Illustrating illegitimate lawfare.

• Author: Newton, Michael A.
• Position: Symposium: Lawfare

Lawfare that erodes the good faith application of the laws and customs of warfare is illegitimate and untenable. This essay outlines the contours of such illegitimate lawfare and provides current examples to guide practitioners. Clearly addressing the terminological imprecision in current understandings of lawfare, this essay is intended to help prevent further erosion of the corpus of jus in bello. Words matter, particularly when they are charged with legal significance and purport to convey legal rights and obligations. When purported legal "developments" actually undermine respect for the application and enforcement of humanitarian law, they are illegitimate and ought to be reevaluated. Although the laws and customs of war create a careful balance between the smoke, adrenalin, and uncertainty of a modern battlefield, and the imperative for disciplined constraints on the unlawful application of force, inappropriate lawfare permits public perceptions to be manipulated. Illegitimate exploitation of the law in turn permits the legal structure to be portrayed as a mass of indeterminate subjectivity that is nothing more than another weapon in the moral domain of conflict at the behest of the side with the best cameras, biggest microphones, and most compliant media accomplices. In this manner, the globalized media can be misused to mask genuine violations of the law with spurious allegations and misrepresentations of the actual state of the law. Illegitimate lawfare is that which, taken to its logical end, marginalizes the precepts of humanitarian law and therefore creates strong disincentives to its application and enforcement. It logically follows that efforts to distort and politicize fundamental principles of international law should not be meekly accepted as inevitable and appropriate "evolution."

**********

The concept of "lawfare" remains captive to terminological imprecision that threatens to erode its utility as a guiding principle for the pursuit of U.S. strategic and tactical objectives. Illegitimate lawfare is that which clouds the correct state of the laws and customs of war, thereby feeding an undercurrent of suspicion and politicization that threatens to erode the very foundations of humanitarian law. A cursory Google search indicates, even for a layperson, that lawfare is subjected to an array of diametrically opposing discourse accompanied by conflicting intellectual and strategic overtones. (1) However, military commanders and their lawyers do not approach the law of armed conflict as an esoteric intellectual exercise precisely because the regime of modern international humanitarian law developed as a restraining and humanizing necessity to facilitate commanders' ability to accomplish the military mission even in the midst of fear, moral ambiguity, and horrific scenes of violence. At the tactical level, lawfare that attempts to impose a system of inappropriate and ill-conceived normative constraints on the application of military power deservedly generates a pejorative taint to the term.

The very purpose of the laws and customs of war would be frustrated if the legal regime for conducting hostilities were successfully co-opted by those seeking to exploit legal ambiguities to serve their military goals. Illegitimate exploitation of the law in turn permits the legal structure to be portrayed as nothing more than a mass of indeterminate subjectivity that is nothing more than another weapon in the moral domain of conflict at the behest of the side with the best cameras, biggest microphones, and most compliant media accomplices. There is therefore a very real danger that the media can be manipulated and used to mask genuine violations of the law with spurious allegations and misrepresentations of the actual state of the law. This in turn can lead to a cycle of cynicism and second-guessing that could weaken the commitment of some military forces to actually follow the law.

On the other hand, every effort to invoke legal processes on behalf of an entity or adversary with potentially hostile goals does not equal illegitimate lawfare. To be more precise, there is a fundamental difference between legal processes and "lawfare" as it is properly understood. Hence, the term "lawfare" should never be automatically conflated with the legitimate use of legal forums to vindicate and validate binding legal norms when they are in danger of being overwhelmed or replaced for the sake of expediency or political convenience. Every use of legal forums cannot be decried with a pejorative sneer as "lawfare" despite the inherent time and cost associated with litigation. After all, the quintessential purpose of law as a constraint on power is readily seen in the daily struggle to develop and defend the rights and prerogatives of individuals, organizations, and other entities against the power of states. By extension, the law itself serves the ends of sovereign states in their mutual relations. The development and enforcement of legal norms represents the ongoing and likely interminable effort to constrain anarchy and substitute societal stability, which is the precondition for the peaceful pursuit of commerce and the protection of human dignity at both the national and international planes. Conversely, the forms and forums for legal debate can on occasion be captured or deliberately exploited to serve the strategic interests of the enemy in an armed conflict. The purpose of this brief essay is to illustrate the contours of such illegitimate lawfare.

In one sense, the struggle to define the contours of the legal regime and to correctly communicate those expectations to the broader audience of civilians caught in the conflict is a recurring problem unrelated to the current evolution of warfare. Shaping the expectations and perceptions of the political elites who control the contours of the conflict are perhaps equally vital. The paradox is that as the legal regime applicable to the conduct of hostilities has matured over the last century, the legal dimension of conflict has at times overshadowed the armed struggle between adversaries. As a result, the overall military mission will often be intertwined with complex political, legal, and strategic imperatives that require disciplined focus on compliance with the applicable legal norms as well as the most transparent demonstration of that commitment to sustain the moral imperatives that lead to victory. In his seminal 1963 monograph describing the counterinsurgency in Algeria, counterinsurgency scholar David Galula observed that if "there was a field in which we were definitely and infinitely more stupid than our opponents, it was propaganda." (2) The events at Abu Ghraib are perhaps the most enduring example of what General Petraeus has described as "non-biodegradable events.'' (3) There are many other examples of events during conflict that strengthen the enemy even as they remind military professionals of the visceral linkage between their actions and the achievement of the mission. The United States doctrine for counterinsurgency operations makes this clear in its opening section

Insurgency and counterinsurgency (COIN) are complex subsets of warfare. Globalization, technological advancement, urbanization, and extremists who conduct suicide attacks for their cause have certainly influenced contemporary conflict; however, warfare in the 21st century retains many of the characteristics it has exhibited since ancient times. Warfare remains a violent clash of interests between organized groups characterized by the use of force. Achieving victory still depends on a group's ability to mobilize support for its political interests (often religiously or ethnically based) and to generate enough violence to achieve political consequences. Means to achieve these goals are not limited to conventional force employed by nation-states. (4) In the context of a globalized and interconnected international legal regime, the concept of lawfare originated as a descriptive term to convey the reality noted above that the legal dimension of operations is inextricably linked to the accomplishment of the mission. It is a compound word that conjoins two diverse fields in a way designed to resonate with an audience far wider than either legal professionals or experts in military doctrine. The most common popular understanding of lawfare is that legal norms have become an affirmative method of warfare by which an enemy can pursue a military objective rather than merely serving as a system for controlling the application of violence. The most precise understanding at present is that lawfare has become "the strategy of using--or misusing--law as a substitute for traditional military means to achieve an operational objective.'' (5) In practice, lawfare is widely seen in non-military audiences as an instrument of asymmetric warfare precisely because its use may help leverage the military power of an inferior force. In reality, lawfare has been used to help offset inferior military power as a vehicle for neutralizing superior military might through mobilization of negative political pressure and popular perceptions.

Lawfare originated as an ideologically neutral term despite the negative perceptions it carries for many current observers. Its subsequent morphing into an inappropriate offensive weapon of asymmetric warfare ought therefore to serve as a warning to watchful observers that the legal dimension of operations is increasingly important precisely because of the linkage to the nature of modern warfare. Commenting on the changing nature of conflict, General James Jones (the current National Security Advisor, then serving as the Supreme Allied Commander in Europe) remarked that it "used to be a simple thing to fight a battle ... a general would get up and say, 'Follow me, men,' and everybody would say, 'Aye, sir' and run off. But that's not the world anymore ... [now] you have to have a...