Lawfare

Lawfare is a recently coined word not yet appearing in the Oxford English Dictionary,[1] a portmanteau of the words law and warfare, said to describe a form of asymmetric warfare.[2] Lawfare is asserted by some to be the illegitimate use of domestic or international law with the intention of damaging an opponent, winning a public relations victory, financially crippling an opponent, or tying up the opponent's time so that they cannot pursue other ventures such as running for public office,[1][2] similar to a SLAPP (strategic lawsuit against public participation) lawsuit.

Origin of the term

Perhaps the first use of the term "lawfare" was in the 1975 manuscript Whither Goeth the Law, which argues that the Western legal system has become overly contentious and utilitarian as compared to the more humanitarian, norm-based Eastern system.[3]

A more frequently cited use of the term was Charles J. Dunlap, Jr.'s 2001 essay authored for Harvard's Carr Center.[3] In that essay, Dunlap defines lawfare as "the use of law as a weapon of war".[4] He later expanded on the definition, explaining lawfare was "the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting" a superior military power.[5]

Lawfare defined as "law to subordinate"

Some critical scholars understand lawfare as the use of law to effectuate subordination, conquest or control of subaltern or, generally, less powerful groups. The use of legal discourse (e.g., drafting and circulation of "internal" government legal memoranda rationalizing the use of widely condemned interrogation practices) often accompanies various forms of imperial, nationalist or even social hegemony. John Comaroff, writing of colonial African contexts in 2001, defined as "lawfare: the effort to conquer and control indigenous peoples by the coercive use of legal means".[6]

Lawfare in the book

In the book Unrestricted Warfare, lawfare is described as "International Law Warfare" and is mentioned alongside several other means by which offensive action may be carried to the enemy without force of arms. In a more detailed aside, it is further described as "Seizing the earliest opportunity to set up regulations". The book notes that powerful nations take a prerogative to make their own rules, but at the same token bind themselves with them. A second actor could circumvent these regulations because it is not similarly bound by them. Thus, it would be a serious disadvantage to the powerful nation, allowing the smaller nation comparative freedom.

The book also calls for many of these forces to be used in concert against an opponent. Lawfare could be used in concert with "media warfare" (i.e., propaganda) to bring enormous public pressure against an operation by a target power. Such an attack would weaken the enemy's resolve, as contrasted with the strengthening of resolve that follows a traditional offensive action. Such methods are best used in an orchestrated campaign.

Lawfare and universal jurisdiction

Lawfare may involve the law of a nation turned against its own officials, but more recently it has been associated with the spread of universal jurisdiction, that is, one nation or an international organization hosted by that nation reaching out to seize and prosecute officials of another.[7] Behind universal jurisdiction lies an Enlightenment view that all persons are endowed with basic human rights, and that infringing the rights of anyone no matter where they are violates internationally agreed principles of right and wrong.[8]

Justice Robert H. Jackson, speaking as a chief prosecutor in the Nuremberg Trials, famously stated that an international tribunal could punish acts by captured Nazi officials that may have been perfectly legal in Nazi Germany (indeed one charge was they distorted the law itself into an instrument of oppression), but went well beyond "what is tolerable by modern civilization".[9] In the jargon of "Lawfare", the Nuremberg Trials might be described as a kind of universal jurisdiction lawfare against German officials following the actual warfare of World War II. Though the asymmetry in that case would be strong against weak since the Allies had defeated the Nazis, and the desired public relations victory the detailed exposure of Holocaust atrocities.

Negative connotations of lawfare

Some have argued that "lawfare" be defined as an exclusively negative term. The Lawfare Project is one such organisation, defining lawfare as "the abuse of Western laws and judicial systems to achieve strategic military or political ends".[10] From this perspective, lawfare consists of "the negative manipulation of international and national human rights laws to accomplish purposes other than, or contrary to, those for which they were originally enacted".[10]

In his 2001 paper, "Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts", Colonel Charles Dunlap describes lawfare as "a method of warfare where law is used as a means of realizing a military objective".[11] Colonel Dunlap does accept multiple dimensions of lawfare, but considered the one most frequently embraced by American opponents to be inherently negative, a "cynical manipulation of the rule of law and the humanitarian values it represents".[11]

In a 2010 speech on the topic, Lawfare Project Director Brooke Goldstein elaborated on Dunlap's definition, detailing the importance of understanding the lawfare phenomenon from its negative perspective.

