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BACKGROUNDER No. 2692 | May 18, 2012

Winning Without Fighting: Chinese Legal Warfare Dean Cheng

Abstract ver the past decade, many Over the past decade, there has been Onations have demonstrated a Talking Points growing interest in legal warfare or growing interest in legal warfare “.” While the U.S. is focusing or “lawfare.” In the , ■■ Over the past decade, many on the interplay between the lawfare discussions are focusing nations have demonstrated a growing interest in legal warfare and operations, on the interplay between the law or “lawfare.” is approaching lawfare from a and counterinsurgency operations. ■■ different perspective: as an Specifically, the U.S. is concerned In the United States, lawfare discussions are focusing on the capable of hamstringing that opponents, especially insur- interplay between the law and opponents and seizing the political gents, may employ legal means to counterinsurgency operations. initiative. Indeed, Chinese planners secure victories that they cannot ■■ The U.S. is concerned that oppo- are almost certainly preparing legal obtain on the battlefield. nents, especially insurgents, may plans aimed at controlling the The People’s Republic of China employ legal means to secure enemy through the law or using (PRC), and, in particular, the People’s victories that they cannot obtain the law to constrain the enemy. Liberation Army (PLA), is approach- on the battlefield. Consequently, the United States must ing lawfare from a different perspec- ■■ The People’s Republic of China take steps to prepare for the possibility tive: as an offensive weapon capable and, in particular, the PRC People’s of legal warfare and incorporate of hamstringing opponents and seiz- Liberation Army are approaching defensive measures into its strategic, ing the political initiative in wartime. lawfare from a different perspec- operational, and tactical policies. tive: as an offensive weapon capa- Context: ble of hamstringing opponents The “” and seizing the political initiative. Chinese writings often refer to ■■ America can no longer regard the “three warfares” (san zhan): lawfare from a purely defensive public opinion warfare, psycho- standpoint. Offensive legal war- logical warfare, and legal warfare. fare, whether practiced by the PRC or by militarily overmatched insur- This paper, in its entirety, can be found at Chinese analyses almost always http://report.heritage.org/bg2692 gents, can neutralize America’s link the three together, as they are might while damaging its Produced by the Asian Studies Center seen as interrelated and mutually allies and strategic partners. The Heritage Foundation reinforcing. 214 Massachusetts Avenue, NE ■■ The United States must therefore Washington, DC 20002 prepare for the possibility of legal (202) 546-4400 | heritage.org 1. Public opinion/media war- warfare and incorporate defensive Nothing written here is to be construed as necessarily fare is the struggle to gain measures into its strategic, opera- reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill dominance over the venue for tional, and tactical policies. before Congress. implementing psychological BACKGROUNDER | NO. 2692 May 18, 2012

and legal warfare. It is seen as as the broader population, about Military combat preparations a stand-alone form of warfare or the legality of adversary actions, include the development and inno- conflict, as it may occur indepen- thereby diminishing political vation of military political work, as dent of whether there is an actual will and support—and potentially well as more kinetic forms of opera- outbreak of hostilities. Indeed, it retarding military activity. It also tions. Indeed, is is perhaps best seen as a constant, provides material for public opin- seen as a vital complement for more ongoing activity, aimed at long- ion/media warfare. Legal warfare traditional forms of military opera- term influence of perceptions and does not occur on its own; rather, tions. While they may not be decisive attitudes. One of the main tools it is part of the larger military or in their own right, political warfare of public opinion/media war- public opinion/media warfare tactics nonetheless may allow their fare is the media, including campaign. practitioner to seize the initiative both domestic and foreign enti- and otherwise multiply the effects of ties. The focus of public opinion/ In order to be as effective as pos- military power. media warfare is not limited to sible, both and Legal warfare, at its most basic, the press, however; it involves all legal warfare require the use of pub- involves “arguing that one’s own side of the instruments that inform lic opinion warfare. Public opinion is obeying the law, criticizing the and influence public opinion (e.g., warfare and legal warfare require other side for violating the law [weifa], movies, television programs, and psychological warfare guidance so and making arguments for one’s own books). that their targets and methods can side in cases where there are also vio- be refined. Public opinion warfare lations of the law.”3 The instruments 2. Psychological warfare pro- and psychological warfare are, in of legal warfare include national vides the underpinning for turn, strengthened by as well as the full range of legal both public opinion/media gleaned through legal warfare.1 instruments: legislation, judicial law, warfare and legal warfare. legal pronouncements, law enforce- With regard to the PLA, psycho- Legal Warfare: ment, and legal education. logical warfare involves disrupt- Chinese Definitions Like more conventional forms of ing the enemy’s decision-making In the People’s Republic of China, warfare, legal warfare is conducted capacity by sapping their will, and especially the PLA, the concept under a unified command organiza- arousing anti-war sentiments of legal warfare ( falu zhanzheng or tion. It will include the use of the law (and therefore eroding the per- falu zhan) has sparked a great deal of in implementing offensive actions, ception of popular support), and discussion. This interest was codi- defensive actions, counterattacking causing an opponent to second- fied when, on December 5, 2003, the actions, and other forms of combat. guess himself—all while defending PRC promulgated the “Political Work Legal warfare includes such opera- against an opponent’s attempts to Regulations of the Chinese People’s tions as legal deterrence ( falu weishe) conduct similar operations. Liberation Army”—a regulation and the imposition of sanctions specifying that the General Political (zhicai). 3. Legal warfare is one of the key Department (GPD), in its implemen- In order to influence domestic and instruments of psychologi- tation of political work, was to under- foreign populations and leaders, legal cal and public opinion/media take the “three warfares.”2 warfare is most commonly employed warfare. It raises doubts among From the Chinese perspective, before the outbreak of physical hos- adversary and neutral military political warfare, including legal tilities. Furthermore, such a preemp- and authorities, as well warfare, is seen as a form of combat. tive legal strike can weaken opposing

