From the Editors
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On the evening of March 24, the board of directors of University of California – Hastings College of the Law held an emergency meeting that lasted until midnight. The putative emergency was a two-day conference titled “Litigating Palestine” scheduled to start at 3 pm the following day. What resulted was the following statement: BE IT RESOLVED by the Board of Directors…in its EMERGENCY CLOSED SESSION that it is in agreement that the College should take all steps necessary to remove the UC Hastings name and brand from the "Litigating Palestine" conference. By taking this action, the Board strongly endorses the principles of academic freedom and the process used to determine which conferences to present. It is the Board's position that a decision by the College to host or financially support an academic conference does not constitute endorsement of any viewpoints expressed at a conference, or the academic goals of the conference.
The following morning, the Anti-Defamation League issued a press release titled “ADL Commends UC Hastings for Resolution; Disappointed at School's Failure to Remove Name from Problematic Conference.” According to the faculty organizer, George Bisharat, over the previous week the San Francisco chapter of the ADL had been registering criticism of this conference. The emergency board meeting was called after the administration refused to cancel, delay or alter its composition. The ADL press release characterized the scheduled participants as “a veritable who's who of the anti-Israel movement” and said the conference “was designed to delegitimize and unjustly cast Israel as a pariah state under the guise of academic freedom.” Regional Director Dan Sandman was quoted: “To add insult to injury, it also appears that Hastings is offering continuing legal education credit for a program which utterly lacks academic integrity.”
As a matter of fact, the insult-to-injury was the libelous proclamation about the purportedly uniform views of participants, and the preemptive—and thus unfounded--assertion that the proceedings would lack academic integrity. But for the ADL, a conference with the word “Palestine” in the title is deemed “problematic” and thus, grounds for the kind of offensive to which UC Hastings was subjected. Sandman opines: “This conference is especially troubling coming at a time when there is a coordinated global campaign to isolate Israel politically, economically and culturally through boycotts and the perversion of international legal principles. We expect that no institution seriously committed to pursuing the highest ideals of justice would associate itself with a conference of this nature and provide cover for the promotion of a base political meeting disguised as legitimate academic discourse.”
Let’s examine the claims in Sandman’s quote. He complains about the timing—“coming at a time when”—which is “especially troubling.” If one were to take his words literally, no time would be the right time to hold an academic conference that addresses Palestinian rights or Israeli (and other) government policies that affect Palestinians as long as there are people around the globe who are pursuing a boycott, divestment and sanctions (BDS) campaign. At the actual conference—as opposed to the ADL’s imagined conference—the papers addressed and analyzed the record of litigation of Palestinian claims, prosecutions and other types of jurisprudence in Israeli courts as well as courts in other parts of the world. The fact that legal cases involving Palestinians and/or the contested concept of “Palestine” aren’t suspended by some ostensibly inconvenient timing in and of itself justifies intellectual inquiries of the kind that were featured at the conference. To suggest otherwise is baldly censorious.
Sandman also claims that the conference was a “cover” for “a base political meeting.” Base? The use of this harsh word would seem to suggest that a gathering where “Palestine” is the topical agenda is illegitimate. How does the ADL make the connection between a conference about “Palestine” and “base” politics? By equating “Palestine” with “pro-Palestine,” which is conflated with “anti-Israel,” which is conflated with “anti-Semitism.” Anti-Semitism is indeed base. But the slippery slope reasoning that precedes it is contradicted by an empirical reality that is far too complex to be subsumed by a simplistic “pro-Palestine” versus “pro-Israel” dichotomy. If we were to assume that “Palestine” and “pro-Palestine” were seamlessly linked, what are the “pro” and the “Palestine” referencing? Given that the geo-demographic area typically understood these days as Palestine—the West Bank and Gaza—is neither politically unified nor populated by people whose experiences and aspirations are ideologically monolithic, the suggested homogeneity that underlies that side of the dichotomy is intellectually baseless; it relies on and peddles ignorance. Rather, the pro-Palestine/anti-Israel dichotomy is instrumentalized for polemical purposes, namely to attack anyone or any institution (in this case UC Hastings) that engages with issues relating to “Palestine.”
The conflation of anti-Israel and anti-Semitism also serves a polemical purpose, in this case to silence criticism and stifle analysis of Israeli state policies, particularly as they affect Palestinians. The cousin of this conflation is the so-called “self-hating Jew,” a slur directed at anyone Jewish who dares to be critical or skeptical about Israeli state policies and practices. If anti-Semitism were understood to mean “anti-Jewish” (which is what it should mean), then anyone who called someone else a “self-hating Jew” would be engaging in anti-Semitism. (A number of conference participants were Jewish, and some were Israeli—both Jewish and non-Jewish.)
