From warfare to lawfare: Israel’s other battleground (2)
Far away from the carnage in Gaza there’s a small army of lawyers in Britain battling against critics of Israel. UK Lawyers for Israel (UKLFI) uses its members’ legal skills to combat “attempts to undermine, attack and/or delegitimise Israel, Israeli organisations, Israelis and/or supporters of Israel”.
But how, exactly, does it go about that? In a four-part report Brian Whitaker investigates …
1. The complaints department
2. Siding with the hardliners
3. A war against charities
4. Protecting Zionism
2. Siding with the hardliners
UKLFI makes no bones about its support for Israel. One of the aims listed in its articles of association is “to contribute generally as lawyers to creating a supportive climate of opinion in the United Kingdom towards Israel”.
During the Gaza conflict it has issued a series of “briefing notes” with a pro-Israel spin about the laws relating to genocide, humanitarian aid, targeting of hospitals, etc. It has also compiled a Q&A written “in a way that can be understood by non-lawyers” on the laws of armed conflict as they relate to Gaza. Basically, this provides a set of ready-made arguments that Israel’s supporters can use in reply to critics. A colourful booklet version of the Q&A is available from StandWithUs, a right-wing pro-Israel organisation which is very active in US universities.
UKLFI doesn’t just provide general support for Israel, though. On the Palestinian issue its interpretations of the law reinforce the political positions of hardline Israeli elements. For example …
“Israel’s occupation of the West Bank is lawful in accordance with UN Security Council Resolution 242 and the Oslo Accords pending the settlement of its status by negotiations. There are rival claims to the land which must be resolved by negotiation, so it is wrong to suggest that the land belongs to Palestinians.” [Letter from UKLFI to a school]
“The area known as the West Bank remains disputed territory — not ‘occupied territory’.” [Chief executive Jonathan Turner in an article co-authored with Anne Herzberg of NGO Monitor]
“There are good arguments … that ‘East’ Jerusalem and the Golan are now within Israel’s sovereign territory; and that Israeli settlements in Judea and Samaria [the West Bank] are also legitimate, at any rate until the final status of these areas has been resolved.” [Joint report by UKLFI and Christian Middle East Watch]
A question of genocide
Earlier this year UKLFI became embroiled in a legal spat about an order from the International Court of Justice (ICJ) and whether or not the court had said there was a risk of genocide in Gaza. Unsurprisingly, UKLFI claimed it hadn’t.
The dispute began in April when more than 1,000 lawyers signed an open letter to the prime minister giving their view of Britain’s obligations regarding Gaza — including a legal duty to prevent genocide by “all means reasonably available”. Among the signatories were 14 retired judges, including four former Justices of the Supreme Court. Their letter described the ICJ’s order as having concluded there was “a plausible risk of genocide” in Gaza.
UKLFI retaliated with a letter signed by a second group of more than 1,000 lawyers, claiming the ICJ’s ruling had been misunderstood. The court had not found that there was a plausible risk of genocide but that Palestinians in Gaza had a plausible right to be protected from genocide, UKLFI’s letter said.
The senders of the original letter denounced this as “empty wordplay on the most serious of issues”. In a statement endorsed by three former Supreme Court judges and four former Appeal Court judges they said:
“The Court’s unambiguous conclusion (at §74) was that there was a ‘real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible’, i.e. the rights of Palestinians to be protected from violations of the Genocide Convention. In simple terms: a plausible risk of genocide.”
Elaborating on “at least six flaws in UKLFI’s analysis”, the statement argued that there would have been no need for the ICJ to produce 29 pages of legal reasoning if the purpose was merely to establish that Palestinians had the right to be protected from genocide: “That right is not simply plausible; it is obvious and inviolable. Nobody could seriously suggest otherwise.” UKLFI then issued a further reply.
Testifying in parliament
Shortly afterwards, the battleground shifted to parliament where the Commons Committee on Business and Trade was looking into the question of arms exports to Israel. The government had already taken legal advice (which it declined to publish) and the committee was interested to know what impact the ICJ’s ruling might have on the situation.
Two relevant government ministers were apparently too busy to attend and answer questions — which left the committee with four witnesses: Lord Sumption, former Justice of the Supreme Court; Lord Ricketts, former UK National Security Adviser; Richard Kemp, former head of the International Terrorism Team at the Joint Intelligence Committee … and Natasha Hausdorff, Legal Director of UKLFI’s charitable arm.
Lord Sumption (a signatory of the original lawyers’ letter) told the committee:
“I think it is being suggested in the letter that was subsequently sent by Lawyers for Israel that all that the ICJ was doing was accepting, as a matter of abstract law, that the inhabitants of Gaza had a right not to be subjected to genocide. I have to say that I regard that proposition as barely arguable. It seems to me absolutely clear that it was a conclusion based on a combination of the well-established interpretation of the genocide convention, and the facts as they provisionally appeared to be.”
The ICJ had expressly said its findings were based on the facts and circumstances mentioned in the judgment, Lord Sumption continued. “Those facts and circumstances are (1) the status of the Gazans as entitled to protection, (2) the scale of the conflict and the loss of civilian lives and property, and (3) the arguably genocidal intent disclosed by a number of published statements by prominent Israeli government personnel.”
The evidence of genocidal intent, he added, consisted essentially of “statements by the Israeli defence minister and the president of Israel, Mr Herzog, some of which take one aback by the intensity of the hatred they disclose for the people of Gaza”.
Ms Hausdorff, who had previously given a TV interview dismissing the ICJ’s activities as lawfare, told the committee: “It is very important to understand why the allegations of genocide are being advanced. It is not because there is any currency to the allegations — any real evidence to base them on.” South Africa, which had initiated the ICJ case, was using them as “a legal hook” and “it is important to understand the origins of these proceedings through that lens,” she said.
