By Francisco Lobo
This year the Stockdale Center for Ethical Leadership at the U.S. Naval Academy held the “2021 McCain Conference: The Ethics of Intelligence and Grey Zone Operations.” The last session of the Conference was devoted to the topic of ‘Lawfare.’ Despite enjoying doctrinal recognition in contemporary literature, this portmanteau combining the words “law” and “warfare” is admittedly still difficult to grasp among practitioners. This may stem from its relative short life, as well as from some lack of clarity surrounding its conceptual contours.
Although it was popularized by U.S. Air Force Colonel Charles J. Dunlap in a 2001 address on law and military interventions within the framework of the then incipient war on terror,[1] the origin of the concept of lawfare can be traced back to an obscure 1975 book chapter written by two Australian legal experts: John Carlson and Neville Yeomans. The chapter, titled “Whither Goeth the Law – Humanity or Barbarity,” contrasts the Chinese and oriental dispute resolution tradition focusing on humanity and mediation with the Western tradition, which is reportedly more legalistic and aggressively adversarial or combative. Thereby, what happens in Western courtrooms is that “The search for truth is replaced by the classification of issues and the refinement of combat. Lawfare replaces warfare and the duel is with words rather than swords”[2] (emphasis added). Interestingly, there have been some recent attempts to inform this metaphorical view of the law with the same ethical values of honor and fair play undergirding the military profession.[3]
Yet, a concept that initially conveyed a metaphor to describe a particularly aggressive legal tradition became, in the pen of Dunlap, a descriptor of a literal relationship between law and warfare: “I now define ‘lawfare’ as the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.”[4]
Now, the most comprehensive taxonomy of lawfare thus far has been developed by Orde Kittrie.[5] Besides Dunlap’s canonical definition, which has come to be accepted as neutral in normative terms, Kittrie identifies two further uses of the word ‘lawfare’[6]: (a) one to illustrate an ingrained contestation within American society around matters of national security and, in particular, the role law plays in the wars waged by the U.S., as seen in the renowned blog “Lawfare: Hard National Security Choices;” (b) another corresponding to a purely negative connotation that conveys the abuse of Western laws and judicial systems to achieve strategic military or political ends, as used by the advocacy group called the “Lawfare Project,” and closer to the original, metaphorical use of the term. This latter connotation has been further denounced in recent years by some South American politicians who claim that legal procedures have been instituted against them for political gain.[7] It arguably also reflects the failed strategy followed by Trump supporters before U.S. courts to challenge the results of the 2020 presidential election.
Returning to Dunlap’s conception, Kittrie presents a subclassification of lawfare into the following two categories:
(i) “Instrumental lawfare,” or the instrumental use of legal tools to achieve the same or similar effects as those traditionally sought from conventional kinetic military action – which we could also call “lawfare proper” or “traditional lawfare.” For instance, filing a lawsuit in a domestic court seeking an injunction to prevent a ship from carrying weapons to a warzone on the basis that the vessel lacks the proper maritime insurance. According to Kittrie, the Chinese have become alarmingly proficient at waging this type of lawfare, under the label “legal warfare.”[8] Other authors believe that other countries too, especially the U.S. and Israel, have grown very keen of using legal advice in the service of targeted killings, otherwise known as “juridical warfare.”[9]
(ii) “Compliance-leverage disparity lawfare,” that is, actions performed on the kinetic battlefield to gain advantage from the greater influence that law exerts over an adversary, for instance, the use of human shields that prevent a law-abiding belligerent from targeting an objective.[10]
Summing up, we find that there are two main groups or families of lawfare conceptions: first, a more expansive group of uses that may or may not relate to armed conflict, corresponding to the Lawfare Blog (letter a above) and the Lawfare Project (letter b above); and a more restrictive set of conceptions anchored in armed conflict, corresponding to lawfare proper (number i above) and to compliance-leverage disparity lawfare (number ii).
Despite all these doctrinal developments, the term ‘lawfare’ remains covered under a shroud of conceptual ambiguity and political contestation. In particular, outside of the context of an armed conflict, it is far from clear how ‘lawfare’ as used, for instance, by the Lawfare Project, differs from other instrumental uses of the law for policy purposes, namely strategic human rights litigation and “folk international law,” that is, the “law-like discourse that relies on a confusing and soft admixture of IHL [International Humanitarian Law], jus ad bellum, and IHRL [International Human Rights Law] to frame operations that do not, ultimately, seem bound by international law.”[11]
On the other hand, within the context of an armed conflict, it is not clear either how ‘compliance-leverage disparity lawfare’ differs from more familiar phenomena such as terrorism, war crimes, and ‘dirty wars’ in general. Further, it may be argued that ‘lawfare proper’ or ‘instrumental lawfare’ has been known of old under a different name whenever belligerents resort to non-military means to achieve strategic foreign policy goals: diplomacy, or in the more convoluted formula used by Kittrie, “proactive legal public diplomacy.”[12] Diplomacy, understood as a system of structured communication between parties, certainly does not, or should not, cease to operate among countries during an armed conflict.
