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Lawfare: Shared Implications for the U.S. and Israel
Tuesday, October 05, 2010
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By Brooke Goldstein

Lawfare Conference

I will never forget a conversation I had with a colleague in the U.S. military about the Goldstone Report.[1] When the report first came out, everyone was speaking about the legal and political implications it would have for Israel. I complained to my colleague over the telephone about how international law was being deliberately manipulated and misapplied to delegitimize Israel's right to exist as a sovereign state for the Jewish people, with equal rights in the world community.

As I continued, my colleague interrupted me and said "Brooke, you've got it all wrong. The Goldstone Report isn't just about Israel, it's about setting precedents in international law that can and will be used against U.S. and coalition forces fighting in Iraq and Afghanistan," forces which are using the same methods and techniques that Israelis are using on the battle field, against the same type of terrorist combatants that engage in asymmetric warfare, the use of human shields and suicide bombings, etc. And the more I think about it, the more I witness lawfare actions aimed directly at the U.S. and our national security interests, the more I know my colleague was right.

Israel is being used now on the legal front, just as it has been used on the physical battlefield, as the canary in the coal miners' tunnel, as a legal testing ground for lawfare actions by terrorists and their sympathizers. Israel is the guinea pig for lawsuits aimed at delegitimizing a democratic state's right to defend itself and to exert sovereign control over its own territory.

The greatest mistake we can make as a legal community, and as human beings with an interest in upholding principles of human rights law, is to analyze lawfare actions like the Goldstone Report, like the flotilla incident,[2] in an Israel-centric vacuum. And the number one impediment to delegitimizing the Goldstone Report and preventing such flawed and legally perverted documents from ever meriting the patina of customary international law[3], the critical hurdle we face in convincing the world community not to accept the report as legally binding precedent, is the mistaken belief that these standards will only be used against Israel. They won't. And frankly, they aren't.

If immunity can be stripped from, and trumped up "war crimes" charges can be brought against Israeli government officials in England, [4] Spain,[5] Belgium,[6] Switzerland, New Zealand, Denmark, the Netherlands,[7] and Canada,[8] what's stopping the same groups from using the same universal jurisdiction laws and effecting similar prosecutions against democratically elected officials from the U.S.?

Nothing. In fact Belgium did attempt to prosecute both former president Bush and former U.K. Prime Minister Tony Blair for the war in Iraq, the prosecution only dropped the case when the U.S. threatened to pull NATO headquarters[9] out of Belgium.[10] A Spanish judge, likewise attempted to prosecute six former legal officials in the Bush administration for the "crime" of providing legal advice to our President.[11] And just recently, our very own U.S. Supreme Court has broken precedent and interpreted[12] the Foreign Sovereign Immunity Act (FSIA) to deny foreign officials immunity from prosecution for war crimes, potentially opening up the floodgates for politicized prosecution of allied state officials on U.S. soil.

If an Israeli border-security fence is illegal under international law, as the International Court of Justice (ICJ) so decided in 2004 (while pointedly ignoring the fact that the fence contributed to a sharp decline in the loss of human lives), what effect will such precedent have on a fence built on the US-Mexican border?[13] And if, according to the ICJ, barbed wire is a crime against humanity, what then is our military's drone program? Would the court agree with the ACLU[14] that the targeted killing of terrorists by drone may run afoul of international law? And should we allow an international court like ICJ, with no binding standards of due process,[15] assert jurisdiction to assume so?

If the International Criminal Court (ICC) succeeds in erroneously declaring jurisdiction over Israel's Cast Lead Operation in Gaza,[16] despite the fact that Israel has not signed the Rome Treaty,[17] what then would prevent the ICC from declaring jurisdiction over the United States which has also refused to ratify the treaty out of the very fear[18] that the court would be used as an engine of lawfare against our interests and as a political tool by the enemies of the United States?

When over one hundred U.N. Resolutions are issued to condemn Israel, yet not one Resolution is even offered to criminalize the murder of innocent Muslim children as suicide bombers, we are sending the green light to terrorists, emboldening them and conveying the message that they may continue their actions with impunity.

When concepts, like the 'disproportionate use of force,' 'collective punishment' and the unlawful targeting of civilians, are routinely thrown at Israel, but are less examined, if examined at all vis-à-vis the actions of terrorist groups, and the banks and states that sponsor them, we as Americans, should be concerned.

When little to no legal accountability is demanded of Hezbollah and Hamas, and their agents remains free to cross European borders, while at the same time Israel's foreign minister Tzipi Livni[19] and Dutch politician Geert Wilders[20] are threatened with arrest in England,[21] 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.

