The United Nations‘ potential blessing of a Palestinian state in an end run around direct negotiations with Israel will add a dangerous new dimension to the Palestinians’ decades-long campaign of conventional and unconventional war against the Jewish state – the commencement of a full-blown “lawfare” campaign against Israel and its allies.
UN-sanctioned lawfare against Israel is nothing new. In 2004, the International Court of Justice (ICC), at the instigation of the UN General Assembly, declared that the security fence Israel erected to block Palestinian terrorists from infiltrating from the West Bank – a fence which helped dramatically reduce the number of suicide bombers penetrating Israel – is illegal, even though many countries, including the U.S. and Saudi Arabia, have erected fences on their border. Did we mention that Israel is the only UN member state barred from serving on the International Court?
In 2010, the European Court of Justice aided the economic warfare campaign against Israel by ruling that products made by a Jewish-owned company based in the Jewish community of Mishor Adumim in the West Bank didn’t qualify for the same customs duties exemption allowed to Palestinian companies in the West Bank and all companies within Israel’s 1967 borders.
Turkey, determined not to be left behind, responded to last month’s UN report vindicating Israel in the infamous flotilla incident with the usual downgrading of diplomatic and military ties and threats of economic sanctions, but Turkey’s foreign minister also announced what he called “Plan B” – a strategy to sue Israel directly and to assist others in suing Israeli soldiers and leaders in jurisdictions across the world.
Here in the United States, we are already combating a variety of lawfare stratagems. In New York, for instance, those who “see something” and “say something” are now protected from frivolous lawsuits by the “Freedom to Report Terrorism Act,” and journalists and authors who report on terrorism are protected from baseless, expensive and intimidating overseas libel lawsuits by the “Libel Terrorism Protection Act” (inspired by Dr. Rachel Ehrenfeld, one of the authors of this article, who was sued for libel in London after exposing a Saudi businessman as a financier of terrorism). Congress followed suit, passing the SPEECH Act.
But granting Palestinian statehood (even if via “observer status”) would turn existing lawfare tactics into the equivalent of nuclear-armed smart bombs aimed at both Israel and the U.S., and grant Palestinian institutions a nearly impenetrable bunker against being held accountable to terror victims.
For example, once the Palestinians obtain the authority to bring a case directly against Israel in the ICC, it is a foregone conclusion that the court will declare Israel’s maritime “fence” around Gaza – instituted to prevent Hamas from acquiring materiel to launch rockets into Israeli cities – illegal.
Perhaps nowhere will the privileges of statehood more likely be abused than in theInternational Criminal Court. Israel, like the United States, withdrew from that court to protect its citizens from political prosecutions. Understanding that the key to the courthouse door is rooted in statehood, the Palestinian Authority in 2009 purported to accept the ICC’s jurisdiction – a right granted only to states – over “the territory of Palestine,” and in turn have the same powers of court member states.
This dubious maneuver has so far failed, but a UN declaration of statehood will instantly give the Palestinians full membership in the ICC, and the power to refer for ICC prosecution every Israeli soldier in the West Bank and Gaza operating to thwart missile attacks and suicide bombings, and every Israeli civilian (and many Americans, as well) living outside the outdated 1967 borders. Individual Israelis will become global fugitives, and the ICC will become yet another hostile international forum in which Israel’s very legitimacy – its right to be free from attack and to affirmatively act in self-defense – must constantly be defended.
UN statehood will also block American victims of Palestinian terror from obtaining justice in American courts, by giving Palestinian institutions involved in terrorism a blanket of sovereign immunity reserved only for states.
Hamas, Fatah, Islamic Jihad and their partners in the international movement to delegitimize Israel are already waging a sustained military, economic, diplomatic, political and jurisprudential war against Israel and, where they can, the United States. The UN shouldn’t add more firepower to their lawfare campaign.
Lancman is an assemblyman from Queens and an advisory board member of the Lawfare Project. Ehrenfeld is the director of the American Center for Democracy