Lawfare: a war worth fighting.

• Author: Williams, Paul R.
• Position: Symposium: Lawfare

Good morning. It is a great honor to be at Case Western Reserve University School of Law to discuss the topic of lawfare. I have titled my speech, "Lawfare: A War Worth Fighting," because I firmly believe that lawfare exists and is used every day by both those seeking to achieve legitimate ends and those seeking to achieve illegitimate ends. Lawfare is a war worth fighting; failing to fight lawfare could seriously jeopardize your client's interests, and, more importantly, it could jeopardize your ability to help bring an end to a violent conflict or prosecute those responsible for crimes committed during a conflict.

I often remind my clients involved in peace negotiations that the gains achieved on the battlefield and the gains achieved at the negotiating table--as they fight for peace--can in fact be lost in the fine print of peace agreements, U.N. Security Council resolutions, and decisions of international tribunals. Just as it is the job of the national army to fight for the territorial integrity of the state, the job of rebels to fight for legitimate self-determination, and the job of peace delegates to fight for a lasting peace at the table, it is certainly the job of lawyers to engage in both defensive and offensive lawfare to protect the interest of their clients.

Let's begin though with a definition of lawfare. In my view, "lawfare" is conducted when a party uses or misuses law or legal mechanisms with the intent of securing a political or military advantage over the opposing party. Importantly, the ordinary application of international law and the law of armed conflict--international humanitarian law--does not constitute "lawfare".

This morning, I would like to point out three similarities between legal mechanisms and processes and warfare that I think support the notion that lawfare is a useful concept. The first is that they often pursue the same objectives; the second is that they have a broadly similar approach for accomplishing these objectives--strategic, operational, and tactical; and the third is that lawfare, as part of a conflict resolution approach, is often times fought before the hot conflict, during the hot conflict, and after the hot conflict. In fact, we often find much more of a temporal engagement of lawfare than we do warfare in the process of conflict resolution.

Let us turn to the first similarity--that lawfare and warfare often seek to accomplish the same objectives. The articles of Retired General Charles Dunlap and Professor Wouter Werner in this issue details the notion of Carl von Clausewitz that war is simply a continuation of politics by other means. I think that lawfare plays this role in two situations. First, international law and the use of international mechanisms can also easily be used as a continuation of politics by other means. But possibly more importantly, lawfare is also a continuation of the objectives of warfare by other means.

To investigate this point, let us examine the three primary actors in a peace process--the parties to the negotiation, the mediators, and their lawyers--and what they are trying to accomplish. I have been struck in my work in over two dozen peace negotiations in the last decade and a half at the asymmetrical understanding and utilization of lawfare by the parties. Often times it is the international mediation team that is not only most unprepared to engage in lawfare, but oblivious to the fact that one of the parties is effectively conducting lawfare in the arena prepared by the mediators. (1)

The reason for the lack of understanding of the nature of lawfare can be traced back to the trend identified by Professor Wouter that mediators--and often parties--are seduced by the notation that law and legal mechanisms are a neutral force, and that only parties have positions of interest. One of the most detrimental things a mediator or a lawyer can do is to assume that the law is neutral, the legal mechanisms are neutral, and that only the parties have positions.

I have seen a number of cases where mediators and parties in a peace process have thought, "Oh, we'll take our political disagreement, our disagreement over the use of force, and we'll just put it to a neutral legal mechanism, or just apply neutral legal principle, okay we can take it and put it in a process outside the peace process." If the other side is actually fighting a very aggressive campaign of lawfare and if your clients see this as neutral and therefore put it to the side and out of the conflict resolution environment, and into the legal environment, and get back to negotiating the more "serious" issues, they will find that there will be a rear guard action that they will have to fight or if they fail to fight, it will be devastating.

I have also been deeply surprised that mediators often times assume that the parties in a conflict, simply because they have come to Geneva, Doha, Rambouillet, or Paris, and because they have momentarily put aside their weapons, have also put aside their objectives that...