BESA Center Perspectives Papers No. 73, March 23, 2009
There is a new kind of warfare being waged across the globe. The antagonists in the struggle are employing the weapon of their adversaries - the rule of law - in a strategy called “Lawfare” which involves the misuse of the law to achieve objectives that cannot be achieved militarily. Lawfare can be undertaken by any group of actors of any nationality or religion, but presently Lawfare is being pursued largely by Islamic ideologues, their supporters, and their financiers who sympathize with the actions of Islamic militants.
Lawfare is exponentially effective because one lawsuit can silence thousands who have neither the time nor the financial resources to challenge well-funded terror financiers or the vast machine of the international judicial system. The potential for a “chilling effect” on both speech and conduct are limitless and the consequence can have a devastating effect on public safety and international security.
Categories of Lawfare
There are three primary categories of Lawfare. The first category is the initiation of lawsuits before courts in the international system. The International Court of Justice (ICJ) and the International Criminal Court (ICC) serve complementary but different purposes. The ICJ, established in 1945, resolves disputes between states and renders advisory opinions on legal issues submitted by international organs, agencies, and the UN General Assembly. As the ICJ solves disputes in cases that states bring before it, there is rarely a question about whether the court has jurisdiction in those matters. In contrast, the 2002 Rome Statute of the International Criminal Court established the ICC as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes. UN member states had to decide whether to submit to its jurisdiction and allow their citizens to be prosecuted.
The United States and Israel had an intuitive understanding that this presented a potential for abuse in the absence of a system of checks and balances. They rejected participating in the ICC because they feared that hostile nations would initiate politically motivated lawsuits against their soldiers or political leaders and that the impartiality of the court would be compromised. The ICC is only permitted to try nations that are party to the Rome Statute, unless the United Nations Security Council permits otherwise by vote. For now, the United States and Israel are safe from prosecution by the ICC, but it is not an absolute certainty.
In the second category, the misuse of legal terminology to manipulate international institutions and the public is an underhanded mode of Lawfare because it relies on the relative inexperience of laypeople to advance ideas. United Nations resolutions, for example, are used to gain sympathy for the cause of Lawfare combatants and to intimidate their opposition. However, just as ICJ Advisory Opinions are non-binding, UN Resolutions also do not have the force of law and are simply an expression of sentiment and are often precursors to the establishment of authoritative international law by way of a UN Convention. This gives reason to worry, particularly with respect to a resolution that will be at the top of the agenda of the upcoming anti-racism conference in Geneva this April, familiarly known as Durban II.
Every year since 1999, at the request and direction of the 57-state Organization of the Islamic Conference, the United Nations has passed a resolution on Combating Defamation of Religions. The resolution has two major intrinsic flaws and is merely a political attempt by the OIC to stifle free speech and criticism of Islam. The first flaw is that it singles out Islam as a victim and makes no mention of any other religion. The second flaw is that “defamation of religions” is a legal impossibility.
Defamation involves the publication of a false statement about a person, business, group or government, all of which are tangible entities. A religion cannot be defamed because it is only a set of beliefs and, therefore, cannot sue in its own name. Even if, hypothetically, a defamation case were brought, the falsehood of a statement about a religion can never be established, because religious beliefs are subjectively determined. Furthermore, it is not possible for a judge to render a decision on a matter the very nature of which is inconclusive. By supporting this resolution, the OIC is taking advantage of the public’s general lack of knowledge about defamation, which does not include a religion as a protected category.
The third and arguably most threatening category of Lawfare relates to the prosecution of foreign nationals in domestic courts for military and civilian action. With respect to military cases, there is the recent example of the prosecution of Israeli officials by a Spanish Court at the instigation of the Palestinian Center for Human Rights, an NGO based in Gaza City. The organization requested that two Israeli officials, National Infrastructure Minister and former Defense Minister Binyamin Ben-Eliezer and former IAF and IDF Chief of Staff Dan Halutz be investigated for alleged crimes against humanity for their involvement in the assassination of a Hamas operative in 2002. Invoking the controversial international legal principle of “universal jurisdiction,” the Justice of the Spanish Court granted the Palestinian petition.
As distinguished from the criminal jurisdiction of an international tribunal which is exercised by an international organization such as the ICC or the International Criminal Tribunals for Rwanda and the Former Yugoslavia, universal jurisdiction is exercised by states who feel that it is within their moral obligation to mankind to prosecute individuals who allegedly committed crimes outside the boundaries of the prosecuting state, regardless of any relation of the person with that state. The claim is premised on the notion that each state has the responsibility to protect populations from genocide, war crimes, and crimes against humanity. Henry Kissinger denounced universal jurisdiction as a breach of state sovereignty and said it creates the risk of universal tyranny by judges. Despite his objections and by others in the international community, universal jurisdiction persists as evidenced by the prosecution in the Spanish Court.
