Lawfare: Law as a Weapon of War. Orde F. Kittrie. Oxford, UK: Oxford University Press, 2016.
Lawfare is “the strategy of using—or misusing—law as a substitute for traditional military means to achieve a warfighting objective” Maj Gen Charles J. Dunlap, Jr., USAF (Ret)
The development of an international rule of law is traceable from the first explorers leaving their homeland to today where the “rule of law” plays out in every aspect of society and has risen to a point where nations, international organizations and individuals can use the law as part of their strategy.
In Lawfare: Law as a Weapon of War, Orde F. Kittrie, a tenured Professor of Law at Arizona State University's Sandra Day O'Connor College of Law, director of its Washington DC Semester Program, and a Senior Fellow at the Foundation for Defense of Democracies, argues that for the United States the lack of a “systematic engagement with lawfare is a tremendous missed opportunity.”(3) Phillip Carter, a lawyer and former U.S. Army Officer agrees: “We have every reason to embrace lawfare, for it is vastly preferable to the bloody, expensive and destructive forms of warfare that ravaged the world in the 20th century.”(3)
Lawfare is not a new form of warfare
Portrait of the Dutch lawyer and statesman Hugo de Groot, also known as Hugo Grotius, by Michiel van Miereveld (Public Domain)
Kittrie points out that lawfare is traceable to Hugo Grotius and his book Mare Liberum, published in 1609. In this book, he argued that under “the Law of Nations the sea is common to all,” that through it the Dutch accomplished what their naval and military forces could not, and they thereby “solidified the concept of freedom of the seas.” Kittrie also points out a more recent interpretation of lawfare by two Chinese People’s Liberation Army colonels who in 1999 published Unrestricted Warfare which “lists examples of non-military warfare,” including “establishing international laws that primarily benefit a certain country.” Additionally, the colonels argue for “the use of domestic trade law on the international stage” which they equate to being “equal to that of military operations.” Major General (Retired) Dunlap, former USAF deputy staff judge advocate, now professor of law at Duke University and executive director of the Center on Law, Ethics, and National Security, first used the term lawfare in November 2001. He coined this term in response to “The Rocky Shoals of International Law,” an essay by international law attorneys David Rivkin and Lee Casey who argued international laws are “ambiguous in their meaning…and application…may prove to be one of the most potent weapons ever deployed against the United States.” (6)
The term lawfare as used in this book centers on Dunlap’s definition. However, Kittrie explains that there are other usages. The national security blog Lawfare: Hard National Security Choices, describes its choice of the term: “Lawfare refers both to the use of law as a weapon of conflict and…to depressing reality that America remains at war with itself over the law governing its warfare with others.” While the Lawfare Project says lawfare “denotes the abuse of Western laws and judicial systems to achieve strategic military or political ends…must be defined as a negative phenomenon…”(9) According to the author there has been only one legal conference on lawfare held by Case Western University Reserve School of Law in 2010 during which Professor Michael Scharf stated, “Lawfare is a potentially powerful concept that reflects the importance of law in the conflicts of the 21st century.”
Canadian Forces spokesperson Brigadier-General Richard Blanchette speaks during a news conference at the Department of National Defense headquarters in Ottawa, Canada, on April 6, 2011. (Xinhua / Christopher Pike)
At first glance, one would assume that lawfare plays out in courtrooms around the world, by enforcement of sanctions, or international law emplaced by international organizations such as the United Nations. However, lawfare can also encompass self-imposed rules. As an example, the Taliban in 2007 fired on NATO forces who then returned fire, resulting in civilian casualties. Australia’s foreign minister Alexander Downer responded that NATO might not be able to avoid collateral damage whereas NATO representative Brigadier-General Richard Blanchette said, “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.” In this example, the Taliban used NATO’s self-imposed rules of engagement and risk aversion to limit NATO’s air superiority.(18) President Hamid Karzai called the attack “careless.” And Wali Khan, a member of parliament who represents the area, said, "More than 100 people have been killed. But they weren't Taliban. The Taliban were far away from there. The people are already unhappy with the government. But these kinds of killings of civilians will cause people to revolt against the government."
In essence, the Taliban created an “air defense system” without spending a single dollar to counter the NATO air threat. In 2009, former U.S. Secretary of Defense Robert Gates said, “Provoking or exploiting civilian casualties became a principal strategic tactic of the Taliban.”(19) The Taliban did not have to go to a court to obtain a legal remedy, but instead used NATO’s rules of engagement to create a battlefield advantage.
