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Lawfare: Law As a Weapon of War, by Orde F. Kittrie Reviewed by Kevin Rousseau Kevin Rousseau Naval War College Review Volume 69 Article 12 Number 3 Summer 2016 Lawfare: Law as a Weapon of War, by Orde F. Kittrie reviewed by Kevin Rousseau Kevin Rousseau Follow this and additional works at: https://digital-commons.usnwc.edu/nwc-review Recommended Citation Rousseau, Kevin (2016) "Lawfare: Law as a Weapon of War, by Orde F. Kittrie reviewed by Kevin Rousseau," Naval War College Review: Vol. 69 : No. 3 , Article 12. Available at: https://digital-commons.usnwc.edu/nwc-review/vol69/iss3/12 This Book Review is brought to you for free and open access by the Journals at U.S. Naval War College Digital Commons. It has been accepted for inclusion in Naval War College Review by an authorized editor of U.S. Naval War College Digital Commons. For more information, please contact [email protected]. 150 NAVALRousseau: WAR COLLEGE Lawfare: REVIEW Law as a Weapon of War, by Orde F. Kittrie reviewed by K organizations they lead� Countless lead- force� In one of the first major works ers are often too involved in promot- in English on the practice of lawfare, ing themselves, and see developing Kittrie has written an important book subordinates as a sign of weakness� for lawyers, policy makers, and military The final chapter, “Afterthoughts— strategists� Successful strategic perfor- ‘My Way to Continue the Conversa- mance requires an appreciation of the tion � � � ,’” was initially confusing� It role of politics in war, and because law did not flow with the rest of the book; is an intensely political matter it is an it seemed disjointed; it seemed to be integral part of the strategic operating made up of random thoughts about a environment� Kittrie’s highly readable variety of topics� I eventually realized Lawfare enhances our understanding of that it was Dunwoody’s way of discuss- the growing strategic potential of law� ing and underscoring contemporary This book is at once a history of lawfare, issues she believes are important� a collection of representative case stud- During my almost thirty-year career in ies, and a resource for other researchers� the U�S� Army, I was privileged to serve The foreword by former CIA director R� in the 10th Mountain Division with Ann James Woolsey Jr� is itself an interesting Dunwoody� Her technical and tactical read, setting up Kittrie’s analysis with a skills, along with her keen insight and description of the international legal are- caring attitude, made her a positive role na as a sheriff-less “Wild West” exploited model� It is fitting that she ends every by various governments and nonstate talk with the phrase “In the end, we’re all actors� The author also describes his just soldiers, but that’s the highest thing own foray into lawfare as a professor you could claim to be�” Dunwoody’s leg- at Arizona State University, where his acy in the Army and the larger U�S� mili- analysis of Iran’s dependence on external tary will impact generations of young gasoline suppliers eventually led to the Americans for years to come� This book Comprehensive Iran Sanctions Account- showcases her exceptional talents as an ability and Divestment Act of 2010� Kit- army officer and leader� It is a must- trie’s practical bent is evident through- read for leaders at all levels, in both out Lawfare, and he offers numerous the military and other organizations� suggestions for incorporating lawfare into U�S� national security strategy� THOMAS J� GIBBONS Among the strengths of Lawfare are the concepts provided in the first chapter that prepare the reader for the case studies that follow� Kittrie begins with a historical overview, tracing lawfare Lawfare: Law as a Weapon of War, by Orde F� back to the seventeenth century, when Kittrie� New York: Oxford Univ� Press, 2016� 504 pages� $29�95 (Kindle $14�41)� Hugo Grotius used legal arguments to bolster Dutch maritime power� Kit- In Lawfare: Law as a Weapon of War, trie’s section on the literature of lawfare legal scholar Orde F� Kittrie analyzes the provides a unique summary of the increasing effectiveness of the use of law leading works in the field� Kittrie breaks to achieve objectives that not long ago down the practice of lawfare into two might have been achievable only using Published by U.S. Naval War College Digital Commons, 2016 1 NWC_Summer2016Review.indb 150 6/8/16 3:58 PM Naval War College Review, Vol. 69 [2016], No. 3, Art. 12 BOOK REVIEWS 151 categories: instrumental lawfare—the action against companies providing use of legal methods to achieve results the ships with essential services such as typically sought from kinetic weapons; maritime insurance� In letters to these and compliance leverage disparity—the companies, Israeli lawyers referenced seeking of advantages over an opponent the U�S� Supreme Court case of Holder more disposed to comply with the law� v. Humanitarian Law Project (561 U�S� Kittrie attributes the rise of lawfare to 1 [2010], 130 S�Ct� 2705) to argue that three factors: the increased number and providing services to the flotilla was il- reach of international laws and tribunals, legal because it supported terrorism� The