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Tuesday, 31 March 2009
THE MISUSE OF INTERNATIONAL LAW
BESA Center Perspectives Papers No. 73, March 23, 2009 http://www.biu.ac.il/SOC/besa/perspectives73.html
Defining “Lawfare”
There is a new kind of warfare being waged across the globe. The antagonists in the struggle are employing the weapon of their adversaries - the rule of law - in a strategy called “Lawfare” which involves the misuse of the law to achieve objectives that cannot be achieved militarily. Lawfare can be undertaken by any group of actors of any nationality or religion, but presently Lawfare is being pursued largely by Islamic ideologues, their supporters, and their financiers who sympathize with the actions of Islamic militants. Lawfare is exponentially effective because one lawsuit can silence thousands who have neither the time nor the financial resources to challenge well-funded terror financiers or the vast machine of the international judicial system. The potential for a “chilling effect” on both speech and conduct are limitless and the consequence can have a devastating effect on public safety and international security.
Categories of Lawfare
There are three primary categories of Lawfare. The first category is the initiation of lawsuits before courts in the international system. The International Court of Justice (ICJ) and the International Criminal Court (ICC) serve complementary but different purposes. The ICJ, established in 1945, resolves disputes between states and renders advisory opinions on legal issues submitted by international organs, agencies, and the UN General Assembly. As the ICJ solves disputes in cases that states bring before it, there is rarely a question about whether the court has jurisdiction in those matters. In contrast, the 2002 Rome Statute of the International Criminal Court established the ICC as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes. UN member states had to decide whether to submit to its jurisdiction and allow their citizens to be prosecuted.
The United States and Israel had an intuitive understanding that this presented a potential for abuse in the absence of a system of checks and balances. They rejected participating in the ICC because they feared that hostile nations would initiate politically motivated lawsuits against their soldiers or political leaders and that the impartiality of the court would be compromised. The ICC is only permitted to try nations that are party to the Rome Statute, unless the United Nations Security Council permits otherwise by vote. For now, the United States and Israel are safe from prosecution by the ICC, but it is not an absolute certainty.
In the second category, the misuse of legal terminology to manipulate international institutions and the public is an underhanded mode of Lawfare because it relies on the relative inexperience of laypeople to advance ideas. United Nations resolutions, for example, are used to gain sympathy for the cause of Lawfare combatants and to intimidate their opposition. However, just as ICJ Advisory Opinions are non-binding, UN Resolutions also do not have the force of law and are simply an expression of sentiment and are often precursors to the establishment of authoritative international law by way of a UN Convention. This gives reason to worry, particularly with respect to a resolution that will be at the top of the agenda of the upcoming anti-racism conference in Geneva this April, familiarly known as Durban II.
Every year since 1999, at the request and direction of the 57-state Organization of the Islamic Conference, the United Nations has passed a resolution on Combating Defamation of Religions. The resolution has two major intrinsic flaws and is merely a political attempt by the OIC to stifle free speech and criticism of Islam. The first flaw is that it singles out Islam as a victim and makes no mention of any other religion. The second flaw is that “defamation of religions” is a legal impossibility.
Defamation involves the publication of a false statement about a person, business, group or government, all of which are tangible entities. A religion cannot be defamed because it is only a set of beliefs and, therefore, cannot sue in its own name. Even if, hypothetically, a defamation case were brought, the falsehood of a statement about a religion can never be established, because religious beliefs are subjectively determined. Furthermore, it is not possible for a judge to render a decision on a matter the very nature of which is inconclusive. By supporting this resolution, the OIC is taking advantage of the public’s general lack of knowledge about defamation, which does not include a religion as a protected category.
