Guest Post: John Reid on “The Limits of Lawfare: Reframing an Overextended Concept”
Today we have an interesting essay by a new Lawfire® contributor, Lt Col John Reid, USAF. John just graduated from the National War College (my alma mater!), and he offers a very thoughtful critique of the concept of “lawfare.” While I find agreement with several of his points, I can’t say I concur with some key particulars (to be addressed in a future post). Nevertheless, I believe his ideas are very much worth contemplating, and I strongly urge you to give his essay a read!
The Limits of Lawfare: Reframing an Overextended Concept
by Lt Col John Reid, USAF
A growing chorus of lawyers and academics warn that the United States (U.S.) is falling behind its adversaries in a vital new domain: lawfare. These voices bemoan the U.S.’s insufficient lawfare efforts and even encourage a formal national lawfare strategy. It is framed as but the latest example of the U.S. playing Checkers as our adversaries play Chess (or Go). But the concern is misplaced as it overstates and overcomplicates the lawfare threats posed by U.S. adversaries.
Lawfare is a term difficult to define and depends much on whom you ask. It is best defined as the use of law as a weapon of war, as a strategy of “using – or misusing – law as a substitute for traditional military means to achieve an operational objective.” Prominent examples include China’s “salami-slicing” efforts in the South China Sea, Al Qaeda’s use of human shields, or Iran’s leveraging of international agencies to target dissidents abroad.
Most importantly, the U.S. is allegedly failing at lawfare according to many scholars. Alarmists inform us that in today’s era of Great Power competition, “Russia and China expertly combine lawfare with information operations, while the U.S. Government, possessing substantial capacity, has no overarching lawfare strategy.”
Others voice concern U.S. lawfare strategy is “woefully underdeveloped compared to its adversaries – and even its allies.” Scholars even predict lawfare “might . . . be deployed as part of inter-State kinetic conflict for potentially battle-altering impact” and decry our military has “[no lawfare] in doctrine or manpower. No agency within the U.S. government has an office dedicated to lawfare.” Some argue these shortcomings require an aggressive effort: a “whole-of-government lawfare strategy . . . part of each civilian government agency’s strategy and programs . . .”
As a Judge Advocate and military officer who matriculated through each level of professional military education (“PME”), I can attest such alarmist views are the norm within our ranks. Several Combatant Commands responded to the lawfare threat with counter-lawfare programs. INDOPACOM maintains a mature program while EUCOM, CYBERCOM, and various allies (notably Israel and Taiwan) have dedicated efforts of their own. This article contends much of the academic lawfare focus and many of the military’s own programs tend to overstate lawfare’s utility in a near-peer conflict while risking unintended second-order effects on warfighter initiative and the legitimacy of our legal system itself.
None of this is to say lawfare is irrelevant to strategic competition. It remains a relevant concept capable of shaping the margins of competition. But certain lawfare advocates lose sight of three important considerations: 1) lawfare serves limited battlefield utility in a near-peer conflict and runs the risk of preparing for the “last war;” 2) contrary to prevailing narratives, lawfare is not giving our adversaries significant traction; and 3) overtly leveraging lawfare is counter-productive to our foundational legal system. In short, lawfare remains a constructive concept which has grown into an unnecessarily alarmist and over-extended discussion.
The Limited Utility of “Lawfare” on the Modern Battlefield:
A prominent form of lawfare is termed “battlefield exploitation” – using an opponent’s observation of the laws of war against them in combat. Human shields and the use of unlawful combatants are prominent examples. During the Global War on Terror (GWOT) U.S. adversaries recognized the absolute superiority of the U.S. military and adopted lawfare techniques as a result.
Much of our modern obsession with lawfare can be attributed to a hangover from GWOT, effectively fighting the last war instead of looking to the next. During the last era of conflict, collateral damage and public relations black eyes struck at the heart of the Middle East war efforts. Such a reality gave U.S. adversaries an asymmetric opportunity to damage the U.S.
