minister at the time, under a “universal jurisdiction” law, in 2001. Belgian lawmakers repealed the law under US pressure.

Do pro-Palestinian lawyers ever win?

Yes, they secured a landmark victory in 2004 when judges at the UN’s International Court of Justice (ICJ) voted 14-1 in their favour and advised that Israel’s barrier-building on occupied Palestinian land was illegal and called for construction to stop.

Palestinian lawyers note that the ICJ, based in The Hague, rules on inter-state disputes and is less prone to outside pressure, in contrast to domestic US courts and US efforts to shield Israel from international criticism. 

“In one way it’s about justice, but it’s also about power,” Ratner told MEE. “The legal system is hypocritical; it’s willing to pay lip service to justice but, when it comes to enforcement, it’s only enforced against the less powerful.” 

Will the ICC be a game-changer?

After securing de facto recognition of statehood at the UN in 2012, the Palestinians are set to join the ICC war crimes tribunal on April 1, opening the door on potential cases against Israeli officials for crimes dating back to mid-June 2014.

Last month, the ICC prosecutor opened a “preliminary examination” into alleged atrocities there, which could include Israeli settlement-building in the West Bank and last year’s Gaza war that killed some 2,100 Palestinians, mostly civilians, and 67 Israeli soldiers and six civilians in Israel.

Ratner said the ICC, based in The Hague, resists political pressure. “Like the ICJ ruling on the wall, the burden of evidence for the ICC is so substantial that, for it to retain any legitimacy, it must investigate and prosecute atrocities against Palestinians,” he told MEE.

But the ICC cuts both ways, and is obliged to also probe Palestinian war criminals. The Israeli law activist group Shurat HaDin has already called for ICC charges against PA President Mahmoud Abbas and other Palestinian leaders.

“It’s a young institution, establishing its legitimacy,” Bisharat told MEE. “One way to deflect pressure from Israel is to similarly investigate Palestinian violations.”

Nahshon, the Israeli official, said ICC membership is “not helpful to the negotiations” that are the only route to Israeli-Palestinian peace. The US agrees. Jamil Dakwar, a scholar at John Jay College for Criminal Justice, said the ICC can only yield modest gains for Palestinians.

“The ICC move only temporarily shifts the battle from the political and diplomatic sphere into legal avenues,” he told MEE. “No court decision will end the Israeli occupation. It should at least have a deterrent effect, mainly on Israel as the occupying power, which has enjoyed impunity for decades.”

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