The third and arguably most threatening category of Lawfare relates to the prosecution of foreign nationals in domestic courts for military and civilian action. With respect to military cases, there is the recent example of the prosecution of Israeli officials by a Spanish Court at the instigation of the Palestinian Center for Human Rights, an NGO based in Gaza City. The organization requested that two Israeli officials, National Infrastructure Minister and former Defense Minister Binyamin Ben-Eliezer and former IAF and IDF Chief of Staff Dan Halutz be investigated for alleged crimes against humanity for their involvement in the assassination of a Hamas operative in 2002. Invoking the controversial international legal principle of “universal jurisdiction,” the Justice of the Spanish Court granted the Palestinian petition.
As distinguished from the criminal jurisdiction of an international tribunal which is exercised by an international organization such as the ICC or the International Criminal Tribunals for Rwanda and the Former Yugoslavia, universal jurisdiction is exercised by states who feel that it is within their moral obligation to mankind to prosecute individuals who allegedly committed crimes outside the boundaries of the prosecuting state, regardless of any relation of the person with that state. The claim is premised on the notion that each state has the responsibility to protect populations from genocide, war crimes, and crimes against humanity. Henry Kissinger denounced universal jurisdiction as a breach of state sovereignty and said it creates the risk of universal tyranny by judges. Despite his objections and by others in the international community, universal jurisdiction persists as evidenced by the prosecution in the Spanish Court.
Prosecutions like the one in Spain pose two dangers. They undermine international sympathy for the plight of the Israeli people, as well as other global citizens, in dealing with terrorism. But even more significantly, a defeat creates a dangerous precedent for future losses because the standard it sets can be incorporated into mainstream international law by way of customary international law - which is comprised of state practice - the repetition of similar acts by other states over time, and opinio juris - the sense of obligation of all states to act in the same manner. This would have disastrous consequences for any state in carrying out military actions and would essentially imprison the defendants in their home countries out of concern for being arrested once they step beyond their own borders. This is exemplified in the case of the attempted arrest of Israeli Major General Doron Almog at Heathrow Airport in the United Kingdom in September 2005, over accusations by Palestinian groups that he ordered the destruction of more than 50 homes in Gaza in 2002.
In cases against civilian (as opposed to military) personnel, Lawfare in both Western and non-Western domestic courts has also been attempted by Islamic groups with the goal of suppressing the free speech of their critics. To combat anti-Islamic rhetoric in the West, Islamic organizations and individuals have stepped up a legal campaign to silence criticism of Islam through attempts at civil litigation and criminal prosecution of private citizens.
A growing phenomenon called “libel tourism” has gained international notoriety as one of the most broadly threatening means of Lawfare. Libel tourism is a form of international forum shopping whereby plaintiffs bring defamation lawsuits in plaintiff-friendly jurisdictions. The United Kingdom, infamously known as the “libel capital of the Western world,” has been home to nearly all the libel tourism cases in recent years. What makes British courts so appealing is that libel plaintiffs need not prove the guilt of the accused, but rather the accused must prove their own innocence - the exact opposite of the system in the United States - and often at great cost to themselves and over lengthy periods of time. In the process, the defendants are also barred from reporting about the subject matter of the ongoing litigation, which often takes years.
In a libel tourism case, free speech is shut down, posing a threat to international security when writers can no longer report about suspicious activity or the sources of terror financing. One of the plaintiffs on the libel circuit is a Saudi citizen named Sheikh Khalid Salim bin Mahfouz who has initiated roughly 40 libel cases in British courts. Two of his cases stand out which exemplify the problem of libel tourism. The first involves the publication of a book called “Alms for Jihad” in which Mahfouz is accused of funding Al-Qaeda. Cambridge University Press, the publisher, removed the book from circulation and destroyed existing copies in order to end the lawsuit that Mahfouz brought against them.
The second is the case of Rachel Ehrenfeld who Mahfouz sued over allegations that he funded terrorist groups in her book entitled “Funding Evil.” As distinguished from the first case which related to a British publication, Ehrenfeld’s book was neither published nor distributed in the UK, but the court granted jurisdiction because Mahfouz was able to buy 20 copies of “Funding Evil” on Amazon.com and ship them to England. Ehrenfeld lost her case in the British Court and was ruled in contempt of court for not submitting to the judgment, putting herself at risk of arrest if she travels to Britain. However, she appealed to the federal and state courts in New York to protect her from Mahfouz enforcing the judgment in the US, arguing the injustice of being prosecuted under a harsher standard than American law allowed.
