Commentary Magazine


Topic: lawfare

Jihadists Using Liberalism Against Itself

While the West’s enemies become ever more unrestrained in the barbaric nature of their attacks, Islamist militants are increasingly pursuing tactics aimed at limiting what the West can do in its own defense. As a recent case in Britain has demonstrated, jihadists and their supporters are more than happy to fabricate the most outlandish allegations in an often successful attempt to hinder the fight against them. This is the kind of thing that Israel has been having to deal with for decades, and at some point other Western states need to comprehend that they are all up against the same enemy, one which is willing to employ the same underhanded tactics against all of us.

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While the West’s enemies become ever more unrestrained in the barbaric nature of their attacks, Islamist militants are increasingly pursuing tactics aimed at limiting what the West can do in its own defense. As a recent case in Britain has demonstrated, jihadists and their supporters are more than happy to fabricate the most outlandish allegations in an often successful attempt to hinder the fight against them. This is the kind of thing that Israel has been having to deal with for decades, and at some point other Western states need to comprehend that they are all up against the same enemy, one which is willing to employ the same underhanded tactics against all of us.

In May 2004, British troops became embroiled in a three-hour gun battle with insurgents of the Mahdi Army at Al Amara, Iraq. Following the battle it was alleged that British soldiers tortured, executed, and then mutilated the bodies of twenty Iraqi detainees. These accusations have dragged on for a decade now and in response the UK government commissioned the al-Sweady Inquiry, an investigation which has cost the British taxpayer almost $49 million, with the accusers having been able to claim financial assistance from the British state to fund their case against it.

And what did the tribunal discover? The al-Sweady Inquiry has stated unequivocally that the allegations made against the British soldiers are “without foundation,” and that those making these accusations had given evidence that was “unprincipled in the extreme” and “wholly without regard for the truth.”

So after years of investigation, and tens of millions in public money spent (much of it having been used to assist those bringing claims against the British army), the soldiers have at long last had their names cleared while the jihadi militants have been exposed as liars. Hardly surprising; it’s simply delusional to imagine that those who are so unprincipled as to use terrorism to achieve their aims would suddenly become upstanding and honest witnesses once stood before a war-crimes investigation. What these people are, however, is mendacious and calculating, and regardless of what al-Sweady may have concluded, by using public money to advance these outrageous allegations the jihadists have won by hijacking the West’s liberalism and respect for the rule of law for their own advantage.

Quite apart from the tremendous financial cost that this investigation and many more like it have carried, the decade that these allegations circulated for have been an outstanding public-relations victory for the insurgents. The media–large parts of which were eager to see Western forces fail in Iraq and Afghanistan–were all too ready to believe the stories spun by the militants and to think the worst of our soldiers. By parroting these lies ad nauseam, the Western media assisted the militants in undermining public morale at home, eroding belief in the rightness of the cause we were fighting for and convincing many that intervention overseas is rarely a defensible or admirable undertaking. In Europe particularly, these tales provide the recruiting fodder that radicalizes young Muslims into believing that their host societies are evil and that they too must join the war against the West. If nothing else, the constant fear of these damaging war crimes allegations persuade Western governments and militaries to be still more restrained in the tactics that they feel able to use in the increasingly muted attempt to counter our enemies.

This of course is the war that Israel has been fighting for years, ever since its creation in fact. Most recently there have been feverish blood libels about the IDF harvesting Palestinian organs, of summary executions during the 2010 flotilla incident, and of a supposed massacre and mass graves in Jenin during the Second Intifada. With all of these accusations Israel is obliged to investigate the conduct of its military, and so it does. That was what was so outrageous about the UN’s Goldstone investigation and indeed the subsequent attempt to have a Goldstone II following the war in Gaza this summer. Such international inquiries are only supposed to be mandated where a state has failed to adequately investigate itself first–but in Israel’s case the international community simply steps in and puts on its own investigation regardless, usually with the conclusion having been written at the outset.

Israel, like Britain and America, does undertake costly and time-consuming investigations where there are allegations of war crimes. But as we have seen so many times before, within hours the international media will have beamed the most tarnishing accusations against Israel around the world several times over. Months later when investigators have established the allegations as baseless, no one is listening anymore and the damage is done.

The debacle of the al-Sweady Inquiry has naturally caused some outrage in Britain, and so one hopes that some lessons will have been learned. But if observers have been reminded that jihadists are readily prepared to use war crimes accusations as a second front in the war against the West, they should also recognize the same tactic when they see it being deployed against Israel. The problem is that while many of them may now realize that the Islamists their armies encounter are unreasonable fanatics, they are equally convinced that the Islamists Israel faces have a legitimate grievance and a just cause.

