Lawfare
Encyclopedia
Lawfare is a recently coined word not yet appearing in the Oxford English Dictionary, a portmanteau of the words 'law' and 'warfare', said to describe a form of asymmetric warfare
. Lawfare is asserted to be the illegitimate use of domestic or international law
with the intention of damaging an opponent, winning a public relations
victory, financially crippling an opponent, or tying up the opponent's time so that they cannot pursue other ventures such as running for public office. The term "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.
In the book, Lawfare is described as "International Law Warfare" and is mentioned alongside several other means by which offensive action may be carried to the enemy without force of arms. In a more detailed aside, it is further described as "Seizing the earliest opportunity to set up regulations." The book notes that powerful nations take a prerogative to make their own rules, but at the same token bind themselves with them. A second actor could circumvent these regulations because it is not similarly bound by them. Thus, it would be a serious disadvantage to the powerful nation, allowing the smaller nation comparative freedom.
calls for many of these forces to be used in concert against an opponent. Lawfare could be used in concert with "media warfare" (i.e., propaganda
) to bring enormous public pressure against an operation by a target power. Such an attack would weaken the enemy's resolve, as contrasted with the strengthening of resolve that follows a traditional offensive action. Such methods are best used in an orchestrated campaign.
A more frequently cited use of the term was coined by Charles J. Dunlap, Jr.
in a 2001 essay he authored for Harvard's Carr Center. In that essay, Dunlap defines lawfare as "the use of law as a weapon of war." He later expanded on the definition, explaining lawfare was "the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting" a superior military power.
, that is, one nation or an international organization hosted by that nation reaching out to seize and prosecute officials of another. Behind universal jurisdiction lies an Enlightenment
view that all persons are endowed with basic human rights
, and that infringing the rights of anyone no matter where they are violates internationally agreed principles of right and wrong.
Justice Robert H. Jackson
speaking as a chief prosecutor in the Nuremberg Trials
famously stated that an international tribunal could punish acts by captured Nazi officials which may have been perfectly legal in Fascist Germany (indeed one charge was they distorted the law itself into an instrument of oppression), but went well beyond "what is tolerable by modern civilization." In the jargon of "Lawfare," the Nuremberg Trials might be described as a kind of universal jurisdiction lawfare against German officials following the actual warfare of World War II
. Though the asymmetry in that case would be strong against weak since the Allies had defeated the Nazis, and the desired public relations victory the detailed exposure of Holocaust atrocities.
. NGOs have used universal jurisdiction
statutes in Europe
and North America
to bring forward such cases. These statutes allow courts to preside over cases in which one or more of the parties (or events at issue) are foreign. In some countries, such as Spain
, an NGO can apply to a court directly for an arrest warrant
or to launch a criminal investigation without the knowledge or approval of the government
. Prof. Gerald Steinberg, Chairman of the Political Studies Department at Bar Ilan University and President of NGO Monitor
says that "NGOs manipulate international legal terminology and exploit the rhetoric of human rights to accomplish their political goals." Many cases have been brought forward against Israeli officials and those associated with Israel's military, accusing them of war crimes. These cases have been heard in both Israel and in other countries.
US Ambassador John Bolton has characterized Palestinian attempts to seek UN recognition for a state as "lawfare", because he accuses the Palestinian state of delegitimizing Israel.
Some supporters of Israel, such as Shurat HaDin (Israeli Law Centre), have been accused of using "lawfare" to get authorities to seize activist ships bound for Gaza (known as the "Gaza flotilla").
According to Canadian MP
and former minister Irwin Cotler
, the use law delegitimize Israel is present in five areas: United Nations
, international law
, humanitarian law, the struggle against racism
and the struggle against genocide
.
Joshua Mintz
, writing in the Jerusalem Post in September 2011, referring to the Israel fears of lawfare, says that "it’s quite possible that Israel, at least within the legal landscape, may actually benefit from the Palestinian statehood bid." Douglas Bloomfield writes that "Palestinian lawfare against Israel could further isolate the Jewish state" as well as raise issues regarding overseas travel for Israeli leaders who might fear arrest on war crimes charges. In addition, Bloomfield suggested that "if Abbas
goes ahead with waging lawfare, he will open a new stage in the conflict that is likely to set back the cause of peace."
. Dr. Kissinger faced questioning and possible prosecution in France, again in Brazil, and then in England (the latter initiated by Spanish magistrate Baltasar Garzón
, notable for his earlier attempt to prosecute Chilean dictator Augusto Pinochet
) because of Kissinger's involvement as a Nixon Administration official with a South American program of abductions, torture, and assassinations known as Operation Condor
. Kissinger subsequently warned that universal jurisdiction risks "substituting the tyranny of judges for that of governments."
