Lawfare: ‘A Cynical Manipulation of the Rule of Law’ * Alex Grobman, PhD
Having failed to destroy Israel militarily, economically and through terrorism, the Palestinian Arabs have restored to using “political warfare and legal warfare,” said former Israeli Deputy Foreign Minister Danny Ayalon. “Today the trenches are in Geneva in the Council of Human Rights, or in New York in the General Assembly, or in the Security Council, or in The Hague, the International Court of Justice (ICJ) to damage our foreign relations with other nations.”
Lawfare is a weapon in the political war used by NGOs to delegitimize the Jewish state, demonize her leaders and limit the dissemination of public information about radical Islam. Israel’s enemies exploit U.S. and European courts by initiating civil lawsuits and criminal investigations to thwart Israel’s ability to fight terror by accusing her of “war crimes” and “crimes against humanity,” he affirmed.
Captured Al-Qaeda terrorists were ordered to file spurious claims of being abused and tortured in order for the media, the public and the courts to see them as the true victims. As attorney Brooke Goldstein, director of the Lawfare Project maintains, “The object is as much to win a public relations victory as a court case.” This has not stopped them from overtly ignoring basic human rights when they brainwash children to become homicide bombers or use them as human shields.
Anne Herzberg, legal adviser for NGO Monitor, points out the prominent role NGOs have assumed in this process, due to their resources and mostly unrestrained power. Political scientist James McGann explains: “NGOs or civil society organizations (CSOs) have moved from backstage to center stage in world politics and are exerting their power and influence in every aspect of international relations and policymaking … ”
Furthermore, NGOs are “not neutral on issues of policy formation.” This “dual role of providing information and acting as an agent of political pressure on the government, leading to potential conflicts of interest.” This becomes important with regards to the expansion of “universal jurisdiction” and the establishment of international legal institutions.”
Lawfare: ‘An Unprecedented Movement’
In 2001, Colonel Charles J. Dunlap, Jr., then staff judge advocate, initially coined the term “lawfare” as “a cynical manipulation of the rule of law and the humanitarian values it represents. Rather than seeking battlefield victories, per se, challengers try to destroy the will to fight by undermining the public support that is indispensable when democracies like the U.S. conduct military interventions.” Seven years later, he redefined lawfare “as the strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.”
This manipulation, designed to defeat an adversary or to impose limitations on his options, can only be attempted in a democratic system where the government is accountable to the rule of law and its citizens, declared law professor Gregory Rose.
Adopted at the NGO Forum of the 2001 World Conference against Racism (Durban I), lawfare became a fundamental element of the Durban Strategy to delegitimize Israel as an apartheid nation. The NGOs accused Israel of the “systematic perpetration of racist crimes including war crimes, acts of genocide and ethnic cleansing,” and urged the “international community to impose a policy of complete and total isolation of Israel as an apartheid state.”
Henry A. Kissinger, former U.S. Secretary of State, was among the first to voice concern about the “unprecedented movement” that had “emerged to submit international politics to judicial procedures,” and knew this would affect Israel. Known as the doctrine of universal jurisdiction, this gave the International Criminal Court (ICC) “prosecutorial discretion without accountability.” There were a number of problems this precipitated. Definitions of the offenses were imprecise and very “susceptible to politicized application.” Any participating state could initiate an investigation. And defendants were not permitted the same due process they would have been entitled to in the U.S. In “pushing the effort to extremes” he feared, you risked replacing “the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts.”
Kissinger correctly predicted this policy would enable the Palestinian Arabs and the Israelis to bring their battles to the court. As long as national prosecutors had the discretion to determine what crimes are subject to universal jurisdiction and whom to prosecute, the possibility of arbitrariness is considerable. Kissinger questioned whether “an excessive reliance on universal jurisdiction may undermine the political will to sustain the humane norms of international behavior so necessary to temper the violent times in which we live.”
Advancing BDS: Boycott, Divestment, Sanctions
Anne Herzberg adds that lawfare plays a key role in advancing BDS: lawsuits are brought against Israeli officials and corporations and countries engaged in business with the Jewish state; and promoting anti-Israel activity at international institutions like the U.N., the International Court of Justice, the International Criminal Court and the European Parliament.
She said Human Rights Watch, Amnesty International, the Palestinian Center for Human Rights (PCHR), the Ramallah-based Al-Haq and the Center for Constitutional Rights in New York are the leading NGOs in this campaign. Considerable funding to support many of these initiatives, as well as arranging demonstrations and issuing reports fashioned as legal briefs that coincide with court hearings, comes from the European Union, individual European governments, the New Israel Fund (NIF), George Soros’ Open Society Institute (OSI) and the Ford Foundation.
These lawsuits generally do not acknowledge the difficulty Israel encounters in combating terrorist rockets aimed at Israeli civilians, while terrorists position their own weapons factories and hiding places among their own civilian populations. The allegations also omit the extreme effort Israel takes to avoid harming civilians.
Israel as the Prime Focus
Herzberg notes Israel remains the prime focus of this campaign. Additional anti-Israel cases have been filed throughout the West by exploiting “universal jurisdiction” laws. These statues permit courts to decide cases where the defendants and subject matters are completely foreign. The laws were to offer relief to victims of terror in countries where rule of law is not respected. Instead, NGOs have appropriated these statues to advocate anti-Israel policies.
She stated that in several cases, lawsuits have resulted in arrest warrants being issued against former Israeli military officers. Most suits are dismissed at the initial stages of prosecution. The U.S. Court of Appeals in Washington, D.C. in 2008 concluded that these cases “concern acts allegedly done by the military of the state of Israel in the conduct of hostile operations” and that NGOs are wrongly attempting to involve the courts “in the micro-management of military targeting decisions.” The intention of these U.S. statutes was to prosecute “an Idi Amin or a Mao Zedong,” not these types of cases.
Even though the cases are dismissed, the extremely negative publicity surrounding indictments of Israeli officials and the issuing of arrests warrants advances the delegitimization of Israel. Fear of being arrested inhibits Israeli officials and military personnel from traveling abroad.
A Final Note
Individuals, the media and organizations fighting terror are not immune to this harassment and intimidation. “Legal action has become a mainstay of radical Islamist organizations seeking to intimidate and silence their critics,” observes counterterrorism specialist Steve Emerson. “Such lawsuits … are often predatory, filed without serious expectations of winning, but initiated to bankrupt, distract, intimidate and demoralize defendants. Such plaintiffs seek less to win than to wear down the researchers and analysts who, even when they win, pay heavily in time and money.”
Alan Dershowitz contends that large newspapers are financially able to defend themselves against libel suits for reporting about a plaintiffs’ association with radical Islam, but they might prefer to forgo the aggravation and the cost, even though having a significant possibility to win. What role the threat of litigation plays in determining whether an editor chooses to publish or bury an article is not clear. The same is true with writers who might forgo publishing or withdraw their work out of fear that although their writing is protected as free speech, they could still be accused of libel.
Lawfare, Dershowitz concludes, poses a very real danger to free speech, but society, not the media, will suffer the most until this threat is neutralized through legislation. When NGOs claim they are pursuing “justice” for alleged “victims” of the Israeli military, they do not seek the same “justice” for Israeli victims of terror. The NGOs also do not hold Hamas and Hezbollah accountable for purposely transforming their civilian areas into justifiable military targets, Herzberg asserts.
- Excerpt from Alex Grobman, “BDS: The Movement to Destroy Israel” eBooks.
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