Major General (Ret.) Dunlap created the term lawfare and his contributions to the academic field on the subject are peerless. He recognized lawfare was effective when utilized by a weaker opponent to neutralize overwhelming U.S. military advantage on the battlefield. As a result, the wreckage of GWOT is littered with lawfare vignettes where the U.S. was badly burned. And if the U.S. is planning to fight a counterinsurgency in the next conflict, lawfare should be a primary consideration.
But the potential war demanding attention is against a near-peer, whether that be China or Russia. A shooting war over the Taiwan Straits will imply many military challenges, lawfare battlefield exploitation will likely not be one. American service members making good faith decisions in the heat of an armed conflict against a revisionist power will receive substantially greater public deference than during prolonged counterinsurgency campaigns.
Near-peer conflict is existential, and society accepts collateral damage as a necessary evil. GWOT was a deviation from the norm due to the U.S.’s poor self-selection into the conflicts. Extrapolating lawfare risks from such a conflict to near-peer competition is wrongheaded.
Maj Gen (Ret.) Dunlap also recognizes his term took on a new “permutation . . .” and expressed concern whether lawyers can still “communicate effectively with those actually doing the fighting.” While Dunlap does not question lawfare’s relevance, he cautions against its overextension. It is true legal framing can still raise the diplomatic cost of operations and give an adversary rhetorical ammunition. But too many scholars now overstate its weight by turning it into a load-bearing pillar on the battlefield. Such may have been true in GWOT but is no longer.
Recent U.S. military actions underscore how different contemporary military operations are from the counterinsurgency environment that shaped many lawfare discussions. From so-called “drug boat strikes” to the Maduro raid, domestic political support and perceived strategic necessity often outweigh legal precision in shaping public reaction. Allegations of legal irregularities may generate temporary controversy, but public attention tends to focus more heavily on strategic outcomes, escalation risks, and economic consequences.
As U.S. bombings in Iran unfolded, the Western Zeitgeist remained focused on the economic impact, with scarce attention paid to alleged legal infractions. Even potentially horrific mistakes, such as the alleged accidental U.S. bombing of a school, seemed to quickly fade from public awareness. The conflict suggests domestic support and political will are the factors of import, with legal impeccability being at best a secondary issue.
Proponents of lawfare provide a rebuttal by pointing to such entities as the Chinese fishing boat fleet. Lawyers provide briefings to military audiences on the nuances of the law of the sea and the potential battlefield classification of an unarmed fishing vessel seeking to ram U.S. ships at sea. It is an interesting legal debate. But it also reveals a fundamental weakness of many modern lawfare discussions. While lawfare may carry some advantages in peacetime, it is not a panacea.
If the U.S. and China face off over Taiwan, and a fishing vessel is utilized as a weapon, the U.S. will adjust the Rules of Engagement to destroy any legitimate threats demonstrating hostile intent (not to mention the inherent right of self-defense U.S. service members always possess). There will be limited information operations fallout; U.S. citizens and allies will not be aghast at service members destroying threats which seek to exploit the laws of war.
Unfortunately, the practical impact of the legal and academic focus on lawfare is to convince the warfighter our adversaries are laying clever traps which will present unanswerable legal dilemmas and land them in a court-martial. As attorneys and JAGs remained wedded to lawfare concerns of GWOT, their briefings too often are better suited to academia than actual practitioners.
The truth remains when military members make good faith judgments on the battlefield in a near-peer conflict, it is unlikely to result in legal jeopardy or operationally meaningful information effects. Suggesting otherwise does nothing but plant the seeds of deadly hesitation in our warfighters.
Lawfare Provides Limited Traction for Adversaries
Too often the narrative is that U.S. adversaries are cleverly utilizing lawfare to gain significant advantage while the U.S. falls further behind. Prominent examples include Russia’s fait accompli in seizing Crimea using “little green men” and China’s efforts at “salami-slicing” in the South China Sea. But a closer look reveals our adversaries struggling to gain meaningful advantage through any lawfare.
