Lawfare

Lawfare is the misuse of legal systems and principles against an enemy, such as by damaging or delegitimizing them, tying up their time or winning a public relations victory.[1][2][3] The term is a portmanteau of the words law and warfare.

For other uses, see Lawfare (disambiguation).
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War

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.[4]

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]

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]

Whether a positive or negative term

Positive

Colonel Charles Dunlap describes lawfare as "a method of warfare where law is used as a means of realizing a military objective".[8] In this sense lawfare may be a more humane substitute for military conflict. Colonel Dunlap considers lawfare overall a "cynical manipulation of the rule of law and the humanitarian values it represents".[8]

Benjamin Wittes, Robert Chesney, and Jack Goldsmith employed the word in the name of the Lawfare Blog, which focuses on national security law and which has explored the term and the debate over what lawfare means and whether it should be considered exclusively a pejorative. (See: Welcome to Lawfare, By Benjamin Wittes. Wednesday, September 1, 2010; also see: About Lawfare: A Brief History of the Term and the Site, at: https://www.lawfareblog.com/about-lawfare-brief-history-term-and-site.)

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."[9]

Negative

The Lawfare Project argues lawfare is exclusively negative, defining it 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 a 2010 speech on the topic, Lawfare Project Director Brooke Goldstein elaborated:

... 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 stand 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?[11]

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.[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]

US Ambassador John R. Bolton has characterized Palestinian attempts to seek UN recognition for a state as "lawfare", because he sees those attempts as delegitimizing Israel.[15]

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").[16]

In November 2006, Al-Haq brought a case in the UK Court of Appeal against the British government to end export licenses to Israel to "secure the implementation of the July 2004 [ICJ] Advisory Opinion on Israel's Wall". The case was dismissed in November 2008.[17]

In February 2009, Al-Haq filed a claim for judicial review before the High Court of England and Wales[18] challenging the British government over its failure to fulfill its alleged “obligations under international law with respect to Israel’s activities in the Occupied Palestinian Territory”.[19][20] The case was dismissed in July 2009, and the dismissal was affirmed by an appellate court in February 2010.[21]

In March 2010, Al-Haq filed a criminal complaint alleging that a Dutch company, Riwal, "was complicit in the commission of war crimes and crimes against humanity through its construction of the Annexation Wall, ‘the Wall,’ and illegal settlements in the Occupied West Bank."[22] The complaint was dismissed in May 2013.[23]

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.[24]

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."[25] 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."[26]

On 9 February 2020, Palestinian lawyers planned to file lawsuits in US and Europe courts against politicians and businesses involved in the implementation of US President Donald Trump's a recently unveiled plan for Mideast peace, called "Peace to Prosperity."[27]

South China Sea dispute

In contrast to most world governments, the People's Republic of China has explicitly recognized lawfare ("falu zhan" or "legal lawfare") as an essential component of its strategic doctrine. [28] The activities of the People's Republic of China in relation to the Territorial disputes in the South China Sea is frequently cited example of lawfare by the Chinese government.[29] [30] In particular, China has asserted sovereign control over several areas in the South China Sea, and has restricted access to areas within its alleged sovereign territory or exclusive economic zone. [31] In support of its claims, China has issued official state declarations (e.g., Notes Verbales) and enacted domestic laws that assert its sovereignty or effective control of portions of the Sea. [32] [33]

Other examples

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.[34]

A notable US official cited in connection with asserted lawfare is Henry Kissinger. 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".[35]

Harvard School of Law professor Jack Goldsmith, an opponent to the expansion of international human rights and universal jurisdiction, states 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".[36][37] Rumsfeld addresses the effects of lawfare in his memoir Known and Unknown.[38]

Questions remain unresolved of the possibility of lawfare-type prosecution, in Italy[39] and Germany[40] 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".[41]

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.[42]

