The Meaning of Lawfare
Of Torts, Diplomacy, Israelis and Palestinians
On Monday, a New York jury found the Palestinian Authority and the Palestinian Liberation Authority responsible for a series of terror attacks that killed and maimed American citizens in Israel from 2002 through 2004. The politically-fraught civil judgment in Sokolow vs PLO awards the victims an initial $218.5 million (a sum that may still be tripled) under provisions of the Anti-Terrorism Act that allows,
Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.
The case highlights the way in which key elements of the Israeli-Palestinian conflict have shifted to a legal battlefield, how that battlefield is structured, and the dangers inherent when torts encroach into the arena of politics.
Israel and “lawfare:”
Although the immediate Israeli reaction to Monday’s jury verdict is unmitigated glee, supporters of Israel have long been distinctly unsettled by the sort of litigation this case represents. For years, Israeli advocates have expressed frustration with Palestinian attempts to pressure Israel through European and international courts, seeing these as end-runs around the difficult work of direct diplomacy. In a recent Lawfare podcast, for instance, senior Israeli military lawyer Daniel Reisner described how Israel struggled to respond to the first Arab attempts to prosecute its officials and companies in European civilian courts. Since those early years, fears about these sorts of court actions have only deepened, becoming something of an obsession for those concerned for Israel. In turn, those fears have led to Israel’s adoption of a slew of preventative measures, including threats to aid if Palestinians turn to the ICC and a proliferation of advocacy organizations devoted to fighting Palestinian “lawfare.” (Here at Lawfare, of course, we use the term a bit differently.)
Initially, most organizations devoted to combating these legal assaults against Israel (including the conspiracy theory-prone “Lawfare Project”---which has no relationship whatsoever with this website) adopted a formally content-neutral stance of opposition to all “lawfare.” They saw something nefarious, almost dishonorable, about Israel’s militarily inferior opponents turn to legal tactics, and opposed political litigation as a matter of general principle. This view was heavily influenced by the arguments of military scholars like Charles Dunlap, who once lamented in a widely-noticed article the “disturbing evidence that the rule of law is being hijacked into just another way of fighting (lawfare), to the detriment of humanitarian values as well as the law itself.”
Shurat Hadin, the Israeli legal advocacy group that gathered the plaintiffs to bring the recent suit, has adopted a polar opposite approach. Its self-described mission is to use the “court systems around the world to go on the legal offensive against Israel’s enemies.” Some worry that its approach may, in the long run, backfire, legitimizing the very battlefield on which Israel is most vulnerable. But as Western countries grow increasingly war-averse, legal tools---and particularly sanctions---have become a weapon of choice. And in turn, the principled opposition has largely become less principled or less opposed. In that context, even private litigation that goes after terror groups have gained widespread acceptance, culminating both in Monday’s verdict and a similar judgement against Arab bank just a few months ago.
Complicating the legal battles unfolding between Israel and the Palestinians are a set of profound, but divergent, asymmetries.
In most international fora, Palestinians hold a significant set of advantages. In Europe and elsewhere, Palestinians are generally seen as victims of a much stronger Israeli state. This widespread sympathy has concrete results---in the kinds of cases prosecutors are tempted to bring, in the verdicts that are likely to be delivered, and for the likelihood that national governments will insert themselves. These effects are only compounded by the expanding size and influence of global Arab and Muslim populations, and by a human rights community reflexively hostile to states, militaries, and American allies.
Beyond these structural factors, there is growing danger that Israeli policy itself---particularly counterterror activity and West Bank settlement---faces the prospect of international criminalization. In an environment where asymmetric casualty counts are increasingly perceived as presumptive evidence of war crimes, Israel will only find itself more embattled. This is especially true as technological advances, such as Iron Dome, continue to reduce Israeli fatalities, and Hamas tactics continue to place Palestinian civilians in greater danger. And in an international legal context where any and all Jewish building beyond the 1948 armistice lines have come to be considered criminal violations (rather than simply contentious or controversial policy), Israel finds itself vulnerable to prosecution for admitted activities in a way that Palestinians simply are not.