The problem with dichotomous thinking of the “pro-Palestinian” versus “pro-Israeli” variety is that it is premised on a notion of inherent, even existential separateness between “two peoples.” But the contemporary realities of “Palestine” and “Israel”—including, for example, the borders of either—are far too complex and too contested even among the constituencies referenced by the terms to be accurately or adequately understood through a simplistic dichotomy. Of course, there are national differences and the nationalist polarity of the conflict is quite real. But in the empirical world of Israel/Palestine, as contrasted to polemical discourse about it, there is a lack of separation among actual people and a functional hierarchy (rather than dichotomy) of socio-political and economic relations and legal rights.
The Israeli-Palestinian conflict is, ultimately, a struggle over rights, of which sovereignty and self-determination are the two most important. Granted, in the main the struggle over rights that constitutes the conflict is polarized around national lines. It is also highly unequal, given the vast differences in institutional power and international status between collective adversaries. Throughout the decades, struggles for the rights of Palestinians have been integrally linked to the political and legal processes of denying those rights and have involved, to some degree, all the states in the Middle East and others beyond the region, notably the US. Since 1967, the rights struggles that constitute the Israeli-Palestinian conflict have been waged primarily around and in the context of the Israeli occupation, including but not limited to the enduring denial of Palestinian self-determination and other rights. Since the mid-1990s, the occupation has changed but not ended; the Israeli state no longer militarily administers the daily lives of Palestinians in the West Bank and Gaza, but continues to exercise “effective control” in both—the Gaza blockade, ongoing land confiscations, and the jurisdiction of Israeli military courts over Palestinian residents of these regions being manifestations of enduring occupation.
Relying on the nationalist dichotomy serves political purposes, as the ADL’s attack on the UC Hasting conference illustrates. However, dichotomous thinking is intellectually inadequate to frame and explain either the conflict or the nature of political, economic, social and legal life in “Palestine.” First, the dichotomy reifies Israeli-Palestinian relations by conflating them with or reducing them to the conflict. People are cast as nothing but enemies. Second, the dichotomy subsumes people’s interests to their national identity as “Israelis” or “Palestinians”; their activities, motivations and commitments are read as expressions or transgressions of the collective (national) good, making nationalist ideology a basis for judging the content and character of actions and interactions. Third, the dichotomy encourages “state as actor” explanations for events and processes associated with the conflict, thus promoting a (false) conceptual symmetry between the Israeli state and Palestinians’ political representatives; the latter are currently divided between the Fatah-dominated Palestinian Authority in the West Bank and Hamas in Gaza. It is indisputably true that Israel is the only sovereign state in Israel/Palestine, and that it controls and rules some people whose interests it does not represent and whose rights it is not committed to protecting. Even for Israeli citizens, there is a hierarchy (not dichotomy) of rights in which Jewish Israelis are privileged above and in different ways to the various categories of non-Jewish citizens (i.e., “Arabs,” “Druze,” “Beduin”). Finally, the dichotomy projects a zero-sum interpretation of interests, where one “side’s” gain is perceived as the other “side’s” loss. This zero-sum interpretation can explain why the ADL would construe an academic conference about “Palestine” as a threat to “Israel.” And this purported threat was condemned as politically “base.”
Sandman’s allegation that the conference was—or would be, since the press release was disseminated before it started—a “political meeting disguised as legitimate academic discourse” is harder to disentangle simply because “meeting” and “academic discourse” are not parallel terms. If the conference were a “meeting disguised as” something else, the proposition is that it was actually a “meeting.” I have never been to something billed or “disguised” as a meeting that involved people standing at a podium delivering academic papers and other people raising their hands to ask questions and offer opinions about those papers. Yet that is exactly what transpired in the conference room at UC Hastings over two days. If there was a “disguised meeting” going on, wouldn’t it be complicated by the fact that all of the proceedings were being simulcast?
The ADL’s preemptive and politicized condemnation of a scholarly conference organized by academics and hosted at an institution of higher learning is patently contradictory to the principles of academic freedom. The meaning of academic freedom seems to elude or confuse many people, including, apparently, the majority of UC Hastings board of directors (none of whom is a professional academic); their resolution proclaimed that the decision to remove the university’s name and brand is an endorsement of the principles of academic freedom. The university’s faculty should be encouraged to provide a tutorial on academic freedom for the board.
