Should the U.S. Use “Lawfare” Against Russia?

by Julian Ku

Back in 2007, Messrs David Rivkin and Lee Casey’s Wall Street Journal op-ed helped popularize the term “lawfare” among U.S. conservatives, who have used the term to decry legal tactics that challenged US policy in the war on terrorism.   As they defined it then:

The term “lawfare” describes the growing use of international law claims, usually factually or legally meritless, as a tool of war. The goal is to gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and international tribunals.

So it is somewhat surprising that the duo, both very influential commentators among U.S. conservatives, is advocating a lawfareish approach to combatting Russia’s annexation of Crimea and its threats against Ukraine. Here is some of their advice in today’s WSJ.

As a start, the Obama administration should seek a U.N. General Assembly resolution requesting the International Court of Justice’s opinion on the legality of the Russian annexation of Crimea.

The U.S. and its allies should also challenge the legality of Russia’s actions in every conceivable legal venue, whether domestic or international.

Nongovernmental organizations, which cast themselves as guardians of the international order, have a role to play in condemning and challenging in courts of law and in public opinion Russia’s actions against Ukraine

In other words, the authors want to use “lawfare” against Russia.  I agree that the US has good legal arguments against Russia on this issue, and that the US also had good (but not unassailable) legal arguments for its war on terrorism policies. But I don’t think that the US invocation of international law, nor its employment of “lawfare” to highlight international law, will be very successful against Russia.  Lawfare’s main impact against the U.S. was to tie up many of its policies in domestic U.S. litigation. I don’t see that as an avenue against Russia.

Moreover, the employment of lawfareish pressure tactics could easily be used as an excuse to avoid taking more strenuous or effective actions (e.g. tougher sanctions, increased military aid, etc.).  I am not sure US conservatives should be eager to jump on this lawfare bandwagon, no matter how good the cause.

http://opiniojuris.org/2014/04/09/u-s-use-lawfare-russia/

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