Foreign Policy Blogs

Lawfare On Trial (Part I)

Every once in a while, FPA Afghanistan blogger Patrick Frost emails me an article with which I very much disagree and I, in turn, write a post criticizing it.  (See a post of mine from last year on preventive war.)  The tradition continues with an interview, published by AviationWeek, with Brooke Goldstein, director of the nonprofit, The Lawfare Project.  I’m very much interested in the subject of lawfare, but I disagree with Goldstein’s take on it.  There’s much to say about it, so I’ll tackle it in two parts.  I’ll post Part II later in the week.  Let’s start with how Goldstein defines lawfare.  Here’s what she says:

When I say lawfare, I denote the wrongful abuse of Western laws and judicial systems to achieve military or political ends that undermine the principles those systems stand for. I emphasize wrongful because lawfare is an inherently negative undertaking; it consists of the negative exploitation of the law to achieve a purpose other than or contrary to that for which the law was originally enacted.

So what matters to Goldstein is intent.  To be a lawfare perpetrator, one must intend to use the law somehow to undermine Western legal principles.  But for someone fixated on intent, she sure doesn’t seem very fixated on intent.  She makes little to no effort to examine the intent of those involved in the many examples of lawfare she provides.  But still, she insists that intent is the thing that distinguishes those who engage in lawfare from those who do not:

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. 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 very system of laws being manipulated?

So one might think, to solidify her argument that the question is not ‘who is the target,’ that she’d provide an example of a bad case in which a terrorist, or a suspected terrorist, or someone suspected of aiding a terrorist, is the target.  Or an example of a good case against the U.S. or Israel.  But she does not.  All of the examples of lawfare she provides are legal cases against U.S. and Israeli leaders and people speaking out against Islam.  The question for her, it seems, is actually ‘who is the target,’ despite her statements to the contrary.

I very much prefer the definition offered by Charles Dunlap.  In a 2001 essay that Goldstein cites (and which I discussed in my very first post on this blog), Dunlap defines lawfare as “a method of warfare where law is used as a means of realizing a military objective.”  This seems to be a more useful definition.  There’s nothing about an intent to undermine law or democracy.  To Dunlap, lawfare simply means the use of law as a tool of strategy.

Goldstein also incorrectly identifies the threats we face from lawfare.  Here’s a portion where she paints a grim picture of our current situation:

We live in a time when authors such as Mark Steyn are forced to defend themselves before Canadian ‘human rights’ commissions for writing about Islam and its demographics. When Swiss magazine editors are indicted for the crime of ‘vilifying members of the Islamic religion.’ When U.S.-based cartoon networks and a university printing press are too afraid to republish any image deemed offensive to Islam. We are living in a time when a Danish cartoonist is thrown into jail for printing images of the prophet Mohammad in his own country.

The above passage may sound alarming.  The reader may conclude that freedom of speech is, in fact, under a lawfare siege, as Goldstein asserts, and perhaps this siege is affecting our ability to combat terrorism.  But Goldstein doesn’t tell the full story.  The Canadian Human Rights Commission dismissed the Mark Steyn case, and he remains a successful writer.  Roger Koppel, the Swiss magazine editor to which she refers, is also still doing well for himself and is publishing regularly.  The South Park incident was an example of self-censorship and had nothing to do with the law.  I’m not sure which Danish cartoonist she refers to, but the one who drew one of the the controversial Muhammad cartoons, Kurt Westergaard, was never imprisoned, and has won his share of awards since the incident, including a freedom of the press award given to him by Angela Merkel.  Meanwhile, the man who plotted an attack on Westergaard in retaliation for the cartoons is now in prison (he also had a role in the Mumbai attacks).  And the man who published the cartoons in 2005 reprinted them in a book last year.  The ‘freedom of speech’ situation does not seem as dire as Goldstein claims.

Furthermore, Goldstein leaves out many examples that, were she to include them, could demonstrate that the question is not ‘who is the target.’   She doesn’t express concern about the Swiss minaret ban, despite the fact that it would, I think, qualify as lawfare by her definition, as it threatens freedom of religious expression.  Also, her concern about self-censorship, as evidenced by her reference to the South Park incident, doesn’t seem to extend to to the decision by Jyllands-Posten (the Danish newspaper that published the Muhammad cartoons) to refrain from republishing cartoons critical of Israel.  As the newspaper stated, “for fear of being misunderstood, we canceled the plan at the last moment.”

