The term “lawfare” is used today to describe a weaker side’s exploitation of a judicial system to advance the goals of conventional warfare in an asymmetric conflict. By means of lawfare, the weaker side can drain the greater power’s time and resources, and achieve public relations victories through the media coverage of the legal battle. In short, lawfare is the use of law as a weapon of war to pursue strategic aims through legal maneuvers, also known as “legal jihad.”
In the last decade, lawfare has been used in the West by Islamic organizations in order to constrain the free flow of public opinion about radical Islam. Muslim organizations have filed predatory lawsuits designed to intimidate, bankrupt, punish and silence those who criticize Islam in public discourse. Some have been successful, resulting in significant fines and expenses to the defendants. But the most important goal of Muslim lawfare is to put Western society on notice that the price of criticizing anything Muslim can be very high. Publishing houses and newspapers, in the wake of successful lawfare, have begun to reject important works on counter-terrorism out of fear of becoming the targets of future lawfare suits.
Daniel Pipes, founder of the Middle East Forum, and Steven Emerson, an internationally recognized expert on counter-terrorism, were prescient when they asserted that Islamic organizations in the USA will engage in further such lawfare efforts, as legal action becomes a mainstay of radical Islamist organizations seeking to intimidate and silence critics and to gain propaganda value from their courtroom actions. And, indeed, a conference at UC Hastings College of the Law this past March informs us that specific Muslim institutions and individuals plan to catapult lawfare to a new level. Rather than being re-active to criticism or accusations, Islamist lawfare will go into high gear and become pro-active, exploiting the American legal system to promote a Muslim terrorist and political agenda, “Palestinian rights.”
“Litigating Palestine: Can Courts Secure Palestinian Rights?” was the first conference of its kind to be held in the USA. Sponsored by the Trans-Arab Research Institute and organized by Professor George Bisharat (for Bisharat’s anti-Israel posturing see here), it brought together a diverse group of academics and practitioners (for participants’ biographies see here) to describe and to evaluate the strategies, limitations, successes and failures of efforts to advance what the organizers refer to as “Palestinian rights” in a variety of different court systems in the United States and abroad.
Professor Frank Wu, Chancellor of UC Hastings College of the Law, announced publicly that the College did not host nor financially support this conference, and endorsed neither the viewpoints nor the academic goals of the conference. UC Hastings has removed its name and brand from this conference. Faculty members went public with their opposition to Professor Wu’s decision, some even suggesting that it was a “cave in” to a Zionist attack on free speech.
The reason for this last-minute change may have been the letter to Chancellor Wu from Tammi Rossman-Benjamin, Lecturer, University of California at Santa Cruz and Leila Beckwith, Professor Emeritus, University of California at Los Angeles. They pointed out that the agenda, content, and panelists of the conference indicate that it was organized for the purpose of harming the Jewish State. Moreover, the Trans-Arab Research Institute (TARI) has stated that part of its mission is the elimination of the Jewish state of Israel by combining Israel and the Palestinian territories into one secular state. Professor Bisharat is on TARI’s board. Support for Chancellor Wu’s decision came from the Middle East Forum.
The tone of the conference was set by Professor Bisharat’s introduction, which stressed that the Palestinian people have unassailable civil and national and human rights; and Israel has a long history of violating these rights. He concluded that it could be effective to use lawful means to defend the Palestinians against these violations. Such activity, he noted, would be “cause lawyering,” i.e., using the courts to promote and advocate for social and political causes. “Cause lawyering,” lawfare on steroids, was the central theme of the conference.
The keynote speaker, Professor Jules Lobel, (Vice President, Center for Constitutional Rights – CCR), promptly identified himself as a Jew, and then proclaimed that litigation should play a role in the fight for social change and in the struggle for “Palestinian rights” in US courts. He gave examples from 19th century US judicial history where court cases were used to develop a “more progressive” political consciousness, to create debate, and to expose hypocrisy and double standard. But, he noted, pro-Palestinian “cause lawyering” has not fared well in US courts, due, in his opinion, to pro-Israel bias. His suggestions were to promote and legitimize BDS,[i] to continue to fight Israel’s illegal settlements in US courts, and to work in tandem with Palestinian organizations and political movements to instigate in US courts whatever cases these Palestinian organizations and political movements can raise.[ii]
He and other speakers stressed that such “cause lawyering” on behalf of the oppressed Palestinians may lose in court, but its real purpose is to start a “drumbeat of agitation” which will gradually move to change public opinion. Cases are filed “to make a point,” rather than to win, thus making the US courts a venue for political advocacy rather than the mechanism for resolving disputes.
It seems important to note that “cause lawyering” in the context of achieving “Palestinian rights” is essentially the endeavor to turn US courts into a soap box from which to promote the political and military agendas of the government of a political entity, the Palestinian Authority, whose leaders have openly proclaimed their enmity toward the USA and toward the USA’s ally Israel; some of whose leaders are identified as terrorists by the US Department of State and with whom contact of any sort is illegal; and some of whose citizens have operated freely and openly as terrorists to kill and maim US citizens in Israel and elsewhere.