By Francisco Lobo <\/p>\n\n\n\n
This year the Stockdale Center for Ethical Leadership at the U.S.\nNaval Academy held the \u201c2021 McCain\nConference: The Ethics of Intelligence and Grey Zone Operations<\/a>.\u201d\nThe last session of the Conference was devoted to the topic of \u2018Lawfare<\/a>.\u2019 Despite\nenjoying doctrinal recognition in contemporary literature, this portmanteau\ncombining the words \u201claw\u201d and \u201cwarfare\u201d is admittedly still difficult to grasp\namong practitioners. This may stem from its relative short life, as well as\nfrom some lack of clarity surrounding its conceptual contours. <\/p>\n\n\n\n Although it was popularized by U.S. Air Force Colonel Charles J.\nDunlap in a 2001 address on law and military interventions within the framework\nof the then incipient war on terror,[1]<\/a>\nthe origin of the concept of lawfare can be traced back to an obscure 1975 book\nchapter written by two Australian legal experts: John Carlson and Neville\nYeomans. The chapter, titled \u201cWhither Goeth the Law \u2013 Humanity or Barbarity,\u201d\ncontrasts the Chinese and oriental dispute resolution tradition focusing on\nhumanity and mediation with the Western tradition, which is reportedly more\nlegalistic and aggressively adversarial or combative. Thereby, what happens in\nWestern courtrooms is that \u201cThe search for truth is replaced by the\nclassification of issues and the refinement of combat. Lawfare<\/em> replaces\nwarfare and the duel is with words rather than swords\u201d[2]<\/a>\n(emphasis added). Interestingly, there have been some recent attempts to inform\nthis metaphorical view of the law with the same ethical values of honor and fair\nplay undergirding the military profession.[3]<\/a><\/p>\n\n\n\n Yet, a concept that initially conveyed a metaphor to describe a\nparticularly aggressive legal tradition became, in the pen of Dunlap, a\ndescriptor of a literal relationship between law and warfare: \u201cI now define\n\u2018lawfare\u2019 as the strategy of using \u2013 or misusing \u2013 law as a substitute for\ntraditional military means to achieve an operational objective.\u201d[4]<\/a><\/p>\n\n\n\n Now, the most comprehensive taxonomy of lawfare thus far has been\ndeveloped by Orde Kittrie.[5]<\/a> Besides\nDunlap\u2019s canonical definition, which has come to be accepted as neutral in\nnormative terms, Kittrie identifies two further uses of the word \u2018lawfare\u2019[6]<\/a>: (a)\none to illustrate an ingrained contestation within American society around\nmatters of national security and, in particular, the role law plays in the wars\nwaged by the U.S., as seen in the renowned blog \u201cLawfare: Hard National Security Choices<\/a>;\u201d (b)\nanother corresponding to a purely negative connotation that conveys the abuse\nof Western laws and judicial systems to achieve strategic military or political\nends, as used by the advocacy group called the \u201cLawfare Project<\/a>,\u201d and closer to the original, metaphorical\nuse of the term. This latter connotation has been further denounced in recent\nyears by some South American politicians who claim that legal procedures have\nbeen instituted against them for political gain.[7]<\/a> It\narguably also reflects the failed strategy<\/a>\nfollowed by Trump supporters before U.S. courts to challenge the results of the\n2020 presidential election. <\/p>\n\n\n\n Returning to Dunlap\u2019s conception, Kittrie presents a\nsubclassification of lawfare into the following two categories: <\/p>\n\n\n\n (i) \u201cInstrumental\nlawfare,\u201d or the instrumental use of legal tools to achieve the same or similar effects as those traditionally\nsought from conventional kinetic military action \u2013 which we could also call \u201clawfare proper\u201d or \u201ctraditional\nlawfare.\u201d For instance, filing a lawsuit\nin a domestic court seeking an injunction to prevent a ship from carrying weapons to a warzone on the basis that\nthe vessel lacks the proper maritime insurance. According to Kittrie, the Chinese have become alarmingly\nproficient at waging this type of\nlawfare, under the label \u201clegal warfare.\u201d[8]<\/a>\nOther authors believe that other countries too,\nespecially the U.S. and Israel, have grown very keen of using legal advice in\nthe service of targeted\nkillings, otherwise known as \u201cjuridical warfare.\u201d[9]<\/a><\/p>\n\n\n\n (ii) \u201cCompliance-leverage\ndisparity lawfare,\u201d that is, actions performed on the kinetic battlefield to gain advantage from the\ngreater influence that law exerts over an adversary, for instance, the use of human shields that prevent a law-abiding\nbelligerent from targeting an\nobjective.[10]<\/a><\/p>\n\n\n\n Summing up, we find that there are two main groups or families of\nlawfare conceptions: first, a more expansive group of uses that may or may not\nrelate to armed conflict, corresponding to the Lawfare Blog (letter a above)\nand the Lawfare Project (letter b above); and a more restrictive set of conceptions\nanchored in armed conflict, corresponding to lawfare proper (number i above)\nand to compliance-leverage disparity lawfare (number ii).<\/p>\n\n\n\n Despite all these doctrinal developments, the term \u2018lawfare\u2019\nremains covered under a shroud of conceptual ambiguity and political\ncontestation. In particular, outside of the context of an armed conflict, it is\nfar from clear how \u2018lawfare\u2019 as used, for instance, by the Lawfare Project,\ndiffers from other instrumental uses of the law for policy purposes, namely strategic human\nrights litigation<\/a> and \u201cfolk international law,\u201d that is, the \u201claw-like discourse\nthat relies on a confusing and soft admixture of IHL [International\nHumanitarian Law], jus ad bellum, <\/em>and IHRL [International Human Rights\nLaw] to frame operations that do not, ultimately, seem bound by international\nlaw.\u201d[11]<\/a><\/p>\n\n\n\n On the other hand, within the context of an armed conflict, it is\nnot clear either how \u2018compliance-leverage disparity lawfare\u2019 differs from more\nfamiliar phenomena such as terrorism, war crimes, and \u2018dirty wars\u2019 in general.\nFurther, it may be argued that \u2018lawfare proper\u2019 or \u2018instrumental lawfare\u2019 has\nbeen known of old under a different name whenever belligerents resort to\nnon-military means to achieve strategic foreign policy goals: diplomacy, or in the\nmore convoluted formula used by Kittrie, \u201cproactive legal public diplomacy.\u201d[12]<\/a> Diplomacy,\nunderstood as a system of structured communication\nbetween parties<\/a>, certainly does not, or should not, cease to operate among\ncountries during an armed conflict.<\/p>\n\n\n\n This brings us to the essence of war, diplomacy and the law as\ndiscrete fields with a common substance: they are all instruments of politics. In\nthe words of David Kennedy: \u201cthe modernization of the law in war has\ntransformed it into a vocabulary for assessing military conduct in war that\nmerges what once were autonomous legal distinctions, ethical principles, and\npragmatic military calculations \u2013 and placed them all in the service of a\nbroad political process<\/em> through which the legitimacy and illegitimacy of\nmilitary conduct is assessed\u201d[13]<\/a>\n(added emphasis).<\/p>\n\n\n\n Following Clausewitz,[14]<\/a>\nDunlap also underscores the political dimension of both warfare and the law (in\nthe form of lawfare).[15]<\/a>\nAnd as a technique to regulate human behavior,[16]<\/a>\nthe law is quintessentially political insofar as, although individual rights\nneed to always be respected if they are to be taken seriously,[17]<\/a>\nthe law is ultimately the result of political differences turned into\nactionable agreement.[18]<\/a>\nEven the concept of the \u2018rule of law,\u2019 sometimes contraposed to teleological\nreasoning,[19]<\/a>\nhas a significant instrumental dimension.[20]<\/a><\/p>\n\n\n\n Ultimately, what warfare, diplomacy, and the law as applied to both\nhave in common is that they are all instruments to be found in the toolkit of\n\u2018statecraft,\u2019 broadly understood as the art of conducting state affairs or\ngoverning a country, both home and abroad. <\/p>\n\n\n\n A good example of the interplay between all these factors is\nprovided by Dunlap, when he refers to the establishment by U.S. forces of a\n\u2018Rule of Law Complex\u2019 in Baghdad, both for boosting the counterinsurgency\nstrategy in Iraq, as well as to foster the development of legal infrastructure in\nthe war-torn country.