The consequences envisioned by Dunlap constitute only part of lawfare’s potential impact. With increasing frequency over the last decade, litigation as a means of pursuing strategic military or political objectives has been employed in the Middle East conflict against state, non-state, and private actors alike.

The most common tactic involves attempts to indict Israel’s leadership in foreign or international forums for alleged breaches of international humanitarian law. One of the most high-profile cases of this sort involved Israeli general Doron Almog, who fled prosecution for war crimes in the UK after learning upon his arrival there that an arrest warrant had been issued against him for his alleged role in demolishing houses in Gaza in violation of art. 53 of the Fourth Geneva Convention. This incident and similar warrants issued against other Israeli officials in several European countries – including current opposition leader Tzipi Livni in the aftermath of Operation Cast Lead – have prompted Israel to take action, increasing its reliance on legal advisors during military operations and urging its allies to impose legislative limits on the doctrine of universal jurisdiction.[3] Legally-dubious practices applied by Israel in the past, such as punitive house demolitions, use of incendiary munitions in populated areas, and targeted assassinations, have been halted or curtailed.[4]

Another common use of litigation to achieve strategic political objectives with regard to the Middle East conflict involves the application of anti-terrorism legislation to target Palestinian actors. For example, the right-wing Israeli organization Shurat HaDin has been involved in litigating over a dozen cases, mostly in the US and Israel, against banks, Palestinian charities, and Muslim leaders around the world for their alleged support of terrorism. Many of these suits have been manifestly frivolous, such as a 2008 lawsuit against the government of Egypt, filed in an Israeli court, for not doing enough to prevent Hamas rocket fire from Gaza.[5] Others have been less so; on the basis of expansive anti-terrorism legislation, US courts have ordered the North Korean government to pay $378 million to victims of a joint Japanese Red Army-Popular Front for the Liberation of Palestine massacre at an Israeli airport in 1972,[6] the Iranian government to pay $183 million to the victims of a Hamas bus bombing in Jerusalem,[7] and the Palestinian Authority to pay $116 million to the Israeli victim of a West Bank shooting carried out by Hamas members wearing PA uniforms.[8]

The obvious downside of such judgments is that they are generally impossible to collect. Moreover, such thinly-veiled judicial forays into the realms of foreign affairs and international diplomacy threaten the constitutional separation of powers and risk harming the US’s national interests; in the case of the PA, the judgment resulted in $30 million of the Palestinian national bank’s assets in the US being frozen while at the same time the US government was continuing to pour money into PA accounts abroad in compliance with its international commitments. The freeze order was eventually overturned, but there is no question that it embarassed the government diplomatically and set back the US interest in developing the Palestinian economy. However, it apparently suited the political aims of Shurat HaDin; the organization seems to boast on its website that its actions have contributed to the closure of all banks in Gaza,[9] and its director has meanwhile petitioned the US government to break off the peace process on the basis of PA president Mahmoud Abbas’ alleged ties to terrorism.[10]

The third type of litigation relevant to the Middle East conflict comprises claims in tort against parties indirectly connected to the conflict. Such cases are liable to arise in regard to either Israeli or Palestinian actions.

In 2003, US activist Rachel Corrie was crushed to death by an Israeli bulldozer while protesting house demolitions in Gaza. In 2005, her parents and four Palestinian families who had lost relatives in a similar manner initiated legal proceedings against Caterpillar (the manufacturer of the bulldozers) in the US. The bulldozers were paid for by the Pentagon, which supplied them to Israel as part of a US military aid package. The plaintiffs argued that Caterpillar ought to have known that the bulldozers would be used in breach of international law. The suit was dismissed on the grounds that hearing the case would necessarily involve challenging US foreign policy toward Israel, and would therefore overstep the limits of judicial authority.[11]

In 2009, in a saga known as the “courtroom intifada,” the Palestinian village of Bil’in filed suit in Quebec Superior Court against Montreal-based companies Green Park and Green Mount.[12] The two companies were allegedly involved in developing Israeli-occupied land belonging to Bil’in’s residents for use by Israeli settlers, in contravention of the Fourth Geneva Convention. The plaintiffs argued that, in addition to international law, the defendant companies’ actions violated Canada’s Crimes Against Humanity and War Crimes Act, giving rise to civil liability under Quebec’s regime of extra-contractual obligations. The court dismissed the suit on the basis of the doctrine of forum non conveniens, holding that the matter was best heard by an Israeli court.[13]

Most recently, in July of this year, Shurat HaDin filed a lawsuit against the news network Al-Jazeera in the US on behalf of 91 Israelis wounded by Hezbollah rocket fire, alleging that Al-Jazeera’s reports from within Israel during the 2006 Israel-Lebanon war assisted Hezbollah in aiming its rockets.[14] The plaintiffs are seeking $1.2 billion in damages. Unsurprisingly, I do not have high expectations that this suit will succeed, not least of all because it would seem altogether impossible for the plaintiffs to establish causality.

