The Knight's Code, not his Lance.

• Author: Williamson, Jamie A.
• Position: Symposium: Lawfare

Inherent in the application of International Humanitarian Law (IHL) is finding the right balance between military necessity and humanitarian considerations. In doing so, the parties to the conflict will be called upon to interpret core principles and standards of IHL as they are applied in the conduct of military operations. At times, there might be disagreement as to the exact meaning and parameters of certain aspects of IHL. This paper argues against the suggestions by some commentators that in some situations, such interpretation of the law could be viewed as a form of "lawfare." It will also argue that a manipulation by belligerents of the law, for instance by hiding amongst the civilian population, is better described as a war crime than an act of lawfare.

1. INTRODUCTION II. TO DEFINE IS TO LIMIT III. A QUARREL ABOUT THE LAW IS NOT LAWFARE IV. CONCLUSION I. INTRODUCTION

   At the outbreak of armed conflicts, IHL, also known as the Laws of War, becomes the regulating legal framework for the parties to the conflict. This body of law includes the four Geneva Conventions of 1949 and Additional Protocols of 1977 and 2005, the Law of the Hague, and is also defined under customary international law. Because the laws of armed conflict call notably for a balancing act between military necessity and humanitarian considerations, there are at times differences in their interpretation, as with any other body of law, although the reach of most rules and principles are generally accepted. There is a wide agreement between States, military actors, humanitarians, academia, and other practitioners as to their meaning and how they should be applied in conflict. In fact, the Geneva Conventions

   are the only international treaties that have been universally ratified; all states have thus acquiesced to their principles and rules.

   Yet, consensus on the understanding of certain principles, such as proportionality and precaution, is not always that easy to reach. Also, the evolving nature of armed conflicts regularly tests IHL and its interpretation, to the extent that "in today's asymmetric postcolonial wars, the terrain beneath a soldier's interpretations of what is and is not appropriate is constantly shifting." (1)

   To the outsider, such terms as "acceptable" collateral damage must seem like an oxymoron. Yet this is the world of jus in bello, a world that recognizes that in armed conflict there will be loss of life and damage to property--incidents that have no place in times of peace. IHL attempts to limit the suffering caused by conflict and hostilities by inserting certain basics of humanity and minimum standards of behavior, whilst allowing the parties to the conflict to achieve their military objectives. IHL is about compromise, between the humanitarian and military necessity. (2)

   In conflicts, there are situations where one of the belligerents, in defending and justifying its chosen military strategy as respecting IHL, will put forward a legal interpretation of the relevant principle that may seem at odds with that held by other interested parties, be they military or humanitarian. Thus, for instance, between military commanders and humanitarian workers, there might be a different understanding of that which constitutes acceptable collateral damage, simply because their respective interpretations of the principle of proportionality are taken from different standpoints. The former seek to accomplish their mission, which is to defeat the adversary, whereas the latter seek principally to prevent or limit civilian casualties and damage. Difference or even disagreement in the interpretation of IHL principles and standards is part of its very fabric, as is the case for any body of law. Yet, differences or disagreement over the interpretation of the law does not amount to an act of waging war, at least as is commonly understood.

   Based on this premise, I argue against the application of the concept of "lawfare" to describe a process of interpretation, which is inherent to the application of any laws, including the laws of war. I also argue that an act of "lawfare" defined by some commentators as a manipulation by belligerents of the law, for instance by hiding amongst the civilian population and leading the other party to commit possible violations of IHL, is better described as a war crime than an act of lawfare.

2. To DEFINE IS TO LIMIT

   A brief review of the ever expanding writings on and references to the term "lawfare" shows that there seems to be no generally agreed upon definition. (3) But, whilst the meaning of lawfare is a work in progress, as many of the speakers at this conference have indicated, this term is making its way into common parlance. Lawfare is being cited in myriad contexts to describe any number of actions by individuals or groups. Such usages are not being limited to armed conflicts.

   It is not the aim of this presentation to advance a definition of lawfare, or to limit the meaning of a term that has yet to make its way into the Oxford Concise Dictionary. Indeed, there might even be multiple meanings attached to the term "lawfare," which have transmogrified over the past few years.

   A thread common to most definitions appears to be that lawfare is more often than not associated with accusations that the law is being manipulated and exploited in an overtly negative manner, rather than simply as a "lawful" tool or means to achieve a desired result. For some commentators, lawfare is viewed as the violations of the rules of war in order to exploit the non-violating military's compliance, (4) in other words "lawfare can be used to goad American forces into violations of...