"... lawfare is about more than just delegitimizing a state's right to defend itself; it is about the abuse of the law and our judicial systems to undermine the very principles they stands for: the rule of law, the sanctity of innocent human life, and the right to free speech. Lawfare is not something in which persons engage in the pursuit of justice; it is a negative undertaking and must be defined as such to have any real meaning. Otherwise, we risk diluting the phenomenon and feeding the inability to distinguish between what is the correct application of the law, on the one hand, and what is lawfare, on the other. Because that is the essence of the issue here, how do we distinguish between that which constitutes a constructive, legitimate legal battle (even if the legal battle is against us and inconvenient) from that which is a counterproductive perversion of the law, which should be allocated no precedent? The delineation is not as simple as some may like to make it; that is, that lawsuits against terrorists are good, and legal actions against the U.S. and Israel are bad. Now, the question is not "who is the target", but "what is the intention" behind the legal action: is it to pursue justice, to apply the law in the interests of freedom and democracy, or is the intent to undermine the system of laws being manipulated?"[12]

Goldstein went on stress the counterproductive nature of the positive connotation of lawfare; where the goal held by the individual engaging in lawfare is the destruction of democratic values, the interpretation of lawfare as a positive action should not be grounds for allowing these individuals to use the system to further such goals as an alternative to the use of force.[13]

Positive connotations of lawfare

Some advocates have argued for using the term without negative connotations. Benjamin Wittes, Robert Chesney, and Jack Goldsmith appropriated the word as the name of the Lawfare Blog, which focuses on national security law and which has explored the term and continued the debate over what lawfare means, and whether it should be considered an offensive term. Benjamin Wittes, a Senior Fellow at the Brookings Institution, has argued that lawfare should not have only a negative connotation, but that it also refers to the sharply contested legal debates in the U.S. surrounding national security, and national security law. Wittes writes, "The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others."[14]

Israeli-Palestinian conflict

The NGO Forum of the 2001 Durban Conference called for the "establishment of a war crimes tribunal" against Israel. NGOs have used universal jurisdiction statutes in Europe and North America to bring forward such cases. These statutes allow courts to preside over cases in which one or more of the parties (or events at issue) are foreign. In some countries, such as Spain, an NGO can apply to a court directly for an arrest warrant or to launch a criminal investigation without the knowledge or approval of the government.[15] Many cases have been brought forward against Israeli officials and those associated with Israel's military, accusing them of war crimes. These cases have been heard in both Israel[16] and in other countries.[17]

US Ambassador John R. Bolton has characterized Palestinian attempts to seek UN recognition for a state as "lawfare", because he accuses the Palestinian state of delegitimizing Israel.[18]

Some supporters of Israel, such as Shurat HaDin (Israeli Law Centre), have been accused of using "lawfare" to get authorities to seize activist ships bound for Gaza (known as the "Gaza flotilla").[19]

According to Canadian MP and former minister Irwin Cotler, the use of law to delegitimize Israel is present in five areas: United Nations, international law, humanitarian law, the struggle against racism and the struggle against genocide.[20]

Joshua Mintz, writing in The Jerusalem Post in September 2011, referring to the Israel fears of lawfare, says, "it's quite possible that Israel, at least within the legal landscape, may actually benefit from the Palestinian statehood bid."[21] Douglas Bloomfield writes that "Palestinian lawfare against Israel could further isolate the Jewish state" as well as raise issues regarding overseas travel for Israeli leaders who might fear arrest on war crimes charges. In addition, Bloomfield suggested "if Abbas goes ahead with waging lawfare, he will open a new stage in the conflict that is likely to set back the cause of peace."[22]

