Illustrating Illegitimate Lawfare (Part 1)
18 Apr 2013
By Michael Newton for Social Science Research Network
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.
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 overtonesexternal page.(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. To be more precise, there is a fundamental difference between legal processes and ―lawfare" as it is properly understood. Hence, the term ―lawfare" should never be automatically conflated with the legitimate use of legal forums to vindicate and validate binding legal norms when they are in danger of being overwhelmed or replaced for the sake of expediency or political convenience. Every use of legal forums cannot be decried with a pejorative sneer as ―lawfare" despite the inherent time and cost associated with litigation. After all, the quintessential purpose of law as a constraint on power is readily seen in the daily struggle to develop and defend the rights and prerogatives of individuals, organizations, and other entities against the power of states. By extension, the law itself serves the ends of sovereign states in their mutual relations. The development and enforcement of legal norms represents the ongoing and likely interminable effort to constrain anarchy and substitute societal stability, which is the precondition for the peaceful pursuit of commerce and the protection of human dignity at both the national and international planes. Conversely, the forms and forums for legal debate can on occasion be captured or deliberately exploited to serve the strategic interests of the enemy in an armed conflict. The purpose of this brief essay is to illustrate the contours of such illegitimate lawfare.
In one sense, the struggle to define the contours of the legal regime and to correctly communicate those expectations to the broader audience of civilians caught in the conflict is a recurring problem unrelated to the current evolution of warfare. Shaping the expectations and perceptions of the political elites who control the contours of the conflict are perhaps equally vital. The paradox is that as the legal regime applicable to the conduct of hostilities has matured over the last century, the legal dimension of conflict has at times overshadowed the armed struggle between adversaries. As a result, the overall military mission will often be intertwined with complex political, legal, and strategic imperatives that require disciplined focus on compliance with the applicable legal norms as well as the most transparent demonstration of that commitment to sustain the moral imperatives that lead to victory. In his seminal 1963 monograph describing the counterinsurgency in Algeria, counterinsurgency scholar David Galula observed that if ―there was a field in which we were definitely and infinitely more stupid than our opponents, it was propaganda."external page(2) The events at Abu Ghraib are perhaps the most enduring example of what General Petraeus has described as ―non-biodegradable events."external page(3) There are many other examples of events during conflict that strengthen the enemy even as they remind military professionals of the visceral linkage between their actions and the achievement of the mission. The United States doctrine for counterinsurgency operations makes this clear in its opening section
Insurgency and counterinsurgency (COIN) are complex subsets of warfare. Globalization, technological advancement, urbanization, and extremists who conduct suicide attacks for their cause have certainly influenced contemporary conflict; however, warfare in the 21st century retains many of the characteristics it has exhibited since ancient times. Warfare remains a violent clash of interests between organized groups characterized by the use of force. Achieving victory still depends on a group‘s ability to mobilize support for its political interests (often religiously or ethnically based) and to generate enough violence to achieve political consequences. Means to achieve these goals are not limited to conventional force employed by nation-states.external page(4)
In the context of a globalized and interconnected international legal regime, the concept of lawfare originated as a descriptive term to convey the reality noted above that the legal dimension of operations is inextricably linked to the accomplishment of the mission. It is a compound word that conjoins two diverse fields in a way designed to resonate with an audience far wider than either legal professionals or experts in military doctrine. The most common popular understanding of lawfare is that legal norms have become an affirmative method of warfare by which an enemy can pursue a military objective rather than merely serving as a system for controlling the application of violence. The most precise understanding at present is that lawfare has become ―the strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective."external page(5) In practice, lawfare is widely seen in nonmilitary audiences as an instrument of asymmetric warfare precisely because its use may help leverage the military power of an inferior force. In reality, lawfare has been used to help offset inferior military power as a vehicle for neutralizing superior military might through mobilization of negative political pressure and popular perceptions.
