No Comment — March 12, 2010, 12:19 pm

Lawfare Redux

As the recent attacks by Liz Cheney and her organization demonstrate, “lawfare” as a subject is not going to disappear anytime soon. Lawyers simply make too inviting targets–even when they’re working pro bono on projects that they believe are advancing the Rule of Law. A conference yesterday in New York showed just how the “lawfare” concept can be reshaped to address new situations and different facts.

The resplendent meeting room of the New York County Lawyers Association, filled with Beaux Arts details and crystal chandeliers, was a curious site for the gathering organized by the Conference of Presidents of Major American Jewish Organizations. Generations of bar leaders stared down from the walls—many of them key players in the 1949 Geneva Conventions, the Convention Against Torture, the Genocide Convention, and other mainstays of the world’s human-rights legal infrastructure–as speakers took to the podium to tell the audience that international law wasn’t all it was cranked up to be.

There was a danger of “taking international law too seriously,” as George Mason University’s Jeremy Rabkin put it. “It’s not like the tax code,” he argued; the rules are unclear and, more to the point, there is no court to enforce them. Former U.S. ambassador to the United Nations John Bolton also spoke at the event, and is indeed well known for his denigrating views about international law:

It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest to do so–because over the long term… those who think that international law really means anything are those who want to constrict the United States.

Speaker Anne Herzberg rose to assail “NGO Lawfare.” She catalogued a series of litigations brought by human-rights organizations in courts around the world, in which policies or actions of the Israeli government were challenged as unlawful, sometimes successfully but more often not. These organizations are promoting a “radical agenda” she argued—“anti-state,” “anti-democracy,” and “anti-American.” The organizations attacked included the Israeli human rights group B’Tselem, Amnesty International, and Human Rights Watch. They were funded by “foreign” sources, Herzberg said, focusing specifically on funding from the European Union. Herzberg and others particularly highlighted cases in Belgium and Spain in which private litigants sought to pursue war-crimes charges against Israeli government officials–efforts which gained newspaper headlines, but no success in the courts. Indeed, Spain subsequently amended its universal jurisdiction statute to eliminate such cases, requiring a specific nexus to Spain before the jurisdiction could be exercised–an approach that has increasingly gained favor in the European universal jurisdiction states.

Speakers also took aim at former South African Justice Richard Goldstone and the report he co-authored with Christine Chinkin of the United Kingdom, Hina Jilani of Pakistan, and Col. Desmond Travers of Ireland, addressing allegations of war crimes and crimes against humanity committed by Israeli forces and Palestinian militants in the Gaza conflict in 2009. Speakers repeatedly characterized the report as an attack on Israel’s right to exist and ignored the fact that it reserved its sharpest criticism for the conduct of Palestinian militants, specifically including their practice of firing missiles at civilian population centers. The specific factual conclusions of the report were not discussed, however. Typical was Columbia Law Dean David Schizer, a conference co-chair, who concluded that the Goldstone report “created standards of morality in war that leave a state without the means of legitimate self-protection,” without offering any explanation as to how he got there.

No speaker was present to defend the Goldstone report, nor were any of the NGO groups assailed at the gathering invited to respond. The event had the feel of a pep rally, not an attempt to provide serious discussion of the issues it identified. It seems to be in line with the Netanyahu Government’s strategy for dealing with human-rights complaints, both from NGOs and from international organizations like the United Nation, and it closely tracked a similar function convened two weeks earlier in Jerusalem. The principal question was strategic: namely, how best to disarm critics of the Israeli Government’s security policies.

The concept of “lawfare” appears to be a one-size-fits-all cover for this strategy: in the view of the conference organizers, any human-rights organization that criticizes the government’s security policies is an adversary. To the extent that it engages courts and the law, it is “lawfare.” The next step will apparently be to try to dry up the funding that supports this sort of work, by pressing donors directly and tarnishing the reputations of the NGOs that receive their grants. Recent reports inside Israel surrounding the New Israel Fund show how this tactic can be pursued; Israeli commentators are busy attacking NGOs who take money from the European Union as a “European lobby.” NGOs that cooperated with the Goldstone inquiry and whose representatives testified before it have been specially singled out.

The notion of “lawfare” was previously used to attack lawyers in the United States who filed habeas petitions on behalf of alleged terrorists in Guantánamo. These lawyers were and continue to be subjected to McCarthyite character assassination as terrorist sympathizers, even though about 80% of their clients have turned out not to be terrorists after all. Lawfare turns out to be a flexible concept, available for a wide array of situations in which a government finds itself at odds with the law, fighting a rear-guard action in its own courts, or menaced by the prospect of prosecutions overseas.

