Daniel Machover, a lawyer from London and founder of Lawyers for Palestinian Human Rights, has published a salvo against "die-hard supporters of Israeli policies" who he argues have co-opted the term "lawfare" on the Huffington Post blog. His comments have prompted some thoughts.
Mr. Machover begins by suggesting that applying the term lawfare is meant to discredit non-violent resistance as politically motivated efforts with no legal merit. What Mr. Machover ignores is that these claims, while indeed non-violent, are politically motivated on their face and they often have no legal merit, as evidenced by them being thrown out of court by judges in reputable, western jurisdictions. Consider, further to this argument, that Palestinian Lawyers for Human Rights has as it's goal the furthering of a political aim, that being achieving Palestinian self determination. Mr. Machover as well has represented the Palestinian Centre for Human Rights who have launched an extensive legal fishing expedition in the hopes of finding just a single case with which they can point to a legal decision branding an Israeli as a war criminal.
More compelling, however, is the fact that courts in the west have been considering and throwing out these lawfare style cases that Mr. Machover suggests are legitimate. Cases in Canada, the Netherlands and Spain, have all been thrown out because the courts determined that there were no legal grounds to pursue them. Mr. Machover, as a person who seems to speak with true conviction, and as a lawyer being paid by a client, naturally disagrees with these courts and may think that the law should be otherwise, but the courts of liberal democracies disagree with him. His response to these legal victories is to suggest that these cases were decided the way they were because "It is arguable that Israeli legal successes abroad have had nothing to do with the core merits of the cases concerned." Mr. Machover, however, does not make this argument.
Machover also suggests that Israeli courts are designed to provide immunity to those who would be prosecuted by the so-called "lawfare" cases in other jurisdictions. He points to situations where he believes that the Israeli courts have not done their job, but ignores he litany of cases where Israeli courts have made decisions that are anything but "subservient to the grinding machine of occupation and repression." Take for example the most recent decision allowing Palestinians access to a highway from which they had been barred for security reasons, decisions against soldiers for abuse of Palestinians, for land rights violations (see video), or for a list of other abuses where Israelis were found to have committed crimes.
Machover then points to this troubling incident, of Jewish groups in the United States supporting the dismissal of charges against a foreigner accused of human rights violations on the grounds that if the complaint is allowed, a flood of such cases may be brought against Israel in the US. Machover's point is that supporters of Israel must ally themselves with the worst violators of rights in the world to advance their positions because Israel's position is just as bad. He proposes that the world's worst most repressive countries would support an Israeli push to have universal jurisdiction laws reformed. What he does not consider, however, is that unlike these most repressive regimes, Israel is the country against which suits are regularly filed. Mr. Machover seems to be defeating his own argument that these cases against Israel are not politically motivated when he highlights how Israel seems to be lobbying to change universal jurisdiction laws because of the concerns it has, but other states do not.
What Mr. Machover ignores and fails to distinguish is that in the example he points to, the victims were punished merely for opposing the government, whereas in the Israeli context, cases are brought for injuries incurred in a war. Indeed, context is lacking from all of Mr. Machover's post. He suggests that terming cases against Israel as lawfare serves those who "want it to become lawful to use disproportionate force against civilians where they are proximate to what state actors identify as legitimate military and quasi-military targets." This is clearly not the case. There is no widely accepted suggestion that civilians should be faced with disproportionate force. Indeed, international law provides that civilian casualties should be minimized, but the law recognizes that mistakes occur in the fog of war and that "collateral damage" occurs and is not a violation of the laws of war.
Mr. Machover wants what everyone wants, a world without wars, or at the very least, a world where in wars, only combatants are hurt. The fact is, that this does not happen. If there were prosecutions in every case in which a civilian died in conflict, than the leaders of a great many countries would be standing in the docket: Canada, the US, UK, Israel, Russia, Georgia, basically every NATO country and many, many more. Mr. Machover seeks a utopia which does not exist in law or in reality and his goals of having the law act as a deterrent for violations should an Israeli be found guilty would not be realized with the pronouncement of a guilty verdict.
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