“All these allegations” against Israel were based on fabricated or manipulated casualty figures, she continued. UN statistics put the ratio of civilian deaths to combatant deaths in general armed conflict at 9:1 but in Gaza, according to Hausdorff, the ratio has been 1:1 — a level so low as to be unprecedented.
On the question of arms supplies, Lord Sumption said: “I think it is unlikely that the UK government, given the relatively small scale of its involvement in the arms trade to Israel, would find itself on the receiving end of proceedings at the ICJ, but I have to say that I and, I assume, the other signatories of the letter have proceeded on the basis that the UK government would wish to comply with its international obligations, and not simply to avoid a situation in which its non-compliance was brought before the ICJ.”
Ms Hausdorff told the committee that talk about suspending arms supplies to Israel was “very dangerous”, adding that Iran’s rocket attack on Israel in April had been prompted by such discussion in the US and Britain.
At this, sparks began to fly. That was “a rather strange argument”, Lord Ricketts interjected. A much more likely reason was Israel’s earlier attack on the Iranian consulate in Damascus which killed 13 people, he said. “If it had not done that, I do not think Iran would have attacked Israel.”
Ms Hausdorff protested: “The committee has just been told something that I am afraid is untrue” — to which the chair replied: “The committee is perfectly capable of making judgments about the evidence that we receive.”
“I am slightly perplexed by Ms Hausdorff’s contributions this morning,” Labour MP Ian Lavery observed. “She said that there has been a raft of false information, extreme inaccuracies, mixed premises, misinformation, false information, factually incorrect information, untrue information and information given on a false premise — that is just a smattering of what has been said this morning. Will she give the committee some advice? Who would be best to give a non-partisan, authoritative and accurate voice on this issue?”
Ms Hausdorff answered by recommending two sources: her own “detailed response document” submitted to the committee and information provided directly to the British government by Israeli intelligence.
Support for the ‘Anti-BDS Bill’
UKLFI also took part in parliamentary discussions about the so-called “Anti-BDS Bill” introduced in June last year by the communities minister, Michael Gove. Officially known as the “Economic Activity of Public Bodies (Overseas Matters) Bill”, it sought to prevent local councils and other public bodies from making procurement or investment decisions “influenced by political or moral disapproval of foreign state conduct”. Gove said the bill would stop them “spending taxpayers’ money pursuing their own foreign policy agenda”.
It was obvious, though, that the main aim was to suppress BDS (Boycott, Divestment and Sanctions) activity by local authorities in connection with Israel/Palestine. The bill said ministers would be empowered to allow exceptions — which according to Gove’s department would include letting councils break existing contracts “linked to Putin’s barbaric war machine”. However, the bill went on to specify that there could be no exceptions relating to Israel, the occupied Palestinian territories or the Golan Heights (Syrian territory occupied by Israel).
Gove also explicitly stated that cracking down on boycotts of Israel was a major objective of the bill: “These campaigns not only undermine the UK’s foreign policy but lead to appalling antisemitic rhetoric and abuse. That is why we have taken this decisive action to stop these disruptive policies once and for all.”
The bill’s supporters included UK Lawyers for Israel, whose chief executive, Jonathan Turner, gave both written and oral testimony to parliament. His written testimony was a defence of the bill, mainly in the form of a riposte to arguments made by Richard Hermer KC, who had produced a critical review for the shadow cabinet.
Hermer is a high-profile human rights lawyer and has since become Attorney General in the new Labour government. His advice on the bill was that its first clause was “appallingly badly drafted” and the overall effect would be to stifle free speech at home while having “a profoundly detrimental impact on the United Kingdom’s ability to protect and promote human rights overseas”.
Besides banning public bodies from boycotting certain countries, the bill included a rather odd clause banning decision-makers in public bodies from saying they intended to boycott — or would do so if the law allowed them.
Asked during oral testimony if he thought the clause was necessary, Turner replied: “Certainly parts of it are necessary. Otherwise, you have the Leicester City Council type of approach …” This was an apparent reference to the council’s stated policy of boycotting products from illegal settlements in the West Bank. The boycott was more notional than actual, though, because the council was unaware of any settlement products that it had been buying before the boycott or any that it had refrained from buying afterwards.
Leicester’s boycott was basically a political gesture but, even so, Turner found it “deeply problematic”:
“First, it has the same impact on community cohesion as any other BDS [Boycott, Divestment and Sanctions] measure that targets a particular country and indirectly targets a particular ethnicity.
“Secondly, it creates a degree of confusion and difficulty for the [council] staff who have to implement it: they have to work out what the law does allow in terms of boycotting, they have to find out what the facts are, they have to go to the lawyers, and there will be arguments about it. The whole thing becomes a mess and discourages them from accepting certain tenders.”
One MP, noting that the Israeli occupation is recognised as illegal by both the UK government and international law, asked Turner how he would respond to “the concerns people have that the bill effectively condones what many would regard as illegal occupation”. Turner replied:
“I do not accept that it is an illegal occupation. Many international lawyers will say that the settlements are illegal. This is based on article 49 of the Fourth Geneva Convention, which prohibits a state — an occupying power — from transferring part of its population into an occupied territory. But conducting a business is not transferring population …
“Companies operating in the vicinity of settlements do not normally operate in residential areas anyway; they normally operate in trading estates outside the residential areas. It is sloppy thinking to say that operating the factory, selling the goods or buying the goods is illegal under international law. It is not.”
By May this year the “Anti-BDS Bill” was close to becoming law but instead it became one of several bills consigned to the dustbin when prime minister Sunak called a general election and parliament was dissolved.
<<< Part One | Part Three >>>
Originally published at https://al-bab.com.