Efraim Chalamish, the U.N. Representative of the Association of Jewish Lawyers, pointed to Asia as an interesting case study for those looking at the lawfare concept. Indeed, Pervez Musharraf, the one-time Pakistani dictator, zealously embraced the idea of lawfare. In a speech on November 3, 2007, he declared a state of emergency in Pakistan. In his televised address (turning to the camera and switching from Urdu to English, moreover), he argued that his government had been hamstrung in the conduct of the war against terror by lawyers who were flooding the courts with writs challenging the government’s detention of alleged terrorists. He declared a state of emergency and suspended the country’s constitution. It soon appeared that Musharraf’s real adversaries were more the lawyers than the terrorists. He placed the Supreme Court under house arrest and proceeded to round up the leaders of the bar. In the struggle between Musharraf and the bar, however, Musharraf lost. And with the lawfare dictator gone from the scene, and the judges and lawyers back filing their writs and petitions, the war against terror in Pakistan seems to have gained its second wind. This Asian example provides a good demonstration of how the lawfare concept is wielded and what role it really plays in the war against terror.

Share
Single Page

More from Scott Horton:

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2016

Atlas Aggregated

= Subscribers only.
Sign in here.
Subscribe here.

The Origins of Speech

= Subscribers only.
Sign in here.
Subscribe here.

Four in Verse

= Subscribers only.
Sign in here.
Subscribe here.

A Sigh and a Salute

= Subscribers only.
Sign in here.
Subscribe here.

Four in Prose

= Subscribers only.
Sign in here.
Subscribe here.

Don the Realtor

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Martin Amis on the rise of Trump, Tom Wolfe on the origins of speech, Art Spiegelman on Si Lewen, fiction by Diane Williams, and more

In Havana, the past year has been marked by a parade of bold-faced names from the north — John Kerry reopening the United States Embassy; Andrew Cuomo bringing a delegation of American business leaders; celebrities ranging from Joe Torre, traveling on behalf of Major League Baseball to oversee an exhibition game between the Tampa Bay Rays and the Cuban national team, to Jimmy Buffett, said to be considering opening one of his Margaritaville restaurants there. All this culminated with a three-day trip in March by Barack Obama, the first American president to visit Cuba since Calvin Coolidge in 1928. But to those who know the city well, perhaps nothing said as much about the transformation of political relations between the United States and Cuba that began in December 2014 as a concert in the Tribuna Antiimperialista.

Illustration by Darrel Rees
Article
Don the Realtor·

= Subscribers only.
Sign in here.
Subscribe here.

"If you have ever wondered what it’s like, being a young and avaricious teetotal German-American philistine on the make in Manhattan, then your curiosity will be quenched by The Art of the Deal."
Photograph (detail) © Polly Borland/Exclusive by Getty Images
Article
The Origins of Speech·

= Subscribers only.
Sign in here.
Subscribe here.

"To Chomsky...every child’s language organ could use the 'deep structure,' 'universal grammar,' and 'language acquisition device' he was born with to express what he had to say, no matter whether it came out of his mouth in English or Urdu or Nagamese."
Illustration (detail) by Darrel Rees. Source photograph © Miroslav Dakov/Alamy Live News
Article
A Sigh and a Salute·

= Subscribers only.
Sign in here.
Subscribe here.

"Si told me that various paintings had spoken to him, but he wished they had been hung closer together 'so they could talk to each other.' This observation planted a seed that would come to fruition years later in his mature work."
Artwork (detail) by Si Lewen
Article
El Bloqueo·

= Subscribers only.
Sign in here.
Subscribe here.

"Amid the festivities and the flood of celebrities, it would be easy for Americans to miss that the central plank of the long-standing cold war against Cuba — the economic embargo — remains very much alive and well."
Photograph (detail) by Rose Marie Cromwell

Estimated temperature of Hell, according to two Spanish physicists ‘ interpretation of the Bible:

832°F

The ecosystems around Chernobyl, Ukraine, are now healthier than they were before the nuclear disaster, though radiation levels are still too high for human habitation.

A TSA agent in Seattle was arrested for taking up-skirt photos of women in the airport, a Maryland police officer was arrested for taking up-skirt photos of an off-duty colleague, and the Georgia Court of Appeals ruled that taking up-skirt photos is legal in the state.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Mississippi Drift

By

Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'

Subscribe Today