Lawfare, it would seem from the above examples, can be a wildly asymmetrical – if often effective – means of waging conflict. While litigation based on international humanitarian law seems to fundamentally disadvantage Israel, suits based in private law actions seem to be (at least in many western countries) skewed in its favour.

As far as international humanitarian law goes, many commentators have noted the disadvantages faced by Israel, as a democratic member of the community of nations, in contrast with its non-state opponents. A prime example of this is the Goldstone Report, which brought allegations of war crimes against both Israel and Hamas. However, only Israel was subjected to massive internal and external pressure to investigate these findings, hold decision-makers responsible, and alter its actions in the future. Israel is bound by constraints which its opponents are relatively free to ignore. Nonetheless, I would argue that this is as it should be; it in no way strikes me as illogical for a UN member state to be held to different expectations than a designated terrorist organization. The right-wing Israeli organization NGO Monitor apparently disagrees, accusing humanitarian NGOs of hypocrisy in its reports on anti-Israel “lawfare,” which it describes as harassment and exploitation. It is worth noting that NGO Monitor uses the term lawfare in a slightly different manner than Dunlap does. While the latter considers it to be a form of ultimately self-inflicted damage best prevented by promoting adherence to international law, the former considers it to be merely an illegitimate external attack best prevented by suppressing accountability mechanisms. Moreover, NGO Monitor only objects to lawfare that is directed against Israel, opening itself up to the same sorts of accusations of hypocrisy and ideological agendas that it levels against others.

As for private law, its slanted application in Middle East lawfare is apparent when contrasting the case of Corrie v. Caterpillar with Ungar v. Palestinian Authority et al.  Why is it that US courts are more reluctant to step on the toes of the executive branch when foreign relations with Israel are concerned than they are when the interests at stake are foreign relations with the PA, Iran, or North Korea? I think the answer is likely at least somewhat political. It is true that the latter cases involve specific anti-terrorism statutes, but it seems to me there are other statutes - such as the Alien Tort Claims Act - that might similarly apply to the former. Moreover, in Ungar the court showed a willingness to hold the PA responsible for virtually any act of Palestinian terrorism taking place on its watch, a stringency I doubt it would have applied to Israel.

If courts are going to decide on politically-motivated questions, as inevitably they must, they should do so keeping in mind the following two principles which underlie the Supreme Court of Canada’s decision in Khadr II:[15]

1) Willingness to review the legal implications of foreign policy choices (Did Israel’s use of bulldozers contravene international law? Was the PA a supporter of terrorism as defined by domestic statute?); and

2) Due deference to the executive branch when ordering a remedy likely to impact foreign affairs.

Embracing these principles, rather than seeking to curtail judicial intervention in questions pertaining to foreign conflicts, will promote the rule of law and increase compliance with international norms. Moreover, the increasing use of litigation to wage international conflict emphasizes the importance of incorporating diplomatic considerations into national legal frameworks in a uniform and consistent manner, for example through international agreements on the applicability of the universal jurisdiction doctrine.

To be sure, there is considerable room for the involvement of the law in the Middle East conflict beyond the ways discussed here. Most importantly, the Israeli judiciary serves an invaluable, if imperfect, supervisory role over state action and is frequently called on to balance the competing interests of the state with its citizens’ and subjects’. Finally, international forums, like the International Court of Justice, can provide impartial guidance, advising the international community as well as the actors themselves as to their rights and obligations in striving to resolve or manage the conflict through political means.

[1] Dunlap, Charles J. “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts.” Harvard Carr Center (Nov. 29, 2001). Cited at http://www.washingtontimes.com/news/2007/aug/03/lawfare-amid-warfare/.

[2] Ibid.

[3] http://news.bbc.co.uk/2/hi/middle_east/8415161.stm.

[4] http://www.jpost.com/Israel/Article.aspx?ID=182088.

[5] http://imra.org.il/story.php3?id=37522.

[6] http://www.wdbj7.com/la-fg-north-korea-lawsuits-20101003,0,3145600.story.

[7] http://www.jewishreview.org/node/8584.

[8] Ungar v. Palestinian Authority et al. http://www.boston.com/news/world/middleeast/articles/2005/08/30/palestinian_authoritys_us_assets_are_frozen/.

[9] http://www.israellawcenter.org/Last-Bank-in-Gaza-Closes-Out-of-Fear-of-Victim-s-Civil-Suits.html.

[10] http://www.landofisrael.info/News/2003/4/29/abu_mazen_munich.html.

[11] http://ccrjustice.org/ourcases/current-cases/corrie-et-al.-v.-caterpillar.

