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 lawsuit. Other scholars see it more neutrally as a reference
to both positive and negative uses of law as an instrument of warfare or
even to the legal debates surrounding national security and
counterterrorism.[citation
needed]
Origin of the term
Perhaps the first use of the term "lawfare" was in a 1975 manuscript
called 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.[4]
In that essay, Dunlap defines lawfare as "the use of law as a weapon of
war."[5]
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.[6]
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.”[7]
Lawfare in the book Unrestricted Warfare
In the book, 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
Unrestricted Warfare 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.[8]
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.[9]
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 which may have been
perfectly legal in Fascist 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."[10]
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.
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.[11]
Prof.
Gerald Steinberg, Chairman of the
Political Studies Department at
Bar Ilan University and President of
NGO Monitor says that "NGOs manipulate international legal
terminology and exploit the rhetoric of human rights to accomplish their
political goals."[12]
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[13]
and in other countries.[14][15]
US Ambassador John Bolton has characterized Palestinian attempts to
seek UN recognition for a state as "lawfare", because he accuses the
Palestinian state of delegitimizing Israel.[16]
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").[17]
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.[18]
Joshua Mintz, writing in the
Jerusalem Post in September 2011, referring to the Israel fears of
lawfare, says that "it’s quite possible that Israel, at least within the
legal landscape, may actually benefit from the Palestinian statehood
bid."[19]
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 that "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."[20]
Other
examples of lawfare
The
Wall Street Journal said in an editorial, regarding the
Padilla case, that "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.[21]
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."[22]
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."[23][24]
Rumsfeld addresses the effects of lawfare in his memoir Known and
Unknown.[25]
Questions remain unresolved of the possibility of lawfare-type
prosecution in Italy[26]
and Germany[27]
of CIA agents involved in international abduction known as
extraordinary rendition by the United States, and in Spain before
Magistrate Garzón of the
Bush 6, American attorneys who created what the New York Times
called "the legal framework to justify the torture of prisoners at
Guantanamo Bay.".[28]
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.[29]
See also
References
-
^
a
b
Is Lawfare Worth Defining? Case W. Res. J. Int'l L. Vol.
43:1(September 11, 2010)
-
^
a
b
(Unrestricted Warfare, at 55, see
URL:
http://www.terrorism.com/documents/TRC-Analysis/unrestricted.pdf).
-
^
Whither Goeth the Law - Humanity or
Barbarity, The Way Out – Radical Alternatives in Australia (M.
Smith & D. Crossley, eds., 1975), accessible at
http://www.laceweb.org.au/whi.htm .
-
^
Id.
-
^
Dunlap, Law and Military
Interventions: Preserving Humanitarian Values in 21st Century
Conflicts (29 Nov 2001).
-
^
Dunlap, “Lawfare amid warfare,”
Washington Times (3 Aug 07).
-
^
J. L. Comaroff, Colonialism,
Culture, and the Law: A Foreword, 26 LAW & SOC. INQUIRY 306
(2001).
-
^
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).
-
^
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).
-
^
Justice Jackson's opening statement at the Nuremburg War Crimes
trial, reproduced at the Robert H. Jackson Center website,
accessed 2 March 2010.
-
^
NGO Monitor Monograph - Background on Lawfare
-
^
NGO Lawfare: New monograph from NGO Monitor
-
^
NGO Monitor Monograph - Overview of lawfare cases involving
Israel
-
^
Netanyahu aide skips UK trip fearing arrest
-
^
Anti-Israel "Lawfare" in Europe
-
^
BOLTON: Israel’s increasing vulnerability
-
^
George Jonas: Using lawfare to anchor the Gaza flotilla
-
^
Cotler warns of new strain in delegitimization of Israel
-
^
Rhetoric vs. reality: ‘Lawfare’ and the PA statehood bid
-
^
Waging lawfare
-
^
'Lawfare' Loses Big
-
^
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.)
-
^
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)
-
^
Thayer, Andy (8 March 2010).
"Court Allows Torture Suit Against Rumsfeld".
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).
-
^
Rumsfeld, Donald (18 February 2011). "40". Known and Unknown.
A Memoir. Sentinel.
ISBN 9781595230676.
-
^
Milan tribunal document PDF (1.44 MiB),
published by
Statewatch, June 22, 2005
-
^
[1] SpiegelOnline: Judgment Day May Be Approaching for CIA
Agents(discussing German indictment of 13 CIA agents for
rendition of Khaled el-Masri)
-
^
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.
-
^
Lancman and Ehrenmfeld
Don't reward the Palestinians' 'lawfare' campaign with
statehood: Make peace with Israel first New York Daily News,
Sept. 22, 2011.
External links
-
Selections from Unrestricted Warfare
-
Unrestricted Warfare in .pdf Format
-
"Law and Military Interventions: Preserving Humanitarian Values in
21st Conflicts" in .pdf Format
-
Discussion of Lawfare in A Brief Primer on International Law
-
Lawfare, by David B. Rivkin, Jr. and Lee A. Casey, Wall
Street Journal, February 23, 2007, p.A11 (accessed May 20,
2009).
-
Lawfare Against Israel, by Anne Herzberg, Wall Street Journal,
November 5, 2008.
-
NGO "Lawfare" - Exploitation of Courts in the Arab-Israeli Conflict,
Anne Herzberg, December 2010
-
The Lawfare Project
-
Lawfare: A Supporting Arm in Modern Conflict, By David B. Harris
& Aaron Eitan Meyer, The Counter Terrorist, April 4, 2011.
-
Brooke Goldstein: Countering Lawfare, By Pat Toensmeier,
Aviation Week, January 3, 2011.
-
Thoughts on how to combat lawfare being waged against civilians in
United States Civil & Criminal Court
-
Lawfare Blog