Lawfare

Part of a series on
War Outline
History Prehistoric Ancient Post-classical castles Early modern pike and shot napoleonic Late modern industrial fourth-gen
Military Organization Command and control Defense ministry Army Navy Air force Marines Coast guard Space force Reserves Regular / Irregular Ranks Specialties: Staff Engineers Intelligence Reconnaissance Medical Military police Land units: Infantry Armor Cavalry Artillery Special forces Signal corps Naval units: Warships Submarines Aircraft carriers Landing craft Auxiliary ships Air units: Fighters Bombers Command Close air support Electronic-warfare Reconnaissance Combat systems: Fire-control system Fire-control radar Director (military) Combat information center Sonar Radar Historical: Ship gun fire-control Gun data computer Torpedo data computer Development: Basic training Military manoeuvrers Combat training
Battlespace Aerospace Air Airborne Space Land Cold-region Desert Jungle Mountain Urban Subterranean Tunnel Sea Amphibious Blue Brown Green Surface Underwater Cyber Information
Weapons Air defence Armor Artillery Barrage Biological Camouflage Cavalry Horses Air cavalry Chemical Combined arms Conventional Cyber Denial Disinformation Drone / Robot Electromagnetic Infantry Loitering Missile Music Nuclear Psychological Radiological Unconventional
Tactics List of military tactics Aerial Airlift Air assault Airbridge Airdrop Battle Cavalry Charge Counterattack Counterinsurgency Defeat in detail Foxhole Drone Envelopment Guerrilla Morale Naval Rapid dominance Siege Swarm Screen Tactical objective Target saturation Trench Withdrawal
Operational Military operation Operations research Blitzkrieg Expeditionary Deep operation Maneuver Operational manoeuvre group Raid
Strategy List of military strategies and concepts Military campaign Attrition Commerce raiding Counter-offensive Culminating Defence in depth Fabian Empty fort Mosaic Deception Defensive Depth Goal Nuclear Naval Offensive Scorched earth
Grand strategy Asymmetric Blockade Broken-backed Class Cold war Colonial Conquest Containment Divide and conquer Economic Endemic Fleet in being Irregular Liberation Limited Network-centric New generation Perpetual Political Princely Proxy Religious Resource Strategic Succession Technology Theater Total war World war
Administrative Branch Policy Staff Training Service Sociology
Organization Area of responsibility Chain of command Command and control Doctrine Principles of war Economy of force Medicine Engineers Intelligence Ranks Technology and equipment
Personnel Recruitment counter Conscription Training Specialism Women Children Transgender harassment Conscientious objector Volunteer foreign Mercenary
Logistics History Military–industrial complex Arms industry Materiel Supply-chain management Base MOB FOB Outpost
Science Power projection Loss-of-strength gradient Lanchester's laws Force multiplication
Law Court-martial Geneva Conventions Geneva Protocol Islamic rules Justice Perfidy Jewish laws on war Right of conquest Rules of engagement Martial law War crime
Theory Air supremacy Appeasement Command of the sea Deterrence theory Full-spectrum dominance Overmatch Unrestricted Warfare Just war theory Principles of war Philosophy of war Security dilemma Tripwire force War games
Non-warfare Arms control Counter-insurgency deterrence Disaster response Grey-zone Gunboat diplomacy Humanitarian aid Law enforcement Low-intensity conflict Military engineering Multilateralism Peacekeeping Peacebuilding Peace through strength Show of force
Culture Awards and decorations Warrior caste War film Military science fiction War novel Anti-war movement Foot drill War song Uniform Wargame
Related Women in war War resister War studies Horses in warfare Wartime sexual violence Fifth column
Lists Battles Military occupations Military terms Operations Sieges War crimes Wars Weapons Writers
v t e

Lawfare is the use of

The term is a portmanteau of the words "law" and "warfare". Perhaps the first use of the term^{[original research?]} "lawfare" was in the 1975 manuscript Whither Goeth the Law, which argues that the Western legal system has become overly rational and treats persons like objects as compared to so-called "Community Law", which is based more on humanity and intuition. As an example of the use of such an approach, the Confucian Code of Propriety (Li) is mentioned, which was used in China and Korea in the past.^[1][2]

A more frequently cited use of the term is found in a 2001 essay authored by Charles J. Dunlap Jr., in which Dunlap defines lawfare as "the use of law as a weapon of war"; that is, "a method of warfare where law is used as a means of realizing a military objective".^[3][4] He later expanded on the definition, describing lawfare as "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.^[5] In this sense, lawfare may be a more humane substitute for military conflict, although Dunlap considers lawfare a "cynical manipulation of the rule of law and the humanitarian values it represents".^[4]

Benjamin Wittes, Robert Chesney, and Jack Goldsmith employ the word in the name of the Lawfare website, which focuses on national security law and has explored the debate over the definition of lawfare and whether it should be considered exclusively a pejorative.^[6]

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 jurisdiction, that is, one nation or an international organization hosted by that nation reaching out to seize and prosecute officials of another.^[7]

Examples

Hundred Years' War

French officials deployed a form of lawfare in the lead-up to the Hundred Years' War, according to historians Iskander Rehman and David Green.^[8][9] Rehman states:^[8]

In the fraught decades leading up the Hundred Years War, French officials deployed their expertise in the arcane intricacies of feudal law to continuously undermine Plantagenet (English) authority over their continental territories, 'clogging up administrative processes', 'interfering with fiscal activities' and burying English officials under a deluge of legal cases.

— Iskander Rehman, Planning for Protraction

Israeli–Palestinian conflict

Both pro-Israeli groups and pro-Palestinian groups have been accused of using lawfare against one another.

Christian Aid, a British charity that does humanitarian work for Palestinians, was taken to court in 2017 by a pro-Israeli organization called "Zionist Advocacy Center".^[10] While the case was ultimately dismissed in US courts, the organization had to spend £700,000 in defending itself, and said it was an act of "lawfare" against organizations that help Palestinians.^[10]

A pro-Israeli group, Shurat HaDin, acting on information from the Israeli government, is believed to have used lawfare to prevent a Gaza-bound flotilla from leaving Greece.^{[11]: 311–328} Many cases have been brought forward against Israeli officials and those associated with the Israel Defense Forces (IDF), accusing them of war crimes. These cases have been heard in both Israel^[12] and in other countries.^[13] Attempts to suppress the Boycott, Divestment and Sanctions (BDS) movement have also been called lawfare.^[14] In Israel and many US states, supporting the BDS movement is criminalized.^[14]

The alleged use of human shields by groups like Hamas has been seen as an example of lawfare, hinging on exploiting Israel's aim to minimize civilian casualties and the sensitivity of Western public opinion. This tactic allows Hamas to either accuse Israel of war crimes if civilian casualties occur or to protect its assets and continue operations if the IDF limits its military response.^[15][16] According to Canadian lawmaker and former minister Irwin Cotler, the use of law to delegitimize Israel is present in five areas: United Nations, international law, humanitarian law, the struggle against racism and the struggle against genocide.^[17]

People's Republic of China

The

The government of China has also used lawsuits in foreign courts to repress Chinese dissidents abroad.^[23][24][25]

Commentary

Harvard School of Law professor Jack Goldsmith, an opponent to the expansion of international human rights and universal jurisdiction, states 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".^[26][27] Rumsfeld addresses the effects of lawfare in his memoir Known and Unknown.^[28]

See also

• Asymmetric warfare
• Fourth generation warfare
• Vexatious litigation
• War as metaphor

References