Lawfare: the new warfare

  By Jeanette Friedman 

NEW YORK CITY—There’s a new word in town: ”lawfare.” Truth is, it’s been around for a while—used primarily by policy wonks, government lawyers and NGOs. But now this term—an extension of warfare in which international law is used to attack one’s enemies in the courtroom–has become the new WMD (weapon of mass distraction). The goal in many of these cases is not to win—that would be a bonus—but to distract the defendants, limit their actions and deplete their funds. 

The heads-up took place recently at the New York County Lawyer’s Association (NYCLA) headquarters on a street that borders Ground Zero.  More than 300 lawyers, law students and activists came to sit at the feet of the crème de la crème of the legal profession, diplomats, think tank members and academics to learn about the ways courts of law can be used to limit the ability of a sovereign nation to defend itself, and, at the same time, to create negative propaganda to manipulate the news cycle. It was also a call to action. As one observer noted, “This isn’t a matter of right or left. It’s a matter of common sense and survival.” 

Among those on the distinguished roster were The Boss, himself, retiring DA of the Southern District of New York, 

Robert M. Morgenthau

Robert M. Morgenthau; the former Canadian Minister of Justice and now member of Parliament, Irwin Cotler; and Ambassadors Gabriella Shalev, John Bolton, Dore Gold and Pierre Prosper. The list of professors and experts, including some of the policy wonks referred to above, spent an entire day explaining precisely what lawfare is, who uses it, what purpose it serves and teling their colleagues that something needs to be done about it because it’s more dangerous than it seems. 

The day-long seminar was sponsored by The Lawfare Project, The European Center for Law and Justice, and The International and Foreign Law Committee of the NYCLA. 

Here’s what participants learned:  Lawfare techniques include lawsuits against journalists and against persons brave enough to speak and comment publicly about religion—including the issues of radical Islam, terrorism and its sources of financing. They can be workplace harassment suits filed against counter-terrorism agents or war crimes charges against soldiers, government officials, civilians and corporations. Because lawsuits cost lots of money even when they are “frivolous,” and because of negative public relations generated by the filing of the suit in the first place, a culture of fear is created that has a chilling effect on the people who are supposed to protect their citizens from harm.
The key question is how a legal system is used. Is it used to pursue justice or to subvert it?  As more than one speaker noted, citing case histories, lawfare is as American as apple pie. The problem is that when Americans filed lawsuits against other sovereign nations, it did not go unnoticed. Right now, the international legal system, and human rights laws are being manipulated so as to harm, undermine and diminish the very principles they were enacted to protect.
  
  

Irwin Cotler

The use of the law to pursue justice is very much part of the American legal and political tradition. But now the system is being abused by terrorists and their sympathizers to undermine a nation’s ability to defend itself against them.
 
Brooke Goldstein, director of The Lawfare Project, notes that the Organization of the Islamic Conference is lobbying the UN to bring back blasphemy laws and exclude the targeting of American civilians from any international definition of terrorism—and that  Hamas facilitates the human rights prosecution of Israeli officials, while Spanish courts are trying former legal advisors to the Bush administration. She asks, “What kind of implications are these actions going to have on the way we defend ourselves?”
 
Human rights law is being turned on its head to attack the U.S. for its actions in Kosovo, its response to 9/11, and the wars in Iraq and Afghanistan, as well as to delegitimize Israel. 

Speaker after speaker dissected the process. Basically it amounts to this: The main battlefields are the UN international Criminal Court in The Hague, as well as local national courts of law that exercise universal jurisdiction—allowing suits to be brought by two parties from the other side of a country’s borders—who have nothing to do with the country where the suit is being brought—ie., Hamas filing suit against Israelis in England or Spain.
 
There are those who want to turn the UN Charter into an international constitution and file charges against countries they know they could never defeat on the conventional battlefield. It is asymmetric warfare at its most subtle. If these groups (those who aim lawsuits at Israel and western democracies) have their way, the UN Security Council will be the sole agency to determine which nations have the right to defend themselves and which nations can be delegitimized. The UN, for example, has already used the system to criminalize the security wall Israel built to keep out terrorists, as well as Operation Cast Lead, the war in Gaza.
 
