Is lawfare worth defining? Report of the Cleveland experts meeting September 11, 2010.

• Position: Symposium: Lawfare

1. INTRODUCTION

   On September 10-11, 2010, Case Western Reserve University School of Law hosted a symposium and experts meeting on the question of what is "lawfare" and how should the United States and its allies best respond to it? The event was funded by the Wolf Family Foundation, organized by the Frederick K. Cox International Law Center, and co-sponsored by the American Society of International Law, the International Association of Penal Law (American National Section), International Law Association (American Branch), the Inamori International Center for Ethics and Excellence, and the Public International Law and Policy Group.

   The Cleveland Experts Meeting was chaired by Elizabeth Andersen, the Executive Director of the American Society of International. Of the two dozen other participants in the Experts Meeting, several were current or former Judge Advocate General (JAG) lawyers (Gregory Noone, Sandy Hodgkinson, Michael Lebowitz, Charles Dunlap, Michael Newton, David Crane, and David Frakt). Additional participants were former government or international organization officials who had experience as practitioners in international criminal law and the law of armed conflict (David Scheffer, Justice James Ogoola, Robert Petit, William Schabas, Michael Scharf, Paul Williams, Orde Kittrie, Jamie Williamson, and Melissa Waters). The remaining participants consisted of leading academic experts on the law of armed conflict (William Aceves, Tania Ansah, Laurie Blank, Shannon French, Scott Horton, Jens Meierhenrich, Leila Nadya Sadat, Robert Strassfeld, Susan Tiefenbrun, and Wouter Werner). (1) The experts participated in their individual/personal capacities and not as representatives of their respective countries, organizations, or institutions.

   The hope was that the Experts Meeting could develop one or more useful definitions of "lawfare," develop strategies to prevent the misuse of the term, and determine whether legal institutions were equipped to respond to "lawfare."

   In accordance with the understanding of the participants, this report follows the "Chatham House Rule"; therefore, the views of particular experts remain unidentified in the text. In some places, the discussion has been re-ordered to enhance organizational clarity.

2. HISTORY OF THE TERM "LAWFARE"

   The term "lawfare" does not yet appear in the Oxford English Dictionary. Prior to 2001, the term was used sporadically in a variety of contexts. The term was popularized that year in a speech at Harvard University by Major General Charles Dunlap, who defined it as "a strategy of using-or misusing--law as a substitute for traditional military means to achieve an operational objective." (2) As originally envisioned by Dunlap, "lawfare" was a neutral term. It was designed as a sort of "bumper sticker" to help military personnel understand why the law needs to be incorporated into their thinking and planning.

   In recent years, the term has been used by groups and commentators in an array of ways, many of which mean something quite different from Dunlap's original conception. Today, "lawfare" is used most commonly as a label to criticize those who use international law and legal proceedings to make claims against the state, especially in areas related to national security. This definition has been popularized by a neo-conservative-sponsored group called "The Lawfare Project," (3) whose website lists as examples of "lawfare" the case brought to the International Court of Justice on the legality of Israel's security barrier, human rights cases sponsored by organizations sympathetic to the Palestinian cause, and litigation in support of terrorist detainees. (4) "Lawfare" has also been used to describe the nefarious exploitation of international law for propaganda purposes by, for example, orchestrating civilian deaths. (5)

   The assembled Experts recognized that, however defined, "lawfare" is a potentially powerful term that reflects the importance of law in the conflicts of the twenty-first century.

3. HAS THE ACADEMY ALREADY LOST CONTROL OF THE CONCEPT OF LAWFARE?

   Two fundamental debates regarding the definition of "lawfare" pervaded the expert discussion. The first was whether the term should be identified empirically--based on its usage up to the present---or normatively-based on an agreed-upon more appropriate definition. The second debate was whether academicians and legal experts should use the term at all, noting that using the term "lawfare" itself potentially undermined respect for the rule of law.

