News from The Lawfare Project

The Lawfare Project filed an amicus curiae (“friend of the court”) brief with the U.S. Supreme Court in support of an American citizen born in western Jerusalem, Israel who has been denied a passport identifying Israel as his place of birth. The Lawfare Project’s amicus brief, which joined others filed by several members of the Senate and House of Representatives, and many organizations, argues that the State Department acted illegally in refusing to obey a federal statute requiring the Department to identify Israel as his place of birth. The LP’s press release is available here, and the amicus brief may be read in its entirety here.

Analysis from The Lawfare Project

International lawfare has often been employed as a means of undermining the sovereignty of democratic states, and two recent decisions by the European Court of Human Rights against the United Kingdom illustrate this point perfectly. In “Human Rights Imperialism,” LP Fellow Joshua Slomich discusses the Court’s rulings, which “directly impact the ability of the United Kingdom and other signatories to the European Convention on Human Rights to operate militarily overseas” and reiterates that this development, among others, underscores the fact that “the international legal arena is increasingly a battlefield to wage lawfare.” The blog entry is available in its entirety here.

Lawfare News

The following recent articles will serve to illustrate how lawfare is continuing to manifest around the world. Please note that third-party articles do not necessarily reflect the views of The Lawfare Project, and the inclusion of article summaries does not necessarily constitute endorsement of any views taken therein.

a. Human shields, modern warfare and lawfare

International Humanitarian Law (IHL) generally prohibits the use of civilians as shields for military targets, yet as Amnon Rubinstein and Yaniv Roznai write in The Jerusalem Post, “the current law and its application have become incompatible with modern warfare and lead to undesirable results.” Accordingly, the use of human shields by terrorist groups has become prevalent because “it can either impede a party from targeting its enemy due to moral or legal constraints or, alternatively, compel it – at least under the prevailing interpretation – to violate international humanitarian law.” The authors argue for a realistic interpretation of IHL that takes into account the strategic use of human shields in determining the proportionality of a military response against a terrorist entity employing these tactics. The article is available in its entirety here.

b. Civil War Lawfare

In reviewing Brian McGinty’s book The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus in The New Republic, Adrian Vermeule analyzes the conflict between Lincoln and Chief Justice Roger Taney over the President’s suspension of habeas corpus and the Merryman case as a form of lawfare conducted from the bench of the Supreme Court by Chief Justice Roger Taney, a Southern sympathizer. In Vermeule’s words, “Taney’s lightly concealed sympathy for the rebellion, his rush to issue judgment in Merryman’s case without even hearing arguments from counsel, his later efforts to thwart federal proceedings against indicted traitors, and his willingness to portray the law of habeas corpus as far more clear than it really was, all amounted to enlisting the courts as a weapon against the government—a form of “lawfare” in one sense of that term, conducted from the judicial bench itself.” Subscription is necessary to view the review in its entirety; the book is available at Amazon.com.