Wednesday, January 6, 2010

Thoughts on Lawyer Behind Much Lawfare Against Israel

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.


Joe in Australia said...

You call the incident troubling, but I'm not sure that it is. It is the nature of legal defense that it protects the bad as well as the good. I've read their brief (and I don't think it's particularly persuasive) but they clearly have an interest in the way this statute is interpreted and it would seem to be their duty to present their arguments in this case. The alternative would be to say that sovereign immunity should only apply to good people, not bad - which is to say that it shouldn't apply to anyone.

Charlie H. Ettinson said...

Hmmmm...Joe...I wrote a reply to you and it seems not to have been posted. I can't even get comments up on my own site!!!

The bottom line of what I wrote was that there is a nuance between supporting the actions of the accused in this case and arguing in support of a legal principle. This nuances is lost on the general public and the optics of the Jewish community standing on the same side of this accused are used by Machover and other like minded individuals to create the image of guilt by association.

Thermblog said...

Mr. Machover has no trouble attaching the "Apartheid" label to Israel.,7340,L-3141664,00.html
In October 2000, Machover signed a letter which compared the Oslo peace process to “apartheid.”

His views on the word "lawfare" are thus invalidated. In any case, the use of lawfare diminshes the law.

Charlie H. Ettinson said...


Thanks for the comment, and the link.

I've heard Machover make a number of comments of questionably veracity and accuracy, similar to the one you point to. I don't know why that would invalidate his position on lawfare though. I mean, to be clear, I disagree with him, but I don't think that he's wrong because he thinks Oslo is Apartheid. I think he's wrong, well, for the reasons above!

Thermblog said...

Charlie: Machover is being hypocritical and I have come to believe that pointing out such hypocrisy is the best way to argue against his ilk.