In early January 2008, the New York State Assembly introduced the “Libel Terrorism Protection Act” to ensure that foreign judgments that are at odds with American law and public policy will not be enforceable in New York. The Act, signed by the Governor of New York on 30 April 2008, served as the prototype for federal legislation entitled the “Freedom of Speech Protection Act” now under review by the US Congress. Despite the American attempts to protect its citizens at home, they cannot change British laws. Therefore, libel tourism remains a threat to free speech and consequently to international security.
With regard to domestic criminal prosecutions, Jordan charged 12 Europeans in 2008 with blasphemy, demeaning Islam and Muslim feelings, and slandering and insulting the prophet Muhammad in violation of the Jordanian Penal Code. Eleven of the defendants were Danish journalists involved in publishing a cartoon of Muhammad, and the twelfth was the controversial Dutch politician Geert Wilders. Jordan requested that Interpol apprehend the defendants and bring them to trial. The case is pending, but the effect of such prosecutions, if recognized in the West, are self-evident. Countries that do not respect free speech, and whose laws are informed by their religious beliefs, oftentimes antithetical to the values that promote free expression, will be encouraged to follow Jordan’s example. Essentially no one will be safe from being sued abroad in a domestic court.
Conclusion
We cannot ignore Lawfare tactics or downgrade them as benign methods simply because they do not cause physical injury. Lawfare is a serious assault on the ability of free nations and their citizens to exercise their legal rights under both international and domestic law and to live, speak, travel and defend themselves.
Lawfare has developed to combat the terrorists’ most enigmatic enemy. They are not fighting an occupier or challenging a military incursion - they are fighting the forces of freedom, they are fighting the voice of reason, and they are attacking those who have the liberty to speak and act openly. And the weapon that the enemy is using was created by our own hands - that is the rule of law, a weapon designed to subdue dictators and tyrants is now being misused to empower the very same, and being manipulated to subvert real justice and indisputable truth. That is not the purpose the law is designed to serve.
Elizabeth Samson is a visiting fellow at the Hudson Institute. She is an attorney specializing in international law and constitutional law. This paper is based on her lecture at the BESA Center on February 25, 2009.
BESA Perspectives is published through the generosity of the Littauer Foundation.
taken from: B'NAI ELIM (http://bnaielim.blogspot.com/)
U.S. FOREIGN AID TO THE PALESTINIANS - TIME TO STOP !
The Gaza Aid Package
Time to Rethink U.S. Foreign Assistance to the Palestinians
by James Phillips
The Obama Administration has announced a huge aid package of $900 million to help ease the humanitarian plight of Palestinians in Gaza and to shore up the bankrupt Palestinian Authority (PA). This surge of soft power is aimed at strengthening Palestinian moderates and helping to clear the way for revived Israeli-Palestinian negotiations. But as long as Hamas remains free to rain rockets down on Israel, these ambitions remain little more than wishful thinking.
Since the 1993 Oslo peace accords, the U.S. has showered $2.2 billion in bilateral aid on the Palestinians, in addition to more than $3.4 billion for humanitarian aid funneled to the Palestinians through dysfunctional U.N. organizations since 1950. This aid has:
Subsidized the welfare of Palestinian refugees;
Contributed to a culture of victimization and shrill anti-Israeli and anti-Western radicalism; and
Freed up some Palestinian groups to focus on destroying Israel rather than on providing for and advancing the long-term interests of the Palestinian people.
Given the searing economic crisis that the United States presently faces, the Obama Administration should:
Significantly reduce these overly ambitious aid goals;
Halt the funding of U.N. agencies that do not adequately screen their workers for terrorist connections or permit external audits; and
Tighten restrictions on the disbursement of aid to ensure that the aid will not be diverted for hostile purposes.