Lawfare originated as an ideologically neutral term despite the negative perceptions it carries for many current observers. Its subsequent morphing into an inappropriate offensive weapon of asymmetric warfare ought therefore to serve as a warning to watchful observers that the legal dimension of operations is increasingly important precisely because of the linkage to the nature of modern warfare. Commenting on the changing nature of conflict, General James Jones (the current National Security Advisor, then serving as the Supreme Allied Commander in Europe) remarked that it "used to be a simple thing to fight a battle . . . a general would get up and say, 'Follow me, men,‘ and everybody would say, 'Aye, sir‘ and run off. But that‘s not the world anymore . . . [now] you have to have a lawyer or a dozen. It‘s become very legalistic and very complex."external page(6) Commanders are the critical path to being able to form the fighting organization, and are keenly aware of the linkages between law and operations because their organizations will be most effective—militarily—where they field their organization with the proper control mechanisms.external page(7) According to the International Committee of the Red Cross (ICRC), "[t]he first duty of a military commander, whatever his rank, is to exercise command."external page(8) The commander or superior is the decisive actor because inattention to the basic legal duties inherent in a hierarchy of authority undermines the "very essence of the problem of enforcement of treaty rules in the field."external page(8) Mao Tse-Tung put it simply, "[u]norganized guerrilla warfare cannot contribute to victory."external page(10)
In the modern era, successful operations require that young warriors at all levels are educated and empowered to make important and accurate decisions because their actions often have strategic consequences that are intertwined with the legality and legitimacy of the decisions taken. Illegitimate lawfare can transform appropriate and expected tactical decision-making into 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. Legal lacunae are deliberately magnified and exploited by an adversary to degrade combat effectiveness. Mistakes are amplified, and law is misused not to facilitate effective operations that minimize civilian casualties and preserve human dignity but to create greater military parity between mismatched forces. Again, the U.S. counterinsurgency doctrine captures this truism:
Senior leaders set the proper direction and climate with thorough training and clear guidance; then they trust their subordinates to do the right thing. Preparation for tactical-level leaders requires more than just mastering Service doctrine; they must also be trained and educated to adapt to their local situations, understand the legal and ethical implications of their actions, and exercise initiative and sound judgment in accordance with their senior commanders‘ intent.external page(11)
Just as the legal regime serves as an organizing force to extend the commander‘s authority over all those individuals within his/her effective control, illegitimate lawfare presents the potential for disrupting operations, debilitating military power, and demoralizing the will of the people to sustain hostilities until victory is achieved.
Before considering three specific manifestations of illegitimate lawfare, I should pause to assess the role of lawfare in the larger flow of hostilities. If one accepts the premise that lawfare represents an extension of hostilities by other means, to paraphrase Carl von Clausewitz,external page(12) then it is only appropriate to consider the application of the Principles of War to the Practice of Lawfare. In other words, can the conduct of lawfare be prioritized as a policy matter using the template provided by the Principles of War in much the same way that warriors make tactical and strategic decisions in the midst of planning and waging warfare? Though surprisingly overlooked in the academic literature, the tangible linkages between lawfare and operational success require consideration of the connection between the legal battlefield and larger tactical and political fights in light of the Principles of War. These Principles crystallized as military doctrine around the world around 1800 A.D. and formed the backdrop for the positivist development of the laws and customs of war beginning in the latter half of the nineteenth century.external page(13) The accepted principles studied by military strategists and applied with greater or lesser success in every conflict are: Objective, Offensive, Mass, Economy of Forces, Maneuver, Unity of Command, Security, Surprise, and Simplicity.external page(14) Some of the Principles of War are obviously inapplicable to the modern legal environment. For example, the abundance of legal forums, tribunals, and transnational dialogues render the precepts of Unity of Command and Surprise meaningless. Skeptics might observe that the Principle of Simplicity is inappropriate to the legal domain due to its inherent complexity. It is conceivable that states could apply the Principle of Mass by concentrating available legal resources at the critical time and place to effect salutary changes to the legal regime, or to prevent its inappropriate erosion.
By extension, policymakers and their lawyers should be clear that they will take the Offensive against illegitimate lawfare. This should not equate into an a priori decision to contest every spurious allegation or inappropriate litigation, but those who are the proper guardians of the laws and customs of war should never passively permit their erosion in ways that undermine the pursuit of the military mission. The Principle of Offensive is refined for the purposes of military operations into the "mission statement."external page(15) To permit the enemy to shape the legal environment unchecked is to concede that lawfare can adversely shape the battlefield without hindrance from those whose interests are undermined. Hence, it follows that the Objective of U.S. lawfare—and the mission statement for military lawyers and practitioners—should be to proactively engage in legal debates and decisions whose implications could erode American interests or military effectiveness.
