Human Rights as a Security Threat: Lawfare and the Campaign against Human Rights NGOs

Date01 June 2014
DOIhttp://doi.org/10.1111/lasr.12074
Published date01 June 2014
Human Rights as a Security Threat: Lawfare and
the Campaign against Human Rights NGOs
Neve Gordon
In this article, I show how the term lawfare is being deployed as a speech act
in order to encode the field of human rights as a national security threat. The
objective, I claim, is to hinder the work of human rights organizations that
produce and disseminate knowledge about social wrongs perpetrated by mili-
tary personnel and government officials, particularly evidence of acts emanat-
ing from the global war on terrorism—such as torture and extrajudicial
executions—that constitute war crimes and can be presented in courts that
exercise universal jurisdiction. Using Israel as a case study, I investigate the
local and global dimensions of the securitization processes, focusing on
how different securitizing actors—academics, nongovernmental organizations,
think tanks, policy makers, and legislators—mobilize the media, shape public
opinion, lobby legislators and policy makers, introduce new laws, and pressure
donors to pave the way for a form of exceptional intervention to limit the
scope of human rights work.
Following the dawn of the new millennium, neoconservative
forces within liberal democracies have been at the forefront of a
campaign against what they call the “politicization of human
rights.” This relatively new campaign is intricately linked to the war
on terrorism and is part of a backlash against the mounting success
of liberal human rights organizations and cause lawyers in subject-
ing warfare to legal analysis and oversight. The objective of the
campaign is to undermine human rights nongovernmental organi-
zations (NGOs) that have been providing evidence in criminal suits
brought against military and government officials in courts that
exercise universal jurisdiction.
In this article, I examine how the term lawfare, which combines
the words law and warfare and is defined as the use of law for
This article was written during a sabbatical at the Institute for Advanced Study at
Princeton, and was presented at the School of Social Science seminar.I would like to thank
the seminar participants for their comments and suggestions. The article also benefited
from the comments of Merav Amir, Nitza Berkovitch, Clifford Bob, Miriam Lowi, Nicola
Perugini, James Ron, Catherine Rottenberg, Rebecca Stein, and Hadas Ziv as well as from
LSR’s editors and anonymous reviewers.
Please direct all correspondence to Neve Gordon, Department of Politics and Govern-
ment, Ben-Gurion University of the Negev,Beer-Sheva, Israel; e-mail: ngordon@bgu.ac.il.
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Law & Society Review, Volume 48, Number 2 (2014)
© 2014 Law and Society Association. All rights reserved.
realizing a military objective, is being mobilized by neoconserva-
tives to reframe liberal human rights NGOs as a security threat.
The term lawfare has engendered a lively debate in the scholarly
literature over the past decade, mainly about its definition and
normative underpinnings (Crane 2010; Dunlap Jr. 2001; Ogoola
2010). While practically all of the studies treat lawfare as a descrip-
tive term, I, by contrast, focus on what lawfare does. My claim is that
lawfare is not merely used to describe certain phenomena, but
that it also operates as a speech act (Austin 1975; Wæver 1998) that
reconstitutes the human rights field as a national security threat.
Lawfare was originally linked to the exercise of universal juris-
diction but has eventually become the framework through which
human rights work in liberal democracies more generally is being
securitized. It is, in other words, the point of entry through which
numerous “securitizing actors” are coalescing to construct human
rights as a security threat. These actors have been mobilizing the
media, shaping public opinion, lobbying legislators and policy
makers, introducing new laws, pressuring donors, and employing a
variety of other methods to pave the way for a form of exceptional
intervention against rights organizations (Buzan, Wæver, & de
Wilde 1998). Their objective has been to limit the scope and impact
of rights work carried out by liberal human rights NGOs so as to
enable primarily Israel and the United States to carry out military
campaigns unhindered. While this is particularly striking in the
Israeli case, it can potentially become a strategy used to curb the
work of liberal human rights NGOs in other democracies.
The analysis of how lawfare has been put to use sheds light on
a number of issues relating to the broader discussion about the
influence of the transnational human rights regime on state behav-
ior (Hafner-Burton & Ron 2009; Hafner-Burton & Tsutsui 2005;
Hathaway 2002; Neumayer 2005; Simmons 2009), and how “the
power of the local” mediates and shapes the appropriation of
human rights in the domestic sphere (Goodale & Merry 2007;
Merry 2008). Challenging some of the key findings of the literature
examining the impact of transnational networks of human rights
NGOs on states (Keck & Sikkink 1998; Risse, Ropp, & Sikkink
1999), Anja Jetschke (2010) has shown that when human rights
organizations draw on international human rights norms to
describe an event and introduce political claims, governments can
reframe the same event as a security threat to their authority or the
country’s territorial integrity and in this way limit the impact of the
human rights campaign.1Building on these insights into how secu-
rity can be poised against human rights, this article describes the
1Jetschke’s argument is actually more complex and has numerous levels of analysis.
See particularly Figure 2.2 in Chapter 2 (Jetschke 2010: 50).
312 Human Rights as a Security Threat
way human rights organizations themselves—and not merely the events
they document—are increasingly being constituted as a security threat in
democracies who have declared themselves as advocates of the war
on terror.
Second, I underscore the important role played by nonstate
actors in the securitizing process. Most studies focus on the
struggles between human rights organizations, on the one hand,
and governments, on the other, while I highlight the clashes between
liberal human rights NGOs and neoconservative NGOs and civil society
movements, detailing the role of the latter in the securitization
process. In this sense, I draw from Clifford Bob’s (2012) work on
clashes of networks and his effort to place more emphasis on the
role played by conservative nonstate actors in global politics. Fol-
lowing Bob, I examine the network building of Israeli conservative
groups and their mobilization of lawfare in order to produce an
“us” versus “them” binary that pits liberal human rights NGOs
as the “them” while invoking a security paradigm to undermine
their work.
Third, the Israeli case study that I offer here reveals how
textbook democratic practices, such as mobilizing civil society,
raising issues in the public sphere, and lobbying legislators and
decision makers, can lend themselves to the securitization of human
rights work and thus to processes that ultimately undermine
democracy. Finally, I show how the prism of security can be used to
vernacularize human rights and alter their function (Goodale &
Merry 2007; Merry 2008). The construction of human rights as a
security threat, it should be emphasized, is carried out not in order
to reject human rights tout court, but in order to curb what neocon-
servative groups define as a particular “political” application of
human rights. In other words, the objective of constituting liberal
human rights NGOs as a national security threat is to replace a
certain conception of human rights and to alter certain types of
rights work with ones that better suit the existing sociopolitical
relations and forms of military warfare. Although the discussion
concentrates on processes taking place in Israel, the implications of
this campaign are global, as its ultimate aim is to restrict the utili-
zation of human rights as a mechanism of subjecting warfare to
legal oversight.
In what follows, I describe how the contribution of liberal
human rights NGOs to the exercise of universal jurisdiction in
regional and domestic courts has generated a new type of critique
emanating from conservative forces in liberal democracies. Next, I
provide a thumbnail sketch of the Copenhagen school’s insights
about how events and actors are securitized, which is followed by a
concise outline of the methods and data used. I then turn to the
Israeli case study which is divided into six sections. I begin with a
Gordon 313

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