1. Liu Kexin, Study Volume on Legal Warfare (Beijing, PRC: National Defense University Press, 2006), pp. 18, 34–37. 2. The PLA is not managed by its services, but by four general departments: the General Department, responsible for war planning; General Political Department, responsible for political education and personnel issues; General Logistics Department, responsible for providing logistics support; and General Armaments Department, responsible for development. 3. Han Yanrong, “Legal Warfare: Military Legal Work’s High Ground: An Interview with Chinese Politics and Law University Military Legal Research Center Special Researcher Xun Dandong,” Legal Daily (PRC), February 12, 2006.

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coalitions while building support society. Laws were secondary to the instrument of governance, but not a for one’s own side. In wartime, “The network of obligations enunciated constraint upon the Party, much less aim is to psychologically dissipate under the Confucian ethic, supple- the Great Helmsman (Mao Zedong). the other sides’ fighting will in both mented by the presence of “moral In any case, the Party exercised rule the military and the civilian realms, men” who would apply the law and, by decree rather than through legal while exciting one’s own military and more important, enforce moral- mechanisms. During the Cultural civilian passions and obtaining inter- ity and ethics. The Legalist “school” , Mao himself effectively national sympathy and support.”4 (more a loose of ideas articulated abolished both the judiciary and the Legal warfare is also an important by various scholars who disagreed legal structure.7 tool for consolidating gains made with Confucianism) placed more Since the passing of Mao, the CCP during a war. emphasis on the creation of legal (as has made a concerted effort to create opposed to ethical) codes. But, like a body of laws—a tacit admission that Context: Influences the Confucianists, the Legalists governance by decree is incompat- Shaping Legal Warfare saw the law as a means of enforcing ible with the expansion and mod- Underlying the Chinese interest societal (and state) control of the ernization of China’s economy. Most in legal warfare are two broad influ- population. No strong tradition that of these new regulations, however, ences: a different view of the role held the law as a means of constrain- focus on commercial and contract of law and a perception that other ing authority itself ever developed in law; the legal structure for crimi- states already employ legal warfare. China. nal and civil law remains weak, and Chinese Views of the Role and In the broadest sense, pre-1911 is virtually nonex- Rule of Law. Important historical Chinese society viewed the law from istent. Moreover, the law remains an and cultural considerations inform an instrumental perspective—a instrument that applies primarily to the PRC’s understanding of legal means by which authority could con- the “masses,” as opposed to the Party. warfare, an understanding that is trol the population rather than a con- As a result, China is still subject to very different from that of the West. trol extended over authority. Thus, rule by law rather than the rule of law. The concept of the rule of law—that imperial China may be said to have Chinese Perception of Legal the law exists as a distinct autono- experienced rule by law, not rule of Warfare in the West. If China has mous entity and applies to both the law. Not surprisingly, a strong, inde- an instrumentalist view of the law, ruler and the ruled—is one of the pendent judiciary failed to develop in it perceives that others share that foundations of the West’s legal tra- imperial China, while lawyers were perspective, at least when it comes to ditions. Despite its importance to neither numerous nor held in high the role of law in international rela- the West, however, the rule-of-law esteem.5 tions and especially warfare. As Carl maxim remained weak throughout During the early years of the von Clausewitz observed, “War is an imperial China and was ultimately PRC, Chinese legal development was act of force to compel our enemy to devastated by Maoist rule. influenced by the Marxist perspec- do our will… . [Attached to] force are The Confucian and Legalist tive that the “law should serve as an certain self-imposed, imperceptible schools of thought had the greatest ideological instrument of politics.”6 limitations hardly worth mentioning, impact on imperial Chinese under- Consequently, during the forma- known as international law and cus- standing of the law. Confucianism tive years of the PRC, the Chinese tom, but they scarcely weaken it.”8 emphasized morality and ethics Communist Party (CCP) consid- Nor is this solely a matter of as the proper basis for managing ered the law to be essentially an legal . According to PLA

