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Lawfare 101 a Primer Maj View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Duke Law Scholarship Repository Sgt. Kyle Hale of 1st Battalion, 6th Infantry Regiment, 2nd Brigade Combat Team, 1st Armored Division, contains an unruly crowd 10 June 2008 to protect a man who was nearly trampled outside the Al Rasheed Bank in the Jamila market in the Shiite enclave of Sadr City, Baghdad, Iraq. (Photo by Petros Giannakouris, Associated Press) Lawfare 101 A Primer Maj. Gen. Charles Dunlap Jr., U.S. Air Force, Retired or many commanders and other military by the enemies of the West.”2 For at least one key ally, leaders, the role of law in twenty-first century Great Britain, law seems to be injecting counterpro- conflicts is a source of frustration. Some think it ductive hesitancy into operational environments.3 All Fis “handcuffing” them in a way that is inhibiting combat of these interpretations have elements of truth, but at success.1 For others, law is another “tool that is used the same time they are not quite accurate in providing 8 May-June 2017 MILITARY REVIEW L AW FA RE an understanding of what might be called the role of high-tech military capabilities, are attempting to use 11 lawfare in today’s military conflicts. law as a form of “asymmetric” warfare. Law has become central to twenty-first century con- Over time, the definition has evolved, but today it flicts. Today’s wars are waged in what Joel Trachtman is best understood as the use of law as a means of ac- calls a “law-rich environment, with an abundance of complishing what might otherwise require the appli- legal rules and legal fora.”4 This is the result of many cation of traditional military force. It is something of factors outside of the military context, including the an example of what Chinese strategist Sun Tzu might impact of internationalized economics. Still, as the say is the “supreme excellence” of war, which aims to Global Policy Forum points out, globalization “is subdue “the enemy’s resistance without fighting.”12 changing the contours of law and creating new global Most often, however, it will only be one part of a legal institutions and norms.”5 larger strategy that could likely involve kinetic (lethal) As with many other aspects of modern life, trends and other traditional military capabilities. in the economic sphere impact warfighting, and this in- More importantly, lawfare is ideologically neutral. cludes how law interacts with armed conflict. Many se- Indeed, it is helpful to think of it as a weapon that can be nior leaders have come to recognize this reality. Retired used for good or evil, depending upon who is wielding Marine Corps Gen. James L. Jones, a former NATO it and for what reasons. As Trachtman says, “Lawfare commander and U.S. national security advisor, observed can substitute for warfare where it provides a means to several years ago that the nature of war had changed. “It’s compel specified behavior with fewer costs than kinetic become very legalistic and very complex,” he said, adding warfare, or even in cases where kinetic warfare would be that now “you have to have a lawyer or a dozen.”6 i n e ff e c t i v e .” 13 That is a truth that is equally applicable to Technology has also revolutionized the impact of America’s enemies as it is to the United States itself. law on war, as its many manifestations add to war’s complexity. Sorting out the implications of technolo- How Has the United States gy for warfighting requires an advanced appreciation Used Lawfare? for the norms that do—or should—govern it. Retired There are many ex- Maj. Gen. Charles Army Gen. Stanley McChrystal recently observed that amples of how law can Dunlap Jr., U.S. Air Force, “technology has only made law more relevant to the be used to peacefully retired, served thirty-four battlefield.”7 He believes that “no true understanding substitute for other years on active duty before of the exercise of U.S. military power can be attained military methodol- retiring in 2010 as the without a solid appreciation of how the law shapes ogies. For example, Air Force’s deputy judge military missions and their outcomes.”8 during the early part advocate general. His The purpose of this article is to provide an over- of Operation Enduring assignments included tours view of the concept of what has come to be known as Freedom, commercial in Europe and Korea, and lawfare. This essay also aims to provide some practical satellite imagery of he deployed for operations context for nonlawyer leaders to think about lawfare, areas in Afghanistan in Africa and the Middle as well as some considerations for how to prepare to became available on East. He is a graduate of operate against an enemy seeking to capitalize on this the open