See also

References
  1. Kittrie, Orde F. (1 February 2016), "Conclusion", Lawfare, Oxford University Press, pp. 329–344, ISBN 978-0-19-026357-7, retrieved 31 May 2020
  2. "Is Lawfare Worth Defining?" (PDF). Case Western Reserve Journal of International Law. 43 (1). 11 September 2010. Archived from the original (PDF) on 7 August 2011.
  3. Unrestricted Warfare, p. 55 Archived 19 November 2006 at the Wayback Machine
  4. M. Smith; D. Crossley, eds. (1975). Whither Goeth the Law – Humanity or Barbarity, The Way Out – Radical Alternatives in Australia. Melbourne: Lansdowne Press.
  5. Dunlap, Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts (29 November 2001).
  6. Charles J. Dunlap, Jr. (3 August 2007). "Lawfare amid warfare". The Washington Times.
  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. Colonel Charles J. Dunlap, Jr. (29 November 2001). "Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts" (PDF): 4. Cite journal requires |journal= (help)
  9. Benjamin Wittes; Stephanie Leutert (12 May 2013). "On Wikipedia, Lawfare, Blogs, and Sources". National Security Journal. Harvard Law School. Retrieved 25 November 2014.
  10. The Lawfare Project: What is Lawfare? "Archived copy". Archived from the original on 19 April 2013. Retrieved 17 July 2013.CS1 maint: archived copy as title (link)
  11. Brooke Goldstein (5 November 2010). "Lawfare: Real Threat or Illusion". Archived from the original on 12 January 2016. Retrieved 25 November 2014.
  12. "NGO Lawfare". NGO Monitor. Retrieved 13 May 2013.
  13. "NGO Monitor Monograph – Overview of lawfare cases involving Israel". NGO Monitor. Retrieved 13 May 2013.
  14. "Netanyahu aide skips UK trip fearing arrest". AFP. 4 May 2011. Retrieved 13 May 2013.
  15. Bolton, John R. (3 May 2011). "BOLTON: Israel's increasing vulnerability". The Washington Times. Retrieved 13 May 2013.
  16. "George Jonas: Using lawfare to anchor the Gaza flotilla". National Post. 7 November 2006. Archived from the original on 11 July 2012. Retrieved 13 May 2013.
  17. "Al-Haq - Defending Human rights in Palestine since 1979". Archived from the original on 19 November 2010. Retrieved 6 December 2010.
  18. Al-Haq v. Secretary of State for Foreign & Commonwealth Affairs et al.
  19. http://www.alhaq.org/etemplate.php?id=432 Archived 2009-08-20 at the Wayback Machine Al-Haq v. UK. Last accessed: 10 August 2009.
  20. http://www.geuzenverzet.nl/index.php?tekst_id=12&news_id=104&lang=EN Geuzenpenning Award ceremony 2009: acceptance speech Al-Haq. Last accessed: 10 August 2009.
  21. Lawfare Cases, and their NGO Initiators
  22. The Case Against Riwal: Corporate Complicity in International Crimes
  23. NGO Monitor - Al-Haq
  24. Twersky, Mordechai I. (19 May 2011). "Cotler warns of new strain in delegitimization of Israel". The Jerusalum Post. Retrieved 13 May 2013.
  25. Mintz, Josh (27 September 2011). "Rhetoric vs. reality: 'Lawfare' and the PA statehood bid". The Jerusalem Post. Retrieved 13 May 2013.
  26. "Waging lawfare". Washington Jewish Week. 28 September 2011. Archived from the original on 29 March 2012. Retrieved 13 May 2013.
  27. Palestinian lawyers threaten to sue those who 'accept' Trump plan
  28. Kittrie, Orde (2016). Lawfare: Law as a Weapon of War. New York, NY: Oxford University Press. pp. 161–164. ISBN 9780190263577. |access-date= requires |url= (help)
  29. Lorteau, Steve (2018). "China's South China Sea Claims as "Unprecedented": Sceptical Remarks". Canadian Yearbook of International Law. 55: 72–112. doi:https://doi.org/10.1017/cyl.2018.6 Check |doi= value (help). |access-date= requires |url= (help)
  30. HSIAO, ANNE HSIU-AN (16 December 2016). "China and the South China Sea "Lawfare"". Issues & Studies. 52 (02): 1650008. doi:https://doi.org/10.1142/S1013251116500089 Check |doi= value (help). |access-date= requires |url= (help)
  31. Kittrie, Orde (2016). Lawfare: Law as a Weapon of War. New York, NY: Oxford University Press. pp. 165–168. ISBN 9780190263577. |access-date= requires |url= (help)
  32. Lorteau, Steve (2018). "China's South China Sea Claims as "Unprecedented": Sceptical Remarks". Canadian Yearbook of International Law. 55: 79–99. doi:https://doi.org/10.1017/cyl.2018.6 Check |doi= value (help). |access-date= requires |url= (help)
  33. Dupuy, Florian; Dupuy, Pierre-Marie (2013). "A Legal Analysis of China's Historic Rights Claim in the South China Sea". American Journal of International Law. 107 (1): 124–141. doi:https://doi.org/10.5305/amerjintelaw.107.1.0124 Check |doi= value (help). |access-date= requires |url= (help)
  34. "'Lawfare' Loses Big". The Wall Street Journal. 28 January 2012. Retrieved 13 May 2013.
  35. Kissinger, Henry (July–August 2001). "The Pitfalls of Universal Jurisdiction". Foreign Affairs. Retrieved 2 March 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?. New York City, New York: Simon & Schuster. 2001. ISBN 978-0-684-85567-7.)
  36. 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)
  37. 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).
  38. Rumsfeld, Donald (18 February 2011). "40". Known and Unknown. A Memoir. Sentinel. ISBN 9781595230676.
  39. "Milan tribunal document" (PDF). (1.44 MB), published by Statewatch, 22 June 2005
  40. SpiegelOnline: Judgment Day May Be Approaching for CIA Agents(discussing German indictment of 13 CIA agents for rendition of Khaled el-Masri)
  41. Marlise Simons (28 March 2009). "Spanish Court Weighs Inquiry on Torture for 6 Bush-Era Officials". The New York Times. Archived from the original on 2 May 2009.
  42. Lancman and Ehrenmfeld (22 September 2011). "Don't reward the Palestinians' 'lawfare' campaign with statehood: Make peace with Israel first". Daily News. New York. Archived from the original on 29 June 2012.CS1 maint: uses authors parameter (link)
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