Whose lawfare is it, anyway?

AuthorScheffer, David
PositionSymposium: Lawfare

The growing interest in "lawfare," particularly as it applies to American and Israeli military operations, requires a realistic assessment of the nature of the alleged threat and the responses to it. The popular view of lawfare, put forward by neo-conservative commentators and some military lawyers, is exceptionally myopic, oblivious to how other nations view international justice, and disingenuous regarding America's own aggressive use of the law to confront perpetrators of atrocity crimes during times of armed conflict. Lawfare critics cannot have it both ways, arguing that the United States is being unfairly singled out and erroneously attacked in judicial forums for allegedly illegal conduct and then contending that unconventional threats permit responses and military strategies that diverge from well-established international law. Perhaps the most significant example of major-power lawfare today, at least from an African perspective, is the International Criminal Court and its five situations under investigation on the African continent.

Greater care needs to be taken with use of the term "lawfare," which in common parlance has come to describe how weaker nations, civil society, insurgents, terrorists, and scholars exploit domestic law, international law, and judicial institutions to influence the foreign and military policies of major powers. (1) Often, the target becomes U.S. or Israeli policy. Lawfare is a particular form of asymmetrical warfare using the rule of law, or a particular interpretation of the law, to thwart the use of military power of far superior means. "Lawfare," as described by a Council on Foreign Relations study group I participated in several years ago, is the strategy of using or misusing law as a substitute for traditional uses of military force in order to achieve military objectives. (2)

I wrote in the Financial Times on May 6, 2004, that,

[The] central premise [of"lawfare"] advances a conspiracy to constrain the use of US military force worldwide by using the 'soft' weapon of international law and its 'sovereignty-bashing' treaties as well as anti-US interpretations of principles of customary international law... The military police reservist who 'softens up' detainees for another round of enlightened interrogation may not have the foggiest notion about this theoretical joust [about lawfare] in the halls of power. But the top civilian and military leaders know, fear and resist 'lawfare'--and this, in turn has clearly un dermined their respect for international law. (3) Most of the commentary on lawfare focuses on the alleged threat it poses to U.S. military armed forces globally and Israel's military superiority in the Middle East. The American/Israeli-centric definition and view of lawfare might lead one to believe that it is only the United States and its ally, Israel, that stand imperiled before the onslaught of weaker nations using judicial processes to challenge U.S. or Israeli military might. The great fear--and fear aptly describes the intellectual anxiety about lawfare--is that the justified use of American or Israeli military force will be thwarted by aggressive advocacy of international law in courtrooms, U.N. forums, and the world media.

I want to suggest that this view of lawfare is exceptionally myopic, oblivious to how other nations view international justice, and disingenuous regarding America's own aggressive use of the law to confront perpetrators of atrocity crimes--genocide, crimes against humanity, and war crimes-particularly during times of armed conflict. The lawfare scare risks creating a slippery slope towards illegal and perhaps criminal conduct on the part of two great nations and their civilian and military leadership. The aftermath of 9/11, namely, the so-called "war on terror," has generated so much fear that some appear to fear the law itself. (4) International law, or, for that matter, federal criminal or military law, indeed may challenge the projection of American armed forces somewhere in the world because of the character of the particular military action or its transnational application. Why is anyone surprised that foreign governments, non-governmental organizations, and international organizations, such as the United Nations, will fight back with the law in legal settings or simply in the media? Even terrorist entities may use propaganda in the media and in the courts to jump on the lawfare wagon. (5)

Several distinguished Judge Advocate General officers and neoconservative legal scholars have authored articles revealing the self-evident elements of lawfare and practically pleading for relief from such tactics so that the United States can act unhindered, or at least devoid of criticism, in fighting terrorist threats. (6) They criticize non-compliance with the law of war by foreign enemies and usually, but not always, confirm the need for U.S. compliance with the law of war. (7) But that acknowledgement is drowned under tidal waves of accusations that someone out there is trying to use the rule of law to vastly complicate, perhaps even reverse, the projection of American power. (8) It is an argument that melds easily into the belief that the United States is an exceptional nation entitled to exceptional privileges in the conduct of warfare and exceptions to the principles of international law. If the United States is an exceptional nation, then how dare others throw the law books at the United States when its mission is so vital both to the American people and, by extension, to the free world?

I hope I am exaggerating, but I do so to make a fundamental point: When one undertakes a detailed analysis of asymmetrical warfare morphing into lawfare against the United States or Israel, there remains the need to objectively examine military conduct against a reasonable interpretation, and not re-interpretation, of international law. The key reasoning should be to use the law as a shield against the accusations that are the weapons of lawfare. As some lawfare critics themselves recognize, so often the allegations are misguided and ill-informed interpretations of international law, with little understanding of military doctrine. (9)

Yet the impression left by so many in the commentariat is that the United States is intimidated by the allegations of lawfare operatives to such an extent that American officials are practically paralyzed by the experience, incapable or unwilling to defend, or inexplicably tardy in defending their actions as being in full compliance with reasonable interpretations of both federal and international law. (10) The strategy employed by these architects of fear is largely to shoot the messenger rather than confront the legal challenges conveyed by the messenger, however annoying or even dangerous they may be, with confidence and integrity. (11) They have created the straw man of lawfare to avoid answering the tough questions about the legality of foreign and military policies and operations. (12) Many in the commentariat recoil at the entirely predictable legal challenges and second-guessing by critics threatening the implementation of military policies, particularly against terrorists. (13)

The critique of lawfare would be more sustainable if the George W. Bush Administration had not waged the Iraqi War on false premises and had not engaged in years of detention, interrogation, and military commission practices that attracted significant criticism as illegal under international law and even unconstitutional under U.S. law. (14) The Obama Administration, despite its new policy pronouncements of respect for international law, has continued the use, albeit reformed, of the military commissions and prolonged detentions without trial of some terrorist suspects. It has held certain individuals long after they were determined not to be terrorists or other threats to national security. The Justice Department recently prosecuted one child soldier before a military commission. All of this does not help the cause of elevating the United States out of the ditch the Bush team had dug. (15)

The credibility of protestations over lawfare within the international community would be significantly enhanced if not for these realities. Much of the critique of lawfare aims at those who would challenge the tactics of the so-called "war on terror" with judicial...

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