In January, some members of the board of directors of Rights & Democracy published an opinion letter in both the National Post and Le Devoir defending the majority position of the board on the crisis surrounding the organization.
The concerned members stated they are fulfilling the “fiduciary role of the Rights & Democracy board to ensure accountability for spending taxpayers’ money here in Canada or overseas.” This justifies the choice to cancel modest funding to three non-governmental organizations that the majority board members viewed as having links to terrorists or constituting terrorist threats. According to the members of the board, two of these organizations are also engaged in waging “lawfare.” But what is lawfare, and why should we care?
The concept of lawfare is generally attributed to Charles Dunlap Jr. who, in a paper published in 2001 for the Carr Center for Human Rights Policy at Harvard University, described the way in which adversaries of the United States use the judicial system to denounce military operations that violate international humanitarian law and human rights law. The claim is that the practice of lawfare, or using the judicial system to test the legality of military actions, seeks to negatively influence public opinion and, as a consequence, undermine the moral authority of military powers that adhere to the rule of law. According to Dunlap, lawfare should be viewed much the same as a weapon, one that can be used for good or bad purposes.
Since then, the concept of lawfare has evolved. Professor David Luban of the Georgetown University Law Center explained in a recent article how the American military justified denying legal recourse to detainees in the Guantanamo Bay detention camp in the name of the struggle against lawfare. The tactics of lawfare in this context are considered to be a legal guerrilla strategy used by the enemies of western governments to abuse the judicial process to achieve military or political objectives of a terrorist nature. In relation to the Israeli-Palestinian conflict, lawfare is presented as a campaign that targets the Israeli government. This version of the concept is described as the frivolous exploitation of western courts to harass Israeli authorities.
Disturbingly, the concept is now being used to discredit attempts to ask courts to assess the international and national legality of military and government decisions. Moreover, the accusation of lawfare increasingly equates rule-of-law advocates and international human rights lawyers with terrorists. Many lawyers and non-governmental organizations working to defend Guantanamo prisoners’ rights before U.S. courts were accused of using lawfare to support the cause of alleged terrorist organizations. In Canada, some point to the recent Quebec case of Bil'in (Village Council) v. Green Park International Inc. as an example of the illegitimate use of the courts through the practice of lawfare. In that case, the villagers of Bil’in accused two Quebec companies, Green Park International Inc. and Green Mount International Inc., of illegally constructing residential and other buildings on the village’s lands in the West Bank in violation of international humanitarian and Canadian domestic law. The Quebec Superior Court declined to hear the case.
Returning to the controversy surrounding Rights & Democracy, it’s certainly troubling that the board of directors made reference to the concept of lawfare in the context of funding to human rights organizations. By accusing lawyers and human rights organizations of resorting to lawfare, an attempt is made to liken them to enemy combatants or terrorists. Such accusations are without foundation and are based on unwarranted suspicion. The most likely outcome is to muzzle members of an active civil society. Not only does this correlation discredit the legitimate work of non-governmental organizations to defend human rights and promote international humanitarian law, it’s also likely to seriously undermine access to justice, freedom of expression, and the right to a fair trial for victims of international legal violations.
Interestingly, six years after introducing the concept of lawfare, Dunlap suggested the abuses of detainees at Abu Ghraib produced effects more damaging than the enemies’ use of arms. In his opinion, it’s precisely by adhering to the rule of law that the United States would have avoided the disastrous consequences that still plague its war efforts today.
In free and democratic countries, governments have an obligation to account for their actions and abide by international and national law. In turn, citizens have a duty and a right to remind them of their obligations by legal or other democratic means. This is the safety valve. It’s quite misguided to view these means as a terrorist strategy. And it’s very unfortunate that reference to lawfare was used by members of the board of directors of an organization that has a mission to “support the universal values of human rights and promote the democratic institutions and practices around the world.”
Lucie Lamarche is the Gordon F. Henderson Research Chair in Human Rights and director of research of the Human Rights Research and Education Centre at the University of Ottawa. This article was contributed by Nicole LaViolette, associate professor, Faculty of Law and Evelyne Jean-Bouchard, a graduate student at the centre, with assistance from Sonya Nigam, the centre’s executive director.
