Next month, an organisation called The Lawfare Project (TLP) is putting on a conference about lawfare, which it defines as: the abuse of the law and legal systems for strategic ends.
The role of the organisation is set out on their website.
The scope of the Lawfare Project’s focus is limited to lawfare as it is used to:
(1) Frustrate the West’s ability to fight terrorism,
(2) De-legitimize the sovereignty of democratic states such as the U.S. and Israel, and
(3) Silence free speech about issues of national security and public concern.
Interestingly, David Schizer, Dean of Columbia Law School, is chairing the conference. The Dean is responsible for awarding the prestigious Medal of Excellence to a notable alumnus, which this year went to Obama’s Attorney General, Eric Holder.
In 2005, the award went to Michael Ratner, a well-known human rights attorney and President of the Centre for Constitutional Rights for, among other things, his work on behalf of Guantanamo detainees. Presumably this work is precisely the type of lawfare TLF was once concerned about.
International law has always been an unwieldy instrument basing its legitimacy on a combination of treaties and non-binding instruments – such as the Convention on the Law of the Sea – and practical application of principles in international settings – such as the creation of international organisations that set food, health and environmental standards.
Within this somewhat shifting framework of international law, human rights law as a subcategory rests on some clearly identifiable principles. At a foundational level, this stems from the liberal concept, stated in the preamble to the Universal Declaration of Human Rights, that the:
recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.
In other words, humans are subjects of ‘states’, defined in contrast to them, not subject to their political whims or discriminatory fancies. Organisations like TLF fly in the face of these traditionally accepted principles.
One of TLF’s stated aims is to facilitate a response to the perversion and misapplication of human rights law. In light of the organisations stated objectives, this immediately sounds warning bells. Isn’t arguing that human rights must be calibrated to the objectives of the state – in fighting terrorism or supporting the US and Israel – an example of a perversion of human rights law?
The whole logic of TLF is counterintuitive, and that is what makes it so dangerous. They argue that terrorists and their sympathisers understand where they can’t win with brute force so they undermine our willingness and ability to fight them using legal grounds. This suggests that the concept of terrorism is no longer defined by the use of violence for political ends.
TLP uses terrorism as a label for national and transnational organisations that are politically, morally and legally delegitimising the ‘war on terror’. So anyone who relies on political, moral or legal grounds to make an argument about foreign policy is now potentially a terrorist. Everyone from church groups to Amnesty International to the Greens would seem to fall into this category.
This thinking is not just an American phenomenon. It is precisely the argument that MI5 used to justify its behaviour in the recent case concerning Binyam Mohamed, a former Guantanamo detainee from Britain. Lawyers for the international media (including Associated Press, the Guardian and the New York Times) had been seeking access to documents pertaining to Mohamed’s treatment while in Guantanamo on the grounds of pressing public interest.
Last month, the Government’s barrister, Jonathan Sumption QC, requested that paragraphs highly critical of MI5 behaviour be removed from the draft appeal court judgement. This was done without informing lawyers for the media, or Mohamed. When the court learned of this and promptly published the crucial paragraphs, MI5 claimed that this was an example of a propaganda victory for terrorists. ‘For their part, our enemies will also seek to use all tools at their disposal to attack us’, wrote Jonathan Evans, head of MI5. ‘That means not just bombs, bullets and aircraft but also propaganda and campaigns to undermine our will and ability to confront them.’
The release of the Counter-Terrorism White Paper last week, signals that Australia may be heading in the same direction. Australians are not numb to the threat of terrorism as Kevin Rudd claims; but, we are also plagued by ennui about the growing threats to civil liberties. In September last year, the Federal Court of Australia denied an application by peace activist Scott Parkin to access the adverse security assessment made by ASIO that resulted in his deportation from Australia. This process has taken nearly five years at great expense to both Parkin and the taxpayer.
Unlike Britain, the Australian judiciary seems less inclined to stand up to our intelligence organisations in the name of the public interest. As such, it might not be long before we see a legal, political and social campaign against lawfare in Australia.