Juridical warfare: the neglected legal instrument

Joint Force Quarterly, Jan, 2008 by Harvey Rishikof

Joint Force Quarterly should be commended for recognizing the vital relationship between law and national security. (1) For too long, the law has not been understood as a critical instrument of foreign policy. Under the traditional paradigm of DIME (diplomacy, intelligence, military, and economics) as the instruments of power, L or law has had no place. As an acronym, LEDIM or DIMEL or LIMED just did not have the same catchy ring. Theorists have posited a new formulation, MIDLIFE (military, information, diplomacy, law enforcement, intelligence, finance, and economics). It is argued that with the skillful orchestration of these MIDLIFE instruments, or soft and hard power, we will ultimately achieve smart power.

The law, indeed, is a complicated intellectual mistress. Like economics, law is both a context for the application of power and at the same time an instrument of power. Rule of law, though, has an ideological force unto itself and is both a domestic and international legitimizer of action. Moreover, law enforcement operations have nudged their way into the foreign policy arena, and this, too, has created analytical problems for those who believe in military operations other than war as an exclusively military issue.

The traditional view of the instruments of national power is to separate them into various boxes and study their essential characteristics to illustrate how unique each is. But such an analytical approach does a disservice to the relationship of one instrument to another and how each instrument can affect the operational efficacy of another if one is abused or misused. Air Force theorists, in particular, have been sensitive to this problem, given the nature of airpower. Major General Charles Dunlap, deputy judge advocate general, has focused on the modern emergence of "lawfare" within warfare:

It is clear that lawfare has become a key aspect of modern war. The abuses at Abu Ghraib and elsewhere produced effects more damaging than any imposed by our enemies by force of arms. What makes it especially maddening is that these are self-inflicted wounds, wholly preventable incidents where adherence to the rule of law would have avoided the disastrous consequences that still plague America's war-fighting effort. (2)

Lawfare for Dunlap occurs when the enemy exploits real, perceived, or even orchestrated incidents of law of war violations as an unconventional means of confronting American military power. The goal of lawfare for the enemy is to make it appear that the United States is fighting in an illegal or immoral way. The damage inflicted by the legal debate on the public support required in a democracy to wage war can contribute to the defeat of American goals. As an example, Dunlap notes that an Air Force policy of "zero tolerance" for noncombatant casualties, although not required by international law, may have the unintended consequence of undermining the ability to use airpower and encourage the enemy to collocate with noncombatants to exploit the new high moral ground being asserted by U.S. policy.

Since World War II, the ethical and legal dimensions of strategic bombing have filled volumes of commentary. (3) In the words of Colonel Peter Faber, USAF, a National War College core course director, although "the moral/legal ambiguities of World War II are long gone, military options are under assault through moral/legal means, and the only way we can arrest this development is by educating 'combatants' for ethical and legal war." (4) For Dunlap, "international law is the friend of civilized societies and the military forces they field. However, if we impose restraints as a matter of policy in a misguided attempt to 'improve' on it, we play into the hands of those who would use it to wage lawfare against us." (5) Lawfare can be a powerful ideological instrument indeed for a superpower, or it can be a powerful inhibitor.

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For the traditionalists in the law of armed conflict, the lawfare debate raises the categories of jus ad bellum, jus in bello, and jus post bellum. But the Just War paradigm carries historic baggage that often does not assist in debates over nuclear war, terrorism, and when to intervene in failing states. Domestic law and international law in the "age of modern terrorism" have collided as debates rage over how best to categorize and use force against "terrorists." These policies have proven to be controversial issues in our polity, and the Just War categories have demonstrated analytical limitations in the face of the new realities.

The executive branch has clashed with both Congress and the Supreme Court in its view of executive power when creating new policy on a war footing. Is a terrorist action a criminal violation or a political act? Should terrorism be prosecuted under the laws of armed conflict or the criminal justice system? Is terrorism primarily a domestic or foreign issue? When projecting force against the threat of terrorism, should we use law enforcement shooting criteria or military rules of engagement? Which international conventions govern the confinement and interrogation of terrorists and how? Does it make a difference if the victims of terrorism are combatants or noncombatants? Under what laws should "private contractors" be governed--military, criminal, or local? If gathering intelligence is the center of gravity to prevent terrorist acts, should this process be governed by law enforcement restrictions or foreign intelligence criteria? How should the executive branch conduct its terrorist policies with respect to Congress and the Federal courts?