Chinese salami-slicing efforts are illustrative of the overstated risks of lawfare. The South China Sea is home to overlapping territorial claims between China and its neighbors. After decades of disagreement, in 2012 China began in earnest to exercise control over its claimed territory; including utilizing maritime militias and artificial islands. Chinese efforts included the use of legal instruments to advance its strategic goals, such as integration of the coast guard into its armed forces to add a legal veneer to enforce its claims, declaring Scarborough Shoal a “nature reserve,” and arguing international law supported its broad claims. In sum, Beijing engaged in a full court lawfare press to secure its strategic goals.
China’s lawfare “salami-slicing” narrative is a compelling story at first glance. But consider the real-world results. The Philippines brought suit in an international tribunal against China for its actions. In the 2016 Permanent Court of Arbitration case of Philippines v. China, the tribunal ruled China’s nine-dash line invalid, that China’s artificial island dredging violated its environmental obligations, and that China interfered with the Philippine’s fishing rights. The legal loss was so big China simply rejected the ruling amid international embarrassment.
From a military perspective, the artificial islands are vulnerable fixed targets with fragile logistical support, meaning they have limited wartime utility. Most notably, China’s efforts drove its neighbors into the arms of the U.S., in hindsight a ham-handed maneuver. The result of China’s “lawfare” efforts: lots of money and effort spent for a big loss in an international court, artificial islands of questionable military utility, and alienated neighbors.
To be sure, China’s legal framing may have helped delay coordinated opposition and provided a temporary veneer of legitimacy. But these advantages proved temporary and did not translate into a meaningful advantage. China achieved harassment capacity, not durable control. Vietnam and the Philippines continue to operate in the South China Sea as the U.S. and partners conduct persistent freedom of navigation operations.
More important, any gain should not be attributed to lawfare. China could have simply taken its action without any accompanying legal justification. Instead, China traded favorable legal ambiguity for brittle military assets. Narrative legitimacy is key in long term competition, and China’s lawfare effort lost the plot.
Lawfare proponents often focus on “grey zone” activities to push the importance of lawfare. The term “grey zone” is as difficult to define as lawfare but could be characterized as conflict “between peaceful interstate [activity] and armed conflict on the other . . .” Among national security hands, grey zone has taken on near-mythical status which legal experts eagerly role into discussions of lawfare. However, a close examination of our adversary’s legal efforts in the grey zone reveals the clear limits of lawfare.
Russia’s annexation of Crimea is the best example of grey-zone success. Russian “little green men” appeared overnight in Crimea and wrested control of government offices and infrastructure, annexing the peninsula without significant armed conflict. Putin justified the actions as necessary to protect Russian minorities in the region.
But grey-zone success implies no lawfare success. The fact Russian “little green men” did not comply with the law of armed conflict by wearing insignias did not create a meaningful dilemma for Western policymakers. There was no military kill-chain bogged down by legal advisors struggling with lawful targets and there was no confusion about what was happening on the ground. It was a fait accompli resulting from a sixty-percent Russian population supporting Russian forces.
A government struggling to maintain control over an ethnic minority is a story as old as governments, not a legal quagmire. Similarly, INDOPACOM commanders highlighted the Chinese maritime militia mentioned above in Congressional testimony as a hybrid threat. But any success stems from gray-zone persistence and naval backing, not any exquisite lawfare capability.
The narrative built by many lawfare proponents of U.S. adversaries’ expertly employing lawfare to gain strategic advantage does not survive scrutiny. True lawfare efforts, such as China’s in the South China Sea, are best classified as poor trade-offs. U.S. adversaries’ grey-zone campaigns should not be mischaracterized as successful legal efforts. While lawfare may have created some short-term gains on the margins, it should not be repackaged as the engine behind strategic success.
Overtly Leveraging Lawfare is Counter-productive to U.S. Strength
The greatest danger posed from the lawfare discussion is philosophical, as it re-characterizes the very nature of our laws and institutions. Any overt attempt to utilize the law to advance U.S. interests, rather than utilizing it as a behavioral norm, creates a legal system resting solely on “might makes right.” Such a philosophical change strikes at the foundation of our culture and plays directly into the revisionist powers’ narrative of grievance and victimhood.