4. Major General Liu Jiaxin, “General’s Views: Legal Warfare—’s Second Battlefield,”Guangming Ribao, November 3, 2004. At the time, MG Liu was commandant of the Xian Political Academy of the PLA General Political Department. 5. Dwight Perkins, “Law, Family Ties, and the East Asian Way of Business,” in Culture Matters, ed. Lawrence E. Harrison and Samuel P. Huntington (New York: Basic Books, 2000), p. 233. 6. Eric W. Orts, “The Rule of Law in China,” Vanderbilt Journal of Transnational Law, January 2001. 7. Murray Scot Tanner, The Politics of Lawmaking in China (Oxford, UK: Clarendon Press, 1999), p. 43, and Perkins, “Law, Family Ties, and the East Asian Way of Business,” in Culture Matters, p. 235. 8. , , trans. Michael Howard and Peter Paret (Princeton, NJ: Princeton University Press, 1976), p. 75.

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analyses of recent conflicts, includ- PRC authors, was the use of threats in such quantity as may be neces- ing the two Gulf , the United of legal prosecution, in many cases sary to enable to maintain a States is one of the leading practitio- transmitted directly to Iraqi gener- sufficient self-defense capability.”11 ners of legal warfare. als to dissuade them from following From Beijing’s perspective, the U.S. For example, Chinese analysts any orders Saddam Hussein might is claiming that its domestic laws note that in the first , the have issued for the use of WMD. justify, if not require, interference in United States obtained U.N. autho- It should be noted that, from the what Beijing has long termed a purely rization for sanctions, as well as Chinese perspective, it was the Iraqis domestic concern. the use of force, against , thus who waged more successful, albeit Similarly, Beijing has argued that providing itself with a legal basis for defensive, legal warfare in the sec- the annual Department of Defense waging war. The ability to impose ond Gulf War. Through adroit legal (DOD) report to Congress on Chinese sanctions legally is a powerful and diplomatic maneuvering, Iraqi military developments is an obstacle instrument of legal warfare, as it officials were able to prevent the U.S. to better relations and has compared affects all the partners of the sanc- from securing U.N. approval for its these documents with the – tioned state (including those who actions. era Soviet Military Power reports. might have opposed the imposi- The Iraqis’ legal advantage, That the report is mandated under tion of sanctions in the first place). however, did not translate into the fiscal year (FY) 2000 National Chinese authors also note that the meaningful military or political Defense Authorization Act does little U.S. used the law to justify such benefit. According to PRC analy- to assuage the Chinese, who consider actions as the bombing of both the al- ses, by conducting over a decade of these reports to be an example of Firdos bunker (which Chinese writ- public opinion warfare, the United legal warfare facilitating public opin- ings describe as an ) States was able to demonize Saddam ion warfare, which in turn serves the and retreating Iraqi forces.9 Hussein to the extent that Baghdad American goal of stoking the “China Furthermore, PRC analyses note was unable to capitalize on its legal threat” . that in the conflict, even warfare victories. Consequently, no though the United States failed to nation was willing to support Iraq Legal Warfare: obtain U.N. authorization, the U.S. openly, despite (in Beijing’s view) American Views argued that its actions were “consis- Iraq’s superior legal case and the lack In some ways, the Chinese defi- tent with the law” because they were of legal authority for the American nition of legal warfare is not that undertaken under NATO auspices. action. Legal warfare, therefore, is different from the one held by U.S. Finally, the PRC studied the sec- not decisive on its own—it must be analysts, who define legal warfare ond Gulf War, a conflict for which backed by military capability.10 (or lawfare) as “a method of warfare the U.S. did not obtain formal U.N. Aside from recent wars, the where law is used as a means of real- authorization and in which NATO Chinese also perceive a legal warfare izing a military objective.”12 Thus, was not involved. Beijing component in two major irritants both Chinese and American analysts, Washington was able to manipu- in Sino–U.S. relations. The United at one level, see legal warfare as the late international law to portray the States has long justified the sale of use of law as an instrument of war. Iraqis as violating previous U.N. reso- arms to Taiwan as a requirement Upon closer examination, however, lutions regarding weapons of mass of the Taiwan Relations Act (TRA). the differences between the two destruction. These violations were, In particular, the following clause nations’ understanding of legal war- in turn, sufficient to provide a legal is essential: “The United States fare become clear. justification for the of Iraq. will make available to Taiwan such First, American analysts often Even more disturbing, in the view of defense articles and defense services point out that discussions of legal

9. Zong Wenshen, Legal Warfare: Discussion of 100 Examples and Solutions (Beijing, PRC: PLA Publishing House, 2004), pp. 184–186. 10. Ibid., p. 8 11. Taiwan Relations Act, http://www.taiwandocuments.org/tra01.htm (accessed May 11, 2012). 12. Charles J. Dunlap, Jr., “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts,” Harvard University Kennedy School of , Carr Center for Working Paper, November 29, 2001, p. 8.

