Lawfare Attacks on Israel Emerge as Major New Front for the Jewish State

A case against President Herzog is filed in Switzerland even as the head of state is at the World Economic Forum.

AP/Markus Schreiber
Israel's president, Isaac Herzog, at the World Economic Forum, Davos, Switzerland, January 18, 2024. The photo next to him shows a baby taken hostage by Hamas during the October 7 terrorist attacks in Israel. AP/Markus Schreiber

While the Israel Defense Force is combating enemies intent on erasing Israel from the map, the Jewish state is being besieged by lawfare, with a chorus of outside critics filing fresh charges that it is violating international and state laws. 

Swiss prosecutors disclosed Friday that a complaint over unspecified “crimes against humanity” was filed against President Herzog of Israel while he was visiting the World Economic Forum. At Davos, Mr. Herzog, a former leader of Israel’s left-wing Labor party, displayed a picture of Kfir Bibas, whose first birthday was marked this week in Gaza, where the one-year-old and more than 130 Israeli hostages are kept in Hamas’s dungeons.  

Indonesia and Slovenia intend to try to take Israel to task at the International Court of Justice, which is due to discuss its presence in the West Bank and Gaza in late February. At the same venue, South Africa, joined by Jordan, is charging Israel with “genocide” in Gaza. 

Two Latin American countries ruled by leftists, Mexico and Chile, are piling on: They announced on Friday that they would file “war crime” cases against yet-unnamed Israeli officials at another Hague-based world courtroom, the International Criminal Court. Mexico cited “numerous reports from the United Nations that detail many incidents that could constitute crimes under the ICC’s jurisdiction,” Reuters reports. 

Some of these attempts at criminalizing Israel’s conduct as its citizens are being attacked are, of course, frivolous. Mr. Herzog left Switzerland, as planned, before the Swiss prosecution could even decide if as head of state the president’s immunity from prosecution could be shed to accommodate the complaint.

A group calling itself “Legal Action Against Crimes Against Humanity” said in a statement that it made the criminal complaint against Mr. Herzog, and noted that just as Switzerland this year put former Gambian officials on trial over rape and other criminal allegations, it should also do so against “Western criminals.”

It is unlikely that Mr. Herzog will lose sleep over this case. Yet, living in a laws-based democracy, Israelis are increasingly bothered by the growing number of flimsy legal cases in international venues. Jerusalem showed its concern by sending some of its top legal minds, including the foreign ministry’s legal adviser, Tal Beker, to the Hague.

The defense team, headed by a British legal scholar, Malcolm Shaw, impressed legal observers the world over. Yet, Israel remains concerned that there could be an adverse finding at the Hague. While the case is pending, South Africa is demanding the ICJ issue a preliminary order to stop the Gaza war.

The court is expected to decide on that demand in a few weeks. As troops battle in Gaza while ICJ deliberations are ongoing, “they’re careful not to do anything that would influence the Hague judges,” a former IDF air force commander, General Eitan Ben Eliahu, told Israel’s Channel 12 Friday. 

Given that the case might weaken the military, was Israel correct to agree to the ICJ’s jurisdiction? “In many cases these proceedings are like voodoo: The more you believe in it, the more it works,” George Mason University’s Antonin Scalia law school professor, Eugene Kontorovich, tells the Sun.  

In the genocide case, “Hamas found a way to enable its own genocide against the Jews,” Mr. Kontorovich says. UN-affiliated venues “are called courts, but basically they are about politics,” he says. In the ICJ, 15 judges, including from countries lacking independent judiciaries — such as Communist China, Russia, Lebanon, and Morocco — are supposed to sit in judgment of Israel.    

Beyond international bodies like the ICJ and the ICC, some European and other countries have enacted universal jurisdiction, where foreign officials accused of war crimes can be arrested pending trial.

In a famous 2008 case, a former IDF Gaza commander, Major General Doron Almog, arrived at London’s Heathrow airport, where he was due to address a convention. Realizing that an arrest warrant was issued against him based on a war crime complaint, he stayed on board, and ended up returning to Israel after never stepping on British soil. 

Following several similar incidents involving Israeli officials, Britain tweaked the law. Yet, these cases were etched in the minds of Israelis. They were among the sparks that ignited the protest movement against the government’s attempt at reforming Israel’s supreme court, which had shaken the country for months before the October 7 Hamas terrorist attacks.

Protesters, especially commanders of elite IDF units, feared frivolous suits in foreign countries that could bar them from traveling abroad. If Israeli courts were no longer seen as competent to independently adjudicate war crimes, they argued, allegations in foreign venues would increase. 

Regardless of that pre-October 7 internal debate, a disproportional scrutiny of the Gaza war is fertile ground for Israel’s detractors to grow an ever-expanding lawfare, with new allegations popping up almost daily.

The New York Sun

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