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Lawfare is the use of legal systems and institutions to damage or delegitimize an opponent, or to deter an individual's usage of their legal rights. [1] [2] [3] [4]
The term may refer to the use of legal systems and principles against an enemy, such as by damaging or delegitimizing them, wasting their time and money (e.g., SLAPP suits), or winning a public relations victory.
Alternatively, it may describe a tactic used by repressive regimes to label and discourage civil society or individuals from claiming their legal rights via national or international legal systems. This is especially common in situations when individuals and civil society use nonviolent methods to highlight or oppose discrimination, corruption, lack of democracy, limiting freedom of speech, violations of human rights and violations of international humanitarian law.
The term is a portmanteau of the words "law" and "warfare". Perhaps the first use of the term "lawfare" was in the 1975 manuscript Whither Goeth the Law, which argues that the Western legal system has become overly rational and treats persons like objects as compared to so-called "Community Law", which is based more on humanity and intuition. As an example of the use of such an approach, the Confucian Code of Propriety (Li) is mentioned, which was used in China and Korea in the past. [5]
A more frequently cited use of the term is found in a 2001 essay authored by Charles J. Dunlap, Jr., in which Dunlap defines lawfare as "the use of law as a weapon of war"; that is, "a method of warfare where law is used as a means of realizing a military objective". [6] He later expanded on the definition, describing lawfare as "the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting" a superior military power. [7] In this sense, lawfare may be a more humane substitute for military conflict, although Dunlap considers lawfare a "cynical manipulation of the rule of law and the humanitarian values it represents". [6]
Benjamin Wittes, Robert Chesney, and Jack Goldsmith employ the word in the name of the Lawfare website, which focuses on national security law and has explored the debate over the definition of lawfare and whether it should be considered exclusively a pejorative. [8] [9]
Lawfare may involve the law of a nation turned against its own officials, but more recently it has been associated with the spread of universal jurisdiction, that is, one nation or an international organization hosted by that nation reaching out to seize and prosecute officials of another. [10]
Both pro-Israeli groups and pro-Palestinian groups have been accused of using "lawfare" against one another. Christian Aid, a British charity that does humanitarian work for Palestinians, was taken to court in 2017 by a pro-Israeli organization called "Zionist Advocacy Center". [11] While the case was ultimately dismissed in US courts, the organization had to spend £700,000 in defending itself, and said it was an act of "lawfare" against organizations that help Palestinians. [11]
A pro-Israeli group, Shurat HaDin, acting on information from the Israeli government, is believed to have used lawfare to prevent Gaza-bound flotilla from leaving Greece. [12]
Many cases have been brought forward against Israeli officials and those associated with Israel's military, accusing them of war crimes. These cases have been heard in both Israel [13] and in other countries. [14]
Attempts to suppress the BDS movement have also been called lawfare. [15] In Israel and many US states, supporting the BDS movement is criminalized. [15]
The alleged use of human shields by groups like Hamas has been seen as an example of lawfare, hinging on exploiting Israel's aim to minimize civilian casualties and the sensitivity of Western public opinion. This tactic allows Hamas to either accuse Israel of war crimes if civilian casualties occur or to protect its assets and continue operations if the IDF limits its military response. [16] [17]
According to Canadian MP and former minister Irwin Cotler, an ardent if not rabid Zionist, the use of law to delegitimize Israel is present in five areas: United Nations, international law, humanitarian law, the struggle against racism and the struggle against genocide. [18]
In contrast to most world governments, the People's Republic of China has explicitly recognized lawfare ("falu zhan" or "legal warfare") as an essential component of its strategic doctrine. [19] The activities of the People's Republic of China in relation to the territorial disputes in the South China Sea is frequently cited example of lawfare by the Chinese government. [20] [21] In particular, China has asserted sovereign control over several areas in the South China Sea, and has restricted access to areas within its alleged sovereign territory or exclusive economic zone. [22] In support of its claims, China has issued official state declarations (e.g., notes verbal) and enacted domestic laws that assert its sovereignty or effective control of portions of the sea. [23] [24]
The government of China has used lawsuits in foreign courts to repress Chinese dissidents abroad. [25] [26] [27]
Harvard School of Law professor Jack Goldsmith, an opponent to the expansion of international human rights and universal jurisdiction, states in his book The Terror Presidency that Defense Secretary Donald Rumsfeld was concerned with the possibility of lawfare waged against Bush administration officials, and that Rumsfeld "could expect to be on top of the list". [28] [29] Rumsfeld addresses the effects of lawfare in his memoir Known and Unknown. [30]
The Gaza Strip, or simply Gaza, is a polity and the smaller of the two Palestinian territories. On the eastern coast of the Mediterranean Sea, Gaza is bordered by Egypt on the southwest and Israel on the east and north.
