Speech Delivered by Brooke Goldstein at Fordham Law School on Lawfare & Combating the Goldstone Report

Speech Delivered by Brooke Goldstein at Fordham Law School on Lawfare & Combating the Goldstone Report

FORDHAM LAW SCHOOL

CONFERENCE ON LAWFARE & THE GOLDSTONE REPORT

APRIL 27, 2010

“INTERNATIONAL AND DOMESTIC LEGAL RECOURSES: RESPONDING TO LAWFARE AND THE GOLDSTONE REPORT”

INTRO – CONSIDER THE CONTEXT

I want to thank organizers of this event for inviting me here today and for providing this issue with the legitimacy and immediacy that it warrants, I am very honored to be on a panel with such distinguished colleagues. I want to especially thank Dean Treanor for permitting us a forum for free and open discussion about the substance of the Goldstone Report.

It is my position, that in order to prevent such flawed & politicized documents from masquerading as legitimate legal analysis, is absolutely necessary that we understand and analyze the report, and view its creation and its creators, in the broader context and as a symptom of a larger phenomenon, that of lawfare.

The organizers of this event, judging by its title, and the panelists understand the Goldstone Report-lawfare connection well, but unfortunately this is not the case with general public nor the legal or political community at large.

Rather, the #1 impediment to delegitimizing the Goldstone Report in my opinion has been the fact that the report has been analyzed and reported on, especially by the media, in a contextual vacuum without any consideration of the very diverse and complex legal threat lawfare poses, not just to Israel but to all liberal democracies and to the very foundations of international human rights law.

A large mistake would be to continue to allow the legal community to judge the report solely on its content without any consideration of the environmental context in which the Goldstone Report was born and without analyzing other, related acts of lawfare.

DEFINE “LAWFARE”

Since we are living in an age of flourishing lawfare, one of the first things the legal community must do is come to a working and acceptable definition of lawfare so that we are all on the same page, disseminate the definition and write profusely on the subject matter, and second we must enable (not just counter Goldstone but) counter-lawfare efforts, a few of which I will elaborate on shortly.

Before I do so, I would like to proffer a definition of lawfare that we the Lawfare Project use which is a relatively good amalgamation of the various definitions that are currently out there and which I think takes into consideration the different elements of the tactic and which expands on the original albeit vague definition brought to our attention by Major Gen Charles Dunlap who described it as “the use of the law as a weapon of war.”

When I say lawfare I denote the wrongful manipulation of the law and legal systems to achieve strategic military or political ends. I emphasize wrongful because lawfare is an inherently negative undertaking, it consists of the negative exploitation of the law to achieve a purpose other than or contrary to that for which the law was originally enacted. Lawfare is not something that persons engage in the pursuit of justice and must be defined as such to have any real meaning, otherwise, we risk diluting the phenomenon and feeding the inability to distinguish between what is the correct application of the law on the one hand and what is lawfare on the other.

Because that is the essence of the issue here, how do we distinguish between what constitutes a constructive, legitimate legal battle and what is counter-productive lawfare? How do we distinguish between perversions of the law, like the Goldstone Report, which should allocated no precedent, and U.N. resolutions that actually get it right?

The delineation is not as simple as some may like to make it – that is, lawsuits against terrorists are good and legal actions against Israel say are bad. No, the question is not who is the target but what is the intention behind the legal action, is it to pursue justice or to undermine the very system being manipulated?

So, we must first define the term, give it a negative implication, and look who is behind the legal action and their intent in order to put a use of the law as a weapon of war, in its proper context.

UNDERSTANDING THE THREE MAIN OBJECTIVES PROPONENTS OF MODERN DAY LAWFARE ARE ATTEMPTING TO ACHIEVE

It is also very important when analyzing any one incident of Lawfare, such as the Goldstone Report, to note the three main objectives that modern lawfare tactics have been attempting to achieve and the various distinct yet interconnected expressions thereof

THE FIRST OBJECTIVE (they are not listed in any particular order) is to silence and punish free speech critical of radical Islam, terrorism, or its sources of financing and to reinstate blasphemy laws especially as applied to Islam and its prophet Mohammad.

This is what I call Islamist lawfare whose goal is to impost Sha-aria law as a governing legal authority both in Muslims states and in the West and to impede the free flow of public information about the threat of Islamist terrorism thereby limiting our ability to understand it and destroy it. The effect sought is for certain parties to control public discourse and open debate on a given subject

THE SECOND OBJECTIVE of modern lawfare is to delegitimize the sovereignty of democratic states such as Israel and the United States

THE THIRD is to frustrate the ability of western democracies to defend themselves against terrorism. Here, lawfare takes the form of a complimentary legal campaign to terrorism and asymmetric warfare and seeks to denigrate society’s legitimate interest in security and self defense.

