‘Lawfare’ and Liberation

23 Feb

Positive and Negative Forms of ‘Lawfare’

 

Issues of law and ‘lawfare’ are recurrent features of foreign policy debates in the United States. On the side, are efforts by peace activists and others to condition the behavior of all states, and especially the United States, by reference to authoritative limits on national discretion as encoded in the UN Charter, a binding treaty. In opposition to a law-oriented foreign policy for the United States are a variety of arguments that rely either directly or indirectly on a version of ‘American exceptionalism.’ Such arguments do not repudiate international law, but condition its applicability to American behavior and that of American allies, and insist on the implementation of international law in relation to the alleged unlawful conduct of adversaries (e.g. Russia involvement in eastern Ukraine)

 

On the other side of this discourse is the various forms of ‘lawfare’ as an instrumental use of law to achieve valued ends, positive or negative. In these roles international law can mobilize public opinion and government policy to support or oppose particular undertakings. In this limited sense it is appropriate to conceive of ‘lawfare’ as ‘soft power goepolitics’ or as a form of ‘asymmetric warfare’ waged by political actors deficient in hard power.

 

It was during the presidency of George W. Bush that the neocons decided that recourse to international law was a weapon of the weak that interfered with the grand strategy of the United States, especially in the Middle East. The terminology of lawfare was adopted by both advocates of reliance on international law as constraints on American (and Israeli) policy and by those who sought to denigrate invocations of international law as obstructive tactics that interfered with the protection of security in a post-9/11 world. In reaction to the Goldstone Report (2009) there was launched a notorious ‘Lawfare Project’ that viewed reliance on international law within the UN setting in a manner highly critical of Israel was a new form of ‘asymmetric warfare’ that needed to be countered to avoid the delegitimizing of Israel as a democratic sovereign state. This kind of interpretation dominated a conference at Columbia Law School, featuring the participation of the Dean, David Schizer, that denounced the Goldstone Report and human rights NGOs and was organized by a coalition of pro-Israeli organizations.

 

I regard lawfare as the use of the rules and procedures of law more neutrally, as instrumental uses of law to achieve or block policy outcomes. My focus is on international law, but the same dynamics apply to internal uses of law. The website, ‘LAWFARE,’ affiliated with the Washington think tank, The Brookings Institution, and bolstered by the active participation of some Harvard Law School conservative faculty, uses lawfare in this neutral, instrumental way, although its government oriented biases dominates its commentary.

 

There is a problematic side to international law that reflects its crafting and evolution over the centuries. International law definitely was developed to rationalize the interests and projects of the dominant political actors in the West. International law proved useful in giving a legal cover to colonial rule, unequal and imposed treaties, and to stabilize the expropriation of the natural resources of countries in the global South. At the same time, counter-hegemonic efforts were made to give international law quite different impacts, especially in Latin American settings. The effort was to put forward international law doctrines to strengthen the sovereign rights of weaker countries, especially in the context of economic relations.

 

Beyond the law on the books, there are the ambiguities created by state practice, especially with regard to peace and security, given the absence of any central governing authority or legislative institution on a global level to pronounce upon disputes about interpretation or to agree upon changes in governing rules. As a result, many ‘violations’ of international law serve as ‘precedents’ for the establishment of new norms; power generates law, and its interpretation, whether or not it serves the cause of justice. Further, with the veto in the UN Security Council giving the permanent members, and also indirectly their friends, a ‘legal’ right of exception with respect to compliance with international law. Such an interface between power and law offers an additional reason to be skeptical about any present claims of a global rule of law.

Against this background, I find it clarifying to distinguish between positive and negative uses of lawfare. I identify positive uses to be efforts to insist that international law be upheld to the extent that it serves values of peace, justice, and human dignity, and that its guidelines and conceptions of right, be generally treated as authoritative in diplomatic arenas concerned with the peaceful resolution of conflicts or initiatives designed to implement international criminal law, including making use of procedures to impose accountability on leaders of sovereign states. In these positive uses, there is an overall compatibility between lawfare and the pursuit of justice, although to express this conclusion inevitably reflects subjective perceptions and outlook. Other commentators on international law can and do have different views on such matters.