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warfare are distinct from the use of successful war-fighting, especially when it suits them, and attempting laws to determine whether a nation in such as the United to subvert them when it does not.”18 is justified in going to war ( jus ad States. 14 The 2008 NDS goes on to state that bellum) or to govern the conduct of Dunlap himself has since some- there is a need to address “growing armies and nations in war ( jus in what modified this view, emphasiz- legal and regulatory restrictions that bello). Whether a war is just is, from ing that the concept of legal warfare impede, and threaten to undermine, the American perspective, an issue is neutral rather than pernicious. He our military readiness.”19 separate from the concept of legal has recently described legal warfare The U.S. remains concerned that warfare. as “the strategy of using—or misus- Western military commanders will On the other hand, the proper ing—law as a substitute for tradi- operate under excessive , conduct of armies and nations, espe- tional military means to achieve an choosing to err on the side of cau- cially in the context of the Laws operational objective,” eliminating tion for fear of violating interna- of Armed Conflict (LOAC), is seen the presumption that it is misuse of tional law—especially the LOAC. as integral to legal warfare. A brief, the law (while noting that such mis- Exacerbating this undue caution non-exhaustive review of American use may nonetheless occur).15 would be concerns about undercut- writings suggests that U.S. analysts Even where it is not seen as a ting public support, both at home and of legal warfare focus on how charges deliberate misuse of the law, there abroad, if military operations were of violations of the LOAC might be are concerns that legal warfare will seen as contravening legal standards. used to frustrate or hinder American hamper Western, and especially In some respects, Western mili- military operations, especially in American, military operations. As taries have already begun to restrain the context of counterinsurgency a summary of a 2003 Council themselves. From the suspension of (COIN) operations. on Foreign Relations conference airstrikes after the bombing of the al- In his landmark 2001 essay on observes, “Lawfare can be used to Firdos bunker in the 1991 Gulf War legal warfare, then-Colonel Charles undercut American objectives.”16 to imposition of restrictive rules of Dunlap observed that a particu- Furthermore, the 2005 National engagement governing airstrikes in lar form of legal warfare was gain- Defense Strategy of the United States , fear of legal sanction ing broader acceptance: “a cynical (NDS) placed lawfare (the use of (and attendant loss of public support) manipulation of the rule of law and “judicial processes”) alongside ter- has constrained the West’s ability the humanitarian values it repre- rorism and international fora in its to exploit its considerable military sents.”13 Dunlap raised the concern list of American vulnerabilities.17 In advantages.20 For example, the DOD that lawfare was pursued not so the 2008 NDS, the Department of is said to have forgone certain cyber much to ensure that nations followed Defense noted that there is a signifi- attacks against Slobodan Milosevic the LOAC, but to “destroy the will cant concern with violent extremist during the Kosovo conflict because to fight by undermining the public movements “hiding behind inter- of the possibility that such actions support that is indispensable” for national norms and national laws might be construed by some as

13. Ibid. 14. Ibid. 15. Charles J. Dunlap, Jr., “Lawfare Today,” Yale Journal of International Affairs, Winter 2008, p. 146. 16. “Lawfare, the Latest Asymmetries,” Council on Foreign Relations, summary of FY03 Roundtable, sixth session, March 18, 2003, http://www. cfr.org/national-security-and-defense/lawfare-latest-asymmetries/p5772 (accessed April 28, 2012). 17. U.S. Department of Defense, The National Defense Strategy of the United States of America (Washington, DC: Office of the Secretary of Defense, March 2005), p. 5. 18. U.S. Department of Defense, The National Defense Strategy of the United States of America (Washington, DC: Office of the Secretary of Defense, June 2008), p. 2. 19. Ibid., p. 20. 20. Thomas E. Ricks, “Target Approval Delays Irks Air Force Officers,”, November 18, 2001, http://www.washingtonpost.com/wp-srv/nation/ Airwar18.html (accessed April 28, 2012).

