THE INTERNATIONAL LEGAL WAR AGAINST ISRAEL

Natasha Hausdorff is a barrister in London and a Director of UK Lawyers for Israel. She holds law degrees from Oxford and Tel Aviv Universities and was a Fellow in the National Security Law Programme at Columbia Law School. Natasha Hausdorff previously worked for Skadden Arps, in London and Brussels and clerked for the President of the Israeli Supreme Court, Chief Justice Miriam Naor, in Jerusalem. She speaks frequently on international law, foreign affairs and national security policy. On a visit to Sydney, Natasha Hausdorff addressed The Sydney Institute on Tuesday 14 May 2024. Her appearance at The Sydney Institute was arranged by the Australia Israel & Jewish Affairs Council.

THE INTERNATIONAL LEGAL WAR AGAINST ISRAEL

NATASHA HAUSDORFF

It’s a pleasure to be here with you in Sydney. As you heard, I am a barrister and, so, I have to say I was a little surprised when I arrived in Sydney yesterday. I was asked to declare whether I had any previous criminal convictions. I had thought that was no longer a requirement. But it’s been an absolute pleasure and privilege to be in this beautiful city.

The international legal war against Israel is something that has consumed a great deal of my time and attention for at least a decade. Although it is now a matter of prominence and concern for many, unfortunately, this is not a new phenomenon. In 2011, I came across an op-ed in the New York Times by Mahmoud Abbas, who is still today the President of the Palestinian Authority. It was, essentially, his declaration of lawfare against the state of Israel. It was a piece advocating the merits of Palestinian membership of the United Nations; the supposed state of Palestine. Mahmoud Abbas called for the “internationalisation of the conflict as a legal matter, not only a political one”. He called for the conflict to be pursued as a legal, not just a political, matter. That was Abbas’ declaration of “Lawfare”. It had unfortunately been a phenomenon that had developed even before that time, via armies of NGOs that had been set up and remain extremely active in institutions like the United Nations, with a sole purpose – for many of them – of demonising the Jewish state and of utilising and abusing legal processes and legal terminology as part of that “Lawfare” exercise.

I see lawfare as an abuse of legal processes – in this particular context, an abuse of international law. The reason that is extremely concerning is not just in respect to Israel. Yes, this is a case in point – this is a case study where it is clearly at its most prominent or most dangerous. But, it has implications for the international legal order as a whole, and implications for law abiding states all over the world. Anyone who values the rule of law, and international legal order, should be extremely concerned by the phenomenon that we are witnessing.

It might be helpful, in my opening remarks, if I addressed a few examples and instances where we have seen this playing out in respect of Israel. This has been on full display for some time at the UN Human Rights Council.

NGOs like UN Watch have documented the number of resolutions targeting Israel, often making outrageous allegations against Israel, in the context of international law, and couched in legal terminology. We have seen that also manifested in the reports of UN Special Rapporteurs. Among the numbers of Special Rapporteurs appointed to address Israel in particular, many have a track record in relation to the Jewish State, which I wouldn’t say is enviable. The reports that have been put out consistently adhere to that same narrative and the agenda of fabricating legal allegations against the state of Israel.  have seen the knock-on implications of that phenomenon. We have seen more recently the knock-on effect of that at other international legal institutions, in particular, the International Criminal Court and the International Court of Justice. Those are the two fora that I want to speak about in a bit more detail.

Most recently, the controversy, with respect to the ICC has been around reports that arrest warrants might be expected at the request of the Prosecutor, Karim Kahn, against Israelis in the wake of the current conflict and the war in Gaza against Hamas. The notion that arrest warrants would be applied for, while this war is continuing, is astonishing. The UN, only a couple of days ago, said that due to the ‘fog of war’ they were excusing having endorsed unreliable and, now it seems, wrong statistics in terms of casualties and fatalities. The idea that arrest warrants would be sought in the context of this ‘fog of war’ against Israelis, when the court has no jurisdiction in respect to Israel, is very concerning for international law generally.

The Rome Statute that established the court, importantly, has not been signed up to by Israel. It has also not been signed up to by the United States. I would argue that there are clear reasons that neither of those states engaged, despite both having been involved in the discussions around  the establishment of the ICC. Having even been engaged in some of the drafting processes of the Rome Statute, why is it that these two democracies declined to become members, to sign up to the Rome treaty?