Harvard Law Professor Jack Goldsmith
, known for his scholarship voicing opposition to the expansion of international human rights and universal jurisdiction, reveals in his book The Terror Presidency that Defense Secretary Donald Rumsfeld
was concerned with the possibility of lawfare waged against Bush administration officials, and that Rumsfeld "could expect to be on top of the list."
Questions remain unresolved of the possibility of lawfare-type prosecution in Italy and Germany of CIA agents involved in international abduction known as extraordinary rendition by the United States, and in Spain before Magistrate Garzón of the Bush 6, American attorneys who created what the New York Times called "the legal framework to justify the torture of prisoners at Guantanamo Bay.".
An opinion piece in the New York Daily News
asserts that the United States is already dealing with "a variety of lawfare stratagems." In New York, anyone who reports an event as part of the "If You See Something, Say Something™" public awareness campaign is "protected from frivolous lawsuits" by the "Freedom to Report Terrorism Act," and journalists and authors who report on terrorism are protected from lawsuits by the "Libel Terrorism Protection Act," as well.
Asymmetric warfare
Asymmetric warfare is war between belligerents whose relative military power differs significantly, or whose strategy or tactics differ significantly....
. Lawfare is asserted to be the illegitimate use of domestic or international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
with the intention of damaging an opponent, winning a public relations
Public relations
Public relations is the actions of a corporation, store, government, individual, etc., in promoting goodwill between itself and the public, the community, employees, customers, etc....
victory, financially crippling an opponent, or tying up the opponent's time so that they cannot pursue other ventures such as running for public office. The term "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.
Lawfare in Unrestricted Warfare
Critical scholars understand lawfare as the use of law to effectuate subordination, conquest or control of subaltern or, generally, less powerful groups. The use of legal discourse (e.g., drafting and circulation of “internal” government legal memoranda rationalizing the use of widely condemned interrogation practices) often accompanies various forms of imperial, nationalist or even social hegemony. John Comaroff, writing of colonial African contexts in 2001, defined as “lawfare: the effort to conquer and control indigenous peoples by the coercive use of legal means.”In the book, Lawfare is described as "International Law Warfare" and is mentioned alongside several other means by which offensive action may be carried to the enemy without force of arms. In a more detailed aside, it is further described as "Seizing the earliest opportunity to set up regulations." The book notes that powerful nations take a prerogative to make their own rules, but at the same token bind themselves with them. A second actor could circumvent these regulations because it is not similarly bound by them. Thus, it would be a serious disadvantage to the powerful nation, allowing the smaller nation comparative freedom.
Use in concert with other means of Unrestricted Warfare
The book Unrestricted WarfareUnrestricted Warfare
Unrestricted Warfare is a book on military strategy written in 1999 by two colonels in the People's Liberation Army, Qiao Liang and Wang Xiangsui . Its primary concern is how a nation such as China can defeat a technologically superior opponent through a variety of means...
calls for many of these forces to be used in concert against an opponent. Lawfare could be used in concert with "media warfare" (i.e., propaganda
Propaganda
Propaganda is a form of communication that is aimed at influencing the attitude of a community toward some cause or position so as to benefit oneself or one's group....
) to bring enormous public pressure against an operation by a target power. Such an attack would weaken the enemy's resolve, as contrasted with the strengthening of resolve that follows a traditional offensive action. Such methods are best used in an orchestrated campaign.
Origin of the term
Perhaps the first use of the term "lawfare" was in a manuscript, Whither Goeth the Law - Humanity or Barbarity. The authors there argue the Western legal system has become overly contentious and utilitarian as compared to the more humanitarian, norm-based Eastern system. They opine the search for truth has been replaced by "lawfare" in the courts.A more frequently cited use of the term was coined by Charles J. Dunlap, Jr.
Charles J. Dunlap, Jr.
Major General Charles J. Dunlap Jr. retired in February 2010 as the Deputy Judge Advocate General, Headquarters U.S. Air Force, Washington, D.C. General Dunlap assists the Judge Advocate General in the professional oversight of more than 2,200 judge advocates, 350 civilian attorneys, 1,400...
in a 2001 essay he authored for Harvard's Carr Center. In that essay, Dunlap defines lawfare as "the use of law as a weapon of war." He later expanded on the definition, explaining lawfare was "the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting" a superior military power.
Lawfare and Universal Jurisdiction
Lawfare may involve the law of a nation turned against its own officials, but more recently it has been associated with the spread of universal jurisdictionUniversal jurisdiction
Universal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...