As one important and current example of effective offensive lawfare, a critical mass of states has worked in recent years to deny terrorists extended protection from prosecution on the basis of principles derived from the laws and customs of war.external page(16) Terrorist actors have no legal right drawn from international law to wage war or adopt means of inflicting injury upon their enemies; this class of person has been synonymously described as non-belligerents, unprivileged belligerents, unlawful combatants, or unlawful belligerents regardless of their ideological or religious motivations.external page(17) The Additional Protocols to the 1949 Geneva Conventions were negotiated at the apex of the anti-colonial era and therefore attempted to elevate non-state actors to the status of lawful combatants whose acts would be decriminalized and protected under the principle of combatant immunity.external page(18) The text of Protocol I blurred the lines circumscribing lawful combatants by creating new legal rules without rigorous articulation of the rationale for why such protections should flow to "the category of persons who are not entitled to treatment either as peaceful civilians or as prisoners of war by reason of the fact that they have engaged in hostile conduct without meeting the criteria" established by the Geneva Conventions.external page(19) From the United States perspective, the many positive developments in Protocol I failed to outweigh its "fundamentally and irreconcilably flawed" revisions to the classic law of combatancy.external page(20) President Reagan concluded that Articles 1(4) and Article 44(3) of the Protocol would actually undermine its very purposes and would unnecessarily endanger civilians during armed conflicts. The Department of State Legal Advisor declared that, regardless of the time and diplomatic energy spent negotiating a major multilateral instrument, United States approval "should never be taken for granted, especially when an agreement deals with national security, the conduct of military operations and the protection of victims of war."external page(21) The Joint Chiefs of Staff unanimously opined that Protocol I would further endanger the lives of United States military personnel, even as its provisions would increase the danger to innocent civilians (in whose midst terrorist "combatants" could hide until the opportune moment to strike.). The United States concluded that the commingling of the regime criminalizing terrorist acts with the jus in bello rules of humanitarian law would be untenable and inappropriate.external page(22) By rejecting the principles embodied in Articles 1(4) and 44(3) of the Additional Protocol, the United States sought to deny terrorists a psychological and legal victory.
Though that position was soundly criticized as "exceptionalist," its substantive stance was reinforced over a period of three decades by strong international opposition to efforts to export the Protocol I position into the framework of the multilateral terrorism conventions.external page(23) Indeed, in the decades since the negotiation of Additional Protocol I, states have overwhelmingly adhered to the substantive preference of the United States by opposing all reservations seeking to blur the line between criminal acts of terrorism and lawful acts inherent in the conduct of hostilities.external page(24) The practice of diplomatic demarche and reaction to treaty reservations and understandings in essence became the battleground for sustained lawfare. In other words, the practice of reservations provides an important mechanism for states to engage in second-order dialogue over the true meaning and import of treaties, which in turn fosters the clarity and enforceability of the text. Though no state has formally acknowledged the wisdom of the U.S. rejection of the most politicized provisions of Protocol I, states‘ actions in demonstrating a cohesive legal front to deflect efforts to protect terrorists from prosecution provide implicit acceptance and accolade. Over time, the efficacy of those textual promises has been eroded to a vanishing point by states‘ unified and repeated opposition. In the real world, the effort to decriminalize terrorist conduct—so long as it complied with applicable jus in bello constraints in the context of wars of national liberation—has run aground on the shoals of sovereign survival. In hindsight, the "exceptional" U.S. position was emulated by other nations as they reacted to reservations designed to blur the distinctions between terrorists and privileged combatants.external page(25) U.S. "exceptionalism," in actuality, paved the way for sustained engagement that substantially shaped the international response to terrorist acts. This represents successful and wholly appropriate offensive lawfare. This essay will conclude by evaluating three contrasting categories of illegitimate lawfare that require similar sustained focus and engagement.