The Goldstone Report attempts to achieve both the 2nd and 3rd objectives yet there is an assortment of lawfare activities that is so numerous that it would take an entire semester in law school to detail properly, but nevertheless must be mentioned.

RELATED EXAMPLES OF “LAWFARE”

Other examples of lawfare include, but are not limited to:

(1) Hate speech lawsuits being filed all over Europe and in Canada against anyone brave enough to speak publicly, write about or even satire the threat of radical Islam and terrorism; Note the example of Geert Wilders, a democratically elected Dutch politician who, while speaking to his constituents about issues of national security and public concern, made a ten minute film about the threat of radical Islam, the majority of which is comprised of quotes from the Koran and scenes of Imams preaching death to the Jews and Infidels. One of the very Imams featured in the video is currently suing Wilders for exposing his incitement to violence under the guise that the movie offends Muslims and hurts his feelings. At the same time, the state of Jordan has demanded that Wilders be extradited to stand trial for blasphemy of Islam. Apparently the Dutch government is taking this request seriously.

Note also the example of the Danish Cartoonist Kurt Westergaard who was charged with hate speech for penning the now infamous cartoon of Mohammad with a Bomb in his Turban.

This type of lawfare, just like the Goldstone Report, goes hand in hand with a complimentary violent campaign, as both Wilders and Westergaard are subject to daily threats on their lives, the publication of the Mohammad cartoons sparked violent protests throughout Europe and just recently, as I am sure some of you are aware, the creators of the show South Park have similarly been targeted with death threats prompting some to call for a Draw Mohammad day on May 20th to show solidarity with the writer’s and their right to free speech.

In Canada, the author Mark Steyn and Ezra Levant, who is an attorney and blogger were both hauled before a “human rights commission” charging them with hate speech against Muslims, Steyn for writing a book called America Alone in which he elaborates on the role demographics play in the Muslim religion and Levant for republishing the Danish cartoons in the now defunct Western Standard magazine.

2) In the US, we are seeing a steady increase in the filing of frivolous and malicious defamation lawsuits against counter terror experts, media outlets and authors who are working to expose and combat acts of terrorism and its sources of financing; Such as the ongoing case against Hassam Daioleslam, an Iranian American who, after fleeing Iran for persecution, is now being sued by the National Iranian American Council (NIAC) for writing about the alleged connections the organization has to the Iranian regime.

Note the case of Joe Kaufman, the American activist who is being sued for libel by seven Dallas area Islamist organizations for exercising his right to free assembly and staging a ten-person protest outside a six flags amusement park protesting. Kaufman was protesting the flow of Saudi funds to American Islamist organizations.

Note also the defamation lawsuit by the Council on American Islamic Relations (CAIR) against former Congressman Ballenger for reporting CAIR to the FBI as a “a fundraising arm for Hezbollah.”

We are also seeing workplace harassment law suits against counter terrorism advisors for briefing the police on the threat of radical Islam, such as the case against Bruce Tefft, a former counter-terrorism advisor to the NYPD who is currently being sued by a Muslim John Doe police officer for sending out emails to a voluntary list of police officer recipients containing articles about Islamist terrorism (i.e. for doing his job.)

The cumulative effect of these lawsuits is a culture of fear and a detrimental chilling effect on the speech and opinions of the very people who are supposed to be protecting us and are preventing researchers and the media from disseminating reports that go towards contradicting both the legal and factual claims in documents like the Goldstone Report.

3) Lawfare also consists of the exploitation of orchestrated law of war violations, as taught by Al-Qaeda manuals which instruct captured militants to file false claims of torture so as to reposition themselves as victims in the eyes of the media and the law. The text from one such manual is available online at the Lawfare Project’s website. The goal being as much to win a public relations victory as it is a court case.

4) We see the legal tactic being used by specially designated terrorist groups, like Hamas, which attempt to achieve legitimacy through “human rights” litigation in England, while at the same time, openly flaunting human right norms by murdering their own children as suicide bombers, child soldiers and human shields, with impunity.

5) We are witnessing lawfare at the United Nations in efforts spearheaded by the Organization of the Islamic Conference to exclude attacks on American civilians from any international definition of terrorism, and in the same group’s manipulation of the Human Rights Council to enact a global ban on the defamation of religion.

6) Lawfare is also evident in the deliberate misapplication of human rights language and legal terminology, such as the misuse of the terms apartheid and genocide, so as to dilute their meaning and feed the inability to engage in any type of genuine dialogue about real instances of human rights violations.

7) The very existence of lawfare calls into question the wisdom of universal jurisdiction laws as they are being used to effect “war crimes” prosecutions against democratically elected officials. Such as Belgium’s attempted prosecution of former president Bush and former UK Prime Minister Tony Blair & Spain’s criminal prosecution of six top legal officials in the Bush administration.

