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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.

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