Update on Lawfare from The Lawfare Project

1) LP Director Goldstein Presents at the 11th Annual Herzliya Conference, Israel

The Lawfare Project’s Director Brooke Goldstein addressed the Herzliya Conference on Tuesday, February 8, 2011, as part of the panel “On Criticism and Prejudice: The Arab Israeli Conflict and the Assault on Israel’s Legitimacy.” Co-Panelists were Amb. Ron Prossor, Ms. Lorna Fitzsimons, Dan Diker, Dr. Nachman Shai, Tommy Steiner and Mr.Gilad Adin. While lawfare and various assaults on Israel’s legitimacy are by no means coterminous, Israel has been the testing ground for a number of lawfare tactics on the national, regional and international levels.

To read Goldstein’s speech in its entirety, please visit The Lawfare Project’s website at https://thelawfareproject.org/346/speech-delivered-by-goldstein-at-herzliya.

The panel was streamed live via the Internet, and the recording is available at: http://switch5.castup.net/frames/IDC/20110206/Default.aspx. To locate the recording, click on the left-hand link for “Herzliya Aud.” under “08.02.11,” then scroll down the right-hand sidebar for “17:30-19:00 On Criticism and Prejudice : The Arab-Israeli Conflict and the Assault on Israel’s Legitimacy” (Goldstein is approximately 30 minutes into the broadcast).

To view a short clip of the entire panel on YouTube click here (Goldstein is at 7:15): http://www.youtube.com/watch?v=Vri6uz17woI

2) The Lawfare Project’s definition of lawfare cited in South African publication

‘Lawfare’ is latest weapon used against Israel,” by Zev Krengel, Mail & Guardian online, February 4, 2011 (South Africa). In this article, Mr. Krengel, chairman of the South African Jewish Board of Deputies responds to a previously published article calling for prosecution of Israeli leaders and analyzes attempts to “prevent Israeli representatives from visiting South Africa by levelling allegations of ‘war crimes’ against them,” which is a common lawfare tactic. [See below for another, similar action against former US President George W. Bush] Mr. Krengel also notes that lawfare is not simply a rhetorical term to be employed when Israel is targeted, but that “More broadly, “lawfare” is the newest, most visible and increasingly emergent form of asymmetric warfare.” The article is available in its entirety at http://mg.co.za/article/2011-02-04-lawfare-is-latest-weapon-used-against-israel/.

3) Lawfare News

The following recent articles will serve to illustrate how lawfare is continuing to manifest around the world.

a. “The Shift in Focus from Proportionality to Necessity in the Law of War, and the Incentives Created by the Shift from Equality of Legal Obligation to “Capabilities”,” by Kenneth Anderson, The Volokh Conspiracy, February 12, 2011 (US). On a strategic level, lawfare is most successful when it is used to alter international norms themselves. In this article, Professor Anderson considers how the current debate on the use of advanced technology (especially drone warfare) is being construed so as to hinder the technological (and other) advantages democracies like the United States and Israel possess over the unlawful combatants they face. The article also considers how deliberately shifting the emphasis on certain components of the Law of Armed Conflict (LOAC) achieves similar ends, and is highly recommended. The article is available in its entirety at http://volokh.com/2011/02/12/the-shift-in-focus-from-proportionality-to-necessity-in-the-law-of-war-and-the-incentives-created-by-the-shift-from-equality-of-legal-obligation-to-capabilities/.

b. “Bush Cancels Trip to Switzerland,” by Scott Horton, Harper’s Magazine, February 7, 2011 (US). As noted in the South African article above, Israeli officials are not the only ones targeted with international arrest warrants. Former US President George W. Bush recently canceled a trip to Geneva after being alerted to a potential arrest for ‘war crimes’ over the Bush Administration’s use of waterboarding during interrogations. While initial reports indicated that the trip was canceled due to the threat of “demonstrations,” Mr. Horton reports that a criminal complaint has been prepared against the former president, and submitted to Geneva’s cantorial court. Though there is no indication that Swiss officials would have taken action against the former president, “an attorney involved in the complaint stated that she had no doubt that Bush’s change in travel plans had to do with the criminal case against him. ” Mr. Horton also quoted Katherine Gallagher of the Center for Constitutional Rights and the International Federation for Human Rights, who stated that “The reach of the Convention Against Torture is wide—this case is prepared and will be waiting for him wherever he travels next.” The article is available in its entirety at http://harpers.org/archive/2011/02/hbc-90007967.

c. “How the U.N. Encourages Religious Murder,” by Eric Rassbach and Ashley Samelson McGuire, The Wall Street Journal, February 7, 2011 (US). The Organization of the Islamic Conference’s annual attempt to globally criminalize ‘blasphemy’ or religious ‘defamation/vilification’ represents one of the most glaring examples of lawfare on a global scale, and is a subject The Lawfare Project has covered on several occasions. In this article, the national litigation director and programs director of the Becket Fund for Religious Liberty take aim at Pakistan’s own national anti-blasphemy laws after provincial governor Salman Taseer was assassinated on January 4th “because of his vocal opposition to prosecuting Asia Bibi, a Christian woman, under Pakistan’s blasphemy law.” The authors urge the “international community not only to reject the resolution protecting blasphemy laws, but to directly condemn blasphemy laws as profound violations of freedom of religion and speech.” The article is available online at http://online.wsj.com/article/SB10001424052748703960804576120563715501694.html?mod=WSJ_Opinion_LEFTTopOpinion#articleTabs%3Darticle [Subscription required to view the entire article].

Benjamin Ryberg