Wednesday, May 13, 2009

Can Lawfare be Good for the Goose and the Gander?

Lawfare, which may be fairly characterized as a means of asymmetrical warfare, is a two way street.

Part of the purpose of lawfare, and all asymmetrical warfare, is to drain the resources of a more powerful opponent who you may not be able to defeat in a direct military confrontation. In the Israeli case, the highest levels of the political echelon have dedicated their time to lawsuits being brought against Israel and its citizens by creating a special ministerial committee, composed of some of the highest ranking ministers and jurists in the country. The committee will have as its mission the frustration of legal suits brought against the state and its citizens and will be composed of experts in PR, politics and law.

The committee was originally established to deal with a suit brought against Israel under Spain's universal jurisdiction. Now however, it's role is changing from merely reactive to offensive. The Israeli cabinet has accepted a proposal that this committee should respond with legal action to each and every rocket or mortar launched against Israel from the Gaza strip. What the article does not mention is where will these legal complaints be brought? The only clue given is "...formal complaints to various international organizations." It's quite possible, actually, that the responsible authorities in Israel are themselves not sure where to bring these complaints.

Complaints can probably not be brought before Israeli courts because the residents of Gaza are not subject to Israeli law. If anything, they could only theoretically be tried in absentia. Also, the purpose of this exercise is, it appears, to establish internationally recognized jurisprudence condemning Hamas action. From a political perspective, an Israeli court would not be the best place to achieve this international recognition.

Universal Jurisdiction statutes around the world, such as the one in Spain being used against Israel are also an option for Israeli plaintiffs seeking to legally condemn Hamas but problems exist here too. There is first the question of which country's universal jurisdiction to use. Several countries have such jurisdiction, however, what the Israeli cabinet seems to be proposing here will mean a massive influx of legal complaints. Israel will most likely not want to be seen to be flooding the courts of friendly countries with complaints and tying up their courts. Nonetheless, individual states with universal jurisdiction statutes remain possible sites for Israeli prosecutors to bring their cases.

Turning to international organizations, the International Criminal Court would not likely be a venue for any Israeli complaints. Israel is not a signatory of the Rome statute and so does not accept the jurisdiction of the court over its own citizens or acts committed on its territory. Neither the Palestinian Authority nor Hamas are signatories either. If Hamas members happened to have dual citizenship in a country that has signed the Rome statute, then the court could have jurisdiction, and this is possible, but in the region, only Jordan has signed the Rome statute. The ICC also states that it only tries "...those accused of the gravest crimes..." While firing rockets indiscriminately at civilians is an extremely grave crime, it is not akin to some of the more heinous things the court was established to punish. The last chance for the ICC to have jurisdiction is if a case is referred to it by the UN security council. This would require the Security Council to take action under its Chapter VII which deals with breaches of peace and acts of aggression. Could Israel make such a petition. Yes, it's possible. Certainly the Security council would be an appropriate forum in which to complain of acts of aggression. It is far more difficult to predict if the council would go so far as to recommend that Hamas leaders be brought before the ICC. Another complication of the matter is that these individuals would need to be arrested to be tried. Considering they are not permitted to leave Gaza, and that only Jordan is a signatory of the Rome statute, such a prospect seems remote.

Another, and probably best option for Israel would by the ICJ, the International Court of Justice. In adversarial procedures, the IJC only has jurisdiction where one state pursues another. Hamas, not being a state, cannot be sued by Israel. The court can, however, issue advisory opinions, as it has done in the past on issues such as the legality of nuclear weapons. The legal obstacle here, is that similarly to the ICC, the ICJ can only render a legal opinion (see this too) on a matter if it is referred by one of several organs of the UN. The General Assembly and the Security council are each valid referring organs, but there are others. Israel will have its legal and diplomatic work cut out for it if it would like to have an opinion rendered by the ICJ.

No comments: