Monday, March 2, 2009

What is "Lawfare?"

Lawfare (forgive the wikipedia) is a relatively new form of asymmetrical war (conflict where the parties are unevenly matched.) The way it was originally defined by Dunlap, a US Military lawyer and amongst the first to use the term, lawfare is the use of law as a military tool. Since these early definitions, three types of lawfare can be identified. 1) the use of international laws of war by armies to enable them to maximize the military means they have at their disposal 2) the use of international law by the weaker party to impede, hinder and harass the more powerful 3) much more dubiously, the use of law to subvert a society through legal means.

1) Use of international laws of war to maximize the deployment of military means

A premise of lawfare is that military activity will be scrutinized by the public and so war must be conducted in such a way as to guarantee that it can stand up to scrutiny under international law. Dunlap comments that many U.S. military commanders will not make a decision to strike a target without a lawyer's approval. The dual role of these lawyers is to reassure commanders that their actions are justifiable under the law and have the effect of being a defensive weapon against accusations of inappropriate use of force.

In its recent war in Gaza, Israeli lawyers played an unprecedented role in the selection of targets and in trying to ensure that all military activity conformed to the laws of war. Critics of Israels actions in Gaza will say that Israel used the laws of war to enable it to kill civilians. This presumes that civilians were the targets of military action and not tragic victims of being in the wrong place at the wrong time, for example, in areas where rockets were launched towards Israel or in homes that contained the entrances to weapons smuggling tunnels. There is no expectation in the international laws of war that civilian casualties be avoided at all costs. In fact Dunlap would argue that after being warned of impending attacks (as the Israelis made efforts to do) any civilian who chose to stay in the vicinity of an attack becomes part of the defense system of the place they are in, essentially a human shield, and therefore a legitimate target. This view seems somewhat extreme, however. The potential for civilian casualties must be weighed against the value of the target and the lives that may be saved in the future by striking it, this is what the lawyers help to do.

2) Use of international law by the weaker party to impede, hinder and harass

The role of the lawyer is also to protect military commanders from the possibility that their opponents "goad" them into violations of international law. In cases such as this, claims of violations of the laws of war can result in cases aimed at "decapitating" a foe. For example, an allegation, frivolous or not that a commander or politician was involved in a "war crime" could lead to the launching of legal action which would have the effect of not only distracting the defendant and draining personal and national resources and energies in their defense, but also causing them to hesitate in their decision making, even when the law is actually on their side.

The case of Spain applying its doctrine of universal jurisdiction to investigate war crimes charges against Israel in the wake of (but not related to) the recent Gaza offensive illustrates that these legal cases, brought by individuals or NGOs, can strain diplomatic relations between states. This is true even if the cases are frivolous because, as can be expected in any democracy, the courts are independent and may render unpopular verdicts that may place stress on political relations. In this case, even the decision to consider the charges and apply the doctrine of universal jurisdiction was politically sensitive. The paradox is that those who would support groups like Hamas, which are decidedly anti-west and themselves are violators of the laws of armed conflict (indiscriminately targeting civilians with rockets, as an example,) take advantage of the legal institutions of the societies they hate to make "war" against them.

3) the use of law to subvert a society through legal means

Ezra Levant, a fairly right wing Canadian journalist was the subject of a complaint before Canadian human rights tribunals for publishing the controversial cartoons of the prophet Mohamed which caused violent rage across much of the world some years ago. He writes in his blog that there is a threat of "jihadis" using western laws as tools to stifle freedom of speech and silence anything they find offensive. He does offer some bizarre cases of Muslims using human rights laws to complain about dubious offenses, but it is hard to see any concerted effort of "warfare" in these claims.

Levant approaches the issue as a left-right political one and blames the leftist elites for paying heed to the concerns of these modern day "fatwas." This misses the point. There are limitations of free speech, notably, hate speech. Hate speech is defined as inciting hatred, not merely saying something distasteful. It is not enough that one be offended by an image or statement. That statement must incite others to feel hatred as well. Levant is not a victim of lawfare, which is more of a concerted effort, he merely found himself on (what seems to be the correct side of) a legally contentious matter.

The above does not fully address all the nuances of this (I think) very interesting issue. It is at best a sketch of an emerging issue that will impact military conflict and the development of international law in the future. I would be interested in the thoughts others may have on "lawfare."

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