What is Lawfare?
Lawfare is the process by which those seeking political change, along the entire spectrum of political actors, from activists to insurgent, use recourse to the courts. This obviously includes cases which have a reasonable hope of victory where legislative and electoral success is impossible. It also includes hopeless cases. Court cases can be put to propaganda purposes, whether to diffuse revolutionary ideas or to delegitimize a regime. The examples of these types are practically endless. Perhaps the most concrete Objective set by Lawfare practitioners is the redefining of a conflict between a state and internal dissenters, primarily distinguishing political violence from criminal activity and likewise distinguishing PoWs from common criminals. Lawfare practitioners may prevent states from choosing when it is convenient for them to live up to their commitments to human rights and international law, by bringing cases regarding boycotts or the arrest of foreign political leaders responsible for mass murder or prosecuting wars of aggression. In its more sophisticated forms it makes use of the concept of Universal Jurisdiction. This is used to force the opposition to divert funds and distract its leadership. For example, a military or government official who must prepare and deliver testimony related to past actions before a tribunal has less time to prosecute the war underway.
The first part of this article will explain the concept of Lawfare and how it fits in with other methods used by movements seeking radical change. It will also give some examples of its more simple uses for propaganda purposes. Future installments will delve into Universal Jurisdiction, the idea that serious Human Rights cases are of global concern rather than “local concern,” therefore alleged violators may be indicted by judges in countries totally unrelated to the victim, the accused, or the location of the alleged crime. Universal Jurisdiction is perhaps the most powerful tool in the arsenal of the Lawfare practitioner. Finally, after considering examples of Lawfare’s successful use, the question will be explored of what White Nationalist judges and lawyers might do to appropriate these tools to pursue our own goals.
The only famous American, that I am aware of who, came close to practicing lawfare was William Kunstler. However, his approach could be summed up as pretending the guilty did not commit their crime and grandstand during the trial regarding the “white supremacist power structure.” However, his actions apparently lacked the strategic depth of the examples given below.
Lawfare is still a very new area and good information on the subject is hard to come by. In the English language, it is dominated by Zionist Jews who create associations (i.e. The Lawfare Project or NGO Monitor) and mount conferences to decry how unfairly they are being treated by governments seeking to treat their war criminals like those of any other pariah state. There is also the rather disappointing LawfareBlog run by the Brookings Institution, which covers international law as it relates to the foreign policy of the Empire, but offers very little concrete study. Legal scholar Jeremy Waldron, though not a radical, has referred to this kind of scholarship as “petulant” (without naming the Zionists) and characterizes their position as “how dare the weaker party use the weapons of the weak.”
One of the reasons for a shortage of quality public information is that those who are allegedly practicing Lawfare with success and vigor are not announcing this to the world because of the negative connotation of the word. Using the word would imply a cynicism with regards to the principles of law under consideration in each particular case. Therefore, each individual case would appear weaker if it exists as one part in the sum of cases seeking a political outcome unrelated to the legal principles in the case in question.
A Legal Scholar’s View of Lawfare in the Context of Asymmetrical Warfare
Returning to Jeremy Waldron’s commentary, given during his keynote speech to Harvard’s Asymmetric Warfare Symposium:
In a situation of asymmetric expectations perhaps detainees have to be permitted to play both sides of the game, as they judge convenient. They may choose to boycott the courts as Mahatma Gandhi urged his followers to do in India. But this is a matter of strategy rather than of principle . . . so far I have presented the insurgents recourse to law as a tactical matter for them, but it may not be purely tactical, it may be a principled part of what they are doing. Or in the early stages of an insurrection it may be mixed in with everything else they are doing and trying as they seek to advance their cause every which way against the regime they are trying to undermine. One week they may be ambushing a police station. The next week they may be petitioning a constitutional court. Some of them may be bringing actions of law at the same time that others are shooting government soldiers or blowing them up. You may think of this as wrong and inconsistent, if you are using both these sorts of strategies. But I want to caution against an oversimplified model of armed insurgency on the one hand and the use of nonviolent strategies on the other. When you do political philosophy . . . sometimes we imagine a tidy sequence of forms of dissidence . . .
