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

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

Legal "Weaponry"

The new emphasis on law in war derives from the larger, worldwide legal revolution. George Will recently characterized the United States as the "Litigation Nation" to describe how deeply legal consciousness has penetrated American society. (8) Furthermore, international commerce depends upon law, along with a variety of international forums, to operate efficiently. This, in turn, is accelerating a globalization of law. As international law generally penetrates modern life, it tends to influence, as other trends have, the way war is conducted. Add to that the enormous impact of information mediums, from round-the-clock news sources to cell phone cameras that empower almost anyone to record events, and it is easy to understand why incidents that seemingly implicate the international law of war can rapidly have significant ramifications among the body politic.

Commanders today, keenly aware of the devastating impact on operations that incidents such as Abu Ghraib can have, typically are willing partners in efforts to ensure that compliance with the law is part and parcel of their activities. It is no surprise, for example, that the much-heralded counterinsurgency manual devotes a considerable amount of text to law and law-related considerations. (9) Counterinsurgency and other contemporary "irregular warfare" situations are especially sensitive to illegalities that can undermine the efforts to legitimize the government (and those wishing to assist it) that the insurgency is aiming to topple.

The new counterinsurgency doctrine also emphasizes that lawfare is more than just something adversaries seek to use against law-abiding societies; it is a resource that democratic militaries can--and should--employ affirmatively. For example, the reestablishment of the rule of law is a well-understood component of counterinsurgency and has proven an important part of the success U.S. forces have enjoyed in Iraq. (10)

There are other examples of how legal instruments can substitute for military means and function as an affirmative good. To illustrate: during the early stages of operations in Afghanistan, a legal "weapon"--a contract--was used to deny potentially valuable military information (derived from commercially available satellite imagery) from hostile forces. (11) In addition, although strategists argue that 21st-century threats emerge most frequently from nonstate actors who often operate outside of the law, these actors are still vulnerable to its application. Legal "weaponry," for instance, may well be the most effective means of attacking the financial networks terrorist organizations require to function. Likewise, sanctions and other legal methodologies can isolate insurgencies from the external support many experts believe is essential to victory.

A Tool for the Enemy?

While the employment of legal methodologies can create offensive opportunities for savvy U.S. commanders, too frequently our opponents use an exploitative form of lawfare along the lines of that arising in Abu Ghraib's aftermath. In fact, lawfare has emerged as the principal effects-based air defense methodology employed by America's adversaries today. Nowhere is this truer than in Afghanistan, where the Taliban and al Qaeda are proving themselves sophisticated and effective lawfare practitioners.