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constituting war crimes.21 More con- attaining previously determined for legal warfare and as a means of troversially, permission for an orbit- objectives and retaining the political influencing the broad international ing Predator drone to attack Mullah initiative. community. In particular, the 2005 Omar early in the Afghanistan war A second strategic difference is Anti-Secession Law should be seen was reportedly withheld due to legal that the Chinese view legal warfare as providing the basic legal justifica- concerns about in Omar’s (as well as public opinion warfare and tion for any move against Taiwan convoy.22 psychological warfare) as beginning (or Tibet or Xinjiang). In addi- before the onset of formal hostilities— tion, though, the 1992 Law on the Differences Between and continuing afterward. This dis- Territorial Sea and the Contiguous American and Chinese tinction has important implications, Zone may also have a legal war- Views on Legal Warfare as it entails pre-war “preparation of fare function even though it was In surveying (briefly) American the battlefield” and post-conflict legal enacted before the recent focus on and Chinese views on legal warfare, maneuverings that, like wartime lawfare. Similarly, China’s idiosyn- it becomes apparent that there are legal warfare activities, are aimed at cratic interpretations of the U.N. both strategic and operational/tacti- fulfilling larger strategic goals. on the Law of the Sea cal differences between those views. In this regard, PRC writers assign (UNCLOS), whether it is regarding Strategic Level. The most impor- equal importance to preparing the its claims to the South China Sea tant strategic difference between legal and physical battlefields. Such or to the Arctic, should be seen as the two nations is that there is little preparations include the creation of strategic-level preparation for legal evidence that Chinese analysts and legal experts—both military lawyers warfare. decision-makers see legal warfare as and a cadre of internationally recog- Operational/Tactical Level. a misuse of the law. Given the much nized legal scholars—whose opinions The PRC’s discussions of legal war- more instrumentalist view of the will carry influence abroad as well as fare (and political warfare in general) law in Chinese history, the idea that at home. emphasize the importance of coordi- the law would be employed toward Such efforts also involve the legal nating military and legal operations. a given end (in support of higher preparations so that legal warfare This blurring of the political and the military and national goals) would be will have a proper foundation. While martial is in sharp contrast to the consistent with Chinese culture but much of the discussion focuses on attitude of U.S. military operators problematic, if not antithetical, from domestic laws and regulations, it who consider psychological opera- the Western perspective. is also likely to involve influenc- tions (renamed military information Chinese writings specifically note ing international laws and cus- support operations or MISO) as dis- that the purpose of legal warfare is to tomary legal understandings. One tinct from typical military activities. obtain military, and not legal, victory. Chinese article noted that publiciz- In this regard, the General In this regard, it is essential to recall ing Chinese laws and regulations Political Department may simplify that legal warfare occurs only in the is essential so that Chinese legal the PLA’s legal warfare efforts. At context of actual warfare; legal dis- perspectives are “recognized by the present, there is an entire GPD putes and proceedings in a non-mil- international community.”23 chain of command that is separate itary context are not legal warfare. In this light, the passage of several from the operational chain of com- Consequently, legal warfare, from Chinese laws governing territo- mand (but still within the PLA). the Chinese perspective, must focus rial claims over Taiwan should be Therefore, the PLA is potentially able on a conflict’s political objective: seen both as providing a foundation to execute a unified political warfare

21. William M. Arkin, “The Cyberbomb in Yugoslavia,” The Washington Post, October 25, 1999, http://www.washingtonpost.com/wp-srv/national/dotmil/arkin. htm (accessed April 28, 2012), and Julian Borger, “Pentagon Kept the Lid on Cyberwar in Kosovo,” , November 8, 1999, http://www.guardian. co.uk/world/1999/nov/09/Balkans (accessed April 28, 2012). 22. , “King’s Ransom: How Vulnerable Are the Saudi Royals?” The New Yorker, October 22, 2001, p. 36. For an alternative view, Gary Solis argues that the failure was in the commanding officer and the rules of engagement (ROE), not the JAG per se. Gary Solis,The Law of Armed Conflict (New York: Cambridge University Press, 2010), p. 499. But failure to adhere to ROE may itself become the grounds for legal action and would therefore seem nonetheless vulnerable to lawfare. 23. Liu Jiaxin, “General’s Views: Legal Warfare—Modern Warfare’s Second Battlefield.”

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campaign from strategic to tactical necessarily considered (by the imple- The PRC, however, will likely level. Furthermore, because of the menting bodies) to be offensive legal take some actions that stand out intimate, extensive links between warfare. as obvious attempts to advance a operational and political officers, it By contrast, Chinese writings legal warfare agenda. In the pre-war is possible that legal warfare opera- suggest a conception of legal warfare context, some of the possible legal tions may be integrated into military that would involve a range of activi- warfare measures include research operations more smoothly than in ties intended to seize the initiative on into third-party laws and regula- Western military operations. When the legal and public opinion - tions and exploitation of identified considered alongside the PLA’s com- field in addition to disrupting an vulnerabilities, influencing interna- mitment to waging political warfare opponent’s military activities. These tional legal customs and laws, and under a unified command structure, activities would include legal coer- creating a cadre of international these facts suggest that there may cion/deterrence efforts, which would legal experts. The last two have be a political warfare cell within the warn an opponent that they were already been mentioned. The first, campaign headquarters that over- under close scrutiny for possible vio- however, is an important additional sees Chinese legal warfare opera- lations of the laws of armed conflict; consideration. tions, especially within the joint legal strikes, which would the There can be little doubt that the campaign command headquarters enemy with operational activities in PLA and Chinese leaders in general (JCCH).24 violation of international and domes- are well aware that the success of Such coordinated legal warfare tic laws; and legal counterattacks, U.S. military operations often hinges operations, in turn, would most like- which would highlight the enemy’s on access to foreign bases. Much of ly be offensive in nature. As noted, attempts to slant or misrepresent the recent discussion of anti-access/ there is a fundamental cultural international law, unfavorably con- area-denial operations has focused divergence about the role of the law trast their conduct with one’s own (in on the physical weapons that might in general, a divergence that extends legal terms), and counter any enemy be employed to prevent American to the LOAC. Western military legal legal activities.25 military access. But the increasing experts appear more focused on emphasis on political warfare sug- ensuring that their forces and com- Potential Chinese gests that there are additional (rather manders are not liable to war crimes Application of Legal Warfare than alternative) anti-access mea- charges than they are on undertak- Chinese planners are almost sures available to Beijing. ing offensive legal warfare, unlike certainly preparing legal war plans The most obvious such measure their Chinese counterparts. aimed at “controlling the enemy would be the filing of a variety of This variance is compounded by through the law, or using the law to legal motions in American courts the differences between the PRC constrain the enemy [yifa zhidi huo aimed at delaying any American and the U.S. in their allocation of yong fa zhi di].”26 Some of these efforts intervention. These motions could legal warfare responsibilities. With are likely indistinguishable from be filed in response to a host of regard to the American side, it is typical governmental activities, such issues, ranging from the War Powers diplomats (informed by a variety of as the expansion of the military legal Act to the right to mobilize various legal and political advisers) who are infrastructure. For example, China American resources. More subtle often responsible for “offensive” legal has been expanding its entire corpus actions could include legal action warfare rather than traditional mili- of laws while training additional law- related to environmental or labor tary forces, much less military legal yers, so it is quite probable that the law—areas that, while not directly bodies. Not only are these actions military would benefit from addition- related to foreign policy and national not necessarily coordinated with al human resources whether it was security, could still have an impact military actions; they are not even engaging in legal warfare or not. on U.S. military operations.

24. Zhang Yuliang, The Science of Campaigns (Beijing, PRC: National Defense University Press, 2006), p. 209. 25. Liu, Study Volume on Legal Warfare, p. 3. 26. Zong, Legal Warfare, p. 5.

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Such efforts are not limited to the the possibility that Japanese courts laws. As noted, American analysts U.S. and may also be aimed at any of might limit Japanese coopera- are concerned that during a conflict, America’s allies and security part- tion with the U.S. Such a scenario the U.S. military might be accused ners—such as Australia, Singapore, would require American military of violating the LOAC, particularly and the Philippines—that might planners to account for the spare if enemy forces tried to spark such provide the U.S. with forward bas- parts and ammunition expected a violation by, for instance, hiding ing facilities. Such efforts would be from Japanese sources—how much forces among civilians. coordinated not only with military additional transport space would be Indeed, such concerns are hardly activities (overflights, naval exercis- required? This might not be a likely hypothetical: Consider the American es), but also with economic measures scenario, but given Japanese political experience with the Iraqis in the such as promises of expanded invest- ineffectiveness over the past several 2003 conflict (where Iraqi forces ment or threats of factory closures, years, it must be considered. were deployed near mosques and hos- as well as diplomatic-legal steps such The intensity of such measures pitals) and the Israeli experience in as support in other territorial or is likely to rise as a crisis deepens or Lebanon in 2006 (where economic disputes (e.g., World Trade as military operations become more forces dispersed forces and matériel cases). imminent. Such an uptick in activity among civilians)—two recent exam- In particular, Japan appears would provide valuable intelligence ples of deliberate attempts to create vulnerable to legal warfare. Japan’s and warning (I&W); however, in this violations of the LOAC. The poten- pacifist constitution (as embodied scenario, local lawyers—not Chinese tial resources available to a nation as in Article IX) and Japanese laws nationals or the Chinese govern- large and wealthy as the PRC would and policies pertaining to national ment—might take many of these multiply the problem substantially. defense and military engagement theoretical legal actions. Other possible forms of legal war- (e.g., rules governing arms trade) cre- Nor would these measures nec- fare might entail activities intended ate fertile ground for the raising of essarily be carried out at China’s to raise doubts about which nation legal issues about support provided behest; or persons started a conflict.27 by Tokyo to the United States. One with no visible sympathies or links Chinese legal warfare measures could imagine, for example, legal to the PRC could drive these actions. would almost certainly occur in con- challenges to the U.S.–Japan defense For example, an environmental junction with psychological and pub- guidelines in a period of tension, activist group could attempt to limit lic opinion/media warfare measures. coupled with a PRC public diplo- the U.S. Navy’s anti-submarine Chinese analyses of the second Iraq macy and public opinion campaign warfare activities on the grounds War suggest that the ability of the warning Japan of dire consequences that sunken nuclear-powered boats coalition to contact Iraqi command- should it challenge China. Similarly, would constitute an environmen- ers and warn them not to employ any provision of Japanese weapons, tal hazard. Similarly, where there is weapons of mass destruction is deep- or even fuel and food, to American universal , there might ly disturbing. It would not be sur- forces might be seen as contraven- also be attempts to use third-party prising if the PLA sought to engage ing Japanese rules regarding arms national courts to issue warrants for in comparable legal and psychologi- exports to belligerents. the arrest or subpoena of American cal warfare operations against U.S. Such challenges are likely to and allied military and political and allied commanders, attempting begin in peacetime, both (ideally, leaders, again without an explicit to dissuade them from engaging in for the Chinese) in order to pre- Chinese role. military activities (e.g., attacking key vent Japanese cooperation with In the wartime context, pos- infrastructure or transportation tar- the U.S. and in order to hamper sible legal warfare measures include gets) that could be seen as violating American logistical planning. For charges of war crimes against U.S. norms or laws. example, American military plan- and allied forces and exploitation of Moreover, in the context of a ners would have to take into account “fault lines” between U.S. and allied Taiwan contingency, Chinese legal