1) political opposition [standing for elections]
2) redress of abuses to the courts and maybe international institutions
3) public/disruptive protest and civil disobedience
4) passive/nonviolent resistance
5) forceful individual resistance
6) low grade armed or more-or-less unarmed insurrection (like the First Intifada)
7) full scale well-organized armed insurgency
. . . The fact is that progress from one stage to another is rarely orderly. Especially in insurrection, tactics are likely to be mixed up. Even in ordinary politics, we mix our strategies for political action in legislatures and lawsuit action in the courts. Think about the campaign for same-sex marriage throughout the country. People are working both strategies simultaneously. They don’t just have recourse to the legal strategy when the legislative strategy fails. Or think about Civil Disobedience, we often engage in Civil Disobedience as a way of initiating a lawsuit, and it does not presuppose that legal remedies have been exhausted.”
Waldron also points out that the claim by critics that these seven steps must be followed in succession is further complicated by the fact that courts may be presenting a false hope for honest recourse. He points out that even John Locke was aware of this problem.
. . . where an appeal to the law and constituted judges lies open, but the remedy is denied by a manifest perverting of justice and a bare-faced wrestling of the laws to protect or indemnify the violence or injuries of some men, or party of men, there it is hard to imagine anything but a state of war. For wherever violence is used and injury done, though by hands appointed to administer justice, it is still violence and injury, however coloured with the name, pretences, or forms of law, the end whereof being to protect and redress the innocent, by an unbiased application of it, to all who are under it; wherever that is not bona fide done, war is made upon the sufferers, who having no appeal on earth to right them, they are left to the only remedy in such cases. (John Locke, Second Treatise of Government, ch. 3)
From Jeremy Waldron’s perspective, he is discussing an “is” rather than an “ought.” Since we are not simply observing this process and attempting to be objective, we should look at this nonlinear understanding of political struggle as an “ought.” National Liberation struggles provide the best example of how these different approaches get mixed together, sometimes with a single revolutionary committee behind the curtain and sometimes totally separate but for their common vision.
A Case Study in the Nonsequential Use Lawfare Among Waldron’s 7 Methods for Political Change
In Northern Ireland, the Armed Struggle and Legal battles over Human Rights were two fronts being simultaneously pursued by Irish Nationalists. Of course any organizational link between these two fronts in the struggle had to be nonexistent or hidden and informal. This brief overview will not do justice to the nuances of this confrontation but should illustrate how Movements, loosely defined, will move freely between and combine Jeremy Waldron’s 7 methods, listed above.
At the end of 1969 a schism in the IRA which was previously dedicated to a quixotic conventional military approach [Method 7], produced the Provisional IRA which preferred a Guerilla approach [Method 6]. In response, the UK government began using internment without charge coupled with the “Five Techniques” for interrogations of detainees suspected of involvement in or sympathy for the “Provos.”
Sinn Fein, the political wing of the IRA, then founded the Northern Resistance Movement which organized peaceful protests [Method 3] against internment without charge. The radicals of Northern Resistance Movement teamed up with the MLK-inspired Northern Ireland Civil Rights Association. Their marches came to a dramatic climax on Bloody Sunday in 1972, when the British soldiers on the scene lost their composure and opened fire on the protesters.
Soon afterwards the IRA prisoners were granted “Special Category Status” which was similar to treatment of Prisoners of War, thanks to the recommendations of the Parker Commission and, as has been recently disclosed, due to direct IRA-UK negotiations. Irish Republican and Loyalist prisoners were exempt from wearing prison uniforms, doing prison labor, would be housed with other members of their paramilitary organization, and from limitations on common criminals from which PoWs are typically exempt.
Within a month of this concession, the IRA unleashed Bloody Friday [Method 6]. Simultaneously, the UK government was challenged for its policy of using the Five Techniques for interrogations as well as the excesses of interrogators which did not fall within the Five Techniques. The UK was challenged before the European Commission on Human Rights [Method 2] which found that the UK was guilty of torture and violation of the Human Rights of internees. An appeal was made to the European Court of Human Rights which partially overturned the Commission’s findings in 1978, but the damage to the reputation of the UK had been done. The Legitimacy of the IRA, in the eyes of their constituents at home and supporters abroad, and of their militants’ Right to be considered Prisoners of War had been established in the minds of many. These findings had no teeth in both cases, but once paired with a strong PR campaign, did far more damage in the struggle for hearts and minds than any punishment the judges of Strasbourg could have meted out.