[12] Bil’in (Village Council) v. Green Park International Ltd., 2009 QCCS 4151.

[13] http://www.legalfrontiers.ca/2009/10/quebec-courts-open-a-new-chapter-on-corporate-civil-liability-paying-for-war-crimes/.

[14] http://www.usatoday.com/news/world/2010-07-13-israelis-sue-al-jazeera_N.htm.

[15] Canada (Prime Minister) v. Khadr, 2010 SCC 3 (Khadr II).

The main problem with bringing this action in Québec is that its connection to Québec is extremely weak. Pursuant to article 3134 of the CCQ, the court took jurisdiction over the action because it found that the defendants were domiciled in Québec (Bil’in, para. 207). While the fact that the defendant has its domicile in Québec might normally be determinative in establishing jurisdiction, such a factor should be inconclusive in this instance. As Cullen himself later points out

this lone and apparent connection is merely superficial: the Corporations have no assets in Québec, are alter egos for another corporation which itself has no assets in Québec and Defendant Laroche [the current director] has no personal involvement in the Bil’in project … (para. 312)

The defendant corporations were only incorporated in Québec for tax reasons (para. 215). It is highly questionable to use the place of a legal person’s incorporation as the sole basis of asserting jurisdiction over an extra-contractual liability action that occurred entirely outside of Québec – especially if that corporation has no offices in Québec and does not carry out any activities there. Alas, article 3134 of the CCQ clearly accepts domicile as a basis for establishing jurisdiction, and as far as I can discern, the default rule in North America is that a legal person’s place of incorporation is its domicile. Nonetheless, I find it to be quite surprising that the defendants did not try to find some creative way of challenging the use of domicile to assert jurisdiction.

In light of the superficial nature of the connection to Québec, the Plaintiff’s action should have been dismissed outright for a lack of jurisdiction. Since he strictly followed article 3134, Cullen J. had no choice but to raise his legitimate concerns about the strength of the connection between the dispute and Québec in his forum non conveniens analysis. Article 3135 of the CCQ, which entrenches this private international law doctrine, stipulates that

Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.

It is perhaps best thought of as a tool that seeks to avoid injustice by providing a defendant with the ability to counter exaggerated, abusive, or exorbitant assertions of jurisdiction. While courts have consistently emphasized its exceptional nature, scholars have repeatedly critiqued courts for applying this doctrine too liberally.[1] It is indeed still quite difficult to determine when a situation warrants the application of this doctrine.

While the Québec court should have definitely refused to assert its jurisdiction, I do not believe that this matter was an instance that clearly warranted the use of forum non conveniens. In his analysis of which court is better positioned to decide the matter, Cullen J. employed the ten factors affirmed in Spar Aerospace Ltd. v. American Mobile Satellite Corp.[2] He correctly assessed that the majority of these factors – notably the location of assets, evidence, and the parties – weigh in favor of an Israeli court.

However, if the dispute’s connection to Québec was somehow more substantial, a strong argument might be made that Israel is not even a viable forum to hear the matter. As James Yap astutely argues, the potential that the war crime, which forms the basis of this action, might not even be justiciable in Israel could “lead to the grossly unjust result of leaving the plaintiff[s] absolutely no forum in which to pursue [their] claim”. Since the entire point of forum non conveniens is to assess which forum is better positioned, it does indeed seem logical to determine whether there is an available, alternative forum. I fully support Talpis and Kath’s recommendation that before assessing  forum non conveniens, a preliminary requirement should be that the foreign forum is indeed adequate and competent to hear the claim.[3] While judges must surely address this underlying issue before they write their decision, a clear presentation of their reasoning on this issue would go a long way to avoid a confusing decision when the viability or impartiality of the forum is contestable.

Provided that there was a substantial connection to Québec, the central issue in this case is really whether a court should decline jurisdiction where war crimes are not justiciable in the alternative forum. Yap convincingly argues that a Canadian court should accept jurisdiction due to the gravity of war crimes, which are universally recognized as severe human rights violations. Some scholars even argue that forum non conveniens should never apply to human rights cases because human rights “supersede [the] convenience of either the parties or the forum”.[4] Indeed, if this case were heard by the Court of Appeal, I hope that these arguments would be directly addressed.

While I am admittedly not entirely familiar with how to go about doing so, I am surprised that the plaintiffs did not try to argue that Québec was the forum of necessity. Article 3136 of the CCQ provides that

Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required.

The plaintiffs might have argued that Québec has a ‘sufficient connection’ with the dispute due to the grave nature of war crimes, which Canada has recognized with its enactment of the Crimes Against Humanity and War Crimes Act.

