For years, soldiers and scholars have been talking about a phenomenon known as “lawfare”: the attempt by adversaries to use the legal system to tie up Western militaries, in particular those of the U.S. and Israel, into knots. The classic example is NGO’s trying to bring war crimes charges in European courts against Henry Kissinger, Ariel Sharon, and other notables. To make sure they comply with the letter of international law, the U.S., Israeli, and European armed forces have adopted restrictive rules of engagement that sometimes limit their freedom of action, while of course doing nothing to stop international condemnation.
But the saga of the second Gaza Flotilla shows two can play at that game. As David Frum notes in this column “How Israeli Lawyers Stopped the Second Flotilla,” legal action by Israelis has prevented the flotilla from leaving Greece. This was combined with effective diplomacy by Israel. As Jonathan Tobin noted last week, the lawsuits filed by the Shurat HaDin-Israel Law Center gave Israel a big, bloodless win.
This is hardly the only example of lawfare being pursued by Western governments or pro-Western groups–there have been numerous examples of legal proceedings to deny terrorist groups financing, to knock them off the Web, etc. It stands to reason that, when facing groups like Hezbollah and al Qaeda, the West would have an obvious advantage in the legal department. The problem, of course, is that terrorist organizations do not ordinarily abide by international law–unlike Western militaries. But they do need access to the West to operate effectively–to our airlines, our banks, our web sites, and so forth. All of that can be limited with a skillful “lawfare” campaign.
As with all relatively new weapons, “lawfare” is a two-edged sword. If our enemies are going to make full use of it (and even if they’re not), so should we.