A Soft-Headed Soft Power Approach to Middle East Peace
Last week, Secretary of State Hillary Clinton announced the Obama Administration's pledge of $900 million in aid at an international donors conference in Sharm el-Sheikh, Egypt. The aid package includes $300 million for humanitarian aid to Palestinians in Gaza, $200 million in budget support for the PA, and $400 million to support the PA's Palestinian Reform and Development Plan in the West Bank.
The Obama Administration maintains that this massive aid package will not end up in the pockets of Hamas and other terrorist groups. It plans to funnel assistance through the PA, NGOs, and U.N. agencies. But the PA remains a weak and problematic institution hobbled by corruption, despite recent reforms. And U.N. agencies often have their own agenda as well as an anti-American and anti-Israeli tilt.
The largest U.N. body involved with facilitating aid to the Palestinians is the U.N. Relief and Works Agency for Palestinian Refugees (UNRWA), a notoriously opaque and dysfunctional institution that has been infiltrated by Hamas supporters and other Palestinian radicals.[1]Even though it receives over a third of a billion dollars in international funding every year, and despite recurrent reports of inefficiency and corruption, UNRWA is not externally or publicly audited. Such lack of accountability is particularly troubling for an organization that has been chronically dogged by controversy.
There are numerous reports documenting that UNRWA has been infiltrated by Hamas terrorists. According to the U.S. Government Accountability Office (GAO), at least 16 UNRWA staff had been detained by Israeli authorities for security-related crimes, and three had been convicted in military courts of terrorism-related activities.[2]UNRWA's leadership has admitted in the past that Hamas, which the U.S. government has designated as a Foreign Terrorist Organization, has been able to infiltrate the U.N. agency. Peter Hansen, then-commissioner-general of UNRWA, sparked a political storm in 2004 when he remarked in an interview with the Canadian Broadcasting Corporation that "I am sure that there are Hamas members on the UNRWA payroll, and I don't see that as a crime. Hamas, as a political organization, does not mean that every member is a militant, and we do not do political vetting and exclude people from one persuasion as against another."[3]
Specific examples of radicals working for UNRWA are readily available. For instance, Said Sayyam, the Hamas minister of interior, worked as a teacher at UNRWA schools in Gaza, while the headmaster of another UNRWA school, Awas al-Qiq, was the leader of a cell that build rockets for the Islamic Jihad terrorist group. Several other UNRWA employees left their jobs to run in the 2006 Palestinian elections as Hamas candidates. Despite the fact that the United States is the biggest single donor to UNRWA, that agency continues to resist reform and refuses external audits of its operations. Incredibly, the UNRWA Web site that includes information on its "Special Gaza Appeal" instructs donors to send money through the Commercial Bank of Syria, which has been sanctioned by the U.S. Treasury Department for money laundering and suspected involvement in moving money to terrorist groups.[4] Clearly, the UNRWA bureaucracy takes an extremely lax attitude on fighting terrorism and should not be trusted to handle aid provided by the U.S. government.
No Taxpayer Subsidies for Terrorist Groups
Given the penetration of UNRWA and other NGOs by terrorist groups, the United States must be absolutely sure that its aid does not end up being diverted. Congressman Mark Kirk (R-IL) has warned that "to route $900 million to this area, and let's say that Hamas was only able to steal 10 percent of that, we would still become Hamas's second-largest funder after Iran."[5]
Congress needs to scrutinize the Obama Administration's aid plans to make sure that there is absolutely no chance that funds provided by American taxpayers end up being pocketed by members of terrorist groups--a development that would violate section 301c of the Foreign Assistance Act. The Senate should pull funding for UNRWA and the Palestinian Authority from the $410 billion spending bill currently before Congress. And both houses of Congress should hold hearings and exercise their oversight powers to make sure that future aid to the Palestinians is dispensed on a more modest scale via closely vetted NGOs, not through corrupted U.N. bodies operating at cross-purposes with U.S. foreign policy goals.