Nonetheless, even if the circumstances were different or some of these arguments were accepted, I am not sure whether Québec would be the appropriate forum to hear such a case. While something must be done to address the impunity with which Canadian corporations operate overseas, do we really want a Canadian court to rule on an action that asks it to determine whether a foreign state has committed a war crime? In the end, I suspect that the overwhelming majority of judges would find a way to dismiss such an action as an overreaching assertion of jurisdiction despite the fact that there are legitimate reasons for considering otherwise.

[2] Spar, ibid at para. 71.

[3] Talpis and Kath, supra note 1 at paras. 168-169.

[4] Ibid, at para. 178, referring to K.L. Boyd, “The Inconvenience of Victims: Abolishing Forum Non Conveniens in U.S. Human Rights Litigation”, 39 Va. J. Int’l L. 41 (1998).

Bil’in is a tiny agricultural community of 1,800 residents located 12 kilometres west of Ramallah, well within to the 1967 Armistice line dividing Israel and the West Bank. Though it is firmly rooted in the Occupied Palestinian Territories, the village has been bisected by the Israeli “Security Barrier”. The route of the barrier was deemed to be illegal, and in breach of international law by the International Court of Justice in 2004. In 2007, the High Court of Justice in Israel ordered the wall re-routed, confirming they saw no security or military reasons to maintain the current path of the wall, deeming it “highly prejudicial” to the villagers of Bil’in. Still, the wall remains in place, prompting Bil’in and its allies to seek new forums for judicial redress.

Their attorney, Israeli human rights lawyer Michael Sfard, decided a new approach was needed and began to target the corporations that he claims are complicit in the loss of Bil’in’s land. On the other side of the Israeli barrier, the settlement bloc of Modi’in Ilit has been constructed. And the development companies building these rapidly growing settlements are Green Park and Green Mount, both based in Montreal.

Sfard and his legal team, including Toronto attorney Mark Arnold, crafted an interesting legal argument, suggesting that by building settlements in Occupied Territory – a violation of the Fourth Geneva Convention – the defendant corporations were not only breaching international law, but Canadian law as well. Canada’s Crimes Against Humanity and War Crimes Act imported international law into domestic law. Yet in what was perhaps the most interesting element of Bil’in’s case, the plaintiffs sought to hold these development corporations civilly liable under Quebec’s regime of extracontractual obligations, for breach of the Crimes Against Humanity and War Crimes Act.

Using a statutory breach as a vehicle to create civil liability for aiding and abetting in a war crime was not only an extremely novel  legal tactic, but a model for how corporations could be deterred from engaging in breaches of international law, and human rights. Although Justice Cullen’s decision relied on the theory of forum non conveniens to dismiss the claim, suggesting the Israeli High Court of Justice ought to hear it, he did rule that “A war crime is an indictable offence. As such, it is an imperative rule of conduct that implicitly circumscribes an elementary norm of prudence, the violation of which constitutes a civil fault pursuant to art. 1457 C.C.Q.” Justice  Cullen thus created a groundbreaking precedent, suggesting civil liability in Quebec could easily accrue to any person who committed a war crime, such as breaching the Geneva Conventions by “knowingly participating in a foreign country in the unlawful transfer by an occupying power of a portion of its own civilian population into the territory it occupies.”

The potential ramifications of this decision are immense. Traditionally, only individuals and states have been held liable for breaches of international laws of war. The prospect of putting corporate actors on trial for breaching the laws of war opens up new dimensions of liability, and hopefully acts as a deterrent to those involved in gross violations.

Critics of the Bil’in trial, such as lawyer Ronald Levy of de Grandpré Chait, who represented the defendants, argued that the claim was a publicity stunt. Suing the defendant corporations was certainly a political act. The lawsuit was accompanied by protests from assorted Palestine solidarity groups in Montreal, and was profiled as a new branch of Palestinian civil struggle on Al-Jazeera, known as the “Courtroom Intifada.” Yet international law remains inherently political, and it could be argued that the act of building homes on disputed territory should not be available risk free to all those companies seeking a profit.

Attorney Michael Sfard seems confident about the village’s appeal. He told Radio-Canada, “The litigation is between a Palestinian village and a Canadian company. Why would an Israeli court be a better place to adjudicate the matter than a Canadian court?”

The villagers in Bil’in are also hopeful the appeal will prevail. They have responded with weekly non-violent protests that have become the subject of international attention. Friday afternoons in Bil’in begin with the midday prayers, followed by teams of Palestinians, left-wing Israelis and international activists marching to the fence to confront the Israeli Army stationed there; cadres of reporters from Reuters, BBC, Al-Jazeera and other networks are always close in tow. The village has become known for these protests, and are uploaded each week to Youtube.

The Canadian court system has the opportunity here to set a global precedent and raise the bar for the conduct of corporations operating not only in the Occupied Territories, but in every conflict zone. As Sfard told the Jerusalem Post, it is “important to take action against private individuals and companies that help the state in its actions that violate international humanitarian law.”