market. St. Joseph’s University and phenomenon of contemporary conflicts.9 Although there may Villanova University School have been a number of Law and is a distin- What is Lawfare? of ways to stop such guished graduate of the The term lawfare has existed for some time, but extremely valuable National War College. He its modern usage first appeared in a paper this au- data from falling into is the executive director of thor wrote for Harvard’s Kennedy School in 2001.10 hostile hands, a legal the Center on Law, Ethics Lawfare represents an effort to provide military and “weapon”—a con- and National Security at other nonlawyer audiences an easily understood tract—was used to Duke University School of “bumper sticker” phrasing for how belligerents, and buy up the imagery. Law. He blogs on LAWFIRE, particularly those unable to challenge America’s Doing so prevented https://sites.duke.edu/lawfire/. MILITARY REVIEW May-June 2017 9 They are using the law in order to turn respect for the law in the United States and other democratic countries into a vulnerability. “the pictures from falling into the hands of terrorist militaries. To be clear, they are using the law in order organizations like al-Qaeda.”14 to turn respect for the law in the United States and Law plays a very significant role in counterinsur- other democratic countries into a vulnerability. For gency operations. Although the term lawfare is not example, they might seek to exploit real or imagined used, Field Manual 3-24, Insurgencies and Countering reports of civilian casualties in the hopes that fear of Insurgencies, is replete with how law is a key element of causing more of the same will result in a constrained the comprehensive approach that success in such con- use of certain military technologies (e.g., airpower) by flicts requires.15 In particular, it makes the point that rule-of-law countries like the United States. “establishing the rule of law is a key goal and end state The after effects of the bombing of the Al Firdos in counterinsurgency.”16 As Gen. David H. Petraeus bunker during the 1991 Gulf War presaged much of has pointed out, it is unlikely that a counterinsurgency what we see today. Although believed to be a military effort will succeed absent a form of lawfare that brings command-and-control center, it was actually being about the rule of law in the target state instead of rely- used as a shelter for the families of high-level Iraqi offi- ing solely on killing or capturing the insurgent force.17 cials. When pictures of dead and injured civilians were There are further legal means that can impact broadcast worldwide, they “accomplished what the military capabilities rather directly. For example, Iraqi air defenses could not: downtown Baghdad was to sanctions crippled the Iraqi air force to the point be attacked sparingly, if at all.”22 where fewer than one-third of its aircraft were flyable Ironically, nothing violative of the law of war had when the coalition invaded in 2003.18 The operational occurred, but perceptions of the same had the oper- impact is obvious: Iraqi jets were grounded just as ational effect of a sophisticated air defense system.23 effectively as if they were shot down. Sanctions are Many adversaries have “gone to school” on this event as also seen as having slowed Russia’s military buildup. an example of a low-tech means to counter high-tech Kyle Mizokami reported in 2016 that international systems. Obviously, perceptions do matter. Michael sanctions (along with falling oil prices) were adverse- Riesman and Chris T. Antoniou insist, ly affecting the economy, which, in turn, frustrated In modern popular democracies, even a Russia’s efforts to rebuild its military.19 limited armed conflict requires a substan- There has been an array of approaches for using law tial base of public support. That support to undermine adversaries, approaches that can be put can erode or even reverse itself rapidly, no under the aegis of lawfare. For example, Juan Zarate, a matter how worthy the political objective, former Treasury Department official, describes a range if people believe that the war is being con- of legal initiatives his agency used to disrupt and deny ducted in an unfair, inhumane, or iniqui- terrorists, in particular the financial resources they tous way. [italics added]24 needed.20 In addition, even private litigation is working Accordingly, after witnessing what the Al Firdos to deny access to the banking and social media plat- bombing raid accomplished, some adversaries seek forms terrorists increasingly rely upon.21 to exploit such incidents when they occur, but others seek to orchestrate them in order to get the bene- How Does the Adversary fit of the restraint that might follow.
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