Yes, there is consensus that ‘lawfare’ exists…but America still needs a strategy for it

Has the existence of the concept of lawfare achieved institutional consensus?  I certainly think so, but founders of the blog that took the word for its title rather inexplicably don’t seem to want to recognize it.  Much more importantly, however, America’s adversaries have not only recognized it, but embraced it, developed strategies for it, and used it with real success.  The U.S. has some serious catching-up to do.  Let’s unpack this a bit.

The context

In a recent post (“September 11 and the History of Lawfare) by Bobby Chesney, Jack Goldsmith, and Ben Wittes present a thought-provoking retrospective reflecting on the issues addressed since that site’s founding in 2010.  Especially valuable is their listing of many of the legal questions that “consumed” Lawfare’s early history, but now have settled into broad (albeit not universal) institutional consensus.

But it is, somewhat ironically, incomplete: the phenomena of lawfare should have been included.  The omission struck me when I read the line “Lawfare was not around for the formative years of the post-9/11 era . . . .”  Obviously, they were referring to the blog by that name, but let’s note that the concept of lawfare (with its purposeful small “l”) had been around for over a decade.

As Lawfire® readers may recall, I’ve had a chance to reflect upon concept myself when I was invited to deliver the 11th Annual Morehouse Lecture at the Air Force Judge Advocate General’s School on August 19th.  My topic was “Lawfare today, and Tomorrow.”

In my current view, lawfare is the use of the law to accomplish what otherwise might require traditional military means – typically kinetic. 

Thus, the law can be employed as something of a weapon – an instrumentalization of the law that purists abhor but which to me reflects reality.  Whether such use is for good or for ill depends much upon who is wielding it and why.  There are legitimate forms of lawfare that can serve to mitigate the destructiveness of war, but there are also abusive interpretations which seek to turn adherence to the law into a vulnerability to be exploited by malevolent actors. 

An example of the latter are situations where terrorists use human shields to take advantage of rules of engagement that all but forbid strikes if they would result in any civilian casualties (even though the law of armed conflict does not impose a “zero” civilian casualty requirement in almost all cases.)

My interest in lawfare is long-standing.  In his first (and still very much worth reading) Lawfare post – suitably titledThoughts on ‘Lawfare’” Jack Goldsmith pointed to my 2001 essay, Law and Military Operations: Preserving Humanitarian Values in 21st Conflicts as being the “first [time I] used the term.”  The paper was presented to a conference hosted by the Carr Center for Human Rights Policy of Harvard’s Kennedy School of Government.

Actually, it was the first time I recorded it in a widely-circulated academic paper, but I had been using the term for quite a while.  As I explained in the Yale Journal of International Affairs:

I started using “lawfare” in speeches and writings beginning in the late 1990s because I wanted a “bumper sticker” term easily understood by a variety of audiences to describe how law was altering warfare.  At that point, I had the hubris to think I invented the term; actually, it had been used a couple of times previously in a completely different context starting in the mid-1970s.  I needed something to describe what I and others saw as a new relationship between law and war.

My original views on lawfare were mainly shaped by the kind of conflicts we were fighting in the early 2000s against non-peer competitors and non-state actors.  As the years went by, it became very clear that the al-Qaeda, the Taliban, ISIS and other terrorists were masters at manipulating the law, particularly in the context of creating a narrative – and a too-often successful one – that the U.S. was violating international law and causing excessive civilian casualties in its military operations.

However, other scholars began to address additional lawfare actors, and doing so very thoughtfully.

Russian lawfare

A key example is Christi Scott Bartman’s 2010 book, Lawfare: Use of the Definition of Aggressive War by the Soviet and Russian Federation Governments, one of the earliest of a number of books that have been written about lawfare.  Professor Bartman’s book (which is based on her 2009 PhD dissertation) contended:

This [book] demonstrates that through the use of treaties the Soviet Union and Russian Federation practiced a program of “lawfare” long before the term became known. Lawfare, as used by the Soviet Union and Russian Federation, is the manipulation or exploitation of the international legal system to supplement military and political objectives. The Soviet Union and Russian Federation used these legal restrictions to supplement military strategy in an attempt, not to limit themselves, but to control other states legally, politically, and equally as important, publicly, through the use of propaganda.

Bartman’s ideas of Russia’s strategies have proven prescient with not just the 2014 takeover of Crimea, but also with the larger emergence of “gray zone” war and its clear relationship to lawfare.

Chinese lawfare

China has taken a very aggressive approach to lawfare.  Dean Cheng spells it out in his must-read 2012 monograph:

Over the past decade, there has been growing interest in legal warfare or “lawfare.”  While the U.S. is focusing on the interplay between the law and counterinsurgency operations, China is approaching lawfare from a different perspective: as an offensive weapon capable of hamstringing opponents and seizing the political initiative. Indeed, Chinese planners are almost certainly preparing legal war plans aimed at controlling the enemy through the law or using the law to constrain the enemy.

