Dershowitz Versus Horton on Lawfare: Real Threat or Illusion?

11/06/2010 06:34 pm ET | Updated May 25, 2011

Rhetorical sparks flew in Manhattan yesterday as Alan Dershowitz, Felix Frankfurter professor of law at Harvard University, and Scott Horton, contributing editor of Harper's magazine, sparred on the subject of Lawfare, or the alleged systematic use of law as a weapon of war against Western liberal democracies. The debate, which took place at the Princeton Club, was sponsored by the Lawfare Project, a nonprofit dedicated to raising awareness about abuses of the legal system and abuses of human rights law.

Brooke Goldstein, The Lawfare Project's director, introduced the debate by characterizing lawfare as "the use of judicial systems to undermine the values these systems uphold." She explained that her concept of the term is drawn from an essay published in the wake of 9/11 by former U.S. Air Force General Charles J.Dunlap Jr., in which he warned that combatants unable or unwilling to engage the West via direct military means may attempt to use international law to inflict strategic damage.

The difference between legitimate use of international law and lawfare, according to Goldstein, lies in intent.

"[Lawfare] is not something persons engage in to pursue justice," she said. "It is a counterproductive perversion of law. The question is not, "Who is the target?" but "What is the intent behind the legal action?"

Goldstein charged that combatants and groups hostile to the U.S. and other Western democracies are using lawfare on multiple fronts as a form of asymmetric warfare.

She cited numerous examples she says illustrate the phenomenon. One is the presence in terrorist training manuals of instructions to accuse U.S. troops of abuse "in order to undermine support for our troops by making people think they are fighting in an unfair or inhumane way." Other examples include "hate speech" lawsuits against cartoonists, as well as defamation lawsuits against journalists who are "brave enough to write about sources of terror financing."

Dershowitz argued that lawfare does exist today and its principal victim, on the world stage, is the state of Israel. The legitimacy of law is undermined when laws are not applied or enforced equally, he said. Such is the case, he argued, in the misapplication of international human rights law by bodies like the United Nations Human Rights Council (UNHRC).

Such misapplication of international law recently manifested itself in the Goldstone Report, according to Dershowitz.

The Goldstone Report was commissioned in 2009 by the UNHRC to report on alleged violations of international human rights law during the Gaza conflict of December 2008/January 2009.

The Goldstone Report was unfair because it targeted for condemnation the country that is in better compliance with international law in waging a war of self-defense than any other country in the world, according to Derhsowitz..

"No country has a ...higher standard in the training of its soldiers," he said. "Israel has a Supreme Court that insists the [Israel Defense Forces] comply with international law. The IDF employs philosophers to work with soldiers. Israeli colleges design programs to make sure compliance [with provisions of international law] reaches the lowest ranks" in the IDF, he said.

Considering that Israel is fighting a defensive war in which the enemy deliberately targets Israeli civilians and uses its own civilians as human shields, the IDF's actions cause a notably low rate of civilian casualties, according to Dershowitz.

He pointed out that the IDF's efforts to minimize civilian casualties in Operation Cast Lead included placing hundreds of thousands of warning phone calls to Gaza residents and distributing hundreds of thousands of leaflets warning Palestinian civilians to avoid Hamas terrorists and their infrastructure. Israel also waited for years and sustained thousands of rocket attacks directed against civilians before taking military action against Hamas in Gaza, he pointed out. Nevertheless, the UNHRC chose to demonize Israel with the Goldstone Report rather than censure countries that are egregious and continuous violators of human rights, according to Dershowitz.

The Goldstone Report was grossly unprofessional and inaccurate, according to Dershowitz.

For instance, the Goldstone Report claimed that the IDF deliberately set out to cause civilian casualties.

It also said Hamas did not intentionally hide among civilians.

"These are out-and-out falsehoods," said Dershowitz. "When asked about the claim that the IDF deliberately tried to maximize civilian casualties, Goldstone feigned ignorance that the claim was made in the Goldstone Report. I'm not sure if it was real ignorance because he's one of the laziest people on the planet ... Much of [the work was] hired out to assistants ... four had pre-determined the outcome [of the report before they started] and one was picked because he was a Jew [to legitimize it]."

When he points out the U.N.'s double standard, he is typically accused of trying to change the subject, Dershowitz said.

"People say, 'Don't tell us about how what the French did in Algeria and what the Russians did in Chechnya was 10,000 times worse, we're talking about Israel, you're changing the subject,'" said Dershowitz. But, he maintains, it is relevant to point out the double standard and he will keep doing so because "rule of law requires that every country be treated equally." And, to the extent that pseudo-legal documents like the Goldstone Report attempt to enforce international law unprofessionally and unequally, they constitute a form of lawfare.

"That is why the discretion of courts, on what cases to take, is so important," Dershowitz said. "It would be an outrage if only Israel were judged 'guilty' when others are doing far worse, simply because others are not brought to trial.

"I'm talking about a horrible phenomenon [in which] ... human rights law is used to demonize Israel while giving exculpatory immunity to the real offenders," Dershowitz said. "Let's put Hamas and Hezbollah on trial. Let's see how Israel fares when the law is applied equally and with a universal standard."

The real victims, Dershowitz added, are the "six million people killed in preventable genocides since World War II because the human rights community has been [disproportionately] focused on one country."

"No democratic country should be afraid of responding," said Horton. "It should be able to listen to its critics and respond."

He added, "Is there a lawfare phenomenon that really threatens [Western civilization]? I think the institutions that exist are well equipped to deal with this problem. I don't think this presents a meaningful challenge to Israel."

Horton went on, "You talk a lot about the Goldstone Report." He mentioned a U.N. report on "Israel bombing a U.N. building...ends with Israel giving $10 million and acknowledging the error."

(Israel says the $10 million was to mitigate unintended collateral damage, and says the IDF did not deliberately target any U.N. facilities, despite Hamas's use of these buildings to target Israeli soldiers during the fighting).

"But what if Israel is the only country [regularly] called upon to justify military action?" asked Dershowitz. "If one country is subject to [disproportionate] scrutiny, that is an unequal application of international law."

Later in the debate Dershowitz said, "More attention is paid to [condemning Israel] than to all the other countries in the world combined."

Horton countered that Derhsowitz's statement was inaccurate because the United Nations also criticizes and condemns countries besides Israel.

"On the [United Nations] Human Rights Council?" Dershowitz asked.

"The Human Rights Council is the worst offender," said Horton. "But I don't agree with you on the merits of the Goldstone Report." In reference to its authors Horton added, "We're talking about eminent people."

Dershowitz countered that the issue is not one of credentials, but of accuracy, professionalism, and equal enforcement of international law.

"They may be eminent, they may be accomplished, but they were biased," he said. "I'm sure plenty of white Southern judges [before the civil rights movement] were eminent, too. Many of them, [like the authors of the Goldstone Report], were biased."