Academic freedom is a “guild” right, the guild being the professoriate. It is a professional rather than an individual right, although it extends to individual members of the guild. Professors—and only professors—have academic freedom, which includes the freedom to conduct and disseminate scholarly research, to design courses and teach students in the areas of their expertise, and to enjoy First Amendment protections for extramural speech. (The latter is a right enjoyed by everyone within the jurisdiction of the US constitution, but is the third leg of the principles of academic freedom because professors should not be professionally penalized for unprofessional/non-academic speech that they engage in beyond the academy.) Academic freedom is not absolute or unrestrained; its “enjoyment” is determined by the guild, based on standards of scholarly excellence and achievement (e.g., acquiring a PhD or other type of graduate degree, getting a job as an academic at a university, publishing academic works in reputable scholarly venues, being promoted on the basis of periodic review processes in which the merits of an individual’s publications and teaching are judged by peers, and so on). Institutions of higher learning are the sites where academic freedom is enjoyed and thus they bear a responsibility for its protection. The hosting of academic conferences is one way in which this institutional responsibility is fulfilled because it affords an opportunity for scholars to share and benefit from public exchanges of expertise.
One more element of Sandman’s quote invites scrutiny because it relates directly to the “litigating” theme of the conference: he denounces “the perversion of international legal principles.” The context for this phrase, which is coupled with the reference to the BDS campaign, suggests that “Israel” has been victimized by “perverted” interpretations and uses of international law. This hints at the concept of “lawfare.” While the ADL press release does not use that word, “Fighting Lawfare Legally” is the title of a statement protesting the conference that was sent on the morning of March 25 to Hastings’ Dean Frank Wu from Leila Beckwith, professor emeritus at UCLA, and Tammi Rossman-Benjamin, a lecturer at UC Santa Cruz. Their statement doesn’t explain the titular term, except to describe it (tautologically) as efforts that seek “to exploit Western Courts in order to agitate against Jews and the Jewish state through anti-Israel lawfare.”
A more substantial and clear definition of lawfare can be found on The Lawfare Project website: “the use of the law as a weapon of war,” or, more specifically, the abuse of the law and judicial systems to achieve strategic military or political ends. It consists of the negative manipulation of international and national human rights laws to accomplish purposes other than, or contrary to, those for which they were originally enacted. Modern-day lawfare has three goals: 1) to silence and punish free speech about issues of national security and public concern; 2) to delegitimize the sovereignty of democratic states; and 3) to frustrate and hinder the ability of democracies to fight against and defeat terrorism.
Sandman’s allusion to “the perversion of international legal principles” and the statement by Beckwith and Rossman-Benjamin seem to concur with the definition offered by The Lawfare Project. This meaning also hews to the way the term has been employed by some American officials and pundits in the post-9/11 era to excoriate government-challenging litigation, epitomized in the 2005 National Security Strategy of the United States that includes the following: “Our strength as a nation-state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes and terrorism.” Not everyone endorses this meaning or accepts the conflation of “international fora” and “judicial processes” with “terrorism.” Rather, some people laud and embrace the term as an apt description for rights-seeking litigation, for example the pursuit of the habeas corpus rights of people detained at Guantanamo. The term itself is suggestively polemical: it flags disputes about the merits of using courts and the instruments of law in the context of wars.
Because The Lawfare Project’s website definition footnotes a 2001 document authored by Col. Charles J. Dunlap, Jr., of the US Air Force, let’s examine what Dunlap has said about lawfare. On March 18, 2003, the Council on Foreign Relations (CFR) hosted a National Security Roundtable to discuss “the increased use of legal tools to combat American military might.” The roundtable, titled “Lawfare, the Latest in Asymmetries,” coincided with the start of the US-led war against Iraq, but the discussion, as described in the summary posted on CFR’s website, was principally concerned about the then-year-old International Criminal Court and the “widening gap between the legal culture in the United States and Europe.” This widening gap referred, implicitly, to some European governments’ willingness to pursue allegations and prosecute violations of international human rights and humanitarian laws. Of particular concern was the development and use of universal jurisdiction to charge and prosecute foreign perpetrators of gross crimes in the national courts of other countries.