 

I identify negative uses of lawfare to be efforts to denigrate reliance on the procedures and norms of international law in seeking to pursue rights or hold individuals accountable for violations of international criminal law. The neocons were clear about their refusal to bind the pursuit of American foreign policy goals by shows of respect for international law. Their visions of American grand strategy regarded it as naïve and unhelpful to introduce international law dimensions into policy debates about the use of force. In this vein, thinking mainly about uses of force in defiance of the UN Charter and international law, several prominent neocons, including Douglas Feith and Paul Wolfowitz, showed their contempt of international law as nothing more than ‘a weapon of the weak’ that should not be allowed to alter the behavior of the strong, and in effect, justify the disregard of such legal objections to hegemonic policies as mere tactics of the outgunned side in an asymmetric war.

 

By way of illustration, the exclusion of international law from the Oslo Framework for resolving the Israel-Palestine conflict was clearly an effective instance of negative lawfare, denying for many years the Palestinians the benefit of claiming their rights by reference to international law. An example along the same lines were the punitive responses made by Israel and the United States to initiatives of the Palestinian Authority to seek statehood within the UN System and then on that basis to become a party to international treaties, including most controversially the Rome Treaty, which facilitates access to the International Criminal Court. The essence of this important example of negative lawfare centers on blocking, retaliating against, and denigrating attempts by political actors to make use of available procedures and legal norms to uphold their rights against those who rely on hard power to sustain oppressive structures. .

 

Lawfare can operate negatively or positively on any level of social interaction. When activists seek to encourage divestment of holding in companies doing business associated with seeking commercial gain from transactions or projects with unlawful Israeli settlements this is positive lawfare, with unlawfulness serving as an indicator of illegitimate behavior. When such initiatives are blocked by a legal technicality to frustrate efforts to encourage or demand divestment, invoking law becomes negative lawfare. This happened recently at the University of California at Davis. Interestingly, as in this divestment context, what is being called ‘law’ are organizational rules operative with a university setting, and not associated with legal rules generated by governmental institutions.

 

There is no way to simplify or generalize the role of law in human affairs. Its proper assessment depends on taking into account the structural circumstances (for instance, law as administered by Israel as the occupying power in the West Bank imposes unjust and coercive policies and practices) and on context (for instance, Palestinian reliance on their claims of right based on international law with respect to the right of return of Palestinian refugees, Israeli settlements, status of Jerusalem, control of water). Legal discourse disputes these rights in a variety of ways. Palestinians invoke the authority of the UN General Assembly to vindicate their claims, while Israel claims the authority to put forward its own ideas about insisting that occupied Palestine is a territory of ‘disputed sovereignty’ and as such outside the domain of international humanitarian law.

 

As long as complex societies exist and actors have their own agendas and priorities, rules and procedures will be manipulated for the benefit of one or

another actor. This inheres in social process. What has happened recently calls for further reflection. Law has been used as an instrument to seek justice and law has been used as a means to gain and secure positions of strategic advantage. ‘Lawfare’ merely makes this tug of war between those that want to invoke international law and those that believes it unduly burdens statecraft

a more systematic reality.

 

 

 

 

 

 

 

 

18 Responses to “‘Lawfare’ and Liberation”

  1. truthaholics February 23, 2015 at 6:32 pm #

    Reblogged this on | truthaholics and commented:
    Until American foreign policy submits fully to rule of international law the future remains bleak as American exceptionalism vandalises its own credibility first, ebbing away like the economic prowess of dollarism. Picking and choosing when to uphold rule of law undermines it, not least by alienating the victims of impunity and lawlessness whose voices are drowned out and more egregiously whose quest for justice remains denied. This, of course, is completely unacceptable. We must all redouble efforts to eliminate impunity, criminality and blatantly duplicitous warmongering in the interests of peaceful coexistence and promote the overarching themes which created the UN from the ashes of the League of Nations in practice as well as theory. Above all, the US must stop shielding Israel from accountability.

