via
Counter-Currents
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Beatriz Aguilera; Militant Peronist who
fought for “Socialism, Nationalism, and
Catholicism” disappeared by her
Government
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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
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Jeremy Waldron, Professor of Law
and Philosophy at NYU
|
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
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Poster produced by the Support
Republican Prisoners Campaign,
another Sinn Fein/IRA front group
|
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.
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Recent
photo of a mural in Northern Ireland
celebrating Pat Finucane, a human
rights
and terrorism defense lawyer
|
“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].[1] 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”
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Jacques Vergès Defending
Klaus Barbie
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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.
Note:
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.”