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Bridgegate, the Media, and Lessons for 2016

The apparent exoneration by federal investigators of New Jersey Governor Chris Christie in the scandal over the lane closures on a bridge last year may be good news for Christie, but other prospective 2016 GOP candidates should take notice. The media’s unhinged obsession with hyping and trumping up the story in an effort to take down a presidential candidate was just a warm-up act. Far from chastened, the media is almost certainly just getting started.

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The apparent exoneration by federal investigators of New Jersey Governor Chris Christie in the scandal over the lane closures on a bridge last year may be good news for Christie, but other prospective 2016 GOP candidates should take notice. The media’s unhinged obsession with hyping and trumping up the story in an effort to take down a presidential candidate was just a warm-up act. Far from chastened, the media is almost certainly just getting started.

That means that if Christie really is exonerated–which he has been insisting he would be for months–conservatives should expect the leftist press to choose a new target. Although the coverage of this scandal leaves the mainstream press looking utterly humiliated, they won’t be humbled. A good precedent is when the New York Times concocted false accusations against John McCain in 2008 intended to destroy not just his campaign but his family; after the story was called out for the unethical hit job it was, especially on the right, then-Times editor Bill Keller responded: “My first tendency when they do that is to find the toughest McCain story we’ve got and put it on the front page.”

Getting called out for bias only makes the media more likely to give in to its vindictive instincts. This is the press version of an in-kind contribution, and those contributions don’t go to Republican campaigns.

In January conservative media watchers were passing around the statistics that showed the lopsided coverage the media was giving “Bridgegate” vs. the IRS scandal. One of the charts, which showed dedicated coverage over a fixed period of time, bothered reporters. In one of the unconvincing “defenses” of his fellow journalists, the Washington Post’s Chris Cillizza objected:

The comparison made in this chart in terms of coverage is not an apples to apples one.  The IRS story broke on May 10. That’s a full 52 days before the Media Research Center began counting the minutes of news coverage devoted to it. The Christie story, on the other hand, broke in the Bergen Record on Jan. 8, the same day that MRC began tracking its mentions in the media.

What Cillizza actually demonstrated, unintentionally, was a far worse aspect of the coverage that was tougher to quantify but jumps off the screen from Cillizza’s post. And that is the general lack of interest on the part of reporters in digging into the government’s shocking misconduct–you know, practicing journalism. The lack of curiosity has been astounding.

As our Pete Wehner wrote the other day, forget basic reporting: the press ignored a genuine piece of Benghazi-related news when it fell in their laps. That’s how the IRS developments happened too. The initial story was announced in the IRS’s attempt to get out in front of a report that had discovered the abuse of power and was going to detail its findings. The IRS decided to try to spin the news in advance to take control of the story.

And the recent revelations of the IRS’s ongoing strategy of destroying evidence during the investigation were brought to the public’s attention by the group Judicial Watch, which has been filing Freedom of Information Act requests for documents. The latest piece of news, that Attorney General Eric Holder’s office tried to coordinate a strategy with House Democrats to blunt the impact of future revelations about the IRS’s illegal targeting scheme, came to light because Holder’s office accidentally called Darrell Issa’s office instead of Democrat Elijah Cummings.

The difference in media coverage was only part of the story, then. The more serious part was that the media is just not doing their jobs when the target of the investigation is the Obama administration. That doesn’t mean all reporters, of course, or that they’re ignoring all stories. But the pattern is pretty clear: when we learn something about Obama administration misbehavior, it’s generally not from reporters, many of whom eventually get hired by the Obama administration.

The other aspect of the coverage gap is the type of story. Surely Cillizza thinks a staffer closing lanes on a bridge, however indefensible, is a different caliber of story than the IRS, at the encouragement of high-ranking Democrats, undertaking a targeting scheme to silence Obama’s critics in the lead-up to his reelection. Cillizza was right, in other words: conservatives weren’t comparing apples to apples. But he was wrong in thinking that stacked the deck in favor of conservatives’ conclusion; the opposite was the case.

We’ve already seen this with other prospective GOP 2016 candidates. When Wisconsin prosecutors initiated a wide-ranging “John Doe” investigation intended to silence conservative groups and voters in Wisconsin and level false allegations against Scott Walker, the media ran with the story. It turned out that the investigation was so unethical that those prosecutors now stand accused broad civil-rights violations. But the point of the coverage is to echo the false allegations against Walker, not to get the story right. So the media moved on.

And they moved on to Rick Perry, who was the target of an indictment so demented that only the most extreme liberals defended it. The point of the case, though, was to get headlines announcing Perry’s indictment. This one may have backfired because it was so insane that, aside from former Obama advisor Jim Messina, Rachel Maddow, and a couple writers for liberal magazines, the left tried to distance themselves from it. But the fact remains: Rick Perry is under indictment.

The criminalization of politics is part of the left’s broader lawfare strategy. This is the sort of thing repellent to democratic values and certainly should draw critical attention from the press. Instead, they’ve chosen to enable it.