In the first place, military lawyers must continue to play a central role in the negotiation of new legal norms to provide a bulwark against operationally untenable and impractical formulations. The Official ICRC Commentary on Protocol I notes with somewhat wry understatement that "a good military legal advisor should have some knowledge of military problems."external page(26) In a similar vein, the its objectives are seen as romanticized and unattainable in the operational context. If humanitarian law becomes separated from the everyday experience and practice of professional military forces around the world, it is in danger of being relegated to the remote pursuit of ethereal goals. Thus, military lawyers need to be involved in the negotiation and discussion of emerging legal norms precisely because it is so vital to maintain ownership in the field of humanitarian law. Military commanders must remain aware of current developments and dispatch legal experts to negotiate who possess the requisite breadth of operational experience and depth of expertise in the jurisprudential landscape. Continued ownership of the legal regime by military professionals in turn sustains the core professional identity system of military forces. Failure to keep the legal norms anchored in the real world of practice would create a great risk of superimposing the humanitarian goals of the law as the dominant and perhaps only legitimate objective in times of conflict. This trend could result in principles and documents that would become increasingly divorced from military practice and therefore increasingly irrelevant to the actual conduct of operations.
For example, Article 23 of the 1899 Hague II Convention stated that it was forbidden ―[t]o destroy or seize the enemy‘s property, unless such destruction or seizure be imperatively demanded by the necessities of war."external page(27) This same language showed up in Article 8(2)(b)(xiii) and 8(2)(e)(xii) of the Rome Statute of the International Criminal Court.external page(28) Based on their belief that the concept of military necessity ought to be an unacceptable component of military decision-making, some civilian delegates sought to introduce a totally subjective threshold by which to second-guess military operations.external page(29) They proposed a verbal formula for the Elements that any seizure of civilian property would be valid only if based on ―imperative military necessity."external page(30)
Such an element would have been contrary to the entire history of the law of armed conflict. The concept of military necessity is ingrained into the express provisions of the law of armed conflict already, thereby permitting the subjective assessments of on-scene actors to provide affirmative legal authority for many actions during armed conflicts. There is not a shred of evidence in the traveaux of the Rome Statute that its drafters intended to alter the preexisting fabric of the laws and customs of war.external page(31) Introducing such a tiered gradation of military necessity as proposed would have built a doubly high wall that would have had a paralyzing effect on military action that would have been perfectly permissible under existing law prior to the 1998 Rome Statute. Moreover, a double threshold for the established concept of military necessity would have clouded the decision-making of commanders and soldiers who must balance the legitimate need to accomplish the mission against the mandates of the law. Of course, any responsible commander and lawyer recognizes that because the corpus of humanitarian law enshrines the principle of military necessity in appropriate areas, the rules governing the conduct of hostilities cannot be violated based on an ad hoc rationalization of a perpetrator who argues military necessity where the law does not permit it. Requiring ―imperative military necessity" as a predicate for otherwise permissible actions would have introduced a wholly subjective and unworkable formulation that would foreseeably have exposed military commanders to after the fact personal criminal liability for their good faith judgments. The ultimate formulation in the Elements of Crimes translated the 1899 phrase into the simple modern formulation ―military necessity" that every commander and military attorney understands. The important point in the context of this discussion of lawfare is that the military lawyers among the delegates were among the most vocal in defeating the suggestion to change the law precisely because the elements for such a crime would have been unworkable in practice.external page(32) The military officers participating in the Elements discussions were focused on maintaining the law of armed conflict as a functional body of law practicable in the field by well-intentioned and well-trained forces.external page(33) The importance of this role will not diminish in the foreseeable future.
As a necessary corollary to the recurring role of military lawyers in negotiating international instruments, U.S. civilian leaders must remain vigilant to avoid treaty based restrictions that would eviscerate American combat power. Reflexive acceptance of the proposition that U.S. resistance to full acceptance of multilateral instruments flows primarily from a hypocritical desire to enjoy differing standards from the rest of the world is misplaced and superficial. By way of illustration, U.S. delegates to the negotiations leading up to the 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Landmines and on Their Destructionexternal page(34) sought agreement on a regime that would preserve America‘s obligations to deter armed conflict along the Korean demilitarized zone, while also advancing the stated purpose to prevent the loss of innocent life caused by unrecovered landmines across the globe.external page(35)
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