“Special Category Status” was revoked in 1976, while the UK was awaiting the results of their appeal and the IRA and Loyalists continued their violent struggle. The prisoners then began their Passive Resistance [Method 4] which starting with the Blanket Protest (they refused to wear prison clothes so they wore their blankets), progressing to the Dirty Protest (they prisoners refused to go to the washroom/toilets because of organized harassment, so they never left their cells and smudged their feces on the wall), and then it culminated in the Hunger Strike in which 10 Irish Republican prisoners fasted until death. Just before the first hunger striker, Bobby Sands, had died he was elected to the UK Parliament [Method 1].
Simultaneously, as Britain was waiting for that appeal, they were actively infiltrating militant Nationalist cells. Three notorious cases, the most famous being the Birmingham 6, had their beginning in this period. In order to protect the position and freedom of the informers working for MI5 who massacred British civilians, the British Deep State saw to it that innocent men were framed for these crimes. In the short term, it kept their flow of information from those who laid these bombs, but in the long term it undermined the moral high ground that the UK government had even in minds of the British Left.
The British Right was also losing faith in their government’s approach. To paraphrase the criticism of Oliver O’Donovan, a conservative Anglican clergyman in Northern Ireland (from Waldron’s speech): Standards of proof for criminal prosecution were too high, prosecutions took too long, and the need to prosecute on an incident by incident basis required the British to delve too deeply into detail rather than deal with the opposing force as a collective; as the criminal system made adjustments to deal with that which it was not designed for, jury trials were suppressed in favor of a new system in which the judge would fulfill his role as well as that of jury. So the UK’s legal approach was also failing the Conservatives of Britain who sought order, efficiency, and security.
Considering that Northern Ireland had British Troops on the ground conducting investigations and arrests without presence of civilian police forces, one would reasonably assume that those arrested would be treated as Prisoners of War and tried by military tribunals rather than criminal courts . . . especially if treating these militants as such would have made the job of counterinsurgency troops easier. On the other hand, why would IRA prisoners fight for a regime which would see more of them locked up? The logic of their decisions brings up back to a key concept explored in “Analyzing the Effectiveness of Politically Motivated Mass Murder in the US,” that is the prime importance of Legitimacy.
As Kevin MacDonald would point out, keeping the moral high ground is a necessity for our race to keep fighting. The UK Government failed to do that. Illegitimate brute force can win the day, but while the IRA could never win independence for their province, the British generals reported that they could not snuff out the IRA. It was only a matter of time until a new Prime Minister with ambitious domestic and constitutional goals would see that this struggle was, as the Unionists civilians of Northern Ireland had always feared, not worth the time and political capital.
As a result of the Good Friday accords, the IRA disarmed and suspended the armed struggle. Few outside observers know that the “democratic” system put in place was one which guaranteed Irish Nationalists/Republicans would always be at the center of political power regardless of the majority will. This province keeps the peace by using the rather byzantine D’Hondt Method instead of the First Past the Post Method, which would leave the minority Nationalist/Republicans as alienated from power as they had been when the Armed Struggle began. It was worth it to the Westminster Government to cede this power in a peripheral province in order to limit the Irish Nationalists to nonviolent methods [Methods 1-4]. In the post-Good Friday Agreement situation the use of Lawfare by Nationalists coupled with Propaganda continues. The case of the Pat Finucane assassination, pictured above, is one of the most important ongoing battles on this front.
Jacques Vergès – “Terror’s Advocate”
Jacques Vergès was a giant of the use of Lawfare. He was born and raised by his French Communist father and Vietnamese mother in La Reunion, a French Overseas Territory near Madagascar. He attended law school in Paris where he became enmeshed in the political scene of young anti-colonialists. He even started a lifelong friendship with Pol Pot at his university.
When the FLN began its campaign of terror against White civilians in Algeria, Djamila Bouhired bombed a café killing 11 civilians. Her supporters hired Jacques Verges to defend her. While other communist lawyers from Paris had encouraged him to ask for mercy from the court while minimizing Djamila’s agency in deciding to participate in the attack, Vergès instead used the case as an opportunity to grandstand against the colonial presence of France in Algeria and attack the court for supposed hypocrisy. He later admitted that his primary goal was to incite more violence.