Aristotle said the law is “part natural, part legal – natural, that which everywhere has the same force and does not exist by people’s thinking this or that.” Thomas Aquinas wrote “A human law that deviates from the law of nature is no longer a law but a corruption of law.” John Locke argued “reason, which is the law . . . teaches all mankind . . .” In sum, the law is an objective power aligned with natural law, not a tool for the government to manipulate to its own interests and advantage.
In fact, when the government seeks to detach the law from objective reason for its own ends, it becomes an “unjust law” which should no longer be observed. These are not mere philosophical quibbles. Aristotle, Aquinas, Locke and King are guiding lights of our civilization. Michael Walzer in Just and Unjust Wars argues laws and moral conventions of war are not mere tools of policy but reflect a shared “war convention.”
Thus, the very term lawfare undermines the legitimacy of our system, rendering the law no more than a use of governmental brute force. When lawfare scholars write “The U.S., too, can wield law as a weapon of war . . .” or argue law can be used instrumentally as a tool in the national security arsenal, it is an affront to the notion of an objective law, aligned with natural law, and verifiable by reason. Instead, through lawfare the U.S. would use the law to gain advantage rather than as a natural objective disconnected from the national interest. Law becomes policy, not moral and ethical norms.
Well-resourced counter-lawfare programs at INDOPACOM and elsewhere, while aimed at defensive awareness, can inadvertently normalize the view that law is merely another domain to be contested rather than an objective normative framework. Creating programs which counter adversary’s lawfare efforts legitimizes the very same efforts it seeks to stop.
Rather than treating the adversary’s efforts as apostate to the law, it unintentionally allows to the law to become a domain of raw power. The “security dilemma” – an international relations concept holding actions to bolster a state’s own security, even in the defensive, make other nations inadvertently feel less secure – holds true in lawfare just as an any other domain.
Thus, China and Russia can frame any U.S. lawfare (or counter-lawfare) effort as another grievance: Western imperialism seeking to advance U.S. interests. If lawfare becomes part of our national strategy, our international allies and partners may ask themselves what will happen when U.S. interests do not align with the legal protections afforded to nations who play by the rules.
The term lawfare would quickly become synonymous with the Melian dialogue, where might makes right. Meanwhile, Beijing and Moscow would more successfully advance a self-interested narrative that the law guarded by the U.S. is built solely for Western advantage, making it a valid object to dismantle.
Conclusion
Lawfare is a helpful and constructive term which is now overextended. Lawfare should continue to be studied. But repackaging lawfare as warranting a national strategy or to be treated as a weapon or instrument of power is counterproductive to U.S. interests. While retaining relevance in many contexts, lawfare too often metastasizes into a narrative of unwarranted strategic anxiety.
Battlefield exploitation will have limited impact in a near-peer conflict and modern U.S. adversaries have not deployed it in a manner to produce durable strategic gain. More importantly, if the U.S. were to take the advice of certain lawfare academics and treat the law as a weapon or instrument of power, it delegitimizes a foundation of U.S. civilization and power.
Lawfare has its limits.
About the Author
Lt Col John Reid is an Air Force Judge Advocate, and a 2026 graduate of the National Defense University. He has served as a staff judge advocate and deputy staff judge advocate at a number of commands, as well as an Area Defense Counsel and as an Assistant Professor of Law. He earned a Bachelor of Arts in History, Magna Cum Laude, from Eastern Nazarene College, Quincy, MA, in 2006, and a Juris Doctor, Magna Cum Laude, from Suffolk University Law School, Boston, MA
Disclaimers
The views expressed are those of the author and do not reflect the official policy or position of the National Defense University, the Air Force, the Department of War/Defense or the U.S. Government. The article was written independently of the author’s academic studies at NDU)
The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. (See also here).
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