This brings us to the essence of war, diplomacy and the law as discrete fields with a common substance: they are all instruments of politics. In the words of David Kennedy: “the modernization of the law in war has transformed it into a vocabulary for assessing military conduct in war that merges what once were autonomous legal distinctions, ethical principles, and pragmatic military calculations – and placed them all in the service of a broad political process through which the legitimacy and illegitimacy of military conduct is assessed”[13] (added emphasis).
Following Clausewitz,[14] Dunlap also underscores the political dimension of both warfare and the law (in the form of lawfare).[15] And as a technique to regulate human behavior,[16] the law is quintessentially political insofar as, although individual rights need to always be respected if they are to be taken seriously,[17] the law is ultimately the result of political differences turned into actionable agreement.[18] Even the concept of the ‘rule of law,’ sometimes contraposed to teleological reasoning,[19] has a significant instrumental dimension.[20]
Ultimately, what warfare, diplomacy, and the law as applied to both have in common is that they are all instruments to be found in the toolkit of ‘statecraft,’ broadly understood as the art of conducting state affairs or governing a country, both home and abroad.
A good example of the interplay between all these factors is provided by Dunlap, when he refers to the establishment by U.S. forces of a ‘Rule of Law Complex’ in Baghdad, both for boosting the counterinsurgency strategy in Iraq, as well as to foster the development of legal infrastructure in the war-torn country.[21] This capacity-building effort to shore up Iraq’s ability to administer justice within its sovereign territory was ‘statecraft’ at its purest.
Although the term ‘statecraft’ has been displaced by that of
‘global governance’ in recent decades, states remain key actors in
international relations. Since the modern language of global governance is
rather reluctant to include warfare and the use of force within its toolkit,[22] I
believe that the traditional concept of statecraft can more easily accommodate
the notions of war, law, and ‘lawfare’ under a more comprehensive portmanteau
that encompasses both peaceful and forceful manifestations of statecraft in
foreign policy through the institutionalist language of international law: ‘Lawcraft,’
namely, law in the service of contemporary statecraft and foreign policy.
Francisco Lobo is a Doctoral Researcher, Department of War Studies, King’s College London. LL.M. in International Legal Studies, NYU. LL.M. in International Law, LL.B., University of Chile. Lecturer of Legal Theory and International Law. Email address: francisco.lobo@kcl.ac.uk
[1] Dunlap, Charles J. “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts,” in Humanitarian Challenges in Military Intervention Conference, Carr Center for Human Rights Policy, Kennedy School of Government, Harvard University, Washington D.C., 29 November 2001.
[2] Carlson, John and Yeomans, Neville. “Whither Goeth the Law – Humanity or Barbarity.” In: Smith, M. and Crossley, D. (eds.). The Way Out – Radical Alternatives in Australia. Melbourne: Landsowne Press, 1975. Available at www.laceweb.org.au/whi.htm (last visited 30 July 2021).
[3] Hutchinson, Allan C. Fighting Fair. Legal Ethics for an Adversarial Age. New York: Cambridge University Press, 2015.
[4] Dunlap, Charles J. “Lawfare Today: A Perspective,” in Yale Journal or International Affairs, No. 3 (2008), pp. 146-154.
[5] Kittrie, Orde. Lawfare. Law as a Weapon of War. New York: Oxford University Press, 2016.
[6] Ibid., p. 7.
[7] “Qué es el ‘Lawfare’, el término que usó Cristina Kirchner para descalificar las acusaciones en su contra,” Universidad Torcuato Di Tella. Available online: https://www.utdt.edu/ver_nota_prensa.php?id_nota_prensa=17775&id_item_menu=6 (last visited 2 August 2021).
[8] Kittrie, op. cit., pp. 3-5; 161-195.
[9] Jones, Craig. The War Lawyers. The United States, Israel, and Juridical Warfare. Oxford: Oxford University Press, 2020.
[10] Kittrie, op. cit., p. 11.
[11] Modirzadeh, Naz. “Folk International Law: 9/11 Lawyering and the Transformation of the Law of Armed Conflict to Human Rights Policy and Human Rights Law to War Governance,” in Harvard National Security Journal, Vol. 5 (2014), pp. 225-304.
[12] Kittrie, op. cit., p. 270.
[13] Kennedy, David. Of War and Law. Princeton: Princeton University Press, 2006, pp. 97-98.
[14] Clausewitz, Carl von. On War. New York: Oxford University Press, 2008, p. 28.
[15] Dunlap, Charles J. “Lawfare: A Decisive Element of 21st Century Conflicts?,” in Joint Forces Quarterly 54, No. 3 (2009), pp. 34-39.
[16] Kelsen, Hans. General Theory of Law and State. Cambridge: Harvard University Press, 1949, p. 15; Kelsen, Hans. Pure Theory of Law. 2nd ed. Clark: The Lawbook Exchange, 2005, pp. 24, 30.
[17] Dworkin, Ronald. Taking Rights Seriously. Cambridge: Harvard University Press, 1978.
[18] Waldron, Jeremy. Law and Disagreement. New York: Oxford University Press, 2004.
[19] Kittrie, op. cit., p. 33.
[20] Raz, Joseph. The Authority of Law. New York: Oxford University Press, 1979, pp. 210-218.
[21] Dunlap, op. cit. (2008), p. 147.
[22] Zürn, Michael. A Theory of Global Governance: Authority, Legitimacy, and Contestation. Oxford: Oxford University Press, 2018.