At the same time, American policy in particular has counterbalanced this Palestinian legal edge with a set of Israeli advantages. First, the US has imposed significant political costs on a Palestinian pursuit of anti-Israel litigation, legislating harsh financial penalties if Palestinians turn to the ICC. Yet Palestinians seem increasingly prepared to incur those costs, perhaps betting (rightly) that the US and Israel simply need the Palestinian Authority too much to let it collapse. But more critically, both common law and the Foreign Sovereign Immunities Act makes prosecuting foreign governments (and officials) extremely difficult in American courts. As a state, Israel enjoys immunity from most litigation; the Palestinian Authority does not. And because the US remains the center for much of global commerce, the asymmetry in Israel and Palestinian legal positions here is of particular importance.
Politics and implications:
Although the Sokolow case began in 2004, the timing of the jury verdict adds another layer of complexity. Palestinian Authority President (and PLO Chairman) Yasser Arafat’s involvement in terrorism was legendary, so on the merits, Monday’s judgment is hardly surprising. Nevertheless, the PA’s role in the Israeli-Palestinian conflict has shifted dramatically in the decade and half since Arafat unleashed the second intifada. Of course, Abbas’ PA is still in many ways Israel’s opponent, applying constant diplomatic, rhetorical and legal pressure in an attempt to impose Palestinian policy preferences. Some of these policy positions are dangerous for Israel, others are inherently damaging to its core interests (e.g. Palestinian insistence on a “right of return” for Arab refugees to Israel proper). But crucially, unlike a decade ago, the Palestinian Authority is now solidly committed to nonviolence. There are still occasional lapses (especially with stone-slinging), but Abbas’ security forces are now key allies in the repression of Hamas and other violent elements within Palestinian society. This is a major advance, and the sort of shift that the West has an interest in establishing as precedent. Punishing an organization for terrorism just as it has turned decisively away from this tactic---no matter its other sins---is a very complicated business.
Potentially more frightening, the Palestinian Authority is, according to some of the Mideast’s most serious analysts, teetering near collapse. President Abbas is now in the eleventh year of a four-year term, most Palestinians have given up hope that a negotiated agreement will be had anytime soon, and in retaliation for recent unilateral moves at the UN and ICC, Israel has held up hundreds of millions of dollars in PA funding. Thus the PA is sapped of legitimacy, struggling to pay its workers and is threatening (likely emptily) to shut itself down. But as Hamas constantly maneuvers for greater power and struggles to inflict damage on Israel, and as Israel seeks to disentangle itself from the Palestinian population that it has no interest in governing, the PA has rarely been as essential. Already teetering on insolvency, half a billion in damages is a cost the Palestinian Authority---and perhaps by extension, Israel---can ill-afford.
The Danger of Torts:
The complexity of the Palestinian Authority’s political situation represents a call for caution for precisely the sort of "lawfare" that Shurat Hadin appears to be perfecting. The PA, after all, is an organization that has mostly renounced terrorism, but that continues to pursue policy goals deeply at odds with those of America and its allies. It offers invaluable assistance against Hamas, but through cash payments to past terrorists, public statements and educational materials simultaneously creates a culture of incitement against Jews, Israel and the West. It offers a viable partner for negotiations, but continually undermines itself with corruption and incompetence. Maneuvering with such an entity---pushing the proper pressure points, offering the right carrots and sticks in order to facilitate best outcomes---requires a high-wire act of artful diplomacy.
Private lawsuits, however, are the polar opposite of this kind of diplomacy. They are initiated in the service of private interests and are adjudicated according to abstract legal principles. Political exigencies and budgetary realities---for instance, whether the PA is critical for regional stability or whether it is close to broke---are simply irrelevant to the law. That is why torts are such a dangerous tool of politics, and perhaps why some supporters of Israel have been so skeptical of tactics like those of Shurat Hadin. Diplomacy considers fast-changing context and requires constant calibration; law is a blunt instrument. So while we should be pleased for the victims who have won a just verdict, justice, perhaps, is not always what we need.