Opening Remarks

by Brooke Goldstein
Lawfare Conference
March 11, 2010

Friends and colleagues;

On behalf of the European Center for Law and Justice and the International and Foreign Law Committee of the New York County Lawyers Association, it gives me great pleasure to welcome you to today's conference, the inaugural event of the Lawfare Project.

It is an edifying privilege to serve on this event's committee along with co-chairs, the Honorable Robert Morgenthau, the Honorable Irwin Cotler and Columbia Law School Dean David Schizer, as well as with Nicholas Rostow, the Chair of the Int'l and For Law Committee of the NYCLA and Jay Sekulow, Chief Counsel to the European Center for law and Justice, all of whom have so generously provided their time and wisdom.

The Lawfare Project is extremely grateful to have the opportunity to convene a group of such distinguished speakers, some of whom have traveled from England, France, Canada, Israel, Utah and Washington D.C., to gather today because they share, together with all of us, a concern for the integrity of the law and our legal institutions.

So perhaps it is appropriate to start the day with a definition of lawfare. Although not a new phenomenon, lawfare was brought to the attention of the modern world in an essay by Major General Charles Dunlap of the U.S. army, who gave us the title of this event: the use of the law as a weapon of war. The definition has since been expanded to include the wrongful manipulation of the legal system to achieve strategic political or military ends.

Often lawfare takes the form of a complimentary legal campaign to terrorism and asymmetric warfare. This type of lawfare is aimed at delegitimizing and frustrating the actions of nation states dedicated to the eradication of terrorist methods.

It consists, for example, of the exploitation of orchestrated law of war violations, as taught by Al-Qaeda manuals which instruct captured militants to file false claims of torture so as to reposition themselves as victims in the eyes of the media and the law. The text from one such manual has been reprinted in your conference book on page 187 (and is available online here.) The goal being as much to win a public relations victory as it is a court case.

We see the legal tactic being used by specially designated terrorist groups, like Hamas, which attempt to achieve legitimacy through "human rights" litigation in England, while at the same time, openly flaunting human right norms by murdering their own children as suicide bombers, child soldiers and human shields, with impunity.

Proponents of lawfare fight with a variety and combination of offensive legal actions, employed in both domestic and international courts of law. We are witnessing lawfare at the United Nations in efforts spearheaded by the Organization of the Islamic Conference to exclude attacks on American civilians from any international definition of terrorism, and in the same group's manipulation of the Human Rights Council to enact a global ban on the defamation of religion.

Lawfare techniques include frivolous and predatory libel and "hate speech" lawsuits brought against authors, politicians, members of the media, and even cartoonists who are brave enough to speak publicly about, or satirically on, issues of national security and public concern. It includes "workplace harassment" lawsuits against counter-terrorism experts that brief our military and police officers about radical Islam. The cumulative effect of these lawsuits is a culture of fear and a detrimental chilling effect on the speech and opinions of the very people who are supposed to be protecting us.

Lawfare is evident in the deliberate misapplication of human rights language and legal terminology, such as the misuse of the terms apartheid and genocide, so as to dilute their meaning and feed the inability to engage in any type of genuine dialogue about real instances of human rights violations.

The very existence of lawfare calls into question universal jurisdiction laws as they are being used to effect "war crimes" prosecutions against democratically elected officials. Such as Belgium's attempted prosecution of former president Bush and former UK Prime Minister Tony Blair, Spain's criminal prosecution of six top legal officials in the Bush administration, and the state of Jordan's demand for the extradition of a Dutch politician to stand trial for blasphemy of Islam.

Lawfare can also be pursued through a lack of action, when such action is necessary to maintain peace and is in the pursuit of justice. Concepts like the "disproportionate use of force," " collective punishment" and the unlawful targeting of civilians are less examined, if examined at all vis-a-vis the actions of terrorist groups and the banks and states that sponsor them. When little to no legal accountability is demanded of Hezbollah and it's agents remains free to cross European borders while at the same time Israel's foreign minister Tzipi Livni is threatened with arrest in England, we have a problem, one that evidences bias in the application of the law and a disregard for the concept of equality before the law.

There is no doubt, that legal decisions, both home and abroad, influence the methods we use we fight terrorism and affect our ability to win the war of ideas. Requiring highly restrictive rules of engagement in battle and overly protective legal procedures during the custodial period has systemic effects, both positive and negative, on the military's entire approach to war. Yet, if respect for human dignity is to be at the center of our diplomacy as well as military defense, how do we go about applying those principles first and foremost to ourselves, second to the those we capture on the battlefield, and how do we distinguish between constructive legal battles and that which is counter-productive lawfare?

The delineation is not a simple as some may like to make it. That is, lawsuits against terrorists are good and legal actions against us are bad. No, the question is not who is the target, but what is the intention behind the legal action, is it to pursue justice or to undermine the very system being manipulated?

Yet, truth be told, the substance of international humanitarian law is evolving much slower than the types of crimes the law was enacted to eradicate. At the same time we are seeing courts and human rights groups denigrate a society's legitimate interest in security and self defense, calling perhaps for a re-examination of the process by which human rights are enforced and the bodies by which they are defined. To what extent, if any, should international humanitarian law be enforced in domestic courts, via the Alient Torts Claim Act or the Terror Victim Protection Act and their foreign equivalents and should a U.N. voting block comprised largely of non-democratic member states dictate international human rights norms?

How we answer these questions has implications, not just for Western defendants, but also for the victims of mass rape in Darfur, the victims of genocide in Rwanda, the families of the disappeared in Argentina, and the of students killed protesting in the streets of Tehran…

In recognition of the significance of these issues, the Lawfare Project was established. The Project's goal is to raise awareness about the abuse of the legal system and human rights law. We are dedicated to mobilizing resources and bringing interested parties from a broad spectrum of views together, in a common forum to discuss the threat of lawfare.

We have a wonderful program planned today, and although attorney general Cuomo unfortunately could not attend he sends his best wishes to our guests and conference participants and District Attorney Mr. Cyrus Vance also extends his regards and wishes us "a free and frank debate, unencumbered by politics, to examine the interplay of security and the law…with an eye towards strengthening our democratic institutions."

Thank you.