Academic journal article Law & Society Review

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

Academic journal article Law & Society Review

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

Article excerpt

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 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.1 Building on these insights into how secu- rity can be poised against human rights, this article describes the 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. …

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