[21]<\/a>\nThis capacity-building effort to shore up Iraq\u2019s ability to administer justice\nwithin its sovereign territory was \u2018statecraft\u2019 at its purest. <\/p>\n\n\n\n Although the term \u2018statecraft\u2019 has been displaced by that of\n\u2018global governance\u2019 in recent decades, states remain key actors in\ninternational relations. Since the modern language of global governance is\nrather reluctant to include warfare and the use of force within its toolkit,[22]<\/a> I\nbelieve that the traditional concept of statecraft can more easily accommodate\nthe notions of war, law, and \u2018lawfare\u2019 under a more comprehensive portmanteau\nthat encompasses both peaceful and forceful manifestations of statecraft in\nforeign policy through the institutionalist language of international law: \u2018Lawcraft,\u2019\nnamely, law in the service of contemporary statecraft and foreign policy. Francisco Lobo is a Doctoral Researcher, Department of War Studies, King\u2019s 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<\/p>\n\n\n\n [1]<\/a>\nDunlap, Charles J. \u201cLaw and Military Interventions: Preserving Humanitarian\nValues in 21st<\/sup> Century Conflicts,\u201d in Humanitarian Challenges in\nMilitary Intervention Conference, Carr Center for Human Rights Policy, Kennedy\nSchool of Government, Harvard University, Washington D.C., 29 November 2001.<\/p>\n\n\n\n [2]<\/a>\nCarlson, John and Yeomans, Neville. \u201cWhither Goeth the Law \u2013 Humanity or\nBarbarity.\u201d In: Smith, M. and Crossley, D. (eds.). The Way Out \u2013 Radical\nAlternatives in Australia. Melbourne: Landsowne Press, 1975. Available at www.laceweb.org.au\/whi.htm<\/a>\n(last visited 30 July 2021).<\/p>\n\n\n\n [3]<\/a>\nHutchinson, Allan C. Fighting Fair. Legal Ethics for an Adversarial Age. New\nYork: Cambridge University Press, 2015.<\/p>\n\n\n\n [4]<\/a>\nDunlap, Charles J. \u201cLawfare Today: A Perspective,\u201d in Yale Journal or\nInternational Affairs, No. 3 (2008), pp. 146-154.<\/p>\n\n\n\n [5]<\/a>\nKittrie, Orde. Lawfare. Law as a Weapon of War. New York: Oxford University\nPress, 2016.<\/p>\n\n\n\n [6]<\/a>\nIbid., p. 7. <\/p>\n\n\n\n [7]<\/a>\n\u201cQu\u00e9 es el \u2018Lawfare\u2019, el t\u00e9rmino que us\u00f3 Cristina Kirchner para descalificar\nlas acusaciones en su contra,\u201d Universidad Torcuato Di Tella. Available online:\nhttps:\/\/www.utdt.edu\/ver_nota_prensa.php?id_nota_prensa=17775&id_item_menu=6<\/a>\n(last visited 2 August 2021).<\/p>\n\n\n\n [8]<\/a>\nKittrie, op. cit., pp. 3-5; 161-195.<\/p>\n\n\n\n [9]<\/a>\nJones, Craig. The War Lawyers. The United States, Israel, and Juridical\nWarfare. Oxford: Oxford University Press, 2020.<\/p>\n\n\n\n [10]<\/a>\nKittrie, op. cit., p. 11.<\/p>\n\n\n\n [11]<\/a> Modirzadeh,\nNaz. \u201cFolk International Law: 9\/11 Lawyering and the Transformation of the Law\nof Armed Conflict to Human Rights Policy and Human Rights Law to War\nGovernance,\u201d in Harvard National Security Journal, <\/em>Vol. 5 (2014), pp.\n225-304.<\/p>\n\n\n\n [12]<\/a> Kittrie,\nop. cit., p. 270.<\/p>\n\n\n\n [13]<\/a>\nKennedy, David. Of War and Law. Princeton: Princeton University Press, 2006,\npp. 97-98.<\/p>\n\n\n\n [14]<\/a>\nClausewitz, Carl von. On War. New York: Oxford University Press, 2008, p. 28.<\/p>\n\n\n\n [15]<\/a>\nDunlap, Charles J. \u201cLawfare: A Decisive Element of 21st Century Conflicts?,\u201d in\nJoint Forces Quarterly 54, No. 3 (2009), pp. 34-39.<\/p>\n\n\n\n [16]<\/a> Kelsen,\nHans. General Theory of Law and State. Cambridge: Harvard University Press,\n1949, p. 15; Kelsen, Hans. Pure Theory of Law. 2nd<\/sup> ed. Clark: The\nLawbook Exchange, 2005, pp. 24, 30.<\/p>\n\n\n\n [17]<\/a>\nDworkin, Ronald. Taking Rights Seriously. Cambridge: Harvard University Press,\n1978.<\/p>\n\n\n\n [18]<\/a>\nWaldron, Jeremy. Law and Disagreement. New York: Oxford University Press, 2004.<\/p>\n\n\n\n [19]<\/a>\nKittrie, op. cit., p. 33.<\/p>\n\n\n\n [20]<\/a>\nRaz, Joseph. The Authority of Law. New York: Oxford University Press, 1979, pp.\n210-218.<\/p>\n\n\n\n
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