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

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

Specifically, the Taliban and al Qaeda are attempting to demonize the air weapon through the manipulation of the unintended civilian casualties airstrikes can produce. Their reason is obvious: precision air attacks are the most potent weapon they face. In June 2008, the Washington Times reported a Taliban fighter's lament that "tanks and armor are not a big deal. The fighters are the killers. I can handle everything but the jet fighters." (12) More recently, Newsweek told of a Taliban commander who, visiting the site of an attack by a Predator drone, marveled at how a "direct hit" was scored on the exact room an al Qaeda operative was using, leading the publication to conclude that a "barrage of pinpoint strikes may be unsettling al Qaeda." (13)

Yet the enemy is fighting back by mounting a massive--and increasingly effective--lawfare campaign. Using the media, they seek to create the perception, especially among Afghanis, that the war is being waged in an "unfair, inhumane, or iniquitous way." (14) Unfortunately, some well-intended efforts at countering the adversary's lawfare blitz are proving counterproductive. For example, in June 2007, a North Atlantic Treaty Organization (NATO) spokesman in Afghanistan insisted that the Alliance "would not fire on positions if it knew there were civilians nearby." (15) A little more than a year later, another NATO spokesman went even further, stating that if "there is the likelihood of even one civilian casualty, we will not strike, not even if we think Osama bin Laden is down there." (16) The law of war certainly does not require zero civilian casualties; rather, it only requires that they not be excessive in relation to the military advantage sought.

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Regardless, NATO's pronouncements unintentionally telegraphed an opportunity for lawfare-based strategy by which the enemy could avoid (or manipulate) airstrikes. That strategy is in effect today as evidenced by a November 2008 report wherein U.S. officers advised that the Taliban is "deliberately increasing the risk to civilians" by locating themselves among them. (17) In terms of manipulation, consider an incident in which the Taliban, according to an American official, held a wedding party hostage as they fired on U.S. forces in an "attack designed to draw airstrikes on civilians and stoke anti-American sentiment." (18)

What is frustrating is the fact that revolutionary advances in aerial surveillance technologies and precision munitions have made airstrikes, in the words of Marc Garlasco of Human Rights Watch, "probably the most discriminating weapon that exists." (19) The problem concerns perceptions. Accordingly, Jaap de Hoop Scheffer, the Secretary-General of NATO, correctly recognizes that perceptions are a "strategic battleground" and wants to "prioritize strategic communications" to remind the world "that the Taliban remain the ruthless killers and abusers of human rights that they have always been." (20)

The Taliban is not the only adversary employing abusive lawfare tactics. In their air and ground operations in Gaza in late 2008 and early 2009, the Israelis faced a foe who, according to Israeli officials, flouted international law in an unprecedented manner. Specifically, the New York Times reported: