Does lawfare need an apologia?

• Author: Dunlap, Charles J., Jr.
• Position: Symposium: Lawfare

Few concepts in public international law are more controversial than lawfare. This essay contends that lawfare is best appreciated in the context of its original meaning as an ideologically neutral description of how law might be used in armed conflict. It emphasizes that although law may be manipulated by some belligerents for nefarious purposes, it can still serve to limit human suffering in war. In discussing the current state of the concept of lawfare, the essay reviews several contentious areas, and recognizes the concerns of critics. The paper concludes that lawfare is still a useful term, and is optimized when it is employed consistent with its original purpose of communicating to non-specialists how law can serve as a positive good in modern war as a nonviolent substitute for traditional arms.

1. INTRODUCTION II. LAWFARE AS AN AMERICAN WEAPON III. THE CHALLENGE FOR PRACTITIONERS A. The Remotely-Piloted Aircraft Debate B. Airstrike Restrictions and Self-Inflicted Lawfare C. Lawfare and the Goldstone Report D. U.S. Litigation: Lawfare? IV. LAWFARE'S CRITIC'S LEGITIMATE CONCERNS V. CONCLUSION I. INTRODUCTION

   Whatever one might think of the concept of lawfare, there is no denying the truly remarkable velocity with which it has achieved notoriety among aficionados of international law. Less than a decade ago, "lawfare" was very much an obscure term, and its limited use was almost entirely unrelated to the interpretation that today makes it a central feature of 21st century conflicts. (1)

   Initially, the modernized definition of "lawfare" was simply "the use of law as a weapon of war." (2) The latest permutation of this writer's interpretation is a bit more elaborate, holding that "lawfare" is a "strategy of using--or misusing--law as a substitute for traditional military means to achieve an operational objective." (3) Admittedly, this construct of lawfare is not, as will be discussed below, universally accepted.

   To be clear, "lawfare" was never meant to describe every possible relation between law and warfare. It focuses principally on circumstances where law can create the same or similar effects as those ordinarily sought from conventional warmaking approaches. (4) In military terms, lawfare represents a form of effects-based operations. (5) Generally speaking, effects-based operations reflect an approach to warfare that is not preoccupied with particular methodologies, but rather on actions "designed to achieve specific effects that contribute directly to desired military and political outcomes." (6) Law often can do that just as successfully as more violent means. Furthermore, the term was always intended to be ideologically neutral, that is, harking back to the original characterization of lawfare as simply another kind of weapon, one that is produced, metaphorically speaking, by beating law books into swords. (7) Although the analogy is imperfect, the point is that a weapon can be used for good or bad purposes, depending upon the mindset of those who wield it. Much the same can be said about the law.

   To some critics, lawfare's expectation that "bad" people will sometimes be able to use--or abuse--the law to further nefarious purposes is offensive, as it is to them tantamount to saying that there is something inherently "bad" about the law. This is hardly true. Just because the law is available, for example, to the most evil of criminals who may avail themselves of its protections from time to time does not mean that the law acquires the attributes of the criminal. Nor does it mean, incidentally, that those lawyers who assist such persons in securing their legal rights necessarily share their malevolent intent. (8)

   It merely means that law--at least ideally--has established norms that, on balance, best serve society as a whole even when it has the effect of protecting people many find odious and even dangerous. There is also no question that society may pay a harsh price in certain instances for its adherence to law. Overall, however, it is indisputable that the public enjoys enormous benefits from the social order law creates--notwithstanding that occasionally evildoers determined to disrupt that social order are among those who profit from the rights and liberties the law produces and protects.