  2. farid February 23, 2015 at 7:42 pm #

    {In reaction to the Goldstone Report (2009) there was launched a notorious ‘Lawfare Project’ that viewed reliance on international law within the UN setting in a manner highly critical of Israel was a new form of ‘asymmetric warfare’ that needed to be countered to avoid the delegitimizing of Israel as a democratic sovereign state.}

    One thing should not be ignored is that judge Goldstone as a LOYAL ZIONIST could not be impartial in his judgment against ‘power’!

    http://mycatbirdseat.com/2011/04/james-wall-the-goldstone-affair-the-loyal-zionist-judge-who-came-in-from-the-cold/

    The line the media seized upon in his ‘report’ is the one in which Goldstone, final version was this: “If I had known then what I know now”, then I would have had different conclusion.
    Exactly what would have changed in the report, if he had “known then what I know now?”
    Goldstone says his report would have been different “if I had known then what I know now.” The core difference the judge identifies is that he’s now convinced Gaza “civilians were not intentionally targeted as a matter of policy.” A joke.
    Was zionist judge so naive about Zionist politics that he did not know that in the final days of the Gaza assault Israel was already preparing its hasbara (propaganda) campaign to counteract the international negative impact of the assault?
    The parallel between Goldstone who wanted to go home to Zionism, and John LeCarre’s 1961 novel, The Spy Who Came in From the Cold, is not absolute. But both have this in common: They were both gripped by a love which blinded them to the reality that their masters were not be trusted.
    People of the world must be united against the war criminals. China, Russia, India and other countries must form a front against war mongers. There is NO alternative. The ‘international law’ always has been and continues to be an instrument of the powerful against the rest. This fact is very obvious since WWII. As long as we are divided they will take advantage of it. Therefore, form a unity and expose the Zionists/imperialists lies and propaganda to bring the population together against these criminals and their pawns.

    • Kata Fisher February 24, 2015 at 12:12 pm #

      Farid,

      A note:

      Professor Falk notes: a) “Interestingly, as in this divestment context,” and b) “what is being called ‘law’ are organizational rules operative with a university setting and not associated with legal rules generated by governmental institutions.”

      It will be fragmented (in structure of thought itself); however — this is what we have to think on:

      “what is being called ‘law’ are organizational rules [UN rules and regulation, specifically that are?] operative with a university setting.”

      — and I like to add this: “that not associated with legal rules generated by governmental institutions [external to UN and UN’s mission, values goals / factors that weaken UN mission].”

      What you have going on at this point in time is that UN mission is to be made null and void? – due to unlawful application/ negative application of International Law, specifically altering / manipulation of the context of application, itself— and according to Professor Falk: “law has been used as a means to gain and secure positions of strategic advantage” according to Professor Falk.

      Why?

      Why not? Right…

      Self-interest and self-condition have to be the priority over human interest and interest on human conditions?

      Well, we have countries/nations/lands that have grave violation of human rights (on their own ground) such as US- and US-allied lands and are yet seeking to further the cause of “unjust wars” — so what is to be proposed against war-seeking allied den that is not even in capacity of a thought to take care of their own population based on legit Laws?

      Let UN become as same as League of the Nations — Neither has or is going to uphold legit application of the Laws, and without partiality?

      Perhaps, nations do not have idea how to do that “without partiality” (in practice within UN) because they were never thought and actually also held accountable to apply in practice in order to safeguard human interest, globally, and according to UN mission – not just local to their specific government / alliance…well they do not even do in their own lands, in practice.

