Can law be used as a weapon of war? Legal experts argued at a recent conference in New York City terrorists are using “Lawfare” to build humanitarian cases and international support for their tactics. Groups such as Hamas and the Council on American-Islamic Relations have filed lawsuits for “war crimes” or “crimes against humanity” against their political enemies in the West, tying up senior Israeli officials and others in expensive, and often damaging cases.
These misuses of law by terrorist organizations subvert a country's foreign policy and interfere with diplomatic actions, panelists said.
Using the legal system for strategic political or military end is not a new idea: in fact, Americans have a legal and political tradition in using the law to pursue justice. But Brooke Goldstein, director of the LawFare Project, which works to raise awareness of the issue and the conference organizer, said terrorists twist international legal code for their own means.
Humanitarian Cause or Terrorism Tactic?
For example, terrorist groups bring lawsuits in countries that have nothing to do with the parties involved. One such case involved Tzipi Livni, leader of Israel's Kadima party, who canceled a trip to England after a pro-Palestinian group was able to get a warrant issued for her arrest for alleged war crimes in Gaza.
In a written introduction to the conference Goldstein, listed some of the lawfare tactics used by terrorist groups: from “hate speech” lawsuits filed against those who speak publicly about terrorism, Al Qaeda operatives who position themselves as victims in the eyes of the law and media by filing torture claims.
British libel law is one of the most popular examples of how lawfare is used. Saudi royalty routinely used these laws to sue American journalists who uncovered or exposed ties to terrorism groups. In British libel laws because the burden of proof routinely falls upon the author, not only were US journalists loosing large settlements in court they were responsible for fees and damages incurred during the lawsuit.
Lawfare can also inhibit democracies from the right and ability to defend against terrorism when fundamentalists file lawsuits against Western countries using the principles of international criminal law. Panelists argued that the U.S. risked allowing terrorism organizations to have the upper hand without protecting their own citizens.
In events where the public safety is deemed at risk, speakers argued that the United States does not have to hew to international law or code. Many panelists also shunned the role of the United Nations Security Council in regulating international military force and security. Democracies should not have to get approval from the UN before deciding to use military force.
The conference was a first attempt to formalize a strategy to combat these tactics by terrorism groups. Speakers, which included former New York City District Attorney Robert Morgenthau and Israeli Ambassador to the United Nations Gabriela Shalev, spent the day condemning lawfare.
“This is not a 'mother may I?' situation,” said former U.S. Ambassador to the United Nations John Bolton. The packed and heavily secured room exploded with applause when Bolton declared, “We should say unequivocally that we recognize no higher authority in this world than the U.S. Constitution.”
David Harris, former chief of strategic planning for the Canadian Security Intelligence Service, asked the audience to imagine current scenarios in which the United States was strictly following international criminal law taking place in the time of World War II.
“Would Hitler's assassination have been an international crime?” he wondered. “Would each of America's three million German (POWs) have been subject to individual law suits?” Harris explained that if America had taken this path during World War II, the war may have not come to the same conclusion and millions of lives could have been lost.
None of the discussion focused on America's own legal quandary: the federal government's decision to move the trial of Khalid Sheikh Mohammed and four other top Al Qaeda operatives away from New York City or if his day in court could be switched to a military commission.
Cara Tabachnick is news editor of The Crime Report