When human rights language and legal terminology, including terms like 'apartheid' and 'genocide,' are deliberately misapplied with the goal of diluting their meaning and feeding the inability to engage in any type of genuine dialogue about real instances of human rights violations, all democracies and humanitarians should be concerned.

When we have organizations with 501(c)(3) tax exempt status operating within the United States, who are funding ships armed with weapons and intended to provide material support for specially designated terrorist groups, by breaking a legal maritime blockade against Hamas, American State Attorneys General should be concerned.

Even more troubling is the fact that the Organization of the Islamic Conference (OIC)[22] is spearheading a lawfare campaign at the United Nations to exclude the targeting of both American and Israeli civilians, that is civilians of what they deem an "occupying force," from any international definition of the crime of 'terrorism.' There is no good reason why we should be letting state sponsors of terrorism define the term in their best interests.

The same group has already successfully manipulated the U.N. Human Rights Council to enact a global ban on the defamation of religion, attempting to make it a crime under international law to 'defame' Islam's prophet Mohammad[23] and to criticize Islamist terrorism.[24] Should the OIC, by virtue of its membership in the U.N., have the power to dictate international human rights norms? Are these legal maneuvers, or lawfare, in the interests of liberal democracies?

When we allow precedents like those mentioned above to be continuously established in international law, against Israel or by a U.N. voting bloc comprised largely of non-democratic and some terror-sponsoring states, Americans should be concerned, especially when someone like current State Department Legal Advisor Harold Koh argues that international customary law should trump the U.S. Constitution and be applied in federal courts as he claimed in his Harvard Law Review essay,[25] published in 1998.

Finally, despite the free speech protections afforded by the First Amendment we are witnessing here in the U.S., a series of defamation lawsuits filed against counter terrorism experts, media outlets, bloggers, authors, anyone who writes or speaks about radical Islam, terrorism and its sources of financing.[26] These lawsuits are aimed at stifling our willingness and ability to speak freely about issue of national security. And they are the lawfare threat emanating from within.

Such is the case with the defamation lawsuit[27] brought by the Council on American Islamic Relations (CAIR) against former Congressman Ballenger for reporting CAIR to the FBI as a "a fundraising arm for Hezbollah." Such is the case with the ongoing lawsuit[28] filed against former NYPD counter terrorism advisor Bruce Tefft in which a Muslim John Doe Police officer accuses Tefft of workplace harassment because he was offended by his post-9/11 briefings on Islamist terrorism. And such is the ongoing case[29] against Hassam Daioleslam, an Iranian American who, after fleeing Iran for persecution, is now being sued in an American court by the National Iranian American Council (NIAC) for writing about connections the organization has to the Iranian regime.

The same is happening in Europe, where "hate speech" lawsuits are filed against politicians for speaking to their constituents about the threat of terrorism and where a Dutch cartoonist[30] was thrown in jail for the crime of satirizing, or blaspheming, Islam's prophet Mohammad.

All lawfare actions, whether they work to suppress free speech or to chastise Israel or the U.S. for their defensive measures, must be seen as an interconnected whole which work to achieve the same three related purposes outlined on The Lawfare Project's website,[31] and which taken together threaten all liberal democracies equally.

In this sense we are all Israelis and any counter-lawfare strategy must be a multi-faceted plan that recognizes the role lawfare plays in complementing violent struggles against the rule of law, and that is why The Lawfare Project works to raise awareness about the phenomenon in all of its manifestations.


[1] U.N. Human Rights Council, Human Rights in Palestine and Other Occupied Arab Territories—Report of the United Nations Fact-Finding Mission on the Gaza Conflict, U.N. Doc. A/HRC/12/48 (Sept. 25 2009), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf.

[2] Shortly after armed passengers violently engaged IDF soldiers, a Resolution was quickly adopted by the UN Human Rights Council which called for an international investigation into Israel's actions, bearing the condemnatory and conclusory title, The Grave Attacks by Israeli Forces against the Humanitarian Boat Convoy. The Resolution was brought by Pakistan on behalf of the Organization of the Islamic Conference, Palestine, and Sudan on behalf of the Group of Arab States, and begins by criticizing the blockade before condemning Israel's "outrageous attack," and the resultant "killing and injuring of many innocent civilians."

[3] Customary international law is "[i]nternational law that derives from the practice of states and is accepted by them as legally binding." Black's Law Dictionary (9th ed. 2009). Customary law refers to cumulative legal norms that have developed overtime through customary exchanges between states whether based on diplomacy or aggression. An aggregate of UN documents purporting to analyze humanitarian law could arguably serve this purpose.