Other examples of lawfare

The Wall Street Journal said in an editorial, regarding the Padilla case, "the lawyers suing for Padilla aren't interested in justice. They're practicing 'lawfare,' which is an effort to undermine the war on terror by making U.S. officials afraid to pursue it for fear of personal liability." Padilla was arrested in 2002 for planning to carry out a terror attack within the United States, was convicted and sentenced to prison, but has continued his legal battle via the ACLU and the National Litigation Project at Yale Law School, and his case has been ruled on numerous times.[23]

A notable US official cited in connection with asserted lawfare is Henry Kissinger. Dr. Kissinger faced questioning and possible prosecution in France, again in Brazil, and then in England (the latter initiated by Spanish magistrate Baltasar Garzón) because of Kissinger's involvement as a Nixon Administration official with Operation Condor. Kissinger subsequently opined that universal jurisdiction risks "substituting the tyranny of judges for that of governments".[24]

Harvard law professor Jack Goldsmith, known for his scholarship voicing opposition to the expansion of international human rights and universal jurisdiction, reveals in his book The Terror Presidency that Defense Secretary Donald Rumsfeld was concerned with the possibility of lawfare waged against Bush administration officials, and that Rumsfeld "could expect to be on top of the list".[25][26] Rumsfeld addresses the effects of lawfare in his memoir Known and Unknown.[27]

Questions remain unresolved of the possibility of lawfare-type prosecution in Italy[28] and Germany[29] of CIA agents involved in international abduction known as extraordinary rendition by the United States, and in Spain before Magistrate Garzón of the Bush Six, American attorneys who created what The New York Times called "the legal framework to justify the torture of prisoners at Guantanamo Bay".[30]

According to June Teufel Dreyer, an example of lawfare are the activities of the People's Republic of China in the dispute of maritime borders with several Association of Southeast Asian Nations nations.[31]

An opinion piece in the New York Daily News asserts that the United States is already dealing with "a variety of lawfare stratagems". In New York, anyone who reports an event as part of the "If You See Something, Say Something™" public awareness campaign is "protected from frivolous lawsuits" by the "Freedom to Report Terrorism Act", and journalists and authors who report on terrorism are protected from lawsuits by the "Libel Terrorism Protection Act", as well.[32]

