It is perhaps appropriate to start with a definition of lawfare. Although not a new phenomenon, lawfare was brought to the attention of the modern world in an essay by Major General Charles Dunlap of the U.S. army: The use of the law as a weapon of war.
The definition has since been expanded to include the wrongful manipulation of the legal system to achieve strategic political or military ends.
Often lawfare takes the form of a legal campaign on terrorism and asymmetric warfare. This type of lawfare is aimed at delegitimizing and frustrating the actions of nation states dedicated to the eradication of terrorist methods.
It consists, for example, of exploiting orchestrated law-of-war violations, as taught by Al-Qaeda manuals, which instruct captured militants to file false claims of torture to reposition themselves as victims in the eyes of the media and the law. The text from one such manual can be found here. Its goal is as much to win a public relations victory as a court case.
We see the legal tactic being used by designated terrorist groups, like Hamas, which attempt to achieve legitimacy through “human rights” litigation in England, while at the same time openly flouting human right norms by murdering with impunity child soldiers, human shields, and even their own children.
Proponents of lawfare fight with a variety and combination of offensive legal actions that are employed in both domestic and international courts of law.
We are witnessing lawfare at the United Nations -- in efforts spearheaded by the Organization of the Islamic Conference --- to exclude attacks on American civilians from any international definition of terrorism, and in the OIC’s manipulation of the Human Rights Council to enact a global ban on the defamation of religion.
lawfare techniques include frivolous and predatory libel and “hate speech” lawsuits brought against authors, politicians, members of the media, and even cartoonists who are brave enough to speak publicly about, or satirically on, issues of national security and public concern. The techniques also include “workplace harassment” lawsuits against counter-terrorism experts that brief our military and police officers about radical Islam.
The cumulative effect of these lawsuits is a culture of fear, and a detrimental chilling effect on the speech and opinions of the very people who are supposed to be protecting us.
lawfare is evident in the deliberate misapplication of human rights language and legal terminology, such as in the misuse of the terms “apartheid” and “genocide” to dilute their meaning and feed the inability to engage in any type of genuine dialogue about real instances of human rights violations.
The very existence of lawfare calls into question universal jurisdiction laws as they are being used to effect “war crimes” prosecutions against democratically elected officials -- such as Belgium’s attempted prosecutions of former president Bush and former UK Prime Minister Tony Blair; Spain’s criminal prosecution of six top legal officials in the Bush administration, and the State of Jordan’s demand for the extradition of a Dutch politician to stand trial for blasphemy of Islam.
lawfare can also be pursued through a lack of action, when such action is necessary to maintain peace and is in the pursuit of justice. Concepts like the “disproportionate use of force,” “ collective punishment” and the unlawful targeting of civilians are less examined -- if examined at all -- regarding the actions of terrorist groups, and the banks and states that sponsor them. When little-to-no legal accountability is demanded of Hezbollah, and its agents remain free to cross European borders, while at the same time Israel’s foreign minister, Tzipi Livni, is threatened with arrest in England, we have a problem -- one that evidences bias in the application of the law and a disregard for the concept of equality before the law.
There is no doubt that legal decisions, both home and abroad, influence the methods we use when we fight terrorism, and affect our ability to win the war of ideas. Requiring highly restrictive rules-of-engagement in battle, and overly protective legal procedures during the custodial period, has systemic effects, both positive and negative, on the military’s entire approach to war.
Yet, if respect for human dignity is to be at the center of our diplomacy, as well as our military defense, how do we go about applying those principles first and foremost to ourselves, second to the those we capture on the battlefield, and how do we distinguish between constructive legal battles and those which are counter-productive lawfare?
The delineation is not as simple as some might like to make it: Lawsuits against terrorists are good and legal actions against us are bad.
The question is not who is the target, but what is the intention behind the legal action: Is it to pursue justice or to undermine the very system being manipulated?
The substance of international humanitarian law is evolving much slower than the types of crimes the law was enacted to eradicate. At the same, we are seeing courts and human rights groups denigrate a society’s legitimate interest in security and self defense. This problem calls for a re-examination of the processes by which human rights are enforced, and the bodies by which they are defined. To what extent, if any, should international humanitarian law be enforced in domestic courts, via the Alient Torts Claim Act or the Terror Victim Protection Act and their foreign equivalents? And should a U.N. voting block comprised largely of non-democratic member states, dictate international human rights norms?
How we answer these questions has implications, not just for Western defendants, but also for the victims of mass rape in Darfur, the victims of genocide in Rwanda, the families of the Disappeared in Argentina, and the students killed protesting in the streets of Tehran.
In recognition of the significance of these issues, the lawfare Project was established. The Project’s goal is to raise awareness about the abuse of the legal system and human rights law. We are dedicated to mobilizing resources and bringing together interested parties from a broad spectrum of views in a common forum to discuss the threat of lawfare.
Out of a concern for the integrity of the law and our legal institutions, District Attorney Cyrus Vance wishes us “a free and frank debate, unencumbered by politics, to examine the interplay of security and the law…with an eye towards strengthening our democratic institutions.”
These remarks were originally presented in a slightly different form at The Conference on lawfare, New York City, March 11, 2010
