Lawfare

Lawfare is the use of legal systems and institutions to affect foreign or domestic affairs, as a more peaceful and rational alternative, or as a less benign adjunct, to warfare.

Detractors have alternately begun to define the phrase as, "An attempt to damage or delegitimize an opponent, or to deter an individual's usage of their legal rights". The term may refer to the use of legal systems and principles against an enemy, such as by damaging or delegitimizing them, wasting their time and money (e.g., strategic lawsuits against public participation), or winning a public relations victory. Alternatively, it may describe a tactic used by repressive regimes to label and discourage civil societys via national or international legal systems. This is especially common in situations when individuals and civil society use nonviolent methods to highlight or oppose discrimination, persecution, corruption, lack of democracy, limiting freedom of speech, violations of human rights and violations of international humanitarian law."

Since the early 2000s, the use of legal mechanisms in conflict contexts has drawn significant international attention. During this period, particularly in the context of the U.S.-led " War on Terror" both the United States and Israel have characterized legal challenges to their military operations as a form of lawfare—a term used to describe the perceived exploitation of legal systems to achieve political or ideological objectives. Critics argue that this framing delegitimizes the legal efforts of less powerful actors who seek accountability through international institutions.

Early use and definitions

The term is a portmanteau of the words "law" and "warfare". The first documented use of the term "lawfare" was in a 1957 article regarding divorce, which states that " e canton, clearly reduced in status, still is
a state with standing in court to wage some lawfare on behalf of its folk, and with liability for some behavior of its folk."

The term reappeared at the turn of the century, first in a 2001 article by the anthropologist John Comaroff, who employed it to denote “the effort to conquer and control indigenous peoples by the coercive use of legal means.” In his later work with Jean Comaroff, the definition of the concept was broadened to encompass, more generally, “the resort to legal instruments, to the violence inherent in the law, to commit acts of political coercion, even erasure.”

A more frequently cited use of the term is found in a 2001 essay authored by Major General Charles J. Dunlap Jr., in which Dunlap defines lawfare as "the use of law as a weapon of war"; that is, "a method of warfare where law is used as a means of realizing a military objective". He later expanded on the definition, describing lawfare as "the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting" a superior military power. In this sense, lawfare may be a more humane substitute for military conflict, although Dunlap considers lawfare a "cynical manipulation of the rule of law and the humanitarian values it represents".

Benjamin Wittes, Robert Chesney, and Jack Goldsmith employ the word in the name of the '' Lawfare'' website, which focuses on national security law and has explored the debate over the definition of lawfare and whether it should be considered exclusively a pejorative.

Adversarial uses of legal systems by non-state actors has also been identified under the similar classification of paper terrorism, based on an analogous comparison to conventional armed terrorism.

Universal jurisdiction

Lawfare may involve the law of a nation turned against its own officials, but more recently it has been associated with the spread of universal jurisdiction, that is, one nation or an international organization hosted by that nation reaching out to seize and prosecute officials of another.

Examples

Hundred Years' War

French officials deployed a form of lawfare in the lead-up to the Hundred Years' War, according to historians Iskander Rehman and David Green. Rehman states:

Israeli–Palestinian conflict

Both pro-Israeli groups and pro-Palestinian groups have been accused of using lawfare against one another.

Israeli officials have referred to Palestinian legal initiatives at the United Nations Human Rights Council, the International Criminal Court, and the United Nations Security Council as examples of political and legal warfare. Organizations such as NGO Monitor have further argued that certain non-governmental organizations (NGOs), including the Center for Constitutional Rights and Defense for Children International – Palestine, are at the forefront of promoting legal actions that challenge Israeli policies. NGO Monitor contends that these efforts amount to lawfare and has advocated for the withdrawal of funding from such organizations.

In 2017 Christian Aid, a British charity that does humanitarian work for Palestinians (and others), was taken to court in the US for "providing material aid to Hamas", by David Abrams, director of pro-Israeli organization, the Zionist Advocacy Center. The case was dismissed in US courts, but Christian Aid had spent £700,000 in defending itself, and said it was an act of "lawfare" against organizations that help Palestinians.

Kitty Orde's 2016 book on lawfare gives the example of pro-Israeli group Shurat HaDin preventing a Gaza-bound flotilla from leaving Greece, acting on behalf of the Israeli government. Many cases have been brought forward against Israeli officials and those associated with the Israel Defense Forces (IDF), accusing them of war crimes. These cases have been heard in Israel and other countries. Attempts to suppress the Boycott, Divestment and Sanctions (BDS) movement have also been called lawfare. In Israel and some US states, the BDS movement has been met with anti-BDS laws.