See also

References

  1. ↑ 1.0 1.1 "Is Lawfare Worth Defining?". Case Western Reserve Journal of International Law 43 (1). 11 September 2010.
  2. ↑ 2.0 2.1 Unrestricted Warfare, p. 55
  3. ↑ 3.0 3.1 M. Smith; D. Crossley, eds. (1975). Whither Goeth the Law – Humanity or Barbarity, The Way Out – Radical Alternatives in Australia]. Melbourne: Lansdowne Press.
  4. ↑ Dunlap, Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts (29 November 2001).
  5. ↑ Charles J. Dunlap, Jr. (3 August 2007). "Lawfare amid warfare". The Washington Times.
  6. ↑ J. L. Comaroff (2001). "Colonialism, Culture, and the Law: A Foreword,". Law & Society Inquiry 26: 306.
  7. ↑ Goldsmith, Jack (2007). The Terror Presidency: Law and Judgement Inside the Bush Administration. New York City, New York: W. W. Norton. pp. 53–64. ISBN 978-0-393-06550-3.(discussing lawfare and the spread of universal jurisdiction).
  8. ↑ Grotius (1604). De Jure Pradae: (Of the Law of Prize and Booty). London: Oxford University Press. pp. xviii.(discussing in introductory notes Grotius' account of universal principles of right and wrong derived from reason and divine Will, the underpinning of much modern international law).
  9. ↑ "Opening Statement before the International Military Tribunal". Robert H. Jackson Center. 21 November 1945. Retrieved 2 March 2010.
  10. ↑ 10.0 10.1 The Lawfare Project: What is Lawfare? http://www.thelawfareproject.org/what-is-lawfare.html
  11. ↑ 11.0 11.1 Colonel Charles J. Dunlap, Jr. (29 November 2001). "Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts". p. 4.
  12. ↑ Brooke Goldstein (5 November 2010). "Lawfare: Real Threat or Illusion". Retrieved 25 November 2014.
  13. ↑ Brooke Goldstein (5 November 2010). "Lawfare: Real Threat or Illusion". Retrieved 25 November 2014.
  14. ↑ Benjamin Wittes; Stephanie Leutert (12 May 2013). "On Wikipedia, Lawfare, Blogs, and Sources". National Security Journal (Harvard Law School). Retrieved 25 November 2014.
  15. ↑ "NGO Lawfare". NGO Monitor. Retrieved 2013-05-13.
  16. ↑ "NGO Monitor Monograph – Overview of lawfare cases involving Israel". NGO Monitor. Retrieved 2013-05-13.
  17. ↑ "Netanyahu aide skips UK trip fearing arrest". AFP. 2011-05-04. Retrieved 2013-05-13.
  18. ↑ Bolton, John R. (2011-05-03). "BOLTON: Israel’s increasing vulnerability". The Washington Times. Retrieved 2013-05-13.
  19. ↑ "George Jonas: Using lawfare to anchor the Gaza flotilla". National Post. 7 November 2006. Retrieved 2013-05-13.
  20. ↑ Twersky, Mordechai I. (2011-05-19). "Cotler warns of new strain in delegitimization of Israel". The Jerusalum Post. Retrieved 2013-05-13.
  21. ↑ Mintz, Josh (2011-09-27). "Rhetoric vs. reality: ‘Lawfare’ and the PA statehood bid". The Jerusalem Post. Retrieved 2013-05-13.
  22. ↑ "Waging lawfare". Washington Jewish Week. 2011-09-28. Retrieved 2013-05-13.
  23. ↑ "'Lawfare' Loses Big". The Wall Street Journal. 2012-01-28. Retrieved 2013-05-13.
  24. ↑ Kissinger, Henry (July–August 2001). "The Pitfalls of Universal Jurisdiction". Foreign Affairs. Retrieved March 2, 2009.(The Foreign Affairs website archive summarizes but does not reproduce the text of Kissinger's article for lack of copyright; Kissinger revised and published it in his book Does America Need a Foreign Policy? Kissinger, Henry (2001). Does America Need a Foreign Policy?. New York City, New York: Simon & Schuster. ISBN 978-0-684-85567-7.)
  25. ↑ Goldsmith, Jack (2007). The Terror Presidency: Law and Judgement Inside the Bush Administration. New York City, New York: W. W. Norton. pp. 53–64. ISBN 978-0-393-06550-3.(discussing Kissinger and Rumsfeld)
  26. ↑ Thayer, Andy (8 March 2010). "Court Allows Torture Suit Against Rumsfeld". The Huffington Post. Retrieved 9 March 2009.(discussing civil lawsuit against Donald Rumsfeld by Donald Vance, a Navy veteran who says he was tortured in an Iraq prison in 2006).
  27. ↑ Rumsfeld, Donald (18 February 2011). "40". Known and Unknown. A Memoir. Sentinel. ISBN 9781595230676.
  28. ↑ Milan tribunal document PDF (1.44 MB), published by Statewatch, 22 June 2005
  29. ↑ SpiegelOnline: Judgment Day May Be Approaching for CIA Agents(discussing German indictment of 13 CIA agents for rendition of Khaled el-Masri)
  30. ↑ Marlise Simons (2009-03-28). "Spanish Court Weighs Inquiry on Torture for 6 Bush-Era Officials". The New York Times. Archived from the original on 2009-05-02.
  31. ↑ Dreyer, June Teufel (15 May 2014). "Trouble in Fishing Waters: ASEAN, China, and the South China Sea". Foreign Policy Research Institute. Retrieved 15 May 2014.
  32. ↑ Lancman and Ehrenmfeld (22 September 2011). "Don't reward the Palestinians' 'lawfare' campaign with statehood: Make peace with Israel first". Daily News. New York.

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