Lawfare on the run again

Israel’s strategy of “lawfare” has once again hit the rocks. This strategy is the attempt to use courts and spurious legal actions around the world to attack, sabotage and distract Palestine solidarity activists, and make it sure they cannot carry out their campaigns.

Unlike the Israel lobby, pro-Palestinian campaigners usually have very little in the way of easily available hard cash. The main asset of the movement is the people in it, and our conviction that we are on the right side of history, and the right side of the moral argument.

So the prospect of being tied up with expensive litigation for months or even years is daunting. Nonetheless, the lawfare strategy has been failing. Israel has carried it out in a most incompetent way, so that there is no reason to believe they will win many cases.

And now, it’s been struck another blow in the UK. The last such blow here was in 2013, when the case against the University and College Union for “institutional anti-Semitism” was thrown out by an employment tribunal judge on all grounds. That was such a crushing defeat that this time, they had to try a claim based on a different type legal area: laws around equalities and local government obligations.

On Tuesday, the high court ruled against a case brought by a group of anti-Palestinian lawyers against three local councils which had passed motions supporting the boycott, divestment and sanctions (BDS) movement.

The case was the first to cite the government’s so-called “boycott ban” which it launched at a press conference in Jerusalem in February.

Despite being promoted in the media as a “ban,” a closer reading of the policy note published by the government shows that there was no actual new legislation and, in the words of War on Want, “the boycott ban does not actually ban all boycotts.”

Campaigners argued that the wording still actually allowed local government bodies to consider ethical procurement policies. Any new law that prevented this would likely have been wide open to legal challenge on free speech grounds.

The high court ruling on Tuesday stated that the case had no standing and would be dismissed. The judges also said that “criticism of Israel is not seen by all Jews in this country as an attack on their community, or, at least, not necessarily so.” They emphasized that “the court should be vigilant to protect the right of freedom of expression.”

The councils passed their BDS motions months, and in one case years, before the “BDS ban” was enacted. But the lawyers who brought their case to court in October decided to add mention of the policy note, citing from its text to add weight to their argument – or so they thought.

The high court threw the case out regardless. And now we have the precedent that the “ban” is no ban at all. I’d say we’re not out of the woods yet, since the legality of the note was not directly challenged, but it is certainly a good sign that the first case citing it in its favour has failed.

This case was brought by an organization calling itself “Jewish Human Rights Watch”. All the funders of the group are not known, but it clearly has enough of a ready supply of cash to fight expensive litigation all the way to the high court, and reportedly to now appeal the decision. It also seems to have a substantial advertising budget. As my colleague Ben White discovered: “Last October, JHRW responded to the publication of a full-page ad in The Guardian supporting an academic boycott of Israel with their own, full-page ad a few days later. Clearly, there are funds available at short notice.”

We know that Israel is funding many such cases. Its own body, Shurat HaDin, claims to be a “law centre” bravely fighting “civil rights” cases against terrorists in courts around the world. But in reality it is closely linked to the Mossad spying and assassination agency, which advises it on which cases to take forward.  Most of its efforts are invested in attacking Palestinian and pro-Palestinian groupings. Often, it fails.

While it still important to be cautious, and they will try again, it’s encouraging that these dishonest attempts to curb boycotts and crush free speech using the threat of expensive litigation have failed. It shows there are still reasons to be optimistic, and that we can succeed if we fight back enough.

Asa Winstanley is an investigative journalist who lives in London and an associate editor with The Electronic Intifada.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.