The Early Roots of Anti-Israel Lawfare

The long and disturbing history of the legal assault against the Jewish State.

Anti-Israel lawfare actually has a longer pedigree than usually imagined, dating from a seemingly obscure lawsuit arising from Israel’s 1948 re-birth.  Sreemati Mitter, an Ernest May Fellow at the Belfer Center of Harvard University’s Kennedy School and Harvard history Ph.D. candidate detailed the matter in a May 20 lecture.  About forty mostly middle-aged and older pro-Palestinian individuals at the like-minded Jerusalem Fund think tank heard Mitter.

Mitter recounted the June 12, 1948 freezing by the newly reborn state of Israel of all bank accounts belonging to Arab refugees from Israeli-controlled territory during the country’s independence war.  She focused on the Palestine branches of Barclays and the Ottoman Bank in London, the two of which held deposits from the Arab Bank, a “Palestinian nationalist bank.”

Arab Bank’s attempts to win restitution of its seized accounts ultimately resulted in a “seminal lawsuit in banking history” against Barclays and Ottoman.  A 1954 House of Lords (then the British high court) decision in Arab Bank Ltd. v. Barclays Bank (Dominion, Colonial and Overseas), though, rejected Arab Bank’s demands.  Yet Barclays and Ottoman “won in Britain, lost in Jordan” as lawsuits in the latter country produced the opposite result. These banks then threatened to leave an economically developing Israel, leading to a settlement with Israeli account restitution in return for a low interest loan from the two British banks.

Mitter assesses that in principle “everybody is happy” in this story, as the banks along with the United Kingdom in general preserved commercial reputations, the account holders received their assets, and Israel got a loan.  Yet her general euphoria has one wrinkle.  Rebuffed in the United Kingdom, lawyers for the Palestinian account holders tried to “find a legal regime that does not recognize Israel,” Mitter explained.  Some fifty resulting lawsuits filed in Jordan led to the judicial holding that Israel is an “illegal entity” not entitled to seize property.  Therefore “Palestinians really fought for their rights” and “turned to the law” precisely by denying Israel its rights.

Britain’s Law Lords, by contrast, affirmed in their decision private sector subordination to wartime Israeli state action.  Similarly, Israel’s March 14, 1950 Absentee Property Legislation seizing Palestinian refugee property in Israel comes “almost word for word” from British enemy property legislation, Mitter noted.  These laws have the “same justification, which is war.”

The decision cites the Israeli proclamation on May 19, 1948, five days after Israel’s independence declaration, that Palestine Mandate “English law…should remain in force” wherever “not repugnant to” Israeli enactments.  Thus in “all questions relevant . . . there is no difference” in British and Israeli application of “English common law regarding trading with the enemy.”  Under a “general principle . . . not in dispute . . . war prevents the further performance of contracts” with “persons in enemy territory . . . . Many kinds of contractual rights are totally abrogated.”

The “economic dimension” of “what it means to be stateless” formed the central theme of Mitter’s presentation, which sought to place “Palestinians in context with stateless people everywhere.”  Yet, upon this reporter’s questioning, Mitter conceded that Jordan did bestow citizenship upon West Bank Palestinian refugees, the largest Palestinian refugee contingent, in contrast to other Arab states.  Mitter also acknowledged that Jewish refugees fled Arab countries following Israel’s independence.

In fact, these Jewish refugees exceeded Palestinian refugees from the 1948 and 1967 wars with Israel in numbers and property losses, prompting Israeli demands that Jewish refugees concurrently receive compensation in any Palestinian refugee settlement.  Most of these Jewish refugees avoided statelessness precisely through immigration to an “illegal” Jewish homeland at considerable integration costs to Israel.  Not surprisingly, 68 percent of Israeli respondents in a 2007 poll rejected compensating 1948 Palestinian refugees.

This long record of lawfare against the Jewish state, with the goal of denying Israel’s right to protect sovereign interests, provides Israel’s enemies with legal and propaganda weapons used to delegitimize its existence to this day. The assertion that Jewish settlement in any territories won by Israel in the 1967 war, including Jerusalem, are absolutely illegal, rest on these efforts, as do (more perniciously) attempts to justify sanctions and actual violence against Israel. While Mitter and others focus on the plight of Palestinian refugees and their descendants who deserved integration into Arab states long ago, Israel, a country formed largely by Jewish refugees from all over the world, remains under threat.

This essay was written for Campus Watch, a project of the Middle East Forum.

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