      Unlawful application of the Law / violation (especially International Law) is to be held on an equal scale with “unlawful warfare / war seeking” and equal to violation of Human Right.

      I believe that Russia has more sanity and reason then US can have in order to correct unlawful and grave-harm done by US and its allies — and that is getting bigger and bigger in the Middle East, and it has to be contained as much as possible. It can not be corrected by US and its allies – they just have no capacity of reason that is actual to human ability to safeguard human interest, in power – else what is in power is working in those lands.

      I believe that Russia and (but not China) can be trusted with safeguarding human interest and the human condition. China, on another hand, can help if they would raise their standard based on International Law and Human rights — when comes US and US-allied abuse of workers in China.

      I prefer India and Russia to be fully immersed in the recovery and rebuilding missions in Middle East.

      What should be called? Desert storm went up-side down — and / or Iraq’s Freedom on your own ground? (I am not joking — or mocking).

      I am just very solid in Spirit of my mind and my natural mind by condemning what took place and still is going on.

      UN mission need’s School of Law that exclusively teaches interpretation and application of International Law in the way that upholds UN value and goals and fulfills UN mission — that which actually is strategic to UN-business. That is, global human interest and global human condition — UN – should not mind only business of strategic alliance and apart from global human interest and global human condition.

      External businesses and factors to the UN-values should be in oversight.

      I would say that UN-Watch is doing that — but I would note that they are doing an external and up-side down job to UN-mission!

      One can’t go about Human Rights of an individual apart from the human conditions in which that individual is to be found (spiritually and naturally) / “whole person” according to UN mission of its members (observing only and non-observing members).

      However, this approach is lamenting, in fact, and because it would have to acknowledge that democracies of so- called democracy’s are vague (in character) and are falling apart by their own doing … and actually no-accountability to the democratic values and goals to strengthen or restructure governing structures by legit / lawful implementation of any changes (according to specific needs of the local governing).

      Changing governing structures by implementation of wars is NOT legitimate — we all know that. According to the Law we can ask — what was intended…and what actually took place? Was the process itself lawful? Where was lawful and when became unlawful? There was shift? Why? By what means? And on and on and on — we can go on with just silly Q and A’s.

      Any changes to any government and its structure are also eccalistical in nature, and any unlawful implementation (external, specifically) in nature are of grave harm to the human condition and only bring about grave violation of human rights.

      Now, college kids may have difficulty understanding all that — that eccalistical in nature Laws overlaps with Natural Laws.

      Because UN mission need’s School of Law — and this is a rather very complex undertaking for lay-people, all together.

      Creating Teaching and Environment that brings diversity that
      exclusively teaches interpretation and application of International Law in the way that upholds UN mission by lawful strategics — is not something that can not be done by non-lay people.

      How exactly is almost way beyond my legitimate ability. But not beyond Professors Falk ability and Fr. Vigano’s — I know that.

      What has to happen to make some legitimate layers of International strategy for global good?

      Illegitimate democracy is messing things way to bad – world community no longer can or should tolerate that.

      I know that refugees can’t tolerate no longer forces of hell, never-stoping and never-still evils-imposed by those who are extremely evil.

  3. Jerry "Peacemaker" February 24, 2015 at 6:23 pm #

    Mr. Falk’s article clearly reveals the need for a global judicial institution that makes lawfare both unnecessary and extinct. In America, there are county, state and national courts of jurisdiction, but for global disputes and crimes no such court of jurisdiction exists. The International Criminal Court, with enough resources and sufficient numbers of legal expert personnel, along with unanimous participation of every nation on Earth, would be able to carry out such an important, necessary-for-peace function. Such an agreed-upon-by-all court of last resort is the one and only positive, ultimate justice direction left available for humanity.

    • rehmat1 February 25, 2015 at 9:37 am #

      Jerry – I’ve a reflection too.

      http://rehmat1.com/2013/06/23/icc-refuses-to-investigate-vatican-officials/

      • Kata Fisher February 25, 2015 at 10:25 am #

        rehmat:

        Another note:

        It’s civil and eccalistical crime crime what “not ordained and sexual immoral false-priesthood” has done.