CONSIDER THE TOTALITY OF THE CIRCUMSTANCE, ALL ACTS OF LAWFARE ARE INTERCONNECTED, ANY COUNTER LAWFARE STRATEGY MUST BE A MULTI FACETED PLAN.

What concrete steps can we take to combat, not just the Goldstone Report specifically, but lawfare in general?

As mentioned earlier, any response we formulate to the Goldstone Report must tackle the totality of the circumstance; the Report should never be analyzed in a vacuum.

All lawfare actions, whether they work to suppress free speech or to chastise Israel or the US for their defensive measures, must be seen as an interconnected whole which work to achieve the same three related purposes and which taken together threaten all liberal democracies equally.

Strategic lawfare against freedom of speech regarding terrorism for example, is being used to globally rewrite international human rights norms. The precedents established by lawfare-influenced UN resolutions and human rights reports form a body of precedent, that can and will be manipulated in the future to form the basis of other reports against other nations, and eventually we will have a jurisprudence, made up of a series of international and domestic rulings, that prevents us from speaking, thinking and acting against real violent threats to our nation.

In this sense we are all Israelis and our counter-lawfare strategy must be a multi-faceted plan that recognizes the role lawfare plays in complimenting violent strategies

So its not just that we have to take international and domestic recourse against the Goldstone Report but we must counter all international and domestic manifestations of lawfare of which Goldstone is but ONE, albeit shocking, example.

Also, by spending so much time, capital and brain power on analyzing the Goldstone Report as a stand alone document, allegation by allegation, we fall into the very trap that legitimates its existence by neglecting to tackle other real human rights violations going on in Yemen, Iran, by the Hamas against the Palestinians, and by the OIC states against their own people.

The free world has to wake up and recognize lawfare in all its forms, even when it’s against Israel, as though it is the non-violent front line in the war against terrorism. And a big part of enabling this to happen is funding and organizing a massive public relations campaign.

And through this campaign we must resist all attempts to separate the Goldstone Report from its cousins and to describe it as an Israel-centric problem.

COUNTERING LAWFARE VS FREE SPEECH

Its particularly important to defeat the lawfare attempts to thwart free speech, for without the ability to speak freely and openly about how Islam is being used to justify strapping bombs on innocent 6 year old Muslim children and blowing them up by remote control, how can we then prosecute the perpetrators of these crimes in International and national courts of law?

As the old adage goes, the best way to get rid of a bad law is to enforce it. Perhaps there should be a concerted efforts to apply European and Canadian hate speech laws against Imams preaching violence in mosques and against publishers that disseminate information and books about Jihad. Because the reality is that the Muslim community has nothing to gain from supporting the censorship of debate, for if a cartoon depicting Mohammad is “hate speech” now, how much longer until the Koran gets the same treatment?

Moreover, we need to continue to vigorously counter the libel lawsuits by ensuring that defendants have access to legal counsel at a pro bono or reduced rate and to the financial resources to pay for their court costs or other litigation related fees. The Legal Project (which I directed for just over 2 years) does a great job in arranging for financial support and pro bono counsel for persons targeted with such lawfare.

We must also educate and empower journalists to Know Their Rights and do everything to encourage them to continue to report on terror financing regardless of the intimidation. I am currently co-authoring a book due out this summer with Aaron Eitan Meyer on this very subject.

We should encourage the federal government to pass legislation protecting the First Amendment Rights of American Citizens such as New York Libel Terrorism Protection Act which nullifies foreign libel judgments from jurisdictions without the same first amendment protections, and also encourage states to pass Anti- SLAPP statutes which provide for a special motion to dismiss strategic litigation against public participation.

COUNTER THE OIC

It is likewise, so very important to organize an alliance of democratic states to prevent the UN from adopting the OIC’s proposal to exclude the murder of civilians of an “occupying” state from any international definition of terrorism.

There is no good reason why we should be letting state sponsors of

terrorism, define the term in their best interests. The free world must come to an acceptable definition or we risk losing the ability to identify and fight it, and the term will end up being diluted in its entirety, fostering a legal system that not only legitimates the targeting of innocent civilians but which takes away your statutory ability to bring the perpetrators of real acts of terrorism to justice. This is the exact same goal behind the Goldstone Report.

CONSIDER THE LEGITIMACY OF THE PLAYERS – DELEGITIMIZE THE DELEGITIMIZERS

PR wise, we need to directly attack the credibility of the major players behind lawfare and call into question the authority these parties have been allocated to make and apply international human rights law.

Why should a UN human rights council comprised largely of non-democratic member states and controlled by a bloc of Islamic and African states, backed by China, Cuba and Russia dictate international human rights norms?