27. On August 31, 1939, German forces dressed as Poles staged an attack against a German station at Gleiwitz. The action was intended to portray as acting defensively when it invaded Poland.

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warfare would most likely include In the post-war context, Chinese ■■ Carefully examine new inter- not only offensive legal operations legal warfare efforts would be aimed national commitments. At against the United States and its at consolidating gains that had been the strategic level, the growing allies, but also a campaign in sup- made and obtaining additional Chinese interest in legal warfare port of public opinion/media warfare benefits where possible. It is diffi- highlights the need to examine measures intended to demonstrate cult, at this time, to determine what new international commitments that China’s actions were justi- those legal warfare measures might carefully. For example, Chinese fied. Such a campaign would entail entail, but they would likely include legal warfare operations suggest references to the Anti-Secession adjudication of new frontiers and that it would be wise for America Law, perhaps as part of a legal/pub- borders, dealing with prisoners of to remain outside the U.N. lic opinion warfare effort to portray war (both those captured by the Convention on the Law of the Sea the CCP as having no choice but to Chinese and those suffered by the (UNCLOS) regime. It has been act. At the same time, Beijing would PLA), and addressing war crimes insinuated that American failure almost certainly argue that any such charges. China almost certainly to join UNCLOS leaves the U.S. conflict was a domestic issue because, would also continue to push legal vulnerable to legal warfare under as the PRC believes, Taiwan is part arguments that justified actions it UNCLOS, but a treaty that the of China. How such a legal argument had undertaken. United States has not ratified can (that conflict with Taiwan was an hardly be seen as constraining the internal affair) would affect Chinese An American Response: U.S. By contrast, once the treaty policies ranging from the PRC’s The Future of U.S. Lawfare has been ratified, the U.S. would “no-first-use” of nuclear weapons American emphasis on the rule of be subject to its jurisdiction. through treatment of prisoners of law has generally assumed that one’s war is unclear. adversaries will not engage in offen- In the context of U.S. naval opera- Current PRC behavior suggests sive lawfare—legal activities that are tions, the PRC’s legal warfare that one should not necessarily designed specifically to hamstring could pose real problems. The expect the Chinese to refrain from the opposition rather than seek legal Chinese claim that, under their engaging in activities that they con- redress. Chinese writings on legal interpretation of UNCLOS, for- demn in others. The Chinese do not warfare, however, serve as a warn- eign naval operations within necessarily accept that they oper- ing that this might not be the case in another nation’s 200 nautical mile ate under the same legal regime that the event of a Sino–American con- (EEZ) they expect of others. For instance, flict. Equally as important, however, should be subject to the approval the Chinese claim that although Chinese analysis suggests that inter- of the owning state.28 Such a posi- Okinotori (controlled by Japan) national law, including the structur- tion is at odds with the American should not be an island, Chinese- ing of treaties, must be considered interpretation but not necessar- claimed portions of the Spratlys through the prism of legal warfare ily that of other states, including should be. In 2010, they argued that and how it might be exploited against .29 the United States should not engage American and allied interests. in naval activities in the Yellow Sea The United States therefore must There is little question that (an international body of water) take steps to prepare for the possibil- the Chinese are trying to use while they themselves were engaged ity of legal warfare and incorporate UNCLOS to restrict U.S. naval in major transits of the Miyako defensive measures into its strate- operations at a time when the Straits. These actions suggest that gic, operational, and tactical policies. Chinese navy does not yet have China does not necessarily feel Specifically, the U.S. should: the wherewithal to do so direct- bound by the rules it invokes. ly. Joining UNCLOS would only

28. Donald Rothwell, “The Law of the Sea, , and Naval Operations in the South China Sea,” paper presented at the 2011 International Law Association Asia–Pacific Regional Conference, May 29–June 1, 2011, http://www.law.smu.edu.sg/centre/practitioner_sem/4Oct11/paper_4Oct11.pdf (accessed May 14, 2012). 29. Guoxing Ji, “The Legality of US Conduct in the South China Sea,” China Security, No. 14 (2009), http://chinasecurity.us/index.php?option=com_content&view= article&id=266&Itemid=8 (accessed April 30, 2012).

