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Lawfare is a form of asymmetric warfare.[1] Lawfare is waged via the use of domestic or international law with the intention of damaging an opponent. Examples include winning a public relations victory, financially crippling an opponent, or tying up the opponent's time so that they cannot pursue other ventures such as run for public office. [2]

Lawfare can also denote the use of the law as a weapon of war, or more specifically, the abuse of the law and legal systems for strategic political or military ends. [3]

Lawfare is one of several alternative war-making concepts outlined in the 1999 Chinese book Unrestricted Warfare, which is principally concerned with the new variety of offensive actions available to an international actor that cannot or is not willing to confront another power militarily.

Lawfare in Unrestricted WarfareEdit

Critical scholars understand lawfare as the use of law to effectuate subordination, conquest or control of subaltern or, generally, less powerful groups. The use of legal discourse (e.g., drafting and circulation of “internal” government legal memoranda rationalizing the use of widely condemned interrogation practices) often accompanies various forms of imperial, nationalist or even social hegemony. John Comaroff, writing of colonial African contexts in 2001, defined as “lawfare: the effort to conquer and control indigenous peoples by the coercive use of legal means.”[4]

In the book, Lawfare is described as "International Law Warfare" and is mentioned alongside several other means by which offensive action may be carried to the enemy without force of arms. In a more detailed aside, it is further described as "Seizing the earliest opportunity to set up regulations." The book notes that powerful nations take a prerogative to make their own rules, but at the same token bind themselves with them. A second actor could circumvent these regulations because it is not similarly bound by them. Thus, it would be a serious disadvantage to the powerful nation, allowing the smaller nation comparative freedom.

Use in concert with other means of Unrestricted WarfareEdit

The book Unrestricted Warfare calls for many of these forces to be used in concert against an opponent. Lawfare could be used in concert with "media warfare" (i.e., propaganda) to bring enormous public pressure against an operation by a target power. Such an attack would weaken the enemy's resolve, as contrasted with the strengthening of resolve that follows a traditional offensive action. Such methods are best used in an orchestrated campaign.

Origin of the termEdit

Perhaps the first use of the term "lawfare" was in a manuscript, Whither Goeth the Law - Humanity or Barbarity. The authors there argue the Western legal system has become overly contentious and utilitarian as compared to the more humanitarian, norm-based Eastern system. They opine the search for truth has been replaced by "lawfare" in the courts.[5]

A more frequently cited use of the term was coined by Charles J. Dunlap, Jr. in a 2001 essay he authored for Harvard's Carr Center.[6] In that essay, Dunlap defines lawfare as "the use of law as a weapon of war."[7] He later expanded on the definition, explaining lawfare was "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.[8]

Lawfare and Universal JurisdictionEdit

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.[9] Behind universal jurisdiction lies an Enlightenment view that all persons are endowed with basic human rights, and that infringing the rights of anyone no matter where they are violates internationally agreed principles of right and wrong.[10] Justice Robert H. Jackson speaking as a chief prosecutor in the Nuremberg Trials famously stated that an international tribunal could punish acts by captured Nazi officials which may have been perfectly legal in Fascist Germany (indeed one charge was they distorted the law itself into an instrument of oppression), but went well beyond "what is tolerable by modern civilization."[11] In the jargon of "Lawfare," the Nuremberg Trials might be described as a kind of universal jurisdiction lawfare against German officials following the actual warfare of World War II. Though the asymmetry in that case would be strong against weak since the Allies had defeated the Nazis, and the desired public relations victory the detailed exposure of Holocaust atrocities.

NGO Use of Universal JurisdictionEdit

Non-governmental organizations known as NGOs in democratic countries around the world often use the courts and legal systems. The NGO Forum of the 2001 Durban Conference called for the “establishment of a war crimes tribunal” against Israel. NGOs exploit universal jurisdiction statutes in Europe and North America to bring these cases. These statutes allow courts to preside even though the parties and events at issue are entirely foreign. In some countries, such as Spain, an NGO can apply to a court directly for an arrest warrant or to launch a criminal investigation without the knowledge or approval of the government.[12] Prof. Gerald Steinberg, Chairman of the Political Studies Department at Bar Ilan University and President of NGO Monitor says that "NGOs manipulate international legal terminology and exploit the rhetoric of human rights to accomplish their political goals."[13]

In Israel, it has become commonplace, with dozens of lawsuits filed by Israeli NGOs including Al-Haq, Palestinian Center for Human Rights, and others.[14]

