Academic journal article Case Western Reserve Journal of International Law

Illustrating Illegitimate Lawfare

Academic journal article Case Western Reserve Journal of International Law

Illustrating Illegitimate Lawfare

Article excerpt

Lawfare that erodes the good faith application of the laws and customs of warfare is illegitimate and untenable. This essay outlines the contours of such illegitimate lawfare and provides current examples to guide practitioners. Clearly addressing the terminological imprecision in current understandings of lawfare, this essay is intended to help prevent further erosion of the corpus of jus in bello. Words matter, particularly when they are charged with legal significance and purport to convey legal rights and obligations. When purported legal "developments" actually undermine respect for the application and enforcement of humanitarian law, they are illegitimate and ought to be reevaluated. Although the laws and customs of war create a careful balance between the smoke, adrenalin, and uncertainty of a modern battlefield, and the imperative for disciplined constraints on the unlawful application of force, inappropriate lawfare permits public perceptions to be manipulated. Illegitimate exploitation of the law in turn permits the legal structure to be portrayed as a mass of indeterminate subjectivity that is nothing more than another weapon in the moral domain of conflict at the behest of the side with the best cameras, biggest microphones, and most compliant media accomplices. In this manner, the globalized media can be misused to mask genuine violations of the law with spurious allegations and misrepresentations of the actual state of the law. Illegitimate lawfare is that which, taken to its logical end, marginalizes the precepts of humanitarian law and therefore creates strong disincentives to its application and enforcement. It logically follows that efforts to distort and politicize fundamental principles of international law should not be meekly accepted as inevitable and appropriate "evolution."

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The concept of "lawfare" remains captive to terminological imprecision that threatens to erode its utility as a guiding principle for the pursuit of U.S. strategic and tactical objectives. Illegitimate lawfare is that which clouds the correct state of the laws and customs of war, thereby feeding an undercurrent of suspicion and politicization that threatens to erode the very foundations of humanitarian law. A cursory Google search indicates, even for a layperson, that lawfare is subjected to an array of diametrically opposing discourse accompanied by conflicting intellectual and strategic overtones. (1) However, military commanders and their lawyers do not approach the law of armed conflict as an esoteric intellectual exercise precisely because the regime of modern international humanitarian law developed as a restraining and humanizing necessity to facilitate commanders' ability to accomplish the military mission even in the midst of fear, moral ambiguity, and horrific scenes of violence. At the tactical level, lawfare that attempts to impose a system of inappropriate and ill-conceived normative constraints on the application of military power deservedly generates a pejorative taint to the term.

The very purpose of the laws and customs of war would be frustrated if the legal regime for conducting hostilities were successfully co-opted by those seeking to exploit legal ambiguities to serve their military goals. Illegitimate exploitation of the law in turn permits the legal structure to be portrayed as nothing more than a mass of indeterminate subjectivity that is nothing more than another weapon in the moral domain of conflict at the behest of the side with the best cameras, biggest microphones, and most compliant media accomplices. There is therefore a very real danger that the media can be manipulated and used to mask genuine violations of the law with spurious allegations and misrepresentations of the actual state of the law. This in turn can lead to a cycle of cynicism and second-guessing that could weaken the commitment of some military forces to actually follow the law.

On the other hand, every effort to invoke legal processes on behalf of an entity or adversary with potentially hostile goals does not equal illegitimate lawfare. …

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