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Europeans Fund Lawfare Against “Allies” Israel and Canada

The growing European hostility toward the Jewish state is well publicized, as is the corresponding European support for the Palestinians and their agenda. The Palestinian Authority’s largest funder is not the oil-rich and supposedly sympathetic Arab world. It is not even the United States. No, despite its own critical financial situation, the largest single funder of the dubious Fatah-run mini-state in the West Bank is the European Union. Given the way in which the PA is known to squander huge sums of money through corruption, that it is guilty of torturing and persecuting political opponents, openly incites genocidal levels of Jew-hatred among its population and generally obstructs the peace process at every turn, this level of European funding ought to raise some eyebrows.

Yet, in addition to this direct funding to the PA, European countries are also channeling large amounts of money to highly politicized activist groups, and in doing so financing the legitimacy war being waged against Israel. In a report released by NGO Monitor earlier this month, it has been exposed that the EU, along with several other European governments, is paying for the waging of what has come to be known as “lawfare” against Israel. More noteworthy still is the way this funding is also being used by one particularly hostile and activist NGO to even pursue Canada, a close of ally of Israel, at the UN. The large body of evidence here really does have to be seen to be believed. Yet there is no denying it: European countries are indeed financing “lawfare” against two nations that they purport to consider friends.

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The growing European hostility toward the Jewish state is well publicized, as is the corresponding European support for the Palestinians and their agenda. The Palestinian Authority’s largest funder is not the oil-rich and supposedly sympathetic Arab world. It is not even the United States. No, despite its own critical financial situation, the largest single funder of the dubious Fatah-run mini-state in the West Bank is the European Union. Given the way in which the PA is known to squander huge sums of money through corruption, that it is guilty of torturing and persecuting political opponents, openly incites genocidal levels of Jew-hatred among its population and generally obstructs the peace process at every turn, this level of European funding ought to raise some eyebrows.

Yet, in addition to this direct funding to the PA, European countries are also channeling large amounts of money to highly politicized activist groups, and in doing so financing the legitimacy war being waged against Israel. In a report released by NGO Monitor earlier this month, it has been exposed that the EU, along with several other European governments, is paying for the waging of what has come to be known as “lawfare” against Israel. More noteworthy still is the way this funding is also being used by one particularly hostile and activist NGO to even pursue Canada, a close of ally of Israel, at the UN. The large body of evidence here really does have to be seen to be believed. Yet there is no denying it: European countries are indeed financing “lawfare” against two nations that they purport to consider friends.

The Palestinian NGO in question is the cryptically named Norwegian Refugee Council, a title that offers few clues as to the group’s actual activities. Quite simply, the primary function of this organization appears to be to wage “lawfare” against Israel’s judicial system in an effort to sabotage its legal process and subvert the democratic structures for determining Israeli policy. NGO Monitor reports that NRC has financed at least 677 cases that received full legal representation in court and other administrative bodies in Israel. According to an eyewitness report, the strategy here is to “try every possible legal measure to disrupt the Israeli judicial system… as many cases as possible are registered and that as many cases as possible are appealed to increase the workload of the courts and the Supreme Court to such an extent that there will be a blockage.” 

In addition, NGO Monitor details how NRC pursues “public interest cases” concerning some of the most sensitive aspects of the Israeli-Palestinian dispute in an effort to circumvent the democratic process for determining Israeli policy on these matters, instead seeking to alter policy by obtaining legal precedents at the court level. Some of the most outrageous cases taken up by the NRC involve attempts to abrogate Jewish property rights in Jerusalem by bringing private cases seeking to nullify Jewish claims to property owned prior to 1948 and the Jordanian expulsion of all Jews from north, east, and south Jerusalem.

Most remarkable of all has to be the NRC’s activities against Canada. In 2008 another Palestinian campaign group masquerading as an NGO called Al Haq brought a civil case to court in Quebec that accused three Canadian companies of having operated illegally by being involved in the construction of West Bank settlements on privately owned Palestinian land. This was despite the fact that six lawsuits on this matter had already been filed in Israel itself. Primarily it appears that bringing the case to Canada was part of an orchestrated publicity stunt.

Yet, in 2009 the court in Quebec found that the campaigners had produced “no evidence whatsoever” to support their claims about the ownership of the land, and as such their case was thrown out, with partial costs being awarded to the defendants. In 2010 the court of appeal upheld the lower court’s decision and in 2011 the Canadian Supreme Court endorsed both of these previous rulings. Having still not received their desired outcome, in 2013 the NRC took the astonishing action of pursuing Canada at the UN, using funds specifically provided by Britain to do so. Issuing a complaint against the Canadian judicial system to the UN Human Rights Committee, the group also claimed that, “Canada violated its extra-territorial obligation to ensure respect for Articles 2, 7, 12, 17 and 27 of the International Covenant on Civil and Political Rights.” Given just how supportive Prime Minister Stephen Harper’s government has been of Israel, one cannot help but wonder if this might not be part of the reason that Canada is being targeted at the UN in this way.

