Tuesday, August 11, 2009

Lawfare in Two Hemispheres

Two interesting cases of lawfare to report.

The first comes from South Africa where two NGOs have filed what is being referred to as the "Gaza Docket" a multi-thousand page series of documents and affidavits pressing charges against some 70 South Africans who are also serving in the IDF because of the war crimes supposedly committed by the IDF in the war against Hamas in Gaza.

One reason to charge some of these 70, under South African law is a prohibition against South African citizens serving in foreign militaries. Apparently, however, exceptions are made for those with dual citizenship and so thousands of South Africans are legally enlisted in militaries outside of South Africa. It's also unclear that all of the 70 people named in the docket actually served in Gaza during the war.

The docket was drafted with the assistance of two South African law professors, Professors John Dugard and Max du Plessis whose notoriety and positions on the issue are clear from their previous work on the middle east. The views of these two lawyers, however, are not really the issue. What's most problematic about this case is that it seeks to have South African courts decide a question of international law, that it seeks to prosecute for war crimes, people who may not even have participated in the operation being labeled as a war crime and in so doing, seeks to create a legal precedent which would essentially make it illegal for South Africans to join the Israeli military even as they are free to join the militaries of other countries in which they have dual citizenship.

The other case of lawfare (first noticed on a blog I stumbled across by Fred) involves an Israeli with dual French citizenship who lives in Sderot. This individual claims that the EU bears some responsibility for the hardship he has suffered living within range of rockets and mortars fired from the Gaza strip because the EU has failed in its obligations to cut funding from terrorist groups in the Gaza strip. The Israeli-French complainant is demanding that the EU curb its funding to these groups, make all funds sent by the EU to NGOs and other groups in the region 100% transparent and finally, respect the EU legal guarantees of protection to all EU citizens, wherever they live by, amongst other things, helping to reinforce buildings in Sderot against rocket attacks.

This case is asking for a decision that may be based in law, but is also highly political, especially as concerns funding provided by the EU to various groups. For this reason, it would be surprising to see this case advance very far. Another interesting point is that the complainant asks the EU to stop the transfer of funds to any group Israel deems as terrorist and to bar the entry of any person Israel deems to be a terrorist to the EU. This seems somewhat strange as it is theoretically possible that the EU and Israel could define individuals and groups quite differently. It's unclear that there is any real EU obligation to arrest or cease funding to groups or individuals that a non-EU member-state deems to be unsavory or in violation of that third countries laws.

Both cases will be interesting to watch as each of them are highly political in nature and would, if successful, set significant precedents.

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