Professor Orde F. Kittrie (Professor of Law at Arizona State University) has made a strong contribution to the field of international law with his new book “Lawfare – Law as a Weapon of War” published by Oxford University Press (2016). Order information available here.
Lawfare is “the strategy of using—or misusing—law as a substitute for traditional military means to achieve a warfighting objective.” — Maj. Gen. Charles J. Dunlap, Jr., USAF (ret.)
Everyone can agree that fighting our battles in the courtrooms, boardrooms, and national & state legislatures is far preferable than on the kinetic battlefield.
The author asserts that the Israeli-Palestinian conflict is foreshadowing lawfare strategies and tactics that will soon be replicated in other conflicts.
As a relatively new legal strategy —(I don’t recall “lawfare” even being mentioned in my international law class 30 years ago)— and also because Israel and Palestine appear to be leading the way in developing lawfare strategies —(four of the nine chapters of this book are focused on the Israel/Palestine conflict)— this book caught and held my attention from cover to cover. I highly recommend the book to both lawyers and lay people interested in this new arena where the Israel-Palestine conflict is being fought. It should definitely be on the shelf of every law school library.
With that said, the book has a gaping hole. The author never explicitly asks “why are the two sides engaged in lawfare?” Very subtly, the western U.S./Israeli narrative surfaces.
I would never expect an academic book, such as this, to advocate for one side or the other, and Professor Kittrie very carefully presents these various lawfare strategies from both sides, Israel and Palestine. He also describes the strengths and weaknesses of each side. However, the context within which these lawfare strategies are deployed is a valid inquiry which he apparently has chosen to avoid.
Correction: Nearly avoid. On page 275, the author lets slip that he believes Hamas is using lawfare to “promote the destruction of Israel.” On another page, he writes about the “armies of terror” in reference to the Palestinians. He has adopted the “terrorists” lens through which the U.S. government and others from the West view the conflict. There’s no mention of Israel’s occupation of the West Bank and Gaza Strip; nor the economic, political and travel siege on Gaza which might provide the context in which Hamas, the PA and the Palestinian NGOs are waging a lawfare battle.
Our Western colonialist narrative of the Israel/Palestine conflict is so deeply ingrained in our psyche that most of us can’t step out of it, be apart from it, and actually acknowledge it. In all fairness, however, the author was an attorney in the U.S. Department of State for over a decade and so was likely steeped in the “terrorism” perspective of the Israel/Palestine conflict from his earlier career.
Would I have a bias, in reverse, if I wrote a book about lawfare strategies in the Israel/Palestine conflict? Yes, probably I would. Hopefully, my colleagues would gently point out my bias. Is it possible to step away from the conflict and write completely objectively? Maybe not, because we go in search of information that confirms our bias. Suspending our disbelief is hard to do.
However, in the study and practice of law, it’s doubly important that we challenge ourselves and each other about our blind spots. For what’s even more important than being right or wrong is the ability to learn to think like a lawyer.
Thinking like a lawyer is thinking like a human being, a human being who is tolerant, sophisticated, pragmatic, critical, and engaged. It means combining passion and principle, reason and judgment. “On Thinking Like A Lawyer” Anne-Marie Slaughter, Harvard Law Today, May, 2002.
So if I had the chance to sit with Professor Kittrie and talk about the gaping hole in his book, I would ask him to suspend his disbelief and consider the following questions:
- Does the offer of an extended ceasefire (hudna) as proposed by Hamas and the other Arab nations contradict your conclusion that Hamas wants to destroy Israel?
- Is there any evidence, aside from what the New York Times and the State of Israel report, that Hamas actually advises Palestinians to martyr themselves by staying in homes that Israel has threatened with demolition? I lived in Gaza during Israel’s attack in November 2012, and never heard any such declarations by Hamas. Based on the members of Hamas that I know personally, I can’t fathom them asking anyone to risk their lives or the lives of their children. But I’ll suspend my disbelief if there’s any factual basis other than the New York Times or the State of Israel.
- If Hamas issued a five-minute warning to the people living in Siderot about their plans to launch a rocket, would that exonerate Hamas as the knock-knock attempts to exonerate the IDF?
- Is your comparison of Israel’s fight against Hamas with the U.S. fight against the Taliban and ISIS an accurate comparison?
- Your description of Hamas’ deployment of “compliance-leverage disparity lawfare on the kinetic battlefield” is based on your stated assumption that Israel is the more law-sensitive adversary of the two, but couldn’t the Palestinians make an argument in reverse that the State of Israel has little regard for international law? Collective punishment, which is prohibited under international law, is ongoing. Noura Erakat’s law review article is another example.
- You write that there are many shades or interpretations of international humanitarian law, and that Israel is trying to build support for its interpretation of international law. Is it beyond the realm of imagination to factor in the occupation into the equation and consider how the battlefield (both lawfare and kinetic) would be changed if Israel ended the occupation of the Palestinian territories? That’s the elephant in the living room that warrants serious discussion by the politicians, as well as by the lawyers advising them.
The book’s take-away message for me: Governments and NGOs can use lawfare strategies both offensively and defensively to accomplish goals that might otherwise be played out tragically in the battlefield. So far, lawfare tactics used against Israel have been damaging but not disastrous, according to the author. Lawfare appears to hold the potential to become significantly more damaging. (p.279)