According to Goldstein, those are good examples of bias in the application of the law—where Israel was denied due process and the right to equality before international law. “It was lawfare at its best, executed by the ‘so-called’ judges themselves. If the judges were true advocates of international humanitarian law, they would never have ignored the fact that the security fence—brick and mortar—saved human lives and therefore was justified.”
 
It was time, speakers noted, to fight fire with fire. Nicholas Rostow exhorted the audience: “The consequences of the use of law are profound. Be vigilant, be aggressive, don’t be chicken. We have to play the game and it is our game. It’s not like we don’t have enough lawyers to do this.” 

Israeli Ambassador to the UN Gabriella Shalev explained how “The rule of law and respect for human rights is being perverted for political ends.  Certain democratic states have created laws that go beyond their borders and use them to support terrorism, a political misuse that should be taken into consideration.”
 
Mark Shurtleff, Utah’s attorney general, waxed historical, talking about military strategics: “The rule of law is being hijacked to the detriment of human values. It’s a strategy straight out of Sun Tzu’s Art of War, [the general] who wrote that ‘all warfare is based on deception’ and that in fighting a stronger foe, success begins by ‘seizing something your opponent holds dear; then he will be amenable to your will.’ Two thousand years later, Chinese Airforce strategists … suggested the manipulation of rules dear to larger nations as weapons of war.
 
“America and the West hold dear the Rule of Law, and so our enemies have met with some successes of late in hijacking moral and western principles to turn international media and public opinion against us…the term lawfare was coined … in the 70s to explain this military tactic of dueling with ‘words rather than swords.’
 
“So if you let the enemy control the dialogue and manipulate the system, you lose.”
 
Irwin Cotler took the podium again and reminded everyone that, “Genocide begins with words, and there is no such thing as unlimited free speech. We are witnessing leaders of Iran issue nuclear, genocidal, and religious threats.  State incitement to genocide is against international law, yet, as we meet, not one party has undertaken the mandated legal remedy to hold Iran to account. Not the U.S. or Canada or any signatories refer this to the UN Security Council. But to ignore the state sanction of genocide is to sanitize it. A man like Ahmadenijad, people who are in standing violation, such people enjoy legal immunity when they should be in the docket. They can come and go freely, yet they have no liability whatsoever. At this point, it is our responsibility to take back the juridical narrative and bring Iran to justice.”
 
Said Goldstein, “The legal system could be an appropriate if not ideal forum to solve disputes; indeed it is better to litigate then to shed blood. However, the problem of lawfare is, at its essence…the concerted effort to abuse and manipulate legal fora and international humanitarian law to impede the ability of the courts themselves to provide justice—using them as a tool of war and not as a forum for mediation. It dilutes the real meaning of legal terms like apartheid and genocide.”
 
The conference covered Rwanda, the Balkans, Sri Lanka, Darfur, Sudan and the indictment of Al Bashir of Sudan for genocide. It pointed out the pitfalls and possibilities of the uses of lawfare to take back a nation’s sovereign right to defend itself without finding itself subject to the paralyzing fear factors generated by its enemies.
 
Above all, the conference was a call to arms. Malcolm Hoenlein, Executive Vice-Chairman of the Conference of Presidents of Major American Jewish Organizations put it this way: “This is an historic event in the breadth of experts and top figures who have come to speak out and among those who came to listen. We put the issue of lawfare as warfare on the agenda for the first time and are empowering those who will file lawsuits to counteract the kinds of suits we are seeing filed against the U.S., Israel and other democracies.”
 
The Lawfare Project is gearing up to provide additional seminars internationally, to put advocates on notice and assist them in filing appropriate lawsuits to protect the Rule of Law and national sovreignity.

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Friedman is San Diego Jewish World’s bureau chief for the greater New York area.

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