, that is, one nation or an international organization hosted by that nation reaching out to seize and prosecute officials of another. Behind universal jurisdiction lies an Enlightenment
Age of Enlightenment
The Age of Enlightenment was an elite cultural movement of intellectuals in 18th century Europe that sought to mobilize the power of reason in order to reform society and advance knowledge. It promoted intellectual interchange and opposed intolerance and abuses in church and state...
view that all persons are endowed with basic human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
, and that infringing the rights of anyone no matter where they are violates internationally agreed principles of right and wrong.
Justice Robert H. Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...
speaking as a chief prosecutor in the Nuremberg Trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
famously stated that an international tribunal could punish acts by captured Nazi officials which may have been perfectly legal in Fascist Germany (indeed one charge was they distorted the law itself into an instrument of oppression), but went well beyond "what is tolerable by modern civilization." In the jargon of "Lawfare," the Nuremberg Trials might be described as a kind of universal jurisdiction lawfare against German officials following the actual warfare of World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
. Though the asymmetry in that case would be strong against weak since the Allies had defeated the Nazis, and the desired public relations victory the detailed exposure of Holocaust atrocities.
Israeli-Palestinian conflict
Non-governmental organizations (NGOs) have been accused of wrongfully using courts and legal systems. The NGO Forum of the 2001 Durban Conference called for the "establishment of a war crimes tribunal" against IsraelIsrael
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
. NGOs have used universal jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
statutes in Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
and North America
North America
North America is a continent wholly within the Northern Hemisphere and almost wholly within the Western Hemisphere. It is also considered a northern subcontinent of the Americas...
to bring forward such cases. These statutes allow courts to preside over cases in which one or more of the parties (or events at issue) are foreign. In some countries, such as Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
, an NGO can apply to a court directly for an arrest warrant
Arrest warrant
An arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....
or to launch a criminal investigation without the knowledge or approval of the government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
. Prof. Gerald Steinberg, Chairman of the Political Studies Department at Bar Ilan University and President of NGO Monitor
NGO Monitor
NGO Monitor is a non-governmental organization based in Jerusalem, Israel whose stated aim is to generate and distribute critical analysis and reports on the output of the international NGO community for the benefit of government policy makers, journalists, philanthropic organizations and the...
says that "NGOs manipulate international legal terminology and exploit the rhetoric of human rights to accomplish their political goals." Many cases have been brought forward against Israeli officials and those associated with Israel's military, accusing them of war crimes. These cases have been heard in both Israel and in other countries.
US Ambassador John Bolton has characterized Palestinian attempts to seek UN recognition for a state as "lawfare", because he accuses the Palestinian state of delegitimizing Israel.
Some supporters of Israel, such as Shurat HaDin (Israeli Law Centre), have been accused of using "lawfare" to get authorities to seize activist ships bound for Gaza (known as the "Gaza flotilla").
According to Canadian MP
Member of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
and former minister Irwin Cotler
Irwin Cotler
Irwin Cotler, PC, OC, MP was Canada's Minister of Justice and Attorney General of Canada from 2003 until the Liberal government of Paul Martin lost power following the 2006 federal election. He was first elected to the Canadian House of Commons for the constituency of Mount Royal in a by-election...
, the use law delegitimize Israel is present in five areas: United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
, international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, humanitarian law, the struggle against racism
Racism
Racism is the belief that inherent different traits in human racial groups justify discrimination. In the modern English language, the term "racism" is used predominantly as a pejorative epithet. It is applied especially to the practice or advocacy of racial discrimination of a pernicious nature...
and the struggle against genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
.
Joshua Mintz
Joshua Mintz
Joshua Mintz is a British Israeli journalist and activist best known for his contribution to Israeli newspaper Ha'aretz's 'Jewish Thinker' section and his work as one of the founders of the Middle East dialogue project; Friend a Soldier.-Journalism:Mintz began his journalism career as a junior...
, writing in the Jerusalem Post in September 2011, referring to the Israel fears of lawfare, says that "it’s quite possible that Israel, at least within the legal landscape, may actually benefit from the Palestinian statehood bid." Douglas Bloomfield writes that "Palestinian lawfare against Israel could further isolate the Jewish state" as well as raise issues regarding overseas travel for Israeli leaders who might fear arrest on war crimes charges. In addition, Bloomfield suggested that "if Abbas
Mahmoud Abbas
Mahmoud Abbas , also known by the kunya Abu Mazen , has been the Chairman of the Palestine Liberation Organisation since 11 November 2004 and became President of the Palestinian National Authority on 15 January 2005 on the Fatah ticket.Elected to serve until 9 January 2009, he unilaterally...
goes ahead with waging lawfare, he will open a new stage in the conflict that is likely to set back the cause of peace."
Other Examples of Lawfare
A notable US official cited in connection with lawfare is Henry KissingerHenry Kissinger
Heinz Alfred "Henry" Kissinger is a German-born American academic, political scientist, diplomat, and businessman. He is a recipient of the Nobel Peace Prize. He served as National Security Advisor and later concurrently as Secretary of State in the administrations of Presidents Richard Nixon and...