A human shield is a non-combatant who either volunteers or is forced to shield a legitimate military target in order to deter the enemy from attacking it.
Israel has occupied the Palestinian territories and the Golan Heights since the Six-Day War of 1967. It previously occupied the Sinai Peninsula and southern Lebanon as well. Prior to Israel's victory in the Six-Day War, occupation of the Palestinian territories was split between Egypt and Jordan, with the former having occupied the Gaza Strip and the latter having annexed the West Bank; the Sinai Peninsula and the Golan Heights were under the sovereignty of Egypt and Syria, respectively. The first conjoined usage of the terms "occupied" and "territories" with regard to Israel was in United Nations Security Council Resolution 242, which was drafted in the aftermath of the Six-Day War and called for: "the establishment of a just and lasting peace in the Middle East" to be achieved by "the application of both the following principles: ... Withdrawal of Israeli armed forces from territories occupied in the recent conflict ... Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force."
Targeted killing, or assassination is a tactic that the government of Israel has used during the Israeli–Palestinian conflict, the Iran–Israel proxy conflict, and other conflicts.
The 2006 Gaza–Israel conflict, known in Israel as Operation Summer Rains, was a series of battles between Palestinian militants and the Israel Defense Forces (IDF) during summer 2006, prompted by the capture of Israeli soldier Gilad Shalit by Palestinian militants on 25 June 2006. Large-scale conventional warfare occurred in the Gaza Strip, starting on 28 June 2006, which was the first major ground operation in the Gaza Strip since Israel's unilateral disengagement plan was implemented between August and September 2005.
Shurat HaDin is an Israeli non-governmental organization (NGO) founded in Tel Aviv in 2003. Shurat HaDin has been described by some as a civil rights organization and others as a pro-Israel lawfare-waging NGO.
Orde Félix Kittrie is a tenured professor of law at Arizona State University, where his teaching and research focus on international law and criminal law. He has written extensively in the areas of international law, criminal law, nuclear non-proliferation, and international negotiations. Professor Kittrie is also the director of ASU's Sandra Day O’Connor College of Law Washington Legal Externship Program. Professor Kittrie was recipient of the 2006-2007 Centennial Professor of the Year award at ASU, a university-wide honor presented in recognition of outstanding teaching inside and outside of the classroom.
Jack Landman Goldsmith III is an American legal scholar. He serves as the Learned Hand Professor of Law at Harvard Law School, where he has written extensively in the fields of international law, civil procedure, federal courts, conflict of laws, and national security law. Writing in The New York Times, Jeffrey Rosen described him as being "widely considered one of the brightest stars in the conservative legal firmament".
A blockade has been imposed on the movement of goods and people in and out of the Gaza Strip following Hamas's takeover in 2007, led by Israel and supported by Egypt. The blockade's current stated aim is to prevent the smuggling of weapons into Gaza, although previously stated motivations have included exerting economic pressure on Hamas. Human rights groups have described the blockade as illegal and a form of collective punishment as it restricts the flow of essential goods, contributes to economic hardship, and limits the freedom of movement for Gaza's residents. The blockade and its effects have led to the territory being described as an "open-air prison".
The Gaza War, also known as Operation Cast Lead, also known as the Gaza Massacre, and referred to as the Battle of al-Furqan by Hamas, was a three-week armed conflict between Gaza Strip Palestinian paramilitary groups and the Israel Defense Forces (IDF) that began on 27 December 2008 and ended on 18 January 2009 with a unilateral ceasefire. The conflict resulted in 1,166–1,417 Palestinian and 13 Israeli deaths. Over 46,000 homes were destroyed in Gaza, making more than 100,000 people homeless.
