Monday, March 23, 2009

"Preemptive" Defensive Lawfare

Alan Baker, the former Israeli ambassador to Canada is suggesting that Israel take the first step and investigate allegations of war-crimes domestically, before being asked. Baker's argument is that in an effort to delegitimize Israel, groups and individuals will seek to wage lawfare against Israel at international tribunals and in countries with universal jurisdiction. Baker argues that such international courts can only claim jurisdiction where the accused state refuses to conduct its own internal investigations. Ergo, if Israel independently investigates accusations against it, then it can stave off lawfare attacks and cases against it in other, foreign jurisdictions and in so doing, demonstrate that it takes such accusations seriously and gives them the attention they merit.

Baker's reasoning is sound, notably when he points out that inappropriate or illegal action by Israeli soldiers were aberrations and that "...Israel did not systematically go in and commit war crimes." Therefore, these aberrations should be investigated and their perpetrators rooted out, as Canada did with its disgraced airborne regiment, for example.

Calling this preemptive lawfare is a bit of a misnomer. Preemptive lawfare would best be characterized as launching a first legal strike and taking action against those who would pursue you, prior to you pursuing them. What Baker is proposing is fortification, defense and rendering it more difficult, if not impossible for the opponent to hit at you.

The downside to this approach, however, is that in a way, it allows lawfare to succeed by requiring the Israeli legal system and government to dedicate large amounts of additional resources to investigate all claims against Israel and Israelis and to examine what may even be frivolous claims, just to make the point that the claims are being examined. In some ways, it would allow those who would perpetrate lawfare to keep Israeli jurists and the Israeli legal system 'pinned down' and perhaps even slow to respond to not only new complaints, but other pressing domestic legal issues.

Lawfare is a phenomenon that cannot be ignored and will come to represent an increasingly important component of asymmetrical conflict, especially in the case of the Arab-Israeli conflict. If Israel will be faced with legal cases on the international scene anyway, it is a better decision for the state to take pains to preempt what could be costly cases on the international stage by dealing with them at home, in a system Israeli lawyers will already be more familiar with.

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