James Phillips is Senior Research Fellow for Middle Eastern Affairs in the Douglas and Sarah Allison Center for Foreign Policy Studies, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.
[1]See Nile Gardiner and James Phillips, "Congress Should Withhold Funding from the U.N. Relief and Works Agency for Palestinian Refugees (UNRWA)," Heritage Foundation WebMemo No. 987, February 6, 2006, at http://www.heritage.org/Research/MiddleEast/wm987.cfm.
[2]U.S. Government Accountability Office, Department of State and United Nations Relief and Works Agency Actions to Implement Section 301(c) of the Foreign Assistance Act of 1961, GAO-04-276R UNRWA, November 17, 2003, p. 28, at http://www.gao.gov/new.items/d04276r.pdf (March 9, 2009).
[3]Sean Gordon, "Members of Hamas 'on UN Payroll,'" National Post, October 4, 2004.
[4]Claudia Rosett, "Can We Give to Gaza Without Giving to Hamas?" Forbes, March 5, 2009.
[5]Joel Mowbray, "Lawmakers Worry Whether U.S. Can Keep Gaza Aid Away From Hamas," Fox News, March 2, 2009, at http://www.foxnews.com/politics/first100days/2009/03/02/lawmakers-worry-gaza-aid-away-hamas/ (March 9, 2009).
taken from: B'NAI ELIM (http://bnaielim.blogspot.com/)
CONCERT FOR PEACE, OR NOT
Last week the NYT carried this nice fluffy story about a youth orchestra from Jenin that preformed for a public of Holocaust survivors in Holon, Israel. It was the idea of the orchestra's Israeli Arab director, Wafaa Younis, (no idea if she's fluffy) and funded by Shari Arison, Israel's wealthiest woman, who no doubt is fluffy headed (but means well). I briefly toyed with the idea of linking to the story, but seem not to have. It was too fluffy for me, and didn't seem to have much significance beyond the good-feeling markup.
Apparently I was wrong. Some influential group in Jenin has fired Ms. Younis, forbidden her to enter town, and put an end to her harmful escapades.
Adnan al-Hindi, the leader of the camp’s Popular Committee, a grass-roots group representing the Palestine Liberation Organization, said the young musicians had been exploited by the orchestra director, Wafaa Younis, for the purpose of “normalizing” ties with Israel. He said by telephone that the children had been “deceived” and dragged unwittingly into a political situation that “served enemy interests” and aimed to “destroy the Palestinian national spirit in the camp.”
“It was a shock and a surprise to the children and their relatives,” he said, adding that Ms. Younis had told the young musicians’ families only that the trip to Holon was an opportunity for artistic self-expression.
Ms. Younis, from central Israel, has been traveling to Jenin every week for several years to teach music in the camp. Mr. Hindi said that the house she rented as a studio had been sealed, and that she was barred by the Popular Committee from all activity in the camp.
Depressing, isn't it. And note that al-Hindi is Fatah, not Hamas
taken from:Yaacov Lozowick's Ruminations (http://yaacovlozowick.blogspot.com/)
A WARM COMMUNITY IN THE COLD
This post has nothing to do with my usual themes, simply with the human condition.
Via Powerline I reached a dramatic slideshow at Boston.com about the floods in North Dakota. Or, more accurately, about the communities in and around Fargo, as they face the icy rising waters. It's a dramatic series of pictures, and it tells an impressive tale of an entire community facing adversity with determination, lots of hard work, and also, it's important to add, formidable logistic abilities. Everybody seems to be working hard, the pictures show no panic, but the efforts seems to be achieving things, complicated as this must be. Someone must be directing the effort, allocating volunteers, organizing empty sandbags, mounds of sand, heavy equipment, and so on and on.
taken from:Yaacov Lozowick's Ruminations (http://yaacovlozowick.blogspot.com/)
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