Cheng was prescient as well, as now we see China has developed and deployed lawfare in a variety of settings as a number of writers have pointed out.  Andrés Munoz Mosquera’s and Nikoleta Chalanouli’s wrote about Chinese lawfare in their February 2020 essay,: China, an active practitioner of legal warfare.”  Additionally, in the past very few months Air Force lieutenant colonel Charles Gartland has written a series of posts examining China’s use of lawfare.

Marine Corp University Professor Jill Goldenziel has also written extensively about Chinese lawfare.  In August, she argued in Forbes that: “U.S. adversaries—especially China—have long understood something the U.S. national security community is only starting to learn: how to use lawfare, or law as a weapon of war.”

The need for a U.S. lawfare strategy

Perhaps the most comprehensive book-length treatment of lawfare is Orde Kittrie’s 2016 volume, Lawfare: Law as a Weapon of War.  In it he very kindly credited my 2001 essay as “introduc[ing] the term ‘lawfare’ into mainstream legal and international relations literature.” (Last June I had the privilege of joining Orde in a podcast about lawfare, and he has continued to develop his views.)  Among his book’s many nuggets is the admonition:

Despite the term having been coined by a U.S. government official, the U.S. government has only sporadically engaged with the concept of lawfare.  It has no strategy or doctrine, and no office or interagency mechanism that systematically develops or coordinates U.S. offensive lawfare or U.S. defenses against lawfare.

Echoing Kittrie, Professor Goldenziel warned: “The U.S. military must develop a more comprehensive lawfare strategy to be able to combat its adversaries. By doing so, the United States can win on the battlefield and carry the moral narrative of war.”  I totally agree, and reinforced that point in my Morehouse Lecture. 

Ideas for developing a doctrine and strategy

Still, while there is yet to be a formal doctrinal statement or strategy, there has been some excellent thinking about the concept that could aid in developing them.  For example, Tuft’s University professor Joel Trachtman’s superb 2016 article, “Integrating Lawfare and Warfare,” contains “a list of areas in which an integrated legal component may improve strategic and tactical outcomes.”  Such insightful specificity is extraordinarily useful.

An interesting perspective about lawfare from a commander’s perspective is found in  now retired Air Force Maj. Gen. Barre R. Seguin’s 2020 essay “The Use of Legal Operations in a Context of Hybrid Threats and Strategic Competition.”  He was the perfect person to speak on this topic as he was not only a decorated fighter pilot, he also served as the Commander of the 9th Air and Space Expeditionary Task Force-Afghanistan and simultaneously as the Commander, NATO Air Command-Afghanistan from May 2028 to June 2019. 

In his essay he pointed to specific Russian actions, and also reflected on Taliban and ISIS tactics in Afghanistan.  For example he cited their “placing civilians and other protected persons next to, inside, or working at legitimate military targets to prevent attacks” – something he reports he saw “play out in multiple scenarios.”  Consequently, he argued:

As a result of NATO’s commitment to counter hybrid threats, we recognize the need to identify, assess and respond to hostile legal operations through a uniformed methodology while at all times embracing the rule of law and stressing the importance of a stable international legal framework. Moreover, legal vigilance and awareness are essential to detect this type of actions in early stages, legal vulnerabilities in the legal order where NATO and Allies develop their activities, as well as contributing to our understanding of the information environment.

Any doctrinal constrict of lawfare needs to take into account the views of warfighters like General Seguin.  I also highly recommend Dutch colonel Joop Voetelink’s critique inReframing Lawfare which does a great job at unpacking the concept.  He contends that it is important not to dilute the meaning of lawfare by tagging every connection of law to armed conflict as “lawfare.’ 

Voetelink concludes that “taking all remarks into account it is proposed Dunlap’s definition be read as follows”:

The concept of using or misusing law by a participant in a military operation, or an entity acting under its control, with its consent or in coordination with it, as a substitute for traditional military means deliberately designed to achieve an operational military goal in an ongoing military operation.  A wide variety of activities that are now referred to as lawfare, do not qualify as such under this definition. 

I don’t know that I agree with everything Voetelink’s reframing might suggest, but it is exactly the sort of analysis that needs be considered in developing a doctrine for lawfare.  We need more fresh thinking.

Concluding thoughts

My Morehouse lecture included some observations about the future and what challenges it poses, particularly in the aftermath of Afghanistan and other counterinsurgency operations where the side that tried to adhere to the law of armed conflict lost.  I plan to explore that conundrum in future writings.

Regardless, it seems that lawfare is certainly a phenomena whose existence is a settled issue within the national security law community. 

It is imperative , however, that beyond mere acknowledgement of the concept, the U.S. and its allies need to develop a strategy (along with tactics, techniques, and procedures) to be well positioned not only to maximize the proper use of the law, but also to be ready to counter adversaries’ efforts to manipulate the law to their benefit.  We have a lot to do to match the well-developed lawfare strategies of America’s opponents, so it’s time to get to work.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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