Financial Advantage in Lawfare
“The Treasury has opened up a new battlefield for the United States.” U.S. Treasury Secretary Jacob J. Lew (111)
The United States has an intrinsic advantage over many nations in applying lawfare due to its position as a central node in the international monetary system. As of 2012, the U.S. dollar was used in “87% of international foreign-exchange transactions and was the global reserve currency.”(119)
In 2004, the U.S. Department of Treasury created the first national financial department or ministry to have an internal financial intelligence operation—the Financial Crimes and Enforcement Network (FINCEN). Efforts by the Department of Treasury to enforce financial sanctions against Iran resulted in Reliance Industries, India’s second largest company and in the Global Fortune 500, halting its gasoline sales to Iran (it eventually withdrew from the Iranian market) because European banks would no longer arrange for letters of credit. Later, in November 2008, sixty Iranian economists presented an open letter for the “regime to change course.”
“Tension-creating foreign policy has scared off foreign investment and inflicted heavy damage on the economy,” President Mahmoud Ahmadinejad admitted in 2011. “Our banks cannot make international transactions anymore.”(123) However, the Middle Eastern financial network of hawala has made the movement of small amounts of money possible and has allowed Iranian entities and other non-state violent extremist organizations such as al-Qaida to move money and avoid U.S. financial lawfare.(149)
NGOs and Lawfare
Amnesty International and Human Rights Watch are the most notable non-governmental organizations (NGOs) that have influenced lawfare by raising public awareness of the law of armed conflict and violations against it.
“Public criticism of governments’ human rights was not accepted diplomatic practice for states or NGOs at Amnesty’s [International] inception.” Ann Marie Clarke
Amnesty International was the first to report alleged prisoner abuse at the Abu Ghraib prison by the U.S. military in 2003. The publicity created by Amnesty International and Human Rights Watch is routinely used by violent extremist organizations to instruct their fighters how to manipulate U.S. and NATO detention facilities in the event they are captured. A military judge advocate who worked with detainees in Afghanistan and Guantanamo Bay was interviewed for Lawfare and said it is consistent with al-Qaida training manuals that “almost every detainee in U.S. custody will make false allegations of abuse.”(26)
“Enemies like al-Qaeda who cannot match the United States militarily instead criticize it for the purported legal violations of human rights or laws of war…they complain falsely that they were tortured, as we now know al Qaeda training manuals advised them to do.” Jack Goldsmith, former Bush official and author of The Terror Presidency
There remain many ambiguities regarding lawfare. Sovereign immunity “is an accepted principle of customary international law, by virtue of which one sovereign state cannot be sued before the courts of another sovereign state without its consent.” However, the United States has made exceptions to this principle in the Foreign Sovereign Immunities Act of 1976, Public Law 94-583, and the Anti-Terrorism Act of 1990, which allows foreign governments to be sued for specific acts such as terrorism.
“Money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act, if the foreign state is designated as a state sponsor of terrorism.” FISA Statue 1605(A)(a)(1)
“Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.” Anti-Terrorism Act Civil Remedies. 18 U.S. Code § 2333
The families of U.S. Marines killed in the 1983 Hezbollah bombing of their barracks in Beirut, Lebanon used these laws to sue Iran in U.S. Federal Court. The court ruled in 2008 that Iran was responsible for the bombing and awarded $2.6 billion in compensation to the families.
Other areas that remain unsettled are the recognition of certain international laws like the U.N. Convention of the Law of Sea and courts like the International Criminal Court. The United States in the past has supported ad hoc international tribunals; however, is not a signatory to the Rome Statute of the International Criminal Court. The position of the U.S. State Department is that the U.S. will support the “prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.”
The examples presented throughout the book demonstrate not only how successful lawfare has been in the past, but arguably that the United States should continue to apply it throughout its international diplomatic and military strategies. However, a recent twist to Ordre’s arguments is the U.S. Supreme Court’s decision to hear an appeal by Iran’s Central Bank to reverse the lower court's judgments against Iran for terrorist acts on U.S. citizens including the 1983 Beirut bombing discussed above. Lawfare is a must read and belongs in the library of strategic thinkers, in and out of the government!
Dave Mattingly is a writer and national security consultant. He retired from the U.S. Navy with over thirty years of service. He is a member of the Military Writers Guild, NETGALLEY Challenge 2015, and a NETGALLEY Professional Reader. This article represents the private views and opinions of the author and do not reflect those of the Department of the Navy, the Department of Defense, of the U.S. Government.
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