the rise of nongovernmental organi- letters proved persuasive� By rendering zations focused on the law of armed the ships unable to secure the necessary conflict, and the advance of globaliza- services to gain permission to leave their tion and economic interdependence� Greek ports, Israel succeeded in stopping Kittrie follows up his macro-level the 2011 flotilla without firing a shot� conceptual analysis with detailed case Kittrie devotes a chapter to China’s inno- studies at the micro level that exemplify vative approach to lawfare� He explains the prevalent trends in lawfare� His how China systematically wages lawfare examples move from the battlefields of across the strategic operating environ- the Middle East through the courtrooms ment, including maritime, aviation, of New York to the doctrinal manuals of and space lawfare, as well as lawfare the Chinese military� The range of ex- in cyberspace� For example, Kittrie amples, all linked by the common theme analyzes how China is using maritime of lawfare’s increasing effectiveness, law to justify denying access to the South underscores how widespread and mul- China Sea for international navigation� tifaceted the phenomenon has become� China has developed a concept of law- Kittrie devotes four of his eight chapters fare it calls falu zhan, or “legal warfare,” to the Israeli-Palestinian conflict, which as part of its military doctrine� Kittrie’s he describes (p� 197) as “the closest thing case studies show how China incorpo- the world has to a lawfare laboratory�” rates lawfare into its strategy through a For example, Israel’s experience with comprehensive approach coordinated maritime law in 2011 demonstrates how across the Chinese government� “offensive” lawfare can achieve a military Unlike China, the United States has no objective without using force� In May similar comprehensive lawfare strat- 2010, Israeli forces intercepted a flotilla egy� Kittrie describes how parts of the of ships from Turkey attempting to vio- U�S� government nevertheless have late a blockade of the Hamas-controlled employed legal techniques success- Gaza Strip, killing nine people� A UN fully to achieve strategic results, such as fact-finding mission subsequently the U�S� Treasury’s use of international criticized Israel for its handling of the financial laws against Iran� Some of the incident� Faced with a similar flotilla most effective U�S� lawfare has been the preparing to leave Greece in June 2011, work of private-sector attorneys rather Israeli lawyers used legal measures to than U�S� government actions� Kittrie stop the ships from leaving port� Those provides several examples of litiga- measures included threatening legal tion that used the Antiterrorism Act https://digital-commons.usnwc.edu/nwc-review/vol69/iss3/12 2 NWC_Summer2016Review.indb 151 6/8/16 3:58 PM 152 NAVALRousseau: WAR COLLEGE Lawfare: REVIEW Law as a Weapon of War, by Orde F. Kittrie reviewed by K of 1990� A significant case was Boim Lawfare reminds us that lethal force v. Holy Land Foundation, in which at- is only one of many factors affecting torneys working on behalf of the family outcomes in war� Kittrie points the way of a U�S� victim of terrorism secured a toward how legal factors can be used to judgment against Islamic fund-raising achieve practical effects� Military officers organizations, drying up a significant and policy makers who read this book source of material support to Hamas� will be rewarded with a better under- Kittrie concludes with a compelling standing of the legal dynamics that are argument for a more creative and in- exerting an increasingly powerful influ- novative integration of lawfare into ence on the legitimate use of violence� U�S� strategy� As he observes (p� 96), KEVIN ROUSSEAU the 2015 National Security Strategy identifies security challenges that are decentralized, transcend state borders, involve nonstate actors, and “cannot be neutralized using only deterrence Playing War: Wargaming and U.S. Navy Prepara- or the United States’ traditional ki- tions for World War II, by John M� Lillard� Lin- netic toolbox�” Lawfare underscores coln: Potomac Books, Univ� of Nebraska Press, why strategists must have a practical 2016� 224 pages� $39�95 (Kindle $26�37)� understanding of the entire spectrum of With the Navy’s recent efforts to rein- factors affecting the strategic operating vigorate war gaming, there has been environment—informational, cultural, renewed interest in the interwar gaming political, economic, social, and legal� conducted at the Naval War College in Kittrie understands that it is unrealistic Newport, Rhode Island� In the Naval to expect strategists and policy makers War College Review, Proceedings, and to be legal experts as well, so his conclu- other maritime journals, war-gaming sions include an analysis of the sources experts and enthusiasts alike have tried of “lawfare power” and recommenda- to characterize the nature and value of tions for leveraging the skills of the U�S� the Navy’s war games played between legal community� To show how private- 1919 and 1941� John Lillard’s Playing sector expertise can inform potential War: Wargaming and U.S.
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