It became pretty clear why from the way that some of the text was drafted, in particular the inclusion of certain crimes under Article 8 of the Statute. Especially the crime of transfer of populations under Article 8(2)(b)(viii) in the context of occupied territory. The addition, in that provision, of the words “directly or indirectly” was taken as a clear indication that Israel would be targeted for political purposes through this institution. This was an indication that at the earliest point of this process of establishing the Court, that it was going to be a political, as opposed to legal, institution. Since its establishment in 2002, we have seen its woeful track record. The fact that it may now be seeking to gain credibility by jumping on the bandwagon against the Jewish state – I’ll leave you to draw your own conclusions on that.

The absence of jurisdiction here is critical. What we some four years ago, in the context of another prosecutor at the ICC, Fatou Bensouda, bringing a request for determination of jurisdiction to Pre-Trial Chamber I – the legal acrobatics that were involved in the Prosecutor’s attempt to justify jurisdiction for the proposed investigation, in the absence of a state of Palestine, and circumstances where Israel is not  a signatory to the Rome Statute, that leaves a lot of questions to be answered. The question of jurisdiction is not settled, and should arrest warrants be issued in due course, that argument will inevitably arise once again.

I am from the United Kingdom, and I think that the UK ought to be extremely aware and cautious of the potential overreach, in particular of the International Criminal Court. A court that steps out beyond the parameters that have been laid down in its founding statute, the international treaty that is critical element of international law, loses its legitimacy. The principle of states signing up to treaties or conventions, agreeing to be bound by those, is the bedrock of international law. It is what makes international law work. We lose that at our peril. The credibility that the International Criminal Court still has to operate is also under threat, if it undermines the very basis and the essence of its function in that fashion. That is unfortunately where things sit with the International Criminal Court. Albeit that there were high hopes upon Prosecutor Kahn’s appointment. He is a member of my own profession, a respected English barrister. I was particularly troubled by a speech that he gave when he visited the Rafah crossing in October last year, where he talked about the “alleged” crimes that Hamas had committed – those crimes that have been recorded on GoPro cameras and sent around the world; the evidence of which Hamas has very proudly put out for everyone to see – hese were the “alleged” crimes of Hamas he referred to, before noting, on that same trip at a press conference in Cairo, that it would be on Israel to prove its adherence to international humanitarian law and the law of armed conflict in Gaza.

As a member of the bar, I was extremely troubled to see the burden and standard of proof so inverted by a colleague. I can only hope that speeches to the international media intended to these at the Rafah crossing, and in Cairo, don’t necessarily manifest in the approach that the Prosecutor will take. But we’ll have to wait and see.

The International Court of Justice, which also sits at the Hague, has been a focus of anti-Israel activity for some time. Those in the audience may recall the 2004 Wall Opinion, which addressed the construction of Israel’s security barrier. This was a barrier that was built to stem the tide of suicide bombings that Israel was experiencing in the years before construction began. It is a defensive measure that by all accounts has been 100 per cent successful, in that the buses, markets, discotheques and pizzerias that were the target of these terrorists exploding themselves, were spared those consequences as a result of its construction.

Nonetheless, the reasons for the construction of the wall, or more accurately the security barrier or the fence, were conspicuously absent from the determinations of the International Court of Justice in relation to that advisory opinion. That occasioned much criticism, including in the Israeli Supreme Court. A judgement in particular by Aharon Barak, where he compared the approach by the International Court of Justice in that non-binding advisory opinion and contrasted it with the approach taken by the Israeli Supreme Court sitting as the High Court of Justice, which also dealt with petitions and complaints in relation to the security barrier and the route that was taken, and on a metre by metre basis assessed and balanced the security needs against the rights of the individuals that claimed to be impacted by the route that was proposed. It was instructive that the Israeli court did take into account the real reasons behind the construction of that barrier.

Perhaps we need to be mindful of our criticism. It’s true that the International Court of Justice did not have very much material before it that addressed the legitimate concerns of the state of Israel and the security reasons behind that barrier. What it did have was significant reports by NGOs and others that alleged falsehoods about Israel’s intentions with respect to the barrier. Landgrabs, political purposes – that was what was being suggested. In the absence of proper, reliable, accurate information, there are some that argue that it was inevitable that the court decided as it did, and opined as it did in that advisory opinion.