2. LAWFARE AS AN AMERICAN WEAPON

   Despite the lawfare's frequent negative characterization as a tool of terrorists, it is vital to remember that it is not restricted to one side of a conflict. (9) As I have often tried to show, actions that could be characterized as "lawfare" have been carried out by the United States, and properly so. For example, prior to operations in Afghanistan in 2001, the U.S.'s purchase of exclusive rights to selected commercial satellite imagery eliminated the need to explore military means to deny such data to hostile forces. (10)

   Legal 'weaponry' can have effects utterly indistinguishable from those produced by their kinetic analogs. During the 2003 invasion, for example, the Iraqi Air Force found itself hobbled by a legal device--sanctions--as effectively as by any outcome from traditional aerial combat. (11) By preventing the acquisition of new aircraft, as well as spare parts for the existing fleet, Iraqi airpower was so debilitated that not a single aircraft rose in opposition to the coalition air armada. (12)

   In counterinsurgency (COIN) situations such as those in Iraq and Afghanistan, senior commanders now insist that "enhancing the rule of law" is critical to securing the population from insurgents, a condition fundamental to COIN success. (13) Thus, current military doctrine calls establishing the rule of law "a key goal and end state in COIN," and the armed forces have developed sophisticated processes to achieve that objective. (14) One might rightly describe this as a classic lawfare strategy, and one that is a markedly more pacific alternative to COIN strategies that try, as one officer described them, to "kill or capture every bad guy in the country." (15)

   Furthermore, the complex problem of global terrorism that typically involves non-state actors is a challenge for which lawfare is especially well-suited to confront. For example, using legal means to "attack the funding of terrorist groups" is a core strategy to combat this unconventional threat. (16) What is more is that the parallel application of legal weaponry coincident with more traditional arms can have an exceptionally productive synergistic effect.

   Quite recently the New York Times reported a number of legal offensives that have, as the Times put it, "ratcheted up the legal pressure on the Pakistani Taliban." (17) Specifically, the Department of Justice (DO J) issued a criminal complaint against the Hakimullah Mehsud, "the self-proclaimed emir of the Pakistani Taliban ... for his alleged involvement in the murder of seven American citizens on Dec. 30, 2009 at a U.S. military base in Afghanistan." (18)

   In separate but related action, the State Department officially designated the Pakistani Taliban as a "foreign terrorist organization" and Mehsud himself--along with another associate--as "specially designated global terrorist[s]"--which has the effect of criminalizing material support provided them. (19) For good measure, the State Department's lawfare maneuvering includes deployment of a unilateral contract in the form of a five million dollar reward as a strategy to obtain information leading to their capture. (20)

   Nothing in these pronouncements suggests that other more violent efforts to "ratchet up the pressure" against these self-proclaimed Taliban members would abate. I would expect, for example, that the controversial remotely-piloted aircraft (RPA) strikes against such unprivileged belligerents would continue. (21) As members of an organized armed group engaged in hostilities against the United States, they are subject to applications of force under the law of armed conflict regime. (22)

   That the Taliban and other terrorists may simultaneously be subject to both law of armed conflict rules as well as law enforcement modalities is, in my view, consistent with a reasoned lawfare approach to non-state actors who choose to be both unprivileged belligerents and common criminals. From a normative perspective, the law must not reward those who, among other things, choose not to distinguish themselves from civilians when they engage in what they themselves describe as a war, or who chose to capitalize on contemporary information systems and commercial arrangements to participate in hostilities far remote from conventional battlefields.

   A lawfare strategy calls for bringing both legal architectures to bear against such threats. In military parlance, doing so operates to inject friction into the adversary's operations as he seeks to defend himself from legal assaults on diverse fronts.

   Lawfare can provide unique benefits, even for unprivileged belligerents. Specifically, if lawfare such as the DOJ and the State Department can be said to be waging works to limit the need for more militarized methodologies, so much the better for the health of the targets. This is lawfare plainly in service of international humanitarian law' s avowed purpose of attempting to "mitigate the human suffering caused by war." (23) In short, while lawfare may not eliminate human conflict, it can sometimes humanize that conflict by substituting juridical warfare for the more deadly variety. (24)

3. THE CHALLENGE FOR PRACTITIONERS

   Importantly, lawfare was not--and is not--intended to assuage the penchant of academics and policy enthusiasts to put all human activity into some designated theoretical box suitable for explication in university texts. To paraphrase Steven Coll, lawfare is not law for northeastern graduate students. (25) Rather, the target audience is principally the "doers," and the goal of lawfare's development and use is wholly down-to-earth. (26) It was, and is, an effort to find a resonating "bumper sticker" to...