        From point of eccalistical law — we would give them over to Satan, and destruction of flesh (Church-Charismatic ritual that imposes the Law of the Spirit by ordination over unbelieving and unbaptized evil priest).

        We would lay hands and would transfer Spirit of God upon the wicked — and they would be shut in the room, and actualy be watched / restored by Spiritually matter. (This is basics of Apostolic Teaching — but I doubt that they do it in Rome).

        Vatican is den of vipers — Holy Priesthood of God were always restricted and shoot of to much o any that is going on. But not until one swears by altar of God and all things on it — that they get stripped of, in all. we just cut them of by the Word of the Spirit.

        Pagan-charismatic do contrary (they impose) and transfer satanic spirits on Church Baptized under the Law of the Church. They are extremely evil — you can and can’t watch on.

        ICC is established to deliver selective justice; it is not established to be impartial. Who has established it, and really who can correct it?

        Civil and Eccalistical Laws overlap, and so do the crimes…

        But Law of the Spirit is not limited to any of that.

  4. Kata Fisher February 24, 2015 at 9:32 pm #

    I have a reflection:

    http://en.wikipedia.org/wiki/Thomas_Paine

  5. rehmat1 February 25, 2015 at 9:34 am #

    Every “liberation” movement, whether non-violent or armed resistance have been called “terrorism” by the colonial powers. On the other hand, several militant groups classified as “terrorist groups”, such as, Jewish militant group Irgun lead by Begin. However, when Begin became prime minister of the Zionist entity – he was declared “honorable guest” by the US and its western allies.

    The so-called “lawfare” is another name used by the western imperialist and their “willing partners” to suffocate all genuine resistance and liberation movements, such as, Hamas, Hizbullah, Houthis, and Islamic resistance groups in Chechnya, Bosnia and Philippines.

    The “lawfare” = State Terrorism.

    Lebanese and Russian stance at the UN Security Council has foiled French attempt on behalf of the Zionist regime to get the world body condemn Lebanese Islamic resistance Hizbullah for its raid on an Israeli military convoy inside Israeli occupied Shebaa Farms a week ago which killed 15 Jew soldiers.

    Zionist entity’s prime minister Benjamin Netanyahu after meeting his army chiefs and advisers, warned Hizbullah.

    “Whoever is behind today’s attack will pay the full price. For some time, Iran, via Hezbollah, has been trying to establish an additional terrorist front against us from the Golan Heights. We are taking strong and responsible actions against this attempt. The Lebanese government and the Assad regime share responsibility for the consequences of the attacks emanating from their territories against the state of Israel,” he said.

    http://rehmat1.com/2015/02/06/unsc-refuses-to-condemn-hizbullah-for-shebaa-operation/

    • Kata Fisher February 25, 2015 at 10:03 am #

      rehmat,

      A note:

      What happened “after 1960s”?

      http://www.vox.com/2014/6/24/5835320/map-in-the-whole-world-only-these-five-countries-escaped-european

      Another Note: “Zionist entity” has Faith constituency along with “religion” — now what? abut “Zionist entity”… with for another “prime minister” — or this:

      I mean no comedy — just listen to the end — and there you will find “The Vision of the Faith.”

      So tell me (if you can) that you do not believe in effective diplomacy between Israel and Arabs? I heard that Benjamin Netanyahu wants to meet with Arabic diplomats when he arrives to US and gives “his controversial speech” — but they refused to meet with him…

      I believe my source is authentic — I just read news on happenings.

      Would it be possible that he at least meets with some arabic diplomats and /or Ambassadors? — and really what does he want?

      Most of the time it is so that people are so confused that they do not even know what they want – but they are at their dare wants.

