Academic journal article Case Western Reserve Journal of International Law

Litigating the Arab-Israeli Conflict in U.S. Courts: Critiquing the Lawfare Critique

Academic journal article Case Western Reserve Journal of International Law

Litigating the Arab-Israeli Conflict in U.S. Courts: Critiquing the Lawfare Critique

Article excerpt

The lawfare critique offers a provocative challenge to the use o flaw and legal process in the context of the Arab-Israeli conflict. It has been used to question the legitimacy of numerous lawsuits filed by individuals harmed in the conflict. The lawfare critique is misguided, however, because it fails to recognize that the purpose of any legal system is to offer a viable alternative to the use of force. In addition, the lawfare critique runs counter to the right to a remedy, a firmly established principle of international law. Legal fora should remain accessible to victims, who should have the right to seek redress for their injuries. The rule of law offers a powerful mechanism for ending violence. We should be wary of any efforts to limit its use.

I. INTRODUCTION

The Arab-Israeli conflict has lingered for decades. It has affected the political stability of the Middle East and implicated international relations throughout the world. The conflict has caused thousands of deaths and even more injuries, and the violence has affected lives far beyond the geographic borders of the Middle East. Countless efforts to resolve the conflict have met with limited success.

In the face of such an intractable conflict, it is not surprising that victims would seek redress for their injuries in any conceivable forum. Few lawsuits, however, are filed in the country where the harms were inflicted. Rather, these lawsuits are often filed in other countries. Several factors have contributed to this phenomenon, including the diverse number of nationalities affected by the conflict and the challenge of pursuing claims in the countries where the harms occurred.

In fact, several civil lawsuits have been filed in U.S. courts by individuals who have been harmed in attacks linked to the Arab-Israeli conflict. These lawsuits raise a number of claims, many of which are based on international human rights norms and, most notably, the prohibition against extrajudicial killing. The plaintiffs are innocent civilians, caught in the repetitive cycle of violence that typifies the Arab-Israeli conflict. Some victims were specifically targeted. Others were unintentional victims, euphemistically designated as collateral damage. The defendants are often foreign governments or government officials. Occasionally, nonstate actors are sued. This litigation has had mixed success; many of these lawsuits have been dismissed while others have resulted in successful judgments for the plaintiffs. A few of these successful lawsuits have even resulted in the receipt of monetary compensation by the plaintiffs.

Some critics have referred to this litigation as "lawfare," which is defined as a "strategy of using or misusing law as a substitute for traditional military means to achieve military objectives." (1) Lawfare has also been defined more generally as "the use of law as a weapon of war." (2) The lawfare critique has been applied to legal proceedings at both the international and national levels. (3)

In the context of the Arab-Israeli conflict, most of the lawfare critique has focused on litigation filed by Palestinian or Lebanese plaintiffs against Israeli government officials or related entities in U.S. courts. (4) In Matar v. Dichter, for example, victims of a 2002 Israeli Defense Forces (IDF) aerial bombing in Gaza City filed a lawsuit against Avraham Dichter, who was the head of the Israeli Security Agency: The plaintiffs alleged that Dichter had authorized a targeted killing operation that killed or wounded numerous civilians. The plaintiffs raised several claims, including war crimes, crimes against humanity, extrajudicial killing, cruel, inhuman or degrading treatment, and wrongful death. In Belhas v. Ya'alon, victims of the 1996 IDF bombing of the U.N. compound in Qana, Lebanon filed an action against Lt. General Moshe Ya'alon, who was the head of IDF Army Intelligence. (6) The plaintiffs alleged that Ya'alon had command responsibility for the attack and was, therefore, responsible for war crimes, crimes against humanity, extrajudicial killing, and cruel, inhuman or degrading treatment or punishment. …

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