Gaza, Goldstone, and lawfare.

• Author: Schabas, William A.
• Position: Symposium: Lawfare

The term 'lawfare' is being used abusively to attack critics who invoke the illegality of the behaviour of certain military forces, including those of Israel and the United States. The Goldstone Report on Operation Cast Lead points to disproportionate use of force by Israel as a means of punishing Palestinians for their support of llamas. Quibbling about certain aspects of the Report seems aimed at undermining the important contribution it makes to the promotion of human rights, the enforcement of international humanitarian law and the pursuit of peace in the Middle East.

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In her contribution to the Cleveland symposium, Laurie Blank charges that the "Goldstone Report contributes to--even puts a stamp of approval on--the use of lawfare." (1) She argues that the Report of the United Nations Fact Finding Mission on the Gaza Conflict, (2) which was mandated by a resolution of the Human Rights Council (3) and chaired by Richard Goldstone, "exacerbates the manipulation of [international humanitarian law] by insurgents and terrorists, who use the law, and Western militaries' adherence to the law, as a tool of war in today's conflicts." (4) She also says that if the approach to international law adopted in the Goldstone Report is followed, it will "facilitate and encourage such manipulation of the law and, rather than leading to greater protection for civilians, actually produce conflict scenarios where civilians are at ever greater risk." (5)

These strong statements sit among attacks upon the Report that are often characterized both by hyperbole and hysteria. The Symposium program itself contained a provocative citation from Israeli Prime Minister Netanyahu: "We face three major strategic challenges. The Iranian nuclear program, rockets aimed at our civilians and Goldstone." (6) If one had to think of the single individual most likely to threaten the survival of Israel, surely Netanyahu himself would be a better candidate. He pushes his country closer and closer to the brink by pandering to extremists, even defying the U.S. government, which has insisted that the illegal policy of settlements in occupied territories be halted. (7) A conference at Fordham Law School held earlier in 2010, sponsored by the American Association of Jewish Lawyers and Jurists together with various other Jewish organizations, describes in its publicity material:

In particular, the semblance of authenticity and the cloak of legal language surrounding the Goldstone Report have given it an undeserved legitimacy and inspired a plethora of further mechanisms intended to demonize and delegitimize the state of Israel. The report and the lawfare strategy it embodies, erode the legitimacy of international law and pose a clear and present danger to the right of all democratic states, including the United States, to defend themselves. (8) The word "lawfare" has never been part of my vocabulary. Prior to the symposium held at Case Western Reserve School of Law, in September 2010, I never had occasion to use the term. It appears to have no useful or practical purpose. I would not rule out employing it in a Scrabble game, although were I to do so, my usual partner would no doubt object. She would challenge me to look it up in the Scrabble dictionary where, of course, it is nowhere to be found. (9) I might then try and bluff by pointing to its use on various blogs and websites, and in the proceedings of the Cleveland symposium. Inevitably, I would be asked, "what does it mean?" My answer, based upon what I learned at the conference and in preparation for it, would be something along the following lines: "A word coined within the United States military and...