Courtroom battle

Larry Goldstein takes a look at how Israel fights via ‘lawfare.’

By AARON LEIBEL
Gavel [Illustrative] (photo credit: INIMAGE)
Gavel [Illustrative]
(photo credit: INIMAGE)
War used to be a relatively straightforward affair.
One army representing one country – or several armies representing allied nations – fought other armies on the battlefield. The soldiers wore uniforms and used bows and arrows and spears or rifles and tanks. One army tried to destroy the other, or at least force it to give up its positions on the battlefield. That was called “symmetric warfare,” author Larry Goldstein explains in A Table Against Mine Enemies: Israel on the Lawfare Front.
With a few exceptions, such as the opening phase of the Yom Kippur War, Israel has done well in such conflicts.
But in the 21st century, warfare has evolved to include non-states using cyber tools, robots, drones and “lawfare” – some of the weapons in “asymmetric” war. In those types of struggles – for example, Israel’s wars against Hezbollah and Hamas – the results have been mixed.
The main reason that the Jewish state has fared less well in those wars is because its enemies are so adept at using lawfare – “the use, or abuse, of law as a weapon of war” – the subject matter of this book.
The goal of those groups is to use the law to try to discredit the Jewish state in the court of world public opinion and to handcuff Israeli political and military leaders with lawsuits and threats of lawsuits, deterring them from using the weapons at their disposal for winning the war.
That same strategy has been and will be directed against the United States and other Western countries, Goldstein stresses, in a book that would have benefited from a writer whose skills matched Goldstein’s legal acumen.
What can those nations do to protect themselves? In the case of Israel, led by Shurat HaDin-Israel Law Center, the most important factor seems to have been creativity.
In 2009, the author notes, a Spanish judge ruled that his court would open an investigation against eight Israeli political and military leaders in the matter of the death of 14 civilians during an air strike in Gaza in 2002 that killed a leading Hamas terrorist.
Instead of providing legal counsel for the Israelis, the center took the offensive. It began preparation of a criminal indictment against Javier Solana, a prominent Spaniard who had been head of NATO during the Kosovo War when 500 civilians were killed during a series of bombing raids aimed at “military infrastructure.”
As a result, not only was the lawsuit against the Israelis thrown out of court, but the law – which enabled a Spanish court to hear a case in which an alleged crime had been committed elsewhere and involved no Spanish citizens – was in effect rescinded.
The Spaniards had been faced with an impossible choice – either “to prosecute their own leader for criminal liability or expose their entire system as a hypocritical sham,” the author writes. So they backed down.
The law center also thwarted a second flotilla in 2011, whose stated goal was to bring humanitarian aid to Gaza, but whose real aim was to break the Israeli blockade. Shurat HaDin warned insurance companies of their liability for damage resulting from the ships running the blockade and from any damage or harm that weapons the ships may be carrying might cause to Israeli citizens.
It also filed a lawsuit against the company that was to provide satellite communications services to the ships in the flotilla.
Although the suit was not successful, the company decided to err on the side of prudence and withdrew its services from the flotilla.
In addition, the center contacted Greek authorities and told them that the ships that were to sail from their country were uninsured and had given false information as to their destination. (Some had listed their destination as Alexandria, Egypt, rather than Gaza.) The Greek coast guard prevented nine of the 10 ships from sailing.
Goldstein says warfare has changed drastically in the past 75 years, but much greater changes are on the horizon. By 2035, warfare will be predominantly “Robotic/ Cyber.” This will provide lawfare warriors with new possibilities.
■ Aaron Leibel is a former editor at The Jerusalem Post and Washington Jewish Week. His novel Generations: The Story of a Jewish Family, which spans 1,500 years and three continents, is available online.


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