   Some participants believed that "lawfare," if defined narrowly, could be a useful term, but as described in more detail below there was little consensus on how best to define the term. Most participants agreed, however, that the reactive, "right-wing" concept of "lawfare" constituted a "hijacking" of the term and should be rejected. Not everyone thought that such a rejection was possible, though, and some of the experts expressed the view that now that others have widely propagated an alternative definition of the term, the academy has lost the initiative and would be fighting a futile cause in trying to recapture the concept as a neutral term.

   While some of the experts wished to see "lawfare" retain its utility as a useful label for legal and military professionals, others believed that regardless of the term's usefulness in its original military context, it had lost its usefulness when it began to be applied more broadly. Explaining why "lawfare" should not become a field of academic inquiry, one participant stated that the military implications of the term were "shocking in a civilian context."

   Some participants took the very existence of an empirical-normative debate to imply that the academy has already lost the initiative, and that "lawfare" has morphed into and will remain a term describing perceived wrongful uses of the law to achieve political or military ends. These experts opined that if a term encompassing the more "positive" uses of "lawfare" were needed, a separate term should be crafted. There was not, however, unanimity on this point, with some arguing that alternate definitions of "lawfare" have already made headway in the arena of public debate.

   They noted that while an Internet search in the spring of 2010 would likely have disclosed hundreds of references to the "Lawfare Project" definition, in recent months alternative definitions have been gaining in exposure. (6)

   Some of the participants believed that regardless of what experts think about use of the term "lawfare" and its various definitions, the term is already so widespread that it cannot be "de-invented." They opined that the term will likely remain in use, but it will not necessarily be limited to a single definition. They pointed out that "lawfare" is likely to join the ranks of the many terms in the dictionary that have alternative definitions.

   One participant warned that any attempt to develop a generally agreed upon definition of "lawfare" would likely encounter problems similar to efforts to pin down an accepted definition of fundamental concepts in international humanitarian law (IHL), such as the term "genocide," (7) noting that certain problematic concepts within definitions can easily "blow up in the face" of academics looking for a hard and fast definition. It was suggested that if the goal was to use "lawfare" to describe attempts by enemies to use the law of armed conflict to gain a strategic advantage over or constrain U.S. or allied military forces, the definition should be limited accordingly. Another participant echoed this sentiment, noting that "the term now has come to mean so much more than what it was originally supposed to," thereby weakening its overall usefulness.

   Concern that the term has been "hijacked" by neo-conservative interests spurred one participant to argue that any attempt to "reclaim and revalidate the proper exercise of the law" in the face of right-wing definitions of "lawfare" essentially plays into the hands of the "hijackers." The expert added that debating whether existing legal tools such as tribunals and international criminal indictments fit into "lawfare" is not constructive. Such tools, it was argued, have existed for many years and whether they are used appropriately or not will ultimately depend on whether the legal institutions "follow the law and the evidence."

   Another participant, arguing on similar lines, stated that any attempt to define "lawfare" in such a way that academics could "box it in" to a military context would fail and would be contrary to the purpose of public international law. The value added by public international lawyers, it was argued, is the development of frameworks and parameters in which concepts such as "lawfare" can be subject to broad analysis and scrutiny.

   Given the widespread disagreement on definition, some thought that "lawfare" may not be "a particularly useful term" and may serve simply as "an invented phenomenon" useful only to anti-international humanitarian law "hijackers" as a tool of intimidation. Others added that neo-conservative scholars had attempted to seize the concept of"lawfare" as part of a broader effort to make a case for unrestrained action by the U.S. president in the "global war on terror." (8) Such scholars argue that international law is neither "real law" nor a "real constraint," and that "lawfare" was essentially an illegitimate tactic used by foreign enemies to handicap the United States' ability to fight terrorism. To refute that view, one of the participating experts had recently published a book based on interviews with former Department of State Legal Advisers, going back thirty years, which showed that international law has, in fact, traditionally been viewed by policymakers as "real" and as a legitimate constraint on actions that would contravene treaties and customary international...