Lawfare: a decisive element of 21st-century conflicts?

Joint Force Quarterly, July, 2009 by Charles Dunlap, J., Jr.

If anyone doubts the role of law in 21st-century conflicts, one need only pose the following question: what was the U.S. military's most serious setback since 9/11? Few knowledgable experts would say anything other than the detainee abuse scandal known as "Abu Ghraib." That this strategic military disaster did not involve force of arms, but rather centered on illegalities, indicates how law has evolved to become a decisive element--and sometimes the decisive element--of contemporary conflicts.

It is not hard to understand why. Senior commanders readily characterized Abu Ghraib in customary military terms as "clearly a defeat" because its effect is indistinguishable from that imposed by traditional military clashes. No one debates that the revelations energized the insurgency and profoundly undermined the ability of U.S. forces to accomplish their mission. The exploitation of the incident by adversaries allowed it to become the perfect effects-based, asymmetrical operation that continues to present difficulties for American forces. In early 2009, for instance, a senior Iraqi official conceded that the name "Abu Ghraib" still left a "bitter feeling inside Iraqis' heart." (1)

[ILLUSTRATION OMITTED]

For international lawyers and others involved in national security matters, the transformational role of law is often captured under the aegis of the term lawfare. In fact, few concepts have risen more quickly to prominence than lawfare. As recently as 2001, there were only a handful of recorded uses of the term, and none were in today's context. By 2009, however, an Internet search produces nearly 60,000 hits. Unfortunately, lawfare has also generated its share of controversy.

Law in Warfare

To the best of my knowledge, lawfare as used in today's context first appeared in my 2001 essay for Harvard University's Carr Center. (2) At that time, the term was defined to mean "the use of law as a weapon of war" and, more specifically, to describe "a method of warfare where law is used as a means of realizing a military objective." Today, the most refined definition is "the strategy of using--or misusing--law as a substitute for traditional military means to achieve an operational objective." (3)

The purpose of the lawfare conceptualization in the national security context is to provide a vehicle that resonates readily with nonlegal audiences, particularly in the Armed Forces. Historically, the role of law in armed conflict was variously presented, but often simply as yet another requirement, one to which adherence was a matter of integrity and moral rectitude. As powerful as such values may be as incentives, especially to the militaries of liberal democracies, conceiving of the role of law in more conventional military terms has its advantages. Understanding that the law can be wielded much like a weapon by either side in a belligerency is something to which a military member can relate. It facilitates accounting for law, and particularly the fact and perception of adherence to it, in the planning and conduct of operations.

While recognizing the ever-present ethical responsibility to comply with the law, how does transforming adherence to law into a strategy serve the purposes of the warfighter? The answer is found in the work of Carl von Clausewitz. A man of his times, Clausewitz had little regard for international law as a factor in war. (4) Nevertheless, he was keenly aware of the political dimension, and this is the linkage to today's understanding of lawfare.

Clausewitz's famous dictum that war is a "continuation of political intercourse, carried on with other means" relates directly to the theoretical basis of lawfare. (5) Moreover, his analysis of the "trinity" of the people, government, and military whose "balance" produces success in war is likewise instructive. Specifically, in modern democracies especially, maintaining the balance that "political intercourse" requires depends largely upon adherence to law in fact and, importantly, perception.

Legal experts Michael Reisman and Chris Antoniou put it this way:

In modern popular democracies, even a limited armed conflict requires a substantial base of public support. That support can erode or even reverse itself rapidly, no matter how worthy the political objective, if people believe that the war is being conducted in an unfair, inhumane, or iniquitous way. (6)

Some adversaries see opportunity in this aspect of our political culture. Professor William Eckhardt observes:

Knowing that our society so respects the rule of law that it demands compliance with it, our enemies carefully attack our military plans as illegal and immoral and our execution of those plans as contrary to the law of war. Our vulnerability here is what philosopher of war Carl von Clausewitz would term our "center of gravity." (7)

In short, by anchoring lawfare in Clausewitzean logic, military personnel--and especially commanders of the militaries of democracies--are able to recognize and internalize the importance of adherence to the rule of law as a practical and necessary element of mission accomplishment. They need not particularly embrace its philosophical, ethical, or moral foundations; they can be Machiavellian in their attitude toward law because adherence to it serves wholly pragmatic needs. Thus, the concept of lawfare aims to insinuate law into military thinking in a new way, one that rationalizes it in terms compatible with the realities of 21st-century operations.