The NATO Strategic Communications Centre of Excellence has cited the alleged use of human shields by groups like Hamas as an example of lawfare, hinging on exploiting Israeli claims that they minimize civilian casualties, as well as the sensitivity of Western public opinion. This tactic allows Hamas to either accuse Israel of war crimes if civilian casualties occur or to protect its assets and continue operations if the IDF limits its military response.James Pamment, Vladimir Sazonov, Francesca Granelli, Sean Aday, Māris Andžāns, Una Bērziņa-Čerenkova, John-Paul Gravelines, Mils Hills, Irene Martinez-Sanchez, Mariita Mattiisen, Holger Molder, Yeganeh Morakabati, Aurel Sari, Gregory Simons, Jonathan Terra
Hybrid Threats: Hamas’ use of human shields in Gaza
NATO Strategic Communications Centre of Excellence, 5 June 2019 pp.147-169, 152 According to Canadian lawmaker and former minister Irwin Cotler, the use of law to delegitimize Israel is present in five areas: United Nations, international law, humanitarian law, the struggle against racism and the struggle against genocide.

People's Republic of China

The government of the People's Republic of China has explicitly recognized lawfare ("''falu zhan''" or "legal warfare") as an essential component of its strategic doctrine. Lawfare is one of three components of the People's Liberation Army (PLA)'s three warfares doctrine, which was approved by the Central Committee of the Chinese Communist Party and the Central Military Commission in December 2003 to guide PLA political warfare and information influence operations.

The activities of the People's Republic of China in relation to the territorial disputes in the South China Sea is frequently cited example of lawfare by the Chinese government. In particular, China has asserted sovereign control over several areas in the South China Sea, and has restricted access to areas within its alleged sovereign territory or exclusive economic zone. In support of its claims, China has issued official state declarations (e.g., notes verbal) and enacted domestic laws that assert its sovereignty or effective control of portions of the sea. China's attempts at framing cross-strait relations with Taiwan as an internal dispute is also cited as an example of lawfare. Its attempts to apply domestic law, such as its 2005 Anti-Secession Law, to Taiwan or attempts to make its One China principle a matter of international law (for example, via its interpretation of United Nations General Assembly Resolution 2758) have been cited as instances of lawfare. Academic Hung Chin-fu of National Cheng Kung University has described Chinese legislation to prevent Taiwan from culturally asserting its own identity as a form of lawfare. China's 2013 creation of its Air Defense Identification Zone that cover the disputed Senkaku Islands has also been cited as lawfare.

The government of China has also used lawsuits in foreign courts to repress Chinese dissidents abroad, which has also been labeled as lawfare by academic Diego A. Zambrano of Stanford Law School. Defamation lawsuits against academics and researchers for their publications brought by Chinese companies in foreign courts have also been described as lawfare.

Commentary

Harvard School of Law professor Jack Goldsmith, an opponent to the expansion of international human rights and universal jurisdiction, states in his book ''The Terror Presidency'' that Defense Secretary Donald Rumsfeld was concerned with the possibility of lawfare waged against Bush administration officials, and that Rumsfeld "could expect to be on top of the list". Rumsfeld addresses the effects of lawfare in his memoir ''Known and Unknown''.

During a panel discussion on lawfare at the 2024 ''Vancouver International Security Summit'' Panelist Cynthia Alkon, law professor and director of the Texas A&M University Criminal Law, Justice & Policy Program, and instructor of the first university class on lawfare in the United States at Texas A&M Law School said, "A lot of lawyers don’t know they are in a case of lawfare." Alkon went on to described the primary form of lawfare as "a state acting through corporations and lawyers to file injunctions and lawsuits against investigative reporters, researchers, and security consultants warning against various forms of contentious action covertly taken by that state against others."

At the same 2024 Vancouver International Security Summit'','' Panelist Scott McGregor, a former military and RCMP intelligence official, cited his work as an author resulted in a defamation claim against him and his co-author, Ina Mitchell, by a group associated with the Chinese Communist Party (CCP). "In lawfare, there is an intention to suppress what you’re saying, to deter," said McGregor, noting that the authors became a target of the CCP despite British Columbia's new law to prevent strategic litigation against public participation (SLAPP).

See also

*Justice delayed is justice denied - a legal maxim
*Malicious prosecution
*Political prisoner
* Vexatious litigation
* War as metaphor

References

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Political neologisms
20th-century conflicts
21st-century conflicts
Psychological warfare
Propaganda techniques
Public relations
International criminal law
Law of war
National security
International security
War on terror
Counterterrorism