05 May What Are the Limits on Lawfare?
[Craig Martin is a Professor of Law and the Co-Director of the International and Comparative Law Center at Washburn University School of Law.]
Questions regarding the meaning, importance, and operation of “lawfare” were recently discussed at a great conference on Legal Resilience in an Era of Hybrid Threats at the University of Exeter. Several speakers explained how lawfare is being used by adversaries of Western states, and urgently argued that “we” must ourselves engage in lawfare as part of a comprehensive response to such hybrid threats. Yet I was left thinking that not nearly enough attention is being paid to the importance of developing principled limits on the conduct of lawfare, and that it is dangerous to urge the practice of lawfare in the absence of such limits.
The Meaning and Scope of Lawfare
It was interesting to note that there is not even a clear consensus on the meaning of the term “lawfare.” Generally speaking, it is understood to mean the use of law, or exploitation of aspects of a legal system, to achieve tactical or strategic advantages in the context of conflict. As the sub-title of Orde Kittrie’s book on the subject suggests, lawfare is the use of “law as a weapon of war.”
Kittrie, speaking at the conference, cited human shields as a prime example. On the one hand, adversaries such as ISIS use human shields to deter attacks by exploiting Western compliance with principles IHL, and to reap public relations benefits in the event civilians are killed. On the other hand, in response there have been recent efforts by Western states to pass domestic legislation and pass resolutions within UN institutions to facilitate the prosecution of those who use human shields. Both of these are characterized as lawfare—the use of law as a means to further strategic ends in armed conflict. While the enemy’s use of it is nefarious, ours is benign. This all sounds well and good, but as I will return to below, that distinction can be blurred.
The conference revealed that the continental Europeans, particularly the government lawyers and policy makers, hold a somewhat different understanding of the concept than their counterparts in the US, Israel, and perhaps the UK. The European perspective seems to be more responsive in nature. It recognizes that adversaries are engaging in lawfare, and suggests that Western states must therefore be able to both identify and counter it. But they stressed that it was both defensive in nature and that it needed to be guided by some internal limits—though they were less clear on the exact nature of such limits.
The Anglo-American and Israeli perspective, however, seems to go considerably further, advocating for the “offensive” practice of lawfare. That is, to operationalize law in the pursuit of policy objectives within ongoing hybrid conflicts with both state and non-state actors. Aurel Sari captured this idea in an article that framed the issues for the conference. Paraphrasing Clausewitz, he suggested that “law is but a continuation of politics by other means,” and that there thus needs to be an operationalization of law. Others went further, calling for the “weaponization” of law, and suggesting that lawyers need to think of themselves as part of the operational team waging war with our adversaries.
Risks of Instrumentally Weaponizing Law
Part of the rationale for these arguments, aside from the fact that adversaries are already engaging in lawfare, is that it can be more effective and less bloody than “kinetic” methods of warfare. I have no quibble with those claims. But we should be concerned about the absence of clearly defined limits on the instrumental use of law within hybrid conflicts to achieve strategic military and policy objectives. It may be objected that law is always developed and deployed more generally within society in the service of furthering policy objectives. But this is typically governed by the limits of the rule of law, which is itself central to the foundations of liberal constitutional democracy.
To instrumentally press law into the service as a weapon of war, to operationalize it to achieve tactical or strategic objectives, is to necessarily subordinate its internal imperatives to military and war-policy priorities. There is a real risk that the rule of law and the integrity of the legal system, both domestic and international, could be thereby subordinated to operational imperatives. If the use of law will further some tactical or strategic advantage in the short term, who is worrying about whether such use will do violence to the integrity of the legal system in the long term?
Non-Benign Examples of Lawfare
Unfortunately, there is no shortage of examples from the so-called “global war on terrorism” that illustrate this risk. Consider the decision to establish a detention center in Guantanamo Bay, on the theory that it could be operated in a “legal black hole.” This was lawfare in terms of exploiting a perceived gap in the scope of American jurisdiction, and in the assertion of distorted and selective interpretations of international law that simultaneously relied upon and rejected the application of different aspects of IHL, all in the name of national security. Notwithstanding that the Supreme Court largely rejected these premises in the four famous detention cases (Hamdi, Rasul, Hamdan, and Boumediene), the continued operation of the detention center and related military commissions is viewed by many as doing harm to the integrity of the American legal system.
Or take the US torture policy. The Department of Justice authorization of the “enhanced interrogation techniques” similarly reflected the instrumental operationalizing of law. It did so in the broad sense of responding to pressure to provide a legal rationale justifying and immunizing unlawful conduct deemed necessary to achieve important national security objectives. But it also illustrated the problem at the granular level. Readers are all too familiar with how the memos by John Yoo (signed by Jay Bybee) incompetently and unethically cherry picked concepts from different legal regimes, and ignored key principles and caselaw from both domestic and international law, all in the service of cobbling together a jury-rigged argument to further the tactical security objectives. And as the Senate Intelligence Committee examination of the issue reflected, the policy corrupted and undermined institutions far and wide. There are of course many