Examples of LawfareEdit

A notable US official cited in connection with lawfare is Henry Kissinger. Dr. Kissinger faced questioning and possible prosecution in France, again in Brazil, and then in England (the latter initiated by Spanish magistrate Baltasar Garzón, notable for his earlier attempt to prosecute Chilean dictator Augusto Pinochet) because of Kissinger's involvement as a Nixon Administration official with a South American program of abductions, torture, and assassinations known as Operation Condor. Kissinger subsequently warned that universal jurisdiction risks "substituting the tyranny of judges for that of governments."[15] Harvard Law Professor Jack Goldsmith, known for his scholarship voicing opposition to the expansion of international human rights and universal jurisdiction, reveals 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."[16][17] Questions remain unresolved of the possibility of lawfare-type prosecution in Italy[18] and Germany[19]of CIA agents involved in international abduction known as extraordinary rendition by the United States, and in Spain before Magistrate Garzón of the Bush 6, American attorneys who created what the New York Times called "the legal framework to justify the torture of prisoners at Guantanamo Bay." [20].

See alsoEdit

ReferencesEdit

  1. (Unrestricted Warfare, at 55, see URL: http://www.terrorism.com/documents/TRC-Analysis/unrestricted.pdf).
  2. (Unrestricted Warfare, at 55, see URL: http://www.terrorism.com/documents/TRC-Analysis/unrestricted.pdf).
  3. (The Lawfare Project, see URL: http://www.thelawfareproject.org/).
  4. J. L. Comaroff, Colonialism, Culture, and the Law: A Foreword, 26 LAW & SOC. INQUIRY 306 (2001).
  5. Whither Goeth the Law - Humanity or Barbarity, The Way Out – Radical Alternatives in Australia (M. Smith & D. Crossley, eds., 1975), accessible at http://www.laceweb.org.au/whi.htm .
  6. Id.
  7. Dunlap, Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts (29 Nov 2001).
  8. Dunlap, “Lawfare amid warfare,” Washington Times (3 Aug 07).
  9. Goldsmith, Jack (2007). The Terror Presidency: Law and Judgement Inside the Bush Administration. New York City, New York: W.W. Norton. pp. 53–64. ISBN 978-0-393-06550-3.(discussing lawfare and the spread of universal jurisdiction).
  10. Grotius (1604). De Jure Pradae: (Of the Law of Prize and Booty). London: Oxford University Press. pp. xviii.(discussing in introductory notes Grotius' account of universal principles of right and wrong derived from reason and divine Will, the underpinning of much modern international law).
  11. Justice Jackson's opening statement at the Nuremburg War Crimes trial, reproduced at the Robert H. Jackson Center website, accessed 2 March 2010.
  12. NGO Monitor Monograph - Background on Lawfare
  13. NGO Lawfare: New monograph from NGO Monitor
  14. NGO Monitor Monograph - Overview of lawfare cases involving Israel
  15. Kissinger, Henry (July/August 2001). "The Pitfalls of Universal Jurisdiction". Foreign Affairs. http://www.foreignaffairs.com/articles/57056/henry-a-kissinger/the-pitfalls-of-universal-jurisdiction. Retrieved March 2, 2009.(The Foreign Affairs website archive summarizes but does not reproduce the text of Kissinger's article for lack of copyright; Kissinger revised and published it in his book Does America Need a Foreign Policy? Kissinger, Henry (2001). New York City, New York: Simon & Schuster. ISBN 978-0684855677.)
  16. Goldsmith, Jack (2007). The Terror Presidency: Law and Judgement Inside the Bush Administration. New York City, New York: W.W. Norton. pp. 53–64. ISBN 978-0-393-06550-3.(discussing Kissinger and Rumsfeld)
  17. Thayer, Andy (8 March 2010). "Court Allows Torture Suit Against Rumsfeld". Huffington Post. http://www.huffingtonpost.com/andy-thayer/court-allows-torture-suit_b_488374.html. Retrieved 9 March 2009.(discussing civil lawsuit against Donald Rumsfeld by Donald Vance, a Navy veteran who says he was tortured in an Iraq prison in 2006).
  18. Template:PDFlink, published by Statewatch, June 22, 2005
  19. [1] SpiegelOnline: Judgment Day May Be Approaching for CIA Agents(discussing German indictment of 13 CIA agents for rendition of Khaled el-Masri)
  20. Marlise Simons (2009-03-28). "Spanish Court Weighs Inquiry on Torture for 6 Bush-Era Officials". The New York Times. Archived from the original on 2009-05-02. http://www.webcitation.org/query?url=http%3A%2F%2Fwww.nytimes.com%2F2009%2F03%2F29%2Fworld%2Feurope%2F29spain.html%3F_r%3D1%26hp&date=2009-05-02.

External links Edit

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