We need to re-examination of the process by which human rights are enforced, the bodies by which they are defined, and the procedures that dictate the member of those bodies, and drop the absurdity that all members of the international community are equal when it comes to enforcing and defining what is human rights law, especially when that country itself is in flagrant violation of customary human rights norms as defined by free societies.

There is a great need to enact into law an acceptable and binding International Standard of Due Process

When the International Court of Justice deems the Israeli security fence, brick and mortar a crime against humanity yet in the same decision pointedly ignores the fact that the wall contributed to a sharp decline in the loss of human lives, we have a problem, one that evidences bias in the application of the law and a disregard for the concept of equality before the law.

Shouldn’t a report whose data is supplied by only a dozen NGOs who are all funded by the same two highly politicized sources, be dismissed outright for a lack of due process?

The reason why the Goldstone Report was not dismissed outright is because we are lacking an international code of procedure and evidence that is being applied to ALL investigations conducted under the aegis of the UN. Such procedures should contain high burdens that must be met in all cases before a subsidiary organ is even allowed to vote on any resolution.

Moreover we need to continue to stress the hypocrisy of the proponents of such lawfare. The UN has issued hundreds of resolutions against Israel but not one protecting innocent Muslim children from being used as human shields. Are the lives of Muslim children worth less for the UN when they are murdered at the hands of their own people, when they are the subject of what I see as state sponsored mass infanticide? Perhaps there should be a separate organization made up of only liberal democratic states which has the authority to make and interpret international human rights law and whose rulings are binding over and above the United Nations.

We must also call into question the NON governmental status of some of these alleged NGOs who are actually being funded by governments, and work towards legislation that prevents such false advertisement. There is an excellent group, NGO Monitor, that is studying the issue.

SUPPORT THE JUST APPLICAITON OF THE LAW – GO ON THE OFFENSE!

In addition, we ought to be flooding the courts with legitimate and meritorious lawsuits that seek to pursue elements of justice and nullify the precedents established by the Goldstone Report and other acts of lawfare.

Towards this end we should be financing and otherwise encouraging the prosecution of state sponsors of terrorism, the prosecution of satellite providers that air hate propaganda aimed at children, the prosecution of ISPs that host terrorist websites…

Concepts like the “disproportionate use of force,” ” collective punishment” and the unlawful targeting of civilians are less examined, if examined at all vis-à-vis the actions of terrorist groups and the banks and states that sponsor them.

The idea is that hopefully the good jurisprudence will eventually outweigh the bad but we need to stop wasting time thinking about this idea and go on the offense immediately!

UPDATE THE SUBSTANCE OF INTERNATIONAL LAW SO THAT IS APPLIES TO MODERN-DAY WARFARE AND FIGHTING TERRORISM, CLARIFY THE LAW WHERE IT IS INSUFFICIENT TO PROTECT THE RIGHT TO SELF DEFENSE.

FINALLY, the fact of the matter is the substance of international humanitarian law is evolving much slower than the types of crimes the law was enacted to eradicate and it must be updated to take into account that terrorists are by their very nature not playing by the old rules, and targeting and hiding behind innocent civilians, and outline in detail what state militaries are legally allowed to do in such circumstances.

If only one side is bound by the Geneva conventions how is that side supposed to fight and win a war?

We need to clarify the definition of enemy combatants vis-à-vis the Geneva accords and counter the OIC’s false argument that terrorists are lawful combatants and therefore accorded the same protections as soldiers in uniform

We also need to define what ‘control over a population’ is, what an ‘occupying power’ is, what rules of law apply when you leave an area that was once occupied but is still volatile.

There are answers to these questions which have been outlined in legal journals and articles, but the concepts have not been written into the substantive body of international law because the OIC block is countering anything that doesn’t have an exception for Islamist terrorism written into it.

And here at home, we need to resolve the question of whether and to what extent, if any, international humanitarian law should be enforced in domestic courts, via the Alien Torts Claim Act or the Terror Victim Protection Act and their foreign equivalents.

CONCLUSION

To conclude, there is clearly a laundry list and a variety of things we must work towards accomplishing which includes changing the way we think not just about how war is fought but also about the very legitimacy of democratically formed international human rights law.

The worst and most ironic part of all this is that we are doing it to ourselves, we are destroying the very system of international human rights norms that so much blood had to be shed to achieve, and which took so many years for the human race to accomplish.

This is especially true of Wilder’s situation where his own government has failed to repeal a hate speech law that is clearly being manipulated against its own interests, and it is true in the case of Canada whose human rights commissions are muzzling its own people, and in the case of the UN which was born from the ashes of genocide carried out by dictatorships and which is now peddling products of Orwellian thought control.

So on that note, I encourage everyone to visit the website of the Lawfare Project, to read our materials and sign up for our mailing list in order to keep yourself abreast of this phenomenon of lawfare so that we have a chance at defeating it.