Roof knocking or "knock on the roof" is a term used by the Israel Defense Forces (IDF) to describe its practice of dropping non-explosive or low-yield devices on the roofs of targeted civilian homes in the Palestinian territories as a prior warning of imminent bombing attacks to give the inhabitants time to flee the attack. The practice was employed by the IDF during the 2008–2009 Gaza War, Operation Pillar of Defense in 2012, and Operation Protective Edge in 2014 to target the homes of police officers or Hamas political or military leaders.
Accusations of violations regarding international humanitarian law, which governs the actions by belligerents during an armed conflict, have been directed at both Israel and Hamas for their actions during the 2008–2009 Gaza War. The accusations covered violating laws governing distinction and proportionality by Israel, the indiscriminate firing of rockets at civilian locations and extrajudicial violence within the Gaza Strip by Hamas. As of September 2009, some 360 complaints had been filed by individuals and NGOs at the prosecutor's office in the Hague calling for investigations into alleged crimes committed by Israel during the Gaza War.
The United Nations Fact Finding Mission on the Gaza Conflict, also known as the Goldstone Report, was a United Nations fact-finding mission established in April 2009 pursuant to Resolution A/HRC/RES/S-9/1 of the United Nations Human Rights Council (UNHRC) of 12 January 2009, following the Gaza War as an independent international fact-finding mission "to investigate all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression". South African jurist Richard Goldstone was appointed to head the mission. The other co-authors of the Report were Hina Jilani, Christine Chinkin and Desmond Travers.
Many legal assessments of the Gaza flotilla raid were published subsequent to the event. International law experts differed over the legality of the action by Israel. The force necessary to respond to violent resistance and whether the force that was used was proportionate were disputed.
The 2014 Gaza War, also known as Operation Protective Edge, and Battle of the Withered Grain was a military operation launched by Israel on 8 July 2014 in the Gaza Strip, a Palestinian territory that has been governed by Hamas since 2007. Following the kidnapping and murder of three Israeli teenagers in the West Bank by Hamas-affiliated Palestinian militants, the Israel Defense Forces (IDF) initiated Operation Brother's Keeper, in which some 350 Palestinians, including nearly all of the active Hamas militants in the West Bank, were arrested. Hamas subsequently fired a greater number of rockets into Israel from the Gaza Strip, triggering a seven-week-long conflict between the two sides. It was one of the deadliest outbreaks of open conflict between Israel and the Palestinians in decades. The combination of Palestinian rocket attacks and Israeli airstrikes resulted in over two thousand deaths, the vast majority of which were Gazan Palestinians. This includes a total of six Israeli civilians who were killed as a result of the conflict.
Human shields are legally protected persons—either protected civilians or prisoners of war—who are either coerced or volunteer to deter attacks by occupying the space between a belligerent and a legitimate military target. The use of human shields is forbidden by Protocol I of the Geneva Conventions. It is also a specific intent war crime as codified in the Rome Statute, which was adopted in 1998. The language of the Rome Statute of the International Criminal Court prohibits "utilizing the presence of a civilian or other protected person to render certain points, areas, or military forces immune from military operations."
Brooke Goldstein is a human rights attorney. She is the founder and Executive Director of The Lawfare Project.
The Lawfare Project is an American non-profit think tank and litigation fund that works to protect the human and civil rights of Jewish and pro-Israel communities worldwide. The Project funds legal actions to protect free speech and civil rights by challenging anti-Semitism and discrimination against Jews.
Israel has accused Hamas of using human shields in the Gaza Strip, saying that Hamas has purposely attempted to shield itself from Israeli attacks by storing weapons in civilian infrastructure, launching rockets from residential areas, and telling residents to ignore Israeli warnings to flee. Israel has also accused Hamas of maintaining command and control bunkers and tunnel infrastructure below hospitals. Hamas has denied using hospitals to shield any command center, while it has previously made remarks expressing support for Palestinians refusing to flee areas Israel has targeted.
The accusation of the use of human shields is a common theme in the Israeli–Palestinian conflict. Both the Israel Defense Forces (IDF), and Palestinian militant groups have used civilians as human shields to discourage the opposing side from attacking. Many activists have often voluntarily used themselves as human shields to stop Israeli violence against Palestinians: these include the International Solidarity Movement, and Israeli leftists.
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