Prosecutions like the one in Spain pose two dangers. They undermine international sympathy for the plight of the Israeli people, as well as other global citizens, in dealing with terrorism. But even more significantly, a defeat creates a dangerous precedent for future losses because the standard it sets can be incorporated into mainstream international law by way of customary international law - which is comprised of state practice - the repetition of similar acts by other states over time, and opinio juris - the sense of obligation of all states to act in the same manner. This would have disastrous consequences for any state in carrying out military actions and would essentially imprison the defendants in their home countries out of concern for being arrested once they step beyond their own borders. This is exemplified in the case of the attempted arrest of Israeli Major General Doron Almog at Heathrow Airport in the United Kingdom in September 2005, over accusations by Palestinian groups that he ordered the destruction of more than 50 homes in Gaza in 2002.
In cases against civilian (as opposed to military) personnel, Lawfare in both Western and non-Western domestic courts has also been attempted by Islamic groups with the goal of suppressing the free speech of their critics. To combat anti-Islamic rhetoric in the West, Islamic organizations and individuals have stepped up a legal campaign to silence criticism of Islam through attempts at civil litigation and criminal prosecution of private citizens.
A growing phenomenon called “libel tourism” has gained international notoriety as one of the most broadly threatening means of Lawfare. Libel tourism is a form of international forum shopping whereby plaintiffs bring defamation lawsuits in plaintiff-friendly jurisdictions. The United Kingdom, infamously known as the “libel capital of the Western world,” has been home to nearly all the libel tourism cases in recent years. What makes British courts so appealing is that libel plaintiffs need not prove the guilt of the accused, but rather the accused must prove their own innocence - the exact opposite of the system in the United States - and often at great cost to themselves and over lengthy periods of time. In the process, the defendants are also barred from reporting about the subject matter of the ongoing litigation, which often takes years.
In a libel tourism case, free speech is shut down, posing a threat to international security when writers can no longer report about suspicious activity or the sources of terror financing. One of the plaintiffs on the libel circuit is a Saudi citizen named Sheikh Khalid Salim bin Mahfouz who has initiated roughly 40 libel cases in British courts. Two of his cases stand out which exemplify the problem of libel tourism. The first involves the publication of a book called “Alms for Jihad” in which Mahfouz is accused of funding Al-Qaeda. Cambridge University Press, the publisher, removed the book from circulation and destroyed existing copies in order to end the lawsuit that Mahfouz brought against them.
The second is the case of Rachel Ehrenfeld who Mahfouz sued over allegations that he funded terrorist groups in her book entitled “Funding Evil.” As distinguished from the first case which related to a British publication, Ehrenfeld’s book was neither published nor distributed in the UK, but the court granted jurisdiction because Mahfouz was able to buy 20 copies of “Funding Evil” on Amazon.com and ship them to England. Ehrenfeld lost her case in the British Court and was ruled in contempt of court for not submitting to the judgment, putting herself at risk of arrest if she travels to Britain. However, she appealed to the federal and state courts in New York to protect her from Mahfouz enforcing the judgment in the US, arguing the injustice of being prosecuted under a harsher standard than American law allowed.
In early January 2008, the New York State Assembly introduced the “Libel Terrorism Protection Act” to ensure that foreign judgments that are at odds with American law and public policy will not be enforceable in New York. The Act, signed by the Governor of New York on 30 April 2008, served as the prototype for federal legislation entitled the “Freedom of Speech Protection Act” now under review by the US Congress. Despite the American attempts to protect its citizens at home, they cannot change British laws. Therefore, libel tourism remains a threat to free speech and consequently to international security.
With regard to domestic criminal prosecutions, Jordan charged 12 Europeans in 2008 with blasphemy, demeaning Islam and Muslim feelings, and slandering and insulting the prophet Muhammad in violation of the Jordanian Penal Code. Eleven of the defendants were Danish journalists involved in publishing a cartoon of Muhammad, and the twelfth was the controversial Dutch politician Geert Wilders. Jordan requested that Interpol apprehend the defendants and bring them to trial. The case is pending, but the effect of such prosecutions, if recognized in the West, are self-evident. Countries that do not respect free speech, and whose laws are informed by their religious beliefs, oftentimes antithetical to the values that promote free expression, will be encouraged to follow Jordan’s example. Essentially no one will be safe from being sued abroad in a domestic court.
We cannot ignore Lawfare tactics or downgrade them as benign methods simply because they do not cause physical injury. Lawfare is a serious assault on the ability of free nations and their citizens to exercise their legal rights under both international and domestic law and to live, speak, travel and defend themselves.
Lawfare has developed to combat the terrorists’ most enigmatic enemy. They are not fighting an occupier or challenging a military incursion - they are fighting the forces of freedom, they are fighting the voice of reason, and they are attacking those who have the liberty to speak and act openly. And the weapon that the enemy is using was created by our own hands - that is the rule of law, a weapon designed to subdue dictators and tyrants is now being misused to empower the very same, and being manipulated to subvert real justice and indisputable truth. That is not the purpose the law is designed to serve.
Elizabeth Samson is a visiting fellow at the Hudson Institute. She is an attorney specializing in international law and constitutional law. This paper is based on her lecture at the BESA Center on February 25, 2009.
BESA Perspectives is published through the generosity of the Littauer Foundation.