This is a significant problem, and it presents itself in the current matters before the International Court of Justice. It has been the subject of a submission by UK Lawyers for Israel and ELNET to the International Court of Justice in respect of a request for a new advisory opinion, which it has been asked to consider in December 2022 by the General Assembly in Resolution 77/247. Where the resolution itself that put the matter before the court and requested an advisory opinion made false allegations against Israel, which it sought that the Court take as a given. It didn’t ask the court to opine on those allegations of illegality, of breaching the Palestinian’s right to self-determination, or any of the other alleged crimes that were suggested. It simply asked the court to take those as read and consider what the legal implications of that unlawful conduct should be. Those that have initiated this process make it clear that they are seeking a blessing by the court for policies including boycotts, divestments and sanctions on the Jewish state. That is a significant factor to bear in mind.

It seems to me unprecedented that a request for an advisory opinion to the International Court of Justice essentially doesn’t ask the court to opine on the real legal questions that are being put before it. But the question as to whether the court is in fact in a position to address those questions is a significant one. Because if the last advisory opinion is anything to go by, the information before the court is simply not accurate. It is simply not reflective of the realities current situation and the court is not in a position to make an informed and proper analysis.

There are two functions that the International Court of Justice serves. The first is to provide these advisory opinions, to opine on matters of importance in international law, often at the request of the General Assembly of the United Nations. Those opinions are not legally binding. The other function that the court serves is to hear disputes between member states of the UN. These can be in relation to specific treaties and these determinations are binding as between the parties to that dispute. This is what we saw in the context of South Africa’s application against Israel, and its allegation of a breach of the Genocide Convention. I’m sure that you will all be familiar with the provisional measures order laid down by the court in January of this year. You may also be familiar with the controversy surrounding the reporting of this provisional measures order. I was shocked in the days after this order to see that lawyers and media were misrepresenting entirely what it was that the court had determined in setting out the provisional measures.

That has now been, in a rather unprecedented fashion, addressed and clarified by the former president of the International Court of Justice, Joan Donoghue, in a News Night interview on the BBC, only a few days after I gave evidence at the Business and Trade Committee in the UK Parliament, where I made it clear what I considered the order to say. It was not, as had been reported around the world, that the International Court of Justice had found Israel “plausibly guilty of genocide”, or had found that there was a “plausible case of genocide” or anything of that sort. In the days after that order, I made it clear that all the court had determined was whether South Africa was claiming plausible rights. This might sound like hair splitting, and my apologies to non-lawyers in the audience, but plausible rights means something very different from whether there might be a plausible case for a violation of those rights. It is a question as to whether the rights that South Africa were claiming fell under the Genocide Convention. Whether those rights that it was claiming on behalf of the Palestinians in Gaza, to be protected under the Convention, were subject to a legal determination by the court.

The reason that South Africa brought this allegation of genocide is not because there is any factual accuracy or veracity to the allegation – far from it. The reason South Africa brought this allegation of genocide against Israel was because it was a legal hook by which to bring Israel to the International Court of Justice, because Israel is a party to the Genocide Convention. That is the process by which South Africa sought to bring Israel before the court. Put aside for a moment the audaciousness, the grotesqueness of alleging genocide against the real victims of genocide. Not just the victims of genocide in the Holocaust, but the victims of acts of genocide on the 7 October. Acts of genocide perpetrated by Hamas and other Palestinian terrorists that were celebrated by those terrorists and publicised on social media for the world to see. Those victims of real genocide were being accused by South Africa.

The case that Israel presented to the International Court of Justice set out, importantly, the humanitarian provision that Israel has made and has facilitated throughout this conflict. There is a special unit of the IDF, COGAT, whose sole purpose is to provide for the needs of civilians in times of armed conflict. COGAT’s updates throughout this conflict, including those presented to the International Court of Justice, make clear the extent of Israel’s initiatives and efforts. When I looked at those numbers a few weeks ago and compared them with what the World Food Program set out was the requirement to feed the total population of the Gaza Strip, the tons of humanitarian assistance going into Gaza, according to those records was some three times what was required on the estimates of the WFP to feed the entire population. Bear that in mindm in the context of these false allegations of starvation or of intentional starvation as a policy or practice by Israel.

