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 “lawfare.” While the U.S. is focusing or “lawfare.” In the United States, ■■ Over the past decade, many on the interplay between the law lawfare discussions are focusing nations have demonstrated a growing interest in legal warfare and counterinsurgency operations, on the interplay between the law or “lawfare.” China is approaching lawfare from a and counterinsurgency operations. ■■ different perspective: as an offensive Specifically, the U.S. is concerned In the United States, lawfare discussions are focusing on the weapon 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 war 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 “Three Warfares” 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 military 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, political warfare 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 news 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 psychological warfare 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 information laws 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 civilian 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 Staff 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 weapons 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. 2 BACKGROUNDER | NO. 2692 MAY 18, 2012 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” Revolution, Mao himself effectively national sympathy and support.”4 (more a loose set 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)