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further jeopardize American free- operational planning and training ■■ Address issues of legal interop- dom of navigation. Yet it is by no that incorporates legal counter- erability with allied and means clear that China would feel measures. For an example of an friendly forces. One question itself constrained by the UNCLOS effective legal countermeasure posed by the legal warfare debate rules. In the ongoing confronta- program, the U.S. need look no is of particular concern: The tion with the Philippines over further than the Israeli “opera- issue of legal interoperability and islands and shoals in the South tional verification” measures, whether differences among allies’ China Sea, China has refused to which provide Israeli combat legal systems and infrastructures submit to UNCLOS arbitration, units with trained documentation might not create points of vulner- although both Manila and Beijing teams. In order to counter charges ability. are signatories. of illegal activities, these teams provide real-time documentation In NATO’s Operation Allied Force Similarly, American championing of military activities.30 Such a in Kosovo, for example, “differenc- of an international code of con- move, of course, effectively cedes es between the nineteen coalition duct for space operations begs the the initiative to opponents, as it members over what constituted a question of whether such a code grants them a measure of cred- legal and legitimate target impact- of conduct could ultimately be ibility by viewing their charges as ed unity of effort, lengthened wielded against American nation- something that requires rebuttal. NATO’s military decision cycle, al security interests. As China and adversely affected the effi- seeks to develop anti-access/area- ■■ Train American military legal ciency and of tactical level denial capabilities, American experts to be more conversant units.”31 Lawyers from many of countermeasures are likely to with foreign military legal the coalition forces each reviewed entail operations against Chinese systems. Rather than focusing targets according to national laws sensor networks—including on how Chinese forces might be and regulations, apparently in an space-based ones. Yet the code of subjected to others’ application of uncoordinated fashion and often conduct proposed by the Obama legal warfare, PLA writings sug- with very different views of what Administration would restrict gest that the Chinese will focus on constituted a legitimate military interference with space-based identifying how opposing forces target. NATO forces faced a rela- systems (including jamming) and may be violating the LOAC and tively overmatched opponent who forbid the testing of systems that national and international laws. had not spent months or years might generate space debris. If a Consequently, American military potentially preparing for legal military will fight the way it trains, legal experts should become more warfare (including influencing how are American forces expected conversant with the military legal both national and international to practice defeating anti-access/ systems of the PLA (and other laws). Against the PRC, such legal area-denial systems? The lives of potential opponents) so as to be interoperability problems could thousands of American service- able to assess their adherence to be problematic—especially if men hang on the answer to that the LOAC and their own national exacerbated by pre-war attempts question. laws. In the cases of violations, not to alter or modify such legal con- only should there be prosecution cepts as what constitutes valid ■■ Incorporate legal warfare (which may not occur until after military targets. countermeasures into U.S. the conflict is concluded), but To avoid the potential problems operational planning and ample should be focused of incompatible legal strictures, training. At the operational on foreign failure to adhere to there needs to be pre-war engage- and tactical levels, Chinese legal international norms, the LOAC, ment of key allies regarding such warfare suggests a need for U.S. and national legal regimens. issues as targeting policies and a

30. Charles J. Dunlap, Jr., “Lawfare: A Decisive Element of 21st Century Conflicts?”Joint Force Quarterly, No. 54 (2009), pp. 36–37. 31. Lieutenant Colonel Troy Stone, “War Is Too Important to Be Left to the Lawyers,” paper submitted to the Naval War College, October 29, 2008, p. 5, http:// www.dtic.mil/dtic/tr/fulltext/u2/a494360.pdf (accessed April 30, 2012).

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reconciliation of points of differ- U.S. must alter its current legal war- “Know your enemy.” The American ence. Just as communications, fare strategy; no longer can America military, in planning its future law- logistics, and other support func- regard lawfare from a purely defen- fare strategies, especially with regard tions cannot be coordinated “on sive standpoint. Indeed, offensive to the PRC, would be well served to the fly,” neither can the legal poli- legal warfare—whether practiced heed Sun-Tzu’s advice. cies that govern how the military by the PRC or by militarily over- —Dean Cheng is Research Fellow in selects its targets. matched insurgents—can neutralize Chinese Political and Security Affairs America’s military might while dam- in the Asian Studies Center at The Preparing for Legal Warfare aging its allies and strategic partners. Heritage Foundation. Given the PRC’s understanding of , the great Chinese lawfare as an offensive weapon, the military strategist, once cautioned,

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