Public International Lawfare

In February 2018, Joshua Kern attended the first edition of the Legal Network Initiative, an anti-BDS conference organised by the Ministry of Strategic Affairs in Jerusalem. UKLFI’s Jonathan Turner was also present at the conference.

According to Israel National News, attendees of the conference signed a pact “to defend Israel on every possible legal front in the face of de-legitimization and boycotts.”

An email sent to the Deputy Attorney General Schöndorf right after the conference suggests that the Ministry of Justice was aware of Mr. Kern’s engagement on a project for Anne Bayefsky, another attendee at the conference.

Mondoweiss could not determine what the project in question was. Ms. Bayefsky is an international human rights lawyer and scholar, who has been critical of the United Nations, repeatedly calling it and many of its current experts and former officials antisemitic.

In a second visit to Israel, this time in August 2018, Mr. Kern met with Dr. Noam, in preparation for legal challenges he was intending to make to the ICC.

Between March and August 2019, barristers from 9BRI submitted a total of four briefs to the ICC as Article 15 Communications, which allow any entity to submit remarks for consideration to the Court. 

In one of these briefs, the barristers disputed the ICC’s jurisdiction over Palestine, arguing the Court should defer to Israel’s High Court of Justice instead. In another, they challenged the use of fact-finding reports from international bodies, including from the UN, arguing they “can neither be verified nor corroborated”.

The four briefs acknowledged UKLFI’s assistance in their preparation, and the financial support of The Lawfare Project, a US non-profit which calls itself “the world’s only international pro-Israel litigation fund”.

The briefs did not mention the extent of involvement of senior officials from the ministries of Foreign Affairs and Justice in their drafting, in terms of content, wording, and even length.

Asked to comment on whether this counted as a failure to acknowledge the support of the Israeli officials, Joshua Kern from 9BRI stated: “it is inaccurate and misleading to state that” there was failure.

“There was no such failure, which implies the existence of a professional duty [to acknowledge this support], in circumstances where no such duty existed,” he said.

Shortly after the submission of these briefs, pro-Palestinian international law expert Victor Kattan published his rebuttals to some of the arguments raised by 9BRI’s barristers.

Kattan dismissed the briefs on the matter of jurisdiction, calling them a way to “muddy the waters” and “an attempt to provide legitimacy to the views of the Revisionist Right that came to power in Israel in 1977, and that has never recognized the national rights of the Palestinian people to establish a state of their own in the ‘Land of Israel’.”

The ICC was also not convinced by the arguments presented by 9BRI’s barristers, and confirmed its jurisdiction over crimes committed in Palestine. Thanks to this decision, former ICC Prosecutor Fatou Bensouda was able to open an investigation into the matter in March 2021.