. Dr. Kissinger faced questioning and possible prosecution in France, again in Brazil, and then in England (the latter initiated by Spanish magistrate Baltasar Garzón
Baltasar Garzón
Baltasar Garzón Real is a Spanish jurist who served on Spain's central criminal court, the Audiencia Nacional. He was the examining magistrate of the Juzgado Central de Instrucción No...
, notable for his earlier attempt to prosecute Chilean dictator Augusto Pinochet
Augusto Pinochet
Augusto José Ramón Pinochet Ugarte, more commonly known as Augusto Pinochet , was a Chilean army general and dictator who assumed power in a coup d'état on 11 September 1973...
) because of Kissinger's involvement as a Nixon Administration official with a South American program of abductions, torture, and assassinations known as Operation Condor
Operation Condor
Operation Condor , was a campaign of political repression involving assassination and intelligence operations officially implemented in 1975 by the right-wing dictatorships of the Southern Cone of South America...
. Kissinger subsequently warned that universal jurisdiction risks "substituting the tyranny of judges for that of governments."
Harvard Law Professor Jack Goldsmith
Jack Goldsmith
Jack Landman Goldsmith is a Harvard Law School professor who has written a number of texts regarding international law, cyber law, and national security law...
, known for his scholarship voicing opposition to the expansion of international human rights and universal jurisdiction, reveals in his book The Terror Presidency that Defense Secretary Donald Rumsfeld
Donald Rumsfeld
Donald Henry Rumsfeld is an American politician and businessman. Rumsfeld served as the 13th Secretary of Defense from 1975 to 1977 under President Gerald Ford, and as the 21st Secretary of Defense from 2001 to 2006 under President George W. Bush. He is both the youngest and the oldest person to...
was concerned with the possibility of lawfare waged against Bush administration officials, and that Rumsfeld "could expect to be on top of the list."
Questions remain unresolved of the possibility of lawfare-type prosecution in Italy and Germany of CIA agents involved in international abduction known as extraordinary rendition by the United States, and in Spain before Magistrate Garzón of the Bush 6, American attorneys who created what the New York Times called "the legal framework to justify the torture of prisoners at Guantanamo Bay.".
An opinion piece in the New York Daily News
New York Daily News
The Daily News of New York City is the fourth most widely circulated daily newspaper in the United States with a daily circulation of 605,677, as of November 1, 2011....
asserts that the United States is already dealing with "a variety of lawfare stratagems." In New York, anyone who reports an event as part of the "If You See Something, Say Something™" public awareness campaign is "protected from frivolous lawsuits" by the "Freedom to Report Terrorism Act," and journalists and authors who report on terrorism are protected from lawsuits by the "Libel Terrorism Protection Act," as well.
See also
- War as metaphorWar as metaphorThe use of war as metaphor is a literary trope of long-standing. An example is the Culture War in the United States. In Metaphors We Live By, George Lakoff and Mark Johnson describe Jimmy Carter's application of "war" as metaphor for the energy crisis of 1974.In discussing the morality of the use...
- Unrestricted WarfareUnrestricted WarfareUnrestricted Warfare is a book on military strategy written in 1999 by two colonels in the People's Liberation Army, Qiao Liang and Wang Xiangsui . Its primary concern is how a nation such as China can defeat a technologically superior opponent through a variety of means...
- Fourth generation warfareFourth generation warfareFourth generation warfare is conflict characterized by a blurring of the lines between war and politics, soldier and civilian.The term was first used in 1989 by a team of United States analysts, including William S. Lind, to describe warfare's return to a decentralized form...
- Asymmetric warfareAsymmetric warfareAsymmetric warfare is war between belligerents whose relative military power differs significantly, or whose strategy or tactics differ significantly....
- The Bush SixThe Bush SixThe Bush Six is a term which refers to six former officials of the United States government under the presidency of George W. Bush , following the filing of criminal charges against them in Spain....
- Roerich Pact
External links
- Selections from Unrestricted Warfare
- Unrestricted Warfare in .pdf Format
- "Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts" in .pdf Format
- Discussion of Lawfare in A Brief Primer on International Law
- Lawfare, by David B. Rivkin, Jr. and Lee A. Casey, Wall Street Journal, February 23, 2007, p.A11 (accessed May 20, 2009).
- The Lawfare Project
- Lawfare: A Supporting Arm in Modern Conflict, By David B. Harris & Aaron Eitan Meyer, The Counter Terrorist, April 4, 2011.
- Brooke Goldstein: Countering Lawfare, By Pat Toensmeier, Aviation Week, January 3, 2011.