Academic journal article Case Western Reserve Journal of International Law

Does Lawfare Need an Apologia?

Academic journal article Case Western Reserve Journal of International Law

Does Lawfare Need an Apologia?

Article excerpt

Few concepts in public international law are more controversial than lawfare. This essay contends that lawfare is best appreciated in the context of its original meaning as an ideologically neutral description of how law might be used in armed conflict. It emphasizes that although law may be manipulated by some belligerents for nefarious purposes, it can still serve to limit human suffering in war. In discussing the current state of the concept of lawfare, the essay reviews several contentious areas, and recognizes the concerns of critics. The paper concludes that lawfare is still a useful term, and is optimized when it is employed consistent with its original purpose of communicating to non-specialists how law can serve as a positive good in modern war as a nonviolent substitute for traditional arms.

I. INTRODUCTION
II. LAWFARE AS AN AMERICAN WEAPON
III. THE CHALLENGE FOR PRACTITIONERS
     A. The Remotely-Piloted Aircraft Debate
     B. Airstrike Restrictions and Self-Inflicted Lawfare
     C. Lawfare and the Goldstone Report
     D. U.S. Litigation: Lawfare?
IV. LAWFARE'S CRITIC'S LEGITIMATE CONCERNS
V. CONCLUSION

I. INTRODUCTION

Whatever one might think of the concept of lawfare, there is no denying the truly remarkable velocity with which it has achieved notoriety among aficionados of international law. Less than a decade ago, "lawfare" was very much an obscure term, and its limited use was almost entirely unrelated to the interpretation that today makes it a central feature of 21st century conflicts. (1)

Initially, the modernized definition of "lawfare" was simply "the use of law as a weapon of war." (2) The latest permutation of this writer's interpretation is a bit more elaborate, holding that "lawfare" is a "strategy of using--or misusing--law as a substitute for traditional military means to achieve an operational objective." (3) Admittedly, this construct of lawfare is not, as will be discussed below, universally accepted.

To be clear, "lawfare" was never meant to describe every possible relation between law and warfare. It focuses principally on circumstances where law can create the same or similar effects as those ordinarily sought from conventional warmaking approaches. (4) In military terms, lawfare represents a form of effects-based operations. (5) Generally speaking, effects-based operations reflect an approach to warfare that is not preoccupied with particular methodologies, but rather on actions "designed to achieve specific effects that contribute directly to desired military and political outcomes." (6) Law often can do that just as successfully as more violent means. Furthermore, the term was always intended to be ideologically neutral, that is, harking back to the original characterization of lawfare as simply another kind of weapon, one that is produced, metaphorically speaking, by beating law books into swords. (7) Although the analogy is imperfect, the point is that a weapon can be used for good or bad purposes, depending upon the mindset of those who wield it. Much the same can be said about the law.

To some critics, lawfare's expectation that "bad" people will sometimes be able to use--or abuse--the law to further nefarious purposes is offensive, as it is to them tantamount to saying that there is something inherently "bad" about the law. This is hardly true. Just because the law is available, for example, to the most evil of criminals who may avail themselves of its protections from time to time does not mean that the law acquires the attributes of the criminal. Nor does it mean, incidentally, that those lawyers who assist such persons in securing their legal rights necessarily share their malevolent intent. (8)

It merely means that law--at least ideally--has established norms that, on balance, best serve society as a whole even when it has the effect of protecting people many find odious and even dangerous. There is also no question that society may pay a harsh price in certain instances for its adherence to law. …

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