Sunday, February 12, 2012

Litigating for Israel

by Jerold S. Auerbach

Ever since Moses received the Ten Commandments, the history of the Jewish people has been interwoven with law. An additional 613 commandments in the Torah were explicated in the Talmud, collected in the 16th-century Code of Jewish Law (Shulchan Aruch) and interpreted and enforced over the centuries by rabbinical courts.

Since 1948 the State of Israel has had its own legal system, populated by the usual array of lawyers and judges. But until recently it lacked what has long been conspicuous in the American legal world: private defense organizations (such as the American Civil Liberties Union) litigating vital constitutional issues.

Just such an organization was founded in 2003 by Nitsana Darshan-Leitner, an Israeli lawyer with a mission. Her American model was the Southern Poverty Law Center, which had successfully filed legal challenges to thwart the Ku Klux Klan and others it deemed racist. She was determined "to go after terrorists in the same way" in which the Center pursued its foes: through civil litigation. Named Shurat HaDin, the Israel Law Center has become the bane of anti-Israel groups throughout the world.

Shurat HaDin has instigated litigation against a range of perpetrators and abettors of terrorism. Its targets have included Iran (for its role in a Hamas suicide bombing in Jerusalem), the Lebanese-Canadian Bank and the Bank of China Ltd. (for transferring funds to Hezb'allah), and the government of Egypt (for abetting the smuggling of weapons into Gaza). Its efforts have been rewarded with substantial judgments totaling more than $700 million.

The Law Center, through its American office, has begun to monitor the rampant anti-Semitism and anti-Zionism in colleges and universities. It has informed the presidents of academic institutions that their schools could face civil and criminal liability for tolerating "an environment of intimidation and hostility" that fails to protect Jewish and Israeli students against anti-Semitic harassment.

To be sure, Shurat HaDin does not always win -- even in Israel. The High Court of Justice dismissed its petition on behalf of the families of missing Iranian Jews as a matter of "diplomatic concern" to be settled through government channels. Its attempt to block the recent exchange of more than one thousand Palestinian prisoners for Israeli soldier Gilad Shalit was thwarted.

But when it wins, it wins big. By far its most impressive recent achievement was to stymie the plan for a second flotilla to breech the Israeli blockade of Gaza. This flotilla's notorious predecessor, the so-called "Freedom Flotilla," became a major public relations disaster for Israel after Israeli naval commandos boarded the Mavi Marmara in an attempt to divert the ship to Ashdod for inspection. After an assault from passengers armed with knives and iron bars, the ensuing struggle resulted in the deaths of nine assailants -- and the predictable worldwide storm of criticism against Israel.

The second attempt, last June, provided Shurat HaDin with another opportunity. It warned maritime insurance companies in Europe and Turkey that if they provided the required insurance, they could be held legally liable for "aiding and abetting" a terrorist organization. A French insurance company responded by refusing to insure a ship that was prepared to sail from Marseilles.

With cooperation from the Israeli government, eager to abort the mission and avoid another round of vituperative castigation, Shurat HaDin notified a satellite communication company that it faced legal action if it provided service to the flotilla. It also filed a lawsuit for violation of the Neutrality Act in federal court in New York.

And, to cover all bases, Shurat HaDin notified the government of Greece that its own Neutrality Act prohibited ships from sailing to illegal ports (including Gaza). Lacking the necessary insurance or proper registration, the flotilla was prevented by the government from departing.

A passenger complained that her journey had been thwarted by a "right-wing Israeli law center." Nitsana Darshan-Leitner cheerfully acknowledged the triumphant strategy of "lawfare."

Shurat HaDin recently launched forays against major communication companies. It notified Twitter (but not by a "tweet") that permitting Hezb'allah and other foreign terrorist organizations to maintain accounts violated American laws prohibiting assistance or support to terrorists, exposing the company to legal action from terror victims and their families. Last month it delivered a similar warning to Verizon to halt its phone service to PLO offices in Washington.

Most recently, it quickly persuaded Delta Airlines that Ben-Gurion Airport in Israel is not, as its frequent flyer program on a Middle Eastern website suggested, located in "occupied territory."

From ports to airports, and many places in between, the "lawfare" campaign waged by Shurat HaDin reveals the enduring power of law in Jewish tradition -- with an innovative Israeli twist.

Jerold S. Auerbach

[ SZ: Ms. Darshan-Leitner's Law Center is at ]


Copyright - Original materials copyright (c) by the authors.

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