The definitions of lawfare offered in the CFR summary are identical to those in the 2001 document by Dunlap in which he defined lawfare as “a strategy of using or misusing law as a substitute for traditional military means to achieve military objectives.” One example of lawfare that was presented at the roundtable was the filing of human rights suits by Colombian peasants against military figures, which was compared to a “decapitation strike” because it might remove a military commander from active duty to contend with the suit. Another example was the way enemies might manipulate American respect for the laws of armed combat by deliberately placing combatants among civilians “to goad American forces into violations …, which are then used against the United States in the court of world opinion.”
However, in November 2007, Dunlap delivered a speech titled “Lawfare Today” at an American Bar Association conference. He took the opportunity to criticize the ways in which the concept of lawfare had been employed in recent years to condemn critics of the Bush administration, including—and this was what most agitated Dunlap—uniformed and retired members of the military. He applauded military-civilian legal alliances that had built up since 2001 and praised the role that some members of the Judge Advocate General corps had played in challenging the torture- and CID-permissive interrogation tactics authorized by the Bush administration. Dunlap said: “[C]oncern by publics, NGOs, academics, legislatures, and the courts about the behavior of militaries is more than a mere public relations problem; it is a legitimate and serious activity totally consistent with adherence to the rule of law, democratic values, and—for that matter—lawfare…[T]he use of the courts is something I advocate as a vitally important lawfare measure.”
On September 1, 2010, a new Lawfare blog was established by Benjamin Wittes of the Brookings Foundation, Jack Goldsmith of Harvard Law School (who had served in the Justice Department during the Bush administration), and Robert Chesney of the University of Texas Law School. In the blog’s first posting, Wittes explains: We mean to devote this blog to that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions. We will, I am sure, construe this subject broadly to include subjects as far-flung as cybersecurity, Guantánamo habeas litigation, targeted killing, biosecurity, universal jurisdiction, the Alien Tort Statute, the state secrets privilege and countless other related and not-so-related matters…The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others… It is our hope to provide an ongoing commentary on America’s lawfare, even as we participate in many of its skirmishes.
The multiple meanings of lawfare turn on the contested ideologico-political legitimacy of using courts to monitor and regulate a government’s wartime behavior vis-à-vis enemies. Are those who mount litigation in the context of war and conflict motivated by the desire to defend the rule of law, as advocates argue? Or are they providing aid and comfort to the enemy, as claimed by critics? It is true that some American and Israeli officials have been named in lawsuits that allege law of war violations, as have some corporations and private contractors. To characterize this as a manifestation of a “perversion” suggests either that everything these states and their agents do is legal, or that the pursuit of accountability for violations is illegitimate. That posture, implicit in the ADL press release, was explicit at a March 2010 conference organized by the Conference of Presidents of Major Jewish Organizations and hosted at the New York County Lawyers Association. According to Scott Horton, who reported on the event, various speakers condemned international law, the activities of human rights organizations like B’Tselem and Human Rights Watch, the use of universal jurisdiction laws, and especially the UN Goldstone Commission report.
Horton writes: Speakers repeatedly characterized the [Goldstone] report as an attack on Israel’s right to exist and ignored the fact that it reserved its sharpest criticism for the conduct of Palestinian militants, specifically including their practice of firing missiles at civilian population centers. The specific factual conclusions of the report were not discussed, however. Typical was Columbia Law Dean David Schizer, a conference co-chair, who concluded that the Goldstone report “created standards of morality in war that leave a state without the means of legitimate self-protection,” without offering any explanation as to how he got there. No speaker was present to defend the Goldstone report, nor were any of the NGO groups assailed at the gathering invited to respond. The event had the feel of a pep rally, not an attempt to provide serious discussion of the issues it identified. It seems to be in line with the Netanyahu Government’s strategy for dealing with human-rights complaints, both from NGOs and from international organizations like the United Nation, and it closely tracked a similar function convened two weeks earlier in Jerusalem. The principal question was strategic: namely, how best to disarm critics of the Israeli Government’s security policies.
The ADL’s attack on the UC Hastings conference can be seen as part of this strategy to disarm people who wish to engage critically with Israeli policies by averring that such an undertaking constitutes a threat to Israel itself. The ADL is free to attack who or what it wants, within legal limits, and for the reasons it chooses. And anyone who finds the ADL’s reasoning flawed and motivations suspect is also free to attack. But the Hastings conference was not “an attack” on Israel. It was an occasion for scholarly deliberation about litigation and other legal initiatives that involve or affect Palestinians in courts around the world. By any academic measure of excellence, “Litigating Palestine” was a great success.
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