The crowd of Europeans who gathered daily inside the court and overflowed into the streets were insulted by him. He used stories of torture during interrogation, like the rest of the FLN, to push the young Arabs to act. He hoped to raise the level of anger and polarization in both communities to the point that the violence would be noticed by the international press and so the conflict would pass from Terrorism to Insurgency. Djamila was convicted to death by guillotine; however, she was later released in a prisoner exchange.
Jacques Vergès led a fascinating life which is explored in the films l’Avocat de la Terreur (the version linked here does not have subtitles, but such a version should exist), and in the film Hotel Terminus focused on the Klaus Barbie case. The Swiss financier François Genoud, who was an ardent National Socialist and well connected in the Arab World, hired Vergès to defend Klaus Barbie.
It is the view of this author that Klaus Barbie’s counterinsurgency tactics did include war crimes, in particular extrajudicial execution and exemplary execution when suspected Resistance remained at large. However, the prosecution narrowly formulated the case to only include the charge of Crimes Against Humanity and only in regard to the deportation of the Children of Izieu, and alleged foreknowledge that these Jewish children would inevitably be gassed. While highly fraught with emotion, the connection between Barbie and this crime was weaker than most others which occurred near Lyon during his command there.
In short, this began as a Jewish Lawfare attack with several objectives:
- Redefine “crimes against Jews” as “Crimes Against Humanity”
- Establish the Holocaust Catechism in France
- Jews have suffered uniquely
- The rest of the world is to blame
- Their victimization is totally irrational
- Diffuse the “Black Legends” of the SS (i.e. dogs trained to rape) into the minds of the masses with authority figures in black robes confirming “official” accounts of this savagery
Jacques Vergès responded to their Lawfare Attack with a Counter Attack that shook them to their core. The courtroom was full of Chosen Ones literally in tears as a result of his address as they awaited their inevitable victory. He focused his defense around the banality of the charges against Barbie, as well as tell a number of uncomfortable truths that accompany any war that is not taking place on the silver screen. There was nothing that Barbie did as head of the Gestapo in Lyon that the French government and its allies were not also guilty of in the colonies in the years following WWII and the Nuremberg Trials.
He used this tribune to recount the numerous tales of Jewish collaborators who, in the early days of Occupation, collaborated in the discovery of recently arrived Jewish refugees to be deported. This was particularly upsetting to the prosecution which was almost entirely Jewish. This was done in response to the submissions by the prosecution of richly emotional accounts of mass arrests compiled by Serge Klarsfeld, France’s Nazi Hunter.
Jacques Vergès also did his part for revisionism by presenting documentary evidence that some of Serge Klarsfeld’s documents submitted by the Prosecution had been falsified when compared to originals. He created unrest in the audience in the large sweltering courtroom by pointing out the impossibility of some of the witness testimony, in particular regarding German Shepherds trained to rape women. You may imagine that making such a statement should take about 15 seconds, but Vergès, the showman, stretched this out for three minutes to intentionally make any listener, even a nonbeliever, cringe. Ultimately, he called into question the concept of Crimes Against Humanity and whether it could be applied to this case.
Vergès’ closing argument was without a doubt a masterful performance. Klaus Barbie was found guilty and lived out the remaining four years of his life in prison. However, an unnamed American journalist recently researching the case pointed out that whenever she interviewed the attorney’s of the winning side they were angry and those of the losing side were very pleased. In the eye’s of anyone paying attention and who understands the law, Vergès unveiled that this was not a typical case but a legal lynching brought on by communitarian influences behind the scenes. This is the irony of Lawfare and Propaganda. Victory in the court room is unrelated to victory in the big picture of a political struggle.
Universal Jurisdiction, Part 2
One of the greatest weapons in the Lawfare practitioner’s arsenal is Universal Jurisdiction. This will be explored in Part 2 of this essay. Lawfare, in its higher forms, requires creativity to be used effectively. Part 3 will focus on opportunities for White Nationalist Lawfare and will hopefully include the contributions commenters brainstorming on this site will make.
1. There is a rumor that after the Canary Wharf bombing there was a very brief meeting between Tony Blair and the Lord Mayor of London. In this meeting Blair was presented with a graph of the GDP of London’s financial industry vs. the GDP of Northern Ireland and was informed to “get his priorities straight.”