Hamas unleashes lawfare against Israel
The denunciation of Israel for genocide is just another case of using the law as a weapon. Theorized in China in 1999 as an instrument of asymmetric warfare, lawfare especially affects liberal-democratic countries, in which respect for institutions is strong. Among South Africa's allies is Iran, which denies civil rights and sponsors Hamas and the Houthis. Only Germany decided to intervene in the process to re-establish the correct use of words. Gregory Alegi's analysis
Germany will intervene as a third party in the genocide trial brought by South Africa against Israel before the International Court of Justice. The announcement leaves no doubt as to why Berlin takes such a clear and, in the current political context, unpopular position. “Given Germany's history and the crimes against humanity of the Holocaust, the government is strongly committed to the Genocide Convention. This convention is a central instrument of international law to implement the “never again” principle. We are resolutely against its political exploitation."
The German complaint is the most important element of the trial, which has just opened with two days of statements from South Africa and Israel. The 15 judges, plus the two ad hoc appointed by the parties, heard obvious positions. On the one hand, the number of victims (very high according to the Gaza Ministry of Health, i.e. Hamas), the use of non-precision weapons, up to apartheid and the closure of the borders. On the other, the October 7 massacre, the use of civilian structures for military purposes, the diversion of humanitarian aid to Hamas structures or villas, the border closed by Egypt. All aspects that have already been part of the public debate for some time.
The propagandistic nature of the accusation is evident from the co-signatories of the complaint (from the Arab League to Iran), from the presence in the South African delegation of politicians such as Jeremy Corbyn (suspended from Labor in 2020 for anti-Semitism). Even the Wikipedia page immediately created on the trial goes in only one direction: that which damages the prestige of the United Nations, already tarnished by the slogans praising October 7th of the 3,000 Palestinian teachers of UNRWA.
Precisely for this reason, the German declaration puts the finger on the wound: accusing Israel of genocide is an embarrassing farce. Word of someone who really tried to eliminate the Jews from the face of the Earth, missing the goal by a hair, and is therefore well aware of what the term means.
In Berlin, where in addition to the proverbial judge there is also no lack of legal culture, it is clear that what has opened in The Hague has little to do with justice. It's about lawfare, the transformation of law into a weapon, mainly against the West. The term has been documented since the 1950s, when it referred to things ranging from divorce battles to special rates for lawyers. In current use it is the strategy of using law as a substitute for traditional military means to achieve operational objectives. It was theorized in 1999 by Qiao Liang and Wang Xiangsui, the "two colonels" (but in reality political commissioners) of China, who included it in the idea of "War without limits". Two years later, American Colonel Charles Dunlap implemented the term and spread it to the West. Since then, it has been a topic of growing importance in international relations.
What makes lawfare attractive is its technical (and therefore value-free) and asymmetric nature. For example, the International Court of Justice has jurisdiction only over states. This allows the Palestinian National Authority to join the denunciation, but prevents Israel from denouncing Hamas, which although it administers Gaza in a state-like manner, including the "ministry of health", is not a state. Similarly, South Africa accuses the Jewish State of genocidal intentions based on nothing but Israel cannot respond by citing the statute and official documents of Hamas praising its destruction.
The greatest asymmetry, however, is the so-called Compliance-leverage disparity, or rather the exploitation (leverage) of the different level of compliance with the rules. Liberal democratic countries tend to respect the rules and get blamed for the inevitable violations. Those who are not democratic ignore them. We are thus witnessing distortions such as the presence among the complainants of Iran, a country in which civil liberties do not exist and which openly supports Houthi terrorism, currently in full swing in the Red Sea. Or of Russia which has freely used cluster bombs since the early stages of the conflict, only to denounce their much later use by the Ukrainian side.
But, precisely, the Zelenskys must be accountable to Western public opinion, the Putins to no one. In 2022, Russia ignored the International Court of Justice's injunction to cease hostilities in Ukraine and withdraw from the occupied territories, without being held accountable or made to pay for it. If the Court were to order a halt to the campaign against Hamas, Western public opinion would blame Israel for not complying immediately.
The objective of South Africa and its allies is therefore to create a situation in which Israel loses anyway: in military terms, by withdrawing and therefore giving breathing space to Hamas; alternatively, in political terms, refusing an order of an international court. The game is clear to everyone, but only Germany had the courage to call things by their name.
It's Italy? In the homeland of law, it is not just the scientific literature that is lacking on lawfare. The word doesn't even exist.
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/mondo/contro-israele-hamas-scatena-lawfare-la-guerra-a-colpi-di-legge/ on Fri, 12 Jan 2024 21:06:52 +0000.