One year ago, the Israel lobby’s global strategy of “lawfare” suffered a significant defeat in a British court. A sprawling case against the University and College Union for “institutional anti-Semitism” was comprehensively blown away by an Employment Tribunal.
The 49-page ruling stated in no uncertain terms that the mammoth litigation was “devoid of any merit” and that such cases should never waste the time of the tribunals service again.
Although ostensibly championed by semi-retired maths teacher Ronnie Fraser and his tiny “Academic Friends of Israel” grouplet, the case was backed to the hilt by the UK’s diffuse network of pro-Israel lobbying organizations. The lobby was furious that its attempts to dissuade the UK’s trade unions from dropping the movement to boycott, divest from and sanction (BDS) Israel was unsuccessful.
But one year on, pro-Israel organizations around the world have not lost their taste for litigation.
With their case becoming more and more fanatical and right-wing, it is becoming more and more difficult for the lobby to win arguments. So Israel’s defenders are increasingly resorting to legal intimidation.
But how successful have such tactics been in shutting up Palestine solidarity campaigners?
With the end of the long-running war of lawyers against the University and College Union, the focus of Israel’s “lawfare” strategy has shifted to Australia, France and a smattering of cases in the United States.
Two academic supporters of the boycott of Israel in Sydney University’s Centre for Peace and Conflict Studies are being sued under Australian law designed to combat racist discrimination.
Their alleged infringement? Refusing to sponsor the application of an Israeli academic from Hebrew University for a fellowship, due to his position as a representative of an official Israeli institution. (Hebrew University’s Jerusalem campus is built on occupied Palestinian land, and the institution has deep links to the Israeli military.)
The case went to court in February. Lawyers for academic Jake Lynch have described it as full of “pumped-up claims,” and have called for the case to be thrown out due to lack of specifics.
Reports on the case from last month hit a farcical note, with Shurat Hadin reportedly complaining in their claim of “racism” that “BDS deprived them and their wives of the chance to see Elvis Costello perform in Israel, after the singer cancelled a 2010 concert citing the boycott.”
According to the Guardian, Lynch’s lawyer in contrast argued based on the facts: “What are the primary facts that link these artists not performing in Israel with Jake’s conduct?”
Shurat Hadin’s lawyer argued that “one doesn’t have to plead out every element” of the case in court. But judge Alan Robertson reportedly sounded unconvinced, replying: “You’ll have to do a lot of work to persuade me of the correctness of that position.”
The case is expected to return to court on 24 April.
French courts have been a major venue for pro-Israel lawfare. In January, for example, a Paris court ruled that the French Palestine Solidarity Association (AFPS) could no longer use the words “illegal” or “fraudulent” to describe the “Made in Israel” labeling of products manufactured in Israeli settlements.
Writing for The Electronic Intifada, Adri Nieuwhof emphasizes that, even after the ruling, “nothing prevents BDS campaigners from stating that SodaStream’s products from Mishor Adumim are ‘illegitimate’ instead of ‘illegal.’”
Crucially, she emphasizes, “AFPS was not ordered to end its boycott campaign against SodaStream, but to remove specific claims from its website.”
Lawfare suffered a bigger setback in France’s highest criminal appeals court in November, which affirmed the earlier acquittal of an activist calling for the boycott of Israeli goods. Prosecutors had charged Olivia Zémor with “incitement to discrimination … [against] the Israeli nation” after her group posted online a video of a 2009 protest against Israeli goods in a supermarket.
The most recent venue for lawfare has been the United States. A wave of recent votes by student and academic groups in favor of BDS has led to all kinds of spluttering legal threats.
After the American Studies Association in December voted to endorse an academic boycott of Israel, Shurat Hadin threatened to sue. The ASA responded that it would “not be intimidated,” and the Center for Constitutional Rights said the boycott represented “speech that is fully protected by the First Amendment” of the US Constitution.
Shurat Hadin has has yet to make good on its threat, but it seems it need not bother.
Since the ASA vote, there have been several measures aimed at punishing academics for their BDS stance which have been introduced in US state legislatures – and, at the urging of the Israeli ambassador to the US, in Congress.
The latest measure has been slipped into the budget of the state of Maryland, the Electronic Intifada’s Ali Abunimah reported yesterday.
But the crude lawfare measures have been so hastily assembled, they are already facing problems – chiefly stemming from the fact that they are attempting to crush First Amendment-protected speech.
This slipshod manner of conducting lawfare and the very limited results it is bringing for Israel’s supporters is in some ways reminiscent of the Fraser vs. UCU debacle. That defeat was years in the making, and its repercussions are still being felt.
One powerful pro-Israel, anti-BDS British lawyer slammed the case as “a legal and public relations disaster,” conceding that that tribunal’s ruling had been “impeccably written and all too compelling.”
Princess Diana’s divorce lawyer Anthony Julius, who worked pro bono on the case for Fraser, seems to have kept a lower profile ever since. He has left his role as the chair of the Jewish Chronicle (which coincidentally, in its silly coverage, was Fraser’s greatest champion – until he lost).
Julius’s firm, Mishcon de Reya, has for years had strong links to the Israeli government. The firm was reported to be leading another lawfare case, that of Lt. Colonel (res.) Moty Cristal, an Israeli army negotiator, against the National Heath Service and Unison, the public sector union.
He brought the case to court in London in September, but little has been heard about it since.
Moty Cristal did not reply to an email asking whether the case had been quietly dropped.
The UK’s pro-Israel lobby emphasized that it was “liaising closely” with the Israeli government on Cristal’s case. But with the hash they made of the Fraser case, it seems possible the Israeli government decided its interests might be better served by more closely linked proxies such as Shurat Hadin and StandWithUs.
The latter is involved in the latest UK lawfare attack on King’s College London Students Union’s democratic vote in favor of BDS, as Hilary Aked reported for The Electronic Intifada yesterday.
But the Fraser case is still not closed. In November, the UCU took Fraser back to court in order to recover its legal costs – which I imagine are extensive.