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.
It is also important to note that throughout the entire conference, including Q&A and random comments from attendees, there was absolutely no debate or discussion about the Israeli side of the conflict. Taken as unassailable axioms were:
 Israel was the aggressor in 1967 and its conquest of Palestinian land was illegal, as is its continued illegal occupation which must be ended by any means including terrorism.
 Israel’s current sovereignty over the West Bank is “Illegal occupation” per international law.
 Hence the West Bank can be legally defined as “occupied territory.”
 The Palestinians are helpless innocent victims of Israeli illegal aggression and occupation.
 The Palestinians are a politically disempowered group and as such must be recognized as worthy of support, defense, advocacy, and protection under law.
 Hence the Palestinians can legally use violence against their occupiers even if that violence includes targeting civilians.
 Islamic Jihad and Hamas and Hezb’Allah use international aid for humanitarian purposes only.
 What Israel calls defense against terrorism is in fact “state terrorism” against helpless, defenseless Palestinian civilians.
 The land under dispute is in fact historically, politically and morally “Palestinian territory.”
 Israel is a rogue, illegal, oppressive, genocidal state perpetrating crimes against humanity in violation of international law.
For decades, internationally renowned jurists, academics, analysts and political leaders have argued that these “axioms” are the reverse of reality; a product of mendacious propaganda designed to undermine the legitimacy of Israel, to isolate her from allies and from the family of nations, and to make her appear a rogue and illegitimate state unworthy of continued existence.
The UN was clear in 1967 that Israel was the victim of aggression in the 6-day war, and despite that, Israel offered to return conquered territory in exchange for peace. The Arab aggressors refused, preferring to maintain a state of war. This being the case, Israel’s continued sovereignty over those conquered territories is legal, and not an illegal occupation.
Far from helpless victims, Palestinian terrorists are unconscionable aggressors who flout international law and laws of war by targeting almost exclusively civilians in an endless relentless terror war aimed at destroying Israel and genociding its Jews. There is no basis in western morality or law for the legal use of terrorism by any group no matter how “disempowered.” Terrorism, no matter how hapless, helpless, hopeless, homeless its perpetrators, is a war crime; and genocide, the unabashedly avowed aim of Hamas and Hezbollah, is a crime against humanity.
There is ample evidence that Hamas steals money, food and medications from the UN and other sources that provide aid for impoverished Arabs in the Gaza Strip. The ten unquestioned axioms of this conference are not merely lies, they are an intentional reversal of reality which turn history upside down. Yet they stood unchallenged at this conference, indeed adulated as inviolate truth, and they served as cornerstones for the “cause lawyering” that professor Bisharat and others advocate.
The absence of any consideration for any pro-Israel arguments, and the utter irrationality of the unquestioned axioms that serve as the foundation for the entire event’s intellectual and legal framework, must lead one to conclude that the organizers, sponsors, presenters and participants have no interest in justice. [iii] The purpose of this conference was to disseminate a new and powerful methodology to advance the cause of Arab terrorism and to legitimize Palestinian violence against Israel.
America’s legal community, and all those who support Israel and seek peace, are forewarned. Professor Bisharat and his ilk will not be dissuaded by defeats in court, nor even by the refusal of some judges to permit cases to come to trial. They will enjoy victory by the very process of ‘cause lawyering’ before a mainstream media always hungry for notoriety. As Stephen Schwartz so aptly concluded, they will use and abuse the American court system to achieve via lawfare what their clients have not been able to achieve in US legislation or public opinion: the criminalization of Israel, the exoneration of this generation’s most brutal mass murderers, and the transmogrification of genocide into “national liberation.”
They have opened a new front in the Arab-Israel war. Our legal system will surely be its first victim. We must work to make sure that Israel is not its second.
[i] For a detailed discussion of the BDS (Boycott, Divestment, Sanctions) movement, its false premises, its lies, and its real agenda, see:
http://archive.frontpagemag.com/readArticle.aspx?ARTID=9303 Mainline Christian Anti-Semitism By: David Meir-Levi , FrontPageMagazine.com | Tuesday, March 15, 2005;(http://archive.frontpagemag.com/readArticle.aspx?ARTID=9246)
http://archive.frontpagemag.com/readArticle.aspx?ARTID=9246; http://archive.frontpagemag.com/readArticle.aspx?ARTID=7964 Divestment Fraud By: David Meir-Levi , FrontPageMagazine.com | Wednesday, July 13, 2005;
http://archive.frontpagemag.com/readArticle.aspx?ARTID=5571 Divestment: The How-To Manual By: David Meir-Levi , FrontPageMagazine.com | Monday, February 20, 2006.
[ii] For legal issues related to working with Hamas and other terror group or groups connected with terror groups, see http://www.foreignaffairs.com/print/67829; and note the most recent commentary on this issue at http://www.foreignaffairs.com/articles/67930/douglas-n-greenburg-and-derek-d-smith/aiding-friends-and-foes-in-palestine, Greenberg, Douglas N., and Smith, Derek D., “Aiding Friends and Foes in Palestine: How Fatah-Hamas Unity Threatens U.S. Funding,” Foreign Affairs, published by the Council on Foreign Relations, June 20, 2011.
[iii] One speaker espoused an amazingly blatant racist explanation for the failure of some “cause lawyering” cases, suggesting that due to the fact that the jury in the Holy Land Foundation case consisted solely of “white Christian Republicans,” neither Sami el-Arian nor the Holy Land Foundation could get a fair trial.
Another speaker, focusing on the asymmetry between the Palestinians and the Israelis, asserted that this asymmetry makes it legal for the Palestinians to use low-tech weapons against civilians. No one, she concluded, should expect the Palestinians to abandon violence while the attempts to achieve justice for Palestinians in US courts are underway.
Another excellent example of some presenters’ irrational arguments was the opinion that because the people of Gaza are starving, Israel’s blockade is illegal under international law. Aside from the question of the blockade’s illegality as a function of the Gaza Strip’s food supply, the participant failed to consider the actual status of the Arabs of the Gaza Strip. While there is poverty in the Gaza Strip, there is no humanitarian crisis. The people of the Gaza Strip are not starving. For details of the economic situation in the Gaza Strip, see Meir-Levi, David, “The Gaza Flotilla Confrontation: Facts vs. the Academicians,” Scholars for Peace in the Middle East Newsletter, July 6, 2010. Moreover, Israel is supplying the Gaza Strip with tons of food, water, electricity and medicine on a daily basis. Thus, in light of the panelist’s own logic, since the people of Gaza are not starving, Israel’s blockade is perfectly legal.