Lawfare against Academics and the Potential of Legal Mobilization as Counterpower

The use of hegemonic, law-based measures, or lawfare, by right-wing organisations against scholars has become prevalent, particularly on US-based campuses. Whether to try and silence scholars from publishing critical work or to try and influence an academic’s promotion or tenure prospects, this insidious use of lawfare has become a source of concern among academics. This is especially prevalent concerning scholars who are critical of Israel, some of whom have faced relentless attacks by the government of Israel and its many sponsors, using law- based measures that aim to suppress criticism of its policies and practices. But law has many sides to it and can also serve as a form of protection or counterpower to lawfare. Strategic, legal mobilization has been invoked to protect academic freedom, drawing on a range of national and international legal vocabularies. For human rights advocates, legal mobilization has ignited the civic imagination and served as both a protective shield for individual scholars, as well as a proactive sword to expose complicity in international crimes committed by the Israeli military, cultural and intellectual institutions and corporations who profit from this situation. In this chapter, I explain Israel’s legal regime in which lawfare and legal mobilization are expressed. Next, I discuss the use of law in relation to academic freedom claims, making a distinction between legal mobilization and lawfare. An analytical framework that can be used to evaluate how law is strategically used by civic actors as either legal mobilization or lawfare is not fully developed in this particular chapter, though I have explained this elsewhere (Handmaker 2019). Instead, I briefly introduce the framework and develop legal mobilization and lawfare as analytical concepts, which are then applied against various examples of law-based advocacy, either from proponents of, or objectors to the global BDS movement for Palestinian rights. I then evaluate the transformative potential of drawing on international human rights law, using legal mobilization to support a global movement for BDS aimed at ending Israel’s violations of Palestinian rights under international law, and defending academics and other advocates critical of Israel against lawfare. Further, I analyze examples of lawfare where legal and/or policy measures have been imposed by the Israeli government against academic critics of Israel, and particularly BDS advocates to try and suppress their freedom of speech and freedom of association, which have been wielded by a range of government-linked, but mostly privately-funded lawfare organizations. This allows me, finally, to revisit the crucial distinction between lawfare and legal mobilization and to draw conclusions regarding both the potential and challenges of law-based BDS advocacy to pursue a progressive social justice agenda.