On international law, Goldstein asks the wrong questions. She states of the 2004 International Court of Justice (ICJ) advisory opinion on the Israeli separation wall:

If an Israeli border-security fence is illegal under international law, as the International Court of Justice (ICJ) decided in 2004, while ignoring the fact that the fence contributed to a sharp decline in the loss of human lives, what affect will such precedent have on a fence built on the U.S.-Mexican border?

First, it’s not quite accurate to call the separation wall a “border-security fence,” since it is not on the Israeli border.  That’s the whole issue.  As the ICJ states in the opinion:

83. According to the report of the Secretary-General, in its northernmost part, the wall as completed or under construction barely deviates from the Green Line [which demarcates the 1949 armistice agreement that ended the 1948 Arab-Israeli War]. It nevertheless lies within occupied territories for most of its course. The works deviate more than 7.5 kilometres from the Green Line in certain places to encompass Settlements, while encircling Palestinian population areas. A stretch of 1 to 2 kilometres West of Tulkarm appears to run on the Israeli side of the Green Line. Elsewhere, on the other hand, the planned route would deviate eastward by up to 22 kilometres. In the case of Jerusalem, the existing works and the planned route lie well beyond the Green Line and even in some cases beyond the eastern municipal boundary of Jerusalem as fixed by Israel.

84. On the basis of that route, approximately 975 square kilometres (or 16.6 per cent of the West Bank) would, according to the report of the Secretary-General, lit: between the Green Line and the wall. This area is stated to be home to 237,000 Palestinians. If the full wall were completed as planned, another 160,000 Palestinians would live in almost completely encircled communities, described as enclaves in the report. As a result of the planned route, riearly 320,000 Israeli settlers (of whom 178,000 in East Jerusalem) would be living in the area between the Green Line and the wall.

This has caused all sorts of problems for the Palestinians enclosed within the barrier, including restrictions on their freedom of movement, reduced agricultural production, food insecurity, and reduced access to health services, clean water, and schools.  So the lesson for the U.S., should it ever seriously ponder a similar barrier on its border with Mexico, is that such a structure should be built on U.S. soil, not 22 kilometers south, where it could run through Mexican communities and disrupt the lives of Mexican citizens, as the Israeli barrier does to Palestinians in the West Bank.

And despite Goldstein’s insinuation, the ICJ did contemplate Israel’s security situation:

137. To sum up, the Court, from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order.

The Court doesn’t elaborate on what measures short of the wall would have been sufficient.  However, the language used suggests that what the Court has in mind is a wall along a different route, namely, one on Israeli territory.

Goldstein also mentions the Goldstone Report, which, she claims, “deliberately manipulates and misapplies international law and the law of armed conflict to delegitimize Israel’s right to self defense and to protect its citizens from terrorist activity.”  However, there’s no evidence of which I know that those involved deliberately misapplied the law.  Also, in terms of Israel’s “right to self-defense,” the report does not address whether Operation Cast Lead was justified under Article 51 of the UN Charter, as that question fell outside the scope of the fact-finding mission’s mandate.  Goldstein warns against “accepting the report as legally binding precedent,” but I don’t see any danger of this happening.  The Goldstone Report was not a court ruling but rather a fact-finding mission that recommended that these incidents be investigated by courts.  Even Goldstone has stated, “Ours wasn’t an investigation, it was a fact-finding mission… If this was a court of law, there would have been nothing proven.”

Goldstein overlooks what is, to me, the clearest example of the law hampering the U.S. struggle against terrorism: Holder v. Humanitarian Law Project.  In this case, the Supreme Court ruled that it is illegal to work with terrorists to develop non-violent strategies to pursue their objectives.  As a RAND 2008 study notes, integrating terrorists into peaceful political processes is one of the best ways to reduce terrorism.  So in this case, the law deprives the U.S. of one of the most effective anti-terrorism tools.

Since Goldstein and I see the problem differently, as you may imagine, we disagree on the appropriate solutions.  But I will broach these in Part II, which I will post later this week.