The primary donors for the NRC are Norway, Sweden, the UK, and the EU. Given that both Sweden and the UK already pay into the EU budget, tax payers in these countries are funding this organization twice over. Between 2011 and 2013 alone, the NRC spent $20 million on its lawfare campaigns. With the considerable deficits that most EU countries are currently running up, how might European publics react to discovering that this is how their tax euros are being spent? The British public exists in a permanent state of embitterment regarding the poor state of the country’s National Health Service. Imagine the news going down that while hospital wards are being closed, the British government is directing huge sums of money to a rogue NGO that engages in such activity as pursuing Canada at the UN on entirely trumped-up charges?

If nothing else, as long as this funding continues to flow, the Europeans cannot expect to play any role as fair brokers in the peace process, and they must be allowed absolutely no say in that matter. 

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Putting Capitalism on Trial at the ICC

Sometimes you have to wonder whether the editors of the New York Times have a secret wish to sabotage the causes they promote.

Consider the International Criminal Court, the controversial tribunal set up as part of the United Nations human rights system. For years, the Times has promoted the ICC as a modest, last-resort, long-overdue prosecutor of such heinous offenses as war crimes and genocide.

For just as long, ICC skeptics have been warning that the Hague-based tribunal will not always stay confined to its original jurisdiction and will someday seek to prosecute a wider class of less obviously atrocious offenses. Some advocates might even try to turn the court into a roving tribunal mounting show trials against the hated Western power structure. The Times has always dismissed such worries as groundless paranoia.

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Sometimes you have to wonder whether the editors of the New York Times have a secret wish to sabotage the causes they promote.

Consider the International Criminal Court, the controversial tribunal set up as part of the United Nations human rights system. For years, the Times has promoted the ICC as a modest, last-resort, long-overdue prosecutor of such heinous offenses as war crimes and genocide.

For just as long, ICC skeptics have been warning that the Hague-based tribunal will not always stay confined to its original jurisdiction and will someday seek to prosecute a wider class of less obviously atrocious offenses. Some advocates might even try to turn the court into a roving tribunal mounting show trials against the hated Western power structure. The Times has always dismissed such worries as groundless paranoia.

So what turned up in the Times on Wednesday of last week? An op-ed demanding that the ICC be given broad new power to prosecute business people and corporations for taking part in “a vast and unregulated system of extractive capitalism.” “Treat Greed in Africa as a War Crime” blared the headline.

In the op-ed, Yale anthropology professor Kamari Maxine Clarke itemizes a varied list of offenders she seems to think should face ICC prosecution. Chocolate companies based in the West, for example, buy cacao from African farmers so poor that they have their small children work on the crop. The Chinese national oil enterprise plays footsie with the regime in Sudan so as to preserve its favored position. (Yes, in Times-land you can be a Communist state-owned enterprise colluding with another authoritarian government and still count as a representative of unregulated capitalism.) Professor Clarke also thinks the ICC should step in where a multinational enterprise did get punished for misconduct, but should have been punished more. Thus, in one widely noted case where a shipping firm allowed dangerous wastes to be disposed of improperly in West Africa, the firm paid more than $200 million in fines and compensation and two of its employees were sentenced to long prison terms, but critics say the penalties should have been set higher than that. So call in the ICC prosecutors!

Clarke appears to accept without question the various charges of abuse against global business that circulate among cause groups in what is called the human rights community. One complicating factor is that when such complaints are brought before legal systems that accord due process to both sides, we very often discover exaggerations, contradictions or downright inventions in the original sensational claims.  Last week a Dutch court threw out much of a highly-publicized complaint charging Shell with oil pollution in Nigeria. At one point in discussing the chocolate controversy, Professor Clarke recites the contentions of a U.S.-based class-action law firm. Is it necessary to point out that such allegations, levied by firms that face little or no downward risk if their charges don’t pan out, make a doubtful basis for criminal prosecution?

What is certain to happen, if the ICC gains an expansion of authority along the lines Professor Clarke recommends, is that more businesses will be hauled into the dock as a part of what has been called “lawfare,” the use of human rights complaints to provide leverage in the pursuit of international politics. In one of the best-known episodes along these lines, activist lawyers went after Caterpillar Tractor for having sold tractors to the Israeli government, which thus supposedly made the company legally at fault for the bulldozer death of pro-Palestinian protester Rachel Corrie. The suit failed as a legal matter, but might have succeeded in raising the perceived cost of being an American firm willing to trade with Israel.

No doubt some Times readers nodded in approval at Professor Clarke’s argument. But others, I suspect, passed the paper to colleagues with a comment like, “See, I told you the ICC was a bad idea.”

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