Israel presented its case to the International Court of Justice, both in the context of its humanitarian provision to the civilians in Gaza and in terms of the measures that it takes to prevent civilian casualties in armed conflict. It bears noting that legal and military experts who have visited Gaza in past conflicts, and in this one, have been clear that the IDF’s track record of precaution against civilian casualties, and its adherence to the principles of the international humanitarian law of armed conflict – proportionality, distinction, necessity – are unparalleled. That other law-abiding armies would struggle to meet the high standards that Israel has set in the context of intense urban armed conflict, where Hamas, as other Palestinian terrorists, are using civilians as human shields and deploying the law of armed conflict against those that abide by the law, by embedding themselves in civilian areas, by using hospitals, clinics, ambulances, schools and mosques as terror infrastructure. That is the context in which Israel put this information before the International Court of Justice.

It’s very important to recognise that this information was not considered when the court drew its conclusions at the provisional measures stage. It did not consider the merits of the case that South Africa was bringing. It did not consider the merits of the response that Israel put forward. It simply considered whether it was plausible that the rights that South Africa were claiming fell under the Genocide Convention. Then, when it looked to the question of urgency and irreparable harm or prejudice – which are important and required for provisional measures to be ordered – it’s important to recognise that in situations where genocide or ethnic cleansing are alleged, those factors are assumed as a matter of course. Where human life is allegedly under threat to such an extent, urgency and prejudice are taken as a given, and therefore provisional measures were ordered.

But let’s consider for a moment the provisional measures that were ordered in January of this year. The Ugandan dissenting judge Sebutinde, now Vice-President of the Court, remarked that these measures were redundant. It is important to note that South Africa did not succeed in its main aim in the case that it brought against Israel, and its request for provisional measures, which was a requirement that Israel stop its operation in Gaza immediately. That is not what the court ordered. The court ordered that Israel adhere to its international law obligations under the Genocide Convention, which by all accounts Israel has plainly been adhering to and is committed to continuing to adhere to. The only additional requirement was that Israel provide a report to the court about its initiatives, which it has done so.

Subsequently, there has been a further application by South Africa for additional provisional measures, which was not successful, and a further application by South Africa for provisional measures in March, in which a slight amendment was made with respect to the provision of international aid. In the grand scheme of things, these are reflective of Israel’s existing international law obligations. Nothing further has been required by the court. Why is this significant? It underpins the political motivation, both behind South Africa’s application and behind others that have followed – importantly, Nicaragua’s application against Germany for provisional measures, seeking the court to prevent Germany from transferring arms to Israel. Again, applications which were unsuccessful. The court declined to order that.

All of this is predicated on the allegation that Israel is committing genocide, for the reasons that I described, because this is legal hook. But also, I would suggest, for a more troubling reason. This is where I want to draw my remarks to a close by offering what I think is an explanation behind the sort of politicisation of legal terminology. I was struck many years ago by a description of the evolution of antisemitism by the late, great, former Chief Rabbi of the United Kingdom, Lord Jonathan Sacks. He described antisemitism as a mutating virus. What began in the Middle Ages as a focus on Jewish religion, brought with it the ancient blood libels of Jews killing Christian children to use their blood to make matzah or to perform religious rituals. In the twentieth century, when science took over from religion as the order of the day, Rabbi Sacks described how the virus of antisemitism mutated to focus on the Jewish race. The pseudoscience of eugenics was used to justify that hatred by Nazis. Rabbi Sacks continued and he described how international law and human rights had now taken over as the order of the day.

So, it was only natural that the modern face of antisemitism – some may argue the acceptable face of antisemitism – manifested itself in a hatred of the Jewish state, with international law and human rights manipulated to justify that hatred Those ancient blood libels are with us in a new form; ethnic cleansing, colonialism, occupation, apartheid, genocide. We let those falsehoods percolate at our peril, because this is where the modern antisemites focus their initiatives and their actions.

As I mentioned at the start, this is not just problematic for the Jewish state. This should be of concern to every believer in international legal order, in the rule of law. Because when one politicises these terms, when one uses the law to propagate these falsehoods, every supporter of the rule of law should recognise that it – and I would argue the fabric of Western liberal democratic society – is under threat.