Reprinted from The Hill
Lawfare, as the name suggests, is the concept of using the law itself as a weapon of war. What it has meant in practice is turning American courtrooms into battlegrounds between private actors and foreign litigants seeking leverage in international political disputes. As a court case just concluded this week in New York against the Palestinian Authority highlights, the increasing abuse of Lawfare litigation in the U.S. courts may soon have dangerous and irreparable implications for American foreign policy interests in the Middle East.
Israel's Shurat HaDin Law Center has featured in much of the Lawfare litigation, seeking to harass groups and individuals that it regards as hostile, tying them up with litigation so they become ineffectual or even bankrupting them when a friendly judge rules its way. Shurat HaDin is headed by Nitsana Darshan-Leitner and her husband Avi, who have described their organization as a means of "fighting back," particularly appropriate for Israel because "the Jews invented law." As of 2012, Shurat HaDin claimed success in obtaining $1 billion in judgments, freezing $600 million in defendant assets, and collecting $120 million in actual reparations payments.
Such court cases often play out over the applicability and meaning of loosely worded anti-terrorist legislation in the U.S., which makes it illegal to provide "material support" to any group identified as a terrorist organization. This deliberately vague language has opened the door for Lawfare to justify litigation if a State Department designated terrorist organization is in any way involved or can plausibly be implicated. Many of the charges are frivolous and only intended to advance foreign political interests through exploitation of the U.S. judiciary system. The suits frequently accomplish little beyond tying up American courtrooms. Those who are sued have to waste time and resources defending themselves, which is precisely what is intended.
Recent Shurat HaDin activity has included a flurry of litigation aimed at stopping 2011's Gaza Flotilla. A lawsuit was filed in federal court in New York City claiming that the sponsoring organization, the Free Gaza Movement, was raising money and preparing ships to be used in "hostilities" against American "ally" Israel, a violation of the U.S. Neutrality Act. Despite describing itself as an NGO, the organization works closely with the Israeli government, and received marching orders to stop the Gaza flotilla at all costs, as well as an offer of full support, directly from Prime Minister Benjamin Netanyahu.
In 2011, the New York State Supreme Court ruled that a lawsuit filed by a group of 84 Israelis against the Bank of China could proceed in U.S. courts even though none of the plaintiffs were Americans and the terrorist activity did not take place in the United States. In 2012, a Washington D.C. court awarded $332 million in damages to be paid by the Syrian government to an American family whose 16-year-old son had been killed in a 2006 suicide bombing in Israel based solely on the Palestinian Islamic Jihad group's having an office located in Damascus.
More recently Shurat HaDin has been threatening to use litigation on American university campuses where it perceives that there is toleration of "an environment of intimidation and hostility" that fails to protect Jewish and Israeli students against alleged anti-Semitic harassment, by which it means demonstrations by Palestinian supporters and calls for boycott, divestment and sanctions (BDS) against Israel.
To be sure, Shurat HaDin is unwaveringly political and ideological in defense of what it perceives to be Israeli interests. Depending on one's viewpoint, it is possible to perceive Shurat HaDin as either a nuisance or as a necessary resource for fighting terror. But either way, there are potential real world consequences that could result from its desire to punish anyone and everyone in any way linked to activity hostile to Israel.
The latest twist took place this week, when a New York City jury sided with the plaintiffs in a Shurat HaDin-supported lawsuit filed by victims of Palestinian bombings carried out in 2004 in Israel, and which alleged that the Palestinian Authority and Palestine Liberation Organization sanctioned the attacks.
The decision, which is being appealed, awards more than $600 million in damages from the Palestinian Authority and PLO. The plaintiffs can now ask Israeli courts to enforce the judgment by surrendering Palestinian Authority assets, including Palestinian tax revenue the Israeli government has been withholding for nearly three months, which will total more than $350 million by the end of February. This would likely lead to bankruptcy and the collapse of the Palestinian Authority together with the private sector, and a shutdown of schools, hospitals and government offices.
When that happens, the Palestinian security forces, which have been cooperating with the Israeli government's own police and army, will disband. Israel will then find itself having to re-occupy the West Bank and provide essential services, which will be extremely costly and would provoke the inevitable hostile backlash from the Palestinians. If that develops, it would make a bad situation immeasurably worse, both for Palestinians and Israelis.
It would also mean that the specious Israeli claim that they have no one to talk to among the Palestinians would become a reality, possibly leading to a rejection of moderate bilateralism by the frustrated and hopeless Palestinians which could leave only one option for attaining statehood: a return to violence.
Such a move to extremism over moderation may ultimately signal the end of achieving peace via the two-state solution that the U.S. and international community have invested billions of dollars towards.