[4] Most recently, Israeli Deputy Prime Minister Dan Meridor cancelled a visit to the United Kingdom out of concern that he would be arrested for 'war crimes.' See Attila Somfalvi, Meridor Cancels UK Visit for Fear of Arrest, Ynetnews, Nov. 1, 2010, available at http://www.ynet.co.il/english/articles/0,7340,L-3978224,00.html. As the article notes, this follows a trend dating back to at least 2005.

[5] Al Goodman, Spain Court in 2002 Israel 'War Crime' Probe, CNN, Jan. 29, 2009, available at http://edition.cnn.com/2009/WORLD/europe/01/29/spain.israel.gaza.lawsuit/index.html.

[6] Danna Harman, Belgian Lawyers to Charge Barak and Livni for War Crimes, Haaretz, June 23, 2010, available at http://www.haaretz.com/news/diplomacy-defense/belgian-lawyers-to-charge-barak-and-livni-for-war-crimes-1.297920.

[7] Juliana von Mittelstaedt, Palestinian Lawyers Take on Israel, Spiegel Online, May 6, 2009, available at http://www.spiegel.de/international/world/0,1518,628773,00.html.

[8] Silvia Nicolaou Garcia, European Efforts to Apply the Principles of Universal Jurisdiction Against Israeli Officials, Middle East Monitor, July 28, 2009, available at http://www.middleeastmonitor.org.uk/reports/by-silvia-nicolaou-garcia/54-universal-jurisdiction-against-israeli-officials.

[9] Ambrose Evans-Pritchard, US Threatens to Pull Nato HQ Out of Belgium, Telegraph (UK), June 13, 2003, available at http://www.telegraph.co.uk/news/worldnews/europe/belgium
/1432913/US-threatens-to-pull-Nato-HQ-out-of-Belgium.html
.

[10] The Belgian Senate then revised its war crimes lawdropping the controversial "universal competence" clause. The new bill limits the jurisdiction of the courts to cases only involving Belgian citizens and residents. See Belgium Amends War Crimes Law, BBC News, Aug. 1, 2003, available at http://news.bbc.co.uk/2/hi/europe/3116975.stm

[11] Spanish judge Baltazar Garzón opened a number of 'war crimes' cases in 2009, including against former Bush Administration officials, before being charged by the Spanish Supreme Court with "manipulating justice" by deliberately overstepping his jurisdiction and suspended from the bench in 2010. See, e.g., Santiago Pérez, Crusading Spanish Judge Suspended, WSJ, May 15, 2010, available at http://online.wsj.com/article/SB10001424052748703460404575243981095667268.html.

[12] Paul M. Kaplan, Adjunct Fellow, The Lawfare Project, The Creeping Success of Lawfare in the U.S. (Oct. 5, 2010) (unpublished), available at http://www.thelawfareproject.org/223/lawfare-samantar-yousuf.

[13] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, available at http://www.icj-cij.org/docket/files/131/1671.pdf.

[14] For ACLU's complaint, see Complaint, American Civil Liberties Union v. Geithner (2010), available at http://www.aclu.org/files/assets/2-OFACComplaintFinal.pdf; Brief for Plaintiff, American Civil Liberties Union v. Geitner (2010), available at http://www.aclu.org/files/assets/8-OFACTRObrieffinal.pdf.

[15] For example, the ICJ found that it had jurisdiction to hear the case involving the Israeli security fence and render an advisory opinion despite the fact that Israel has never recognized the jurisdiction of the court and the fact that the Court's own mandate specifies that only states may appear before the court. In this case, the ICJ unilaterally granted standing to the Palestinian Authority so that it could render this opinion.

[16] Despite the fact that the Palestinian Authority is not a state as required by the Rome Statute, ICC Prosecutor Luis Moreno-Ocampo has posed the question to legal experts, "Does the Prosecutor of the ICC have the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict?" Gaza Jurisdiction Debate—Should the ICC Investigate War Crimes in Gaza?, UCLA Law Forum, http://uclalawforum.com/ (last visited Nov. 3, 2010).

[17] The ICC's website states that it may only exercise jurisdiction in three areas, when "[t]he accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court; [t]he crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or [t]he United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime." Jurisdiction and Admissibility, ICC, http://www.icc-cpi.int/Menus/ICC/About+the+Court/ICC+at+a+glance/Jurisdiction+and+Admissibility.htm (last visited Nov. 3, 2010). However, the Rome Statute contains a provision whereby the Prosecutor may initiate his own investigation proprio motu into "crimes within the jurisdiction of the Court" and may continue the prosecution despite a nation's own investigation, if he finds that "the State is unwilling or unable genuinely to carry out the investigation or prosecution." Delegitimizing a nation's court system could well give rise to a finding that it is "unwilling" to prosecute its soldiers for 'war crimes.' This seems to be the strategy vis-à-vis Israel. German judge Christian Tomuschat, who is heading up the UN panel charged with reviewing the implementation of the Goldstone report's demands, authored a 2002 study entitled "The Individual Threatened by the Fight Against Terrorism?" In that study, he not only broadly equated Israeli counter-terrorism operations with terrorism itself, he categorically stated that when counter-terrorism is concerned, "there is little hope that the judicial system of the state concerned will conduct effective investigations and punish the responsible agents. Nowhere have excesses committed by security forces been adequately punished." See Benjamin Weinthal, Goldstone Committee Head Denies Bias, Jerusalem Post, July 25, 2010, available at http://www.jpost.com/International/Article.aspx?id=182483.

[18] When President Clinton signed the Rome Statute of the International Criminal Court, mere hours before the signing deadline of December 31st, 2000, he did so with the substantial caveat that, "I will not, and do not recommend that my successor, submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied." Prominent among these concerns was the possibility that the ICC "will not only exercise authority over personnel of states that have ratified the treaty, but also claim jurisdiction over personnel of states that have not." See Clinton's Statement on War Crimes Court, BBC News, Dec. 31, 2000, available at http://news.bbc.co.uk/2/hi/1095580.stm.

[19] See von Mittelstaedt, supra note 7.

[20] Since releasing his short film Fitna in 2008, Wilders has been the subject of both death threats and 'hate speech' trials, including a threat of extradition to Jordan to face trial for 'blasphemy.' The film consists primarily of incendiary sermons delivered by radical Islamist imams, juxtaposed with passages from the Quran.

[21] Thomas Landen, Will Geert Wilders Be Arrested at Heathrow?, Brussels J., Feb. 10, 2009, available at http://www.brusselsjournal.com/node/3793.

[22] The OIC is a 57-member voting bloc that effectively dominates the U.N. General Assembly by forming the core of the 117 member state Non-Aligned Movement (plus "Palestine"). It defines itself as "the collective voice of the Muslim world." About OIC, Organization of the Islamic Conference, http://www.oicun.org/2/23/ (last visited Nov. 3, 2010).

[23] Beginning in 1999, the OIC has introduced, and passed, three resolutions at the U.N. Commission on Human Rights (UNCHR) and its successor, the U.N. Human Rights Council (HRC). Perhaps the most notable such resolution was 7/19, "Combating Defamation of Religions," which passed in 2008. Human Rights Council Res. 7/19, Combating Defamation of Religions, A/HRC/RES/7/19 (Mar. 27, 2008).

[24] See, e.g., U.N. GAOR, 64th Sess., U.N. Doc. A/C.3/64/L.27 (Oct. 29, 2009), available at http://daccess-dds-ny.un.org/doc/UNDOC/LTD/N09/584/94/PDF/N0958494.pdf?OpenElement.

[25] Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824 (1998).

[26] For more information on "libel lawfare," see Brooke Goldstein & Aaron Eitan Meyer, Lawfare: How Islamist Lawfare Tactics Are Targeting Free Speech, Counter Terrorist, Mar.-Apr. & Apr.-May, 2009 available at http://www.centerforsecuritypolicy.org/p18029.xml?cat_id=211.

[27] Council of American Islamic Relations, v. Cass Ballenger, 444 F.3d 659 (D.C. Cir. 2006), available at http://pacer.cadc.uscourts.gov/docs/common/opinions/200604/05-5161a.pdf

[28] See Jamie Glazov, Sued for Terror Watching, FrontPage Magazine, Oct. 26, 2007, available at http://archive.frontpagemag.com/readArticle.aspx?ARTID=28646.

[29] Trita Parsi v. Seid Hassan Daioleslam, 595 F.Supp.2d 99 (D.D.C. 2009).

[30] Due to several threats on his life, the cartoonist in question is known by the pseudonym Gregorius Nekschot. See Thomas Landen, Dutch Police Arrests Cartoonist, Brussels J., May 16, 2008, available at http://www.brusselsjournal.com/node/3257.

[31] The Lawfare Project, www.TheLawfareProject.org.

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