      • Gene Schulman February 27, 2015 at 12:29 pm #

        Kata, among your many reflections, do you ever stop to read what you have written, and wonder why nobody understands you? Do you know what gibberish means? Even our blog host has to reprimand you, but you just continue orating from your personal cloud. Tsk, tsk.

      • Kata Fisher February 27, 2015 at 1:05 pm #

        So funny…

        Gene is still sharpening his axe. (Laughter).

      • Gene Schulman February 28, 2015 at 7:46 am #

        Gene has no axe to grind. Would just like to read something that has to do with the subject of these blogs. One easily gets tired of Church charismatic nonsense.

      • Kata Fisher February 28, 2015 at 9:30 am #

        Dear Gene,

        No substance & Long way to trail-blaze on…

        But you may like to read this article because it is actually relevant to your perspectival subject: “lawfare” – if you will.

        http://edition.cnn.com/2015/02/27/asia/australia-muslim-twitter-campaign/index.html

        Cheers & cheerfulness at your chopping on evergreen; it will take you all year long?!

  6. zak February 27, 2015 at 11:51 am #

    Isn’t “lawfare” just an invented term used by rogue states to pretend that reasonable people who demand that the law be enforced are carrying out a “war”? lol I never really gave it much more thought than that, never heard it used in an American context – only by the Israelis – and only in reference to calls for enforcing the law.

    • Kata Fisher March 2, 2015 at 3:14 pm #

      Rehmat1:

      A note:

      You have earlier (in your debate) posted some Q and A’s about Goldstone report .

      Hillel Neuer is saying that Goldstone report was not written down by Goldstone, and that he did find out who actually did write down Goldstone report.

      This is what Hillel wrote on that:

      http://www.thetower.org/article/why-the-schabas-report-will-be-every-bit-as-biased-as-the-goldstone-report/

      Also, there is a reference on “lawfare”, as well.

      Can you please explain what is going on with that report – if you can?

  7. rehmat1 March 1, 2015 at 3:18 am #

    Dear Kata F. – Doesn’t your “Jewish conscience” ever bothers you by posting Israeli Zionist racist sources like “Wikipedia” and “Vox”? I guess not when liars like Benjamin Netanyahu are leading the Jews.

    http://www.wrmea.org/1996-october/spook-terrorist-or-criminal-america-s-mysterious-files-on-netanyahu.html

    • Kata Fisher March 1, 2015 at 9:57 am #

      Dear rehmat:

      I do not make friends – but I think you are Frend-like.

      Concerning “Wikipedia” and “Vox”? – or my “conscience”?

      My ancestor is Arab.

      Can I say that my conscience is in Abraham? Perhaps, I just can’t and won’t acknowledge that.

      My conscience is in nothing else but Church-Charismatic, and that is, in David trough Jesus Christ of Nazareth by Spirit of God.

      If I would be overwhelmingly moved to punish Benjamin Netanyahu — this would be my way:

      http://www.nytimes.com/2015/02/28/us/politics/former-obama-campaign-aide-now-works-to-oust-netanyahu.html?partner=rss&emc=rss&smid=fb-nytimes&bicmst=1409232722000&bicmet=1419773522000&smtyp=aut&bicmp=AD&bicmlukp=WT.mc_id&_r=0

      Leadership of Benjamin Netanyahu was beyond anything else Israelites ever have experienced since times of Judges? – when they have had, not even the evil Kings — and everyone did as they saw fitly according to theirs judging…

      Unto what can you compare contemporary “Jewish conscience?” – It is like wise-doom of Solomon after 700 wifes and concubines? Solomon had no excuse – but contemporary Jews that are today do have excuse?

      I do not expect you to laugh.

      I do not specifically evaluate my sources, for me all sources are sources to be evaluated. Instead, I will to waste and vanish in my time on better things such as this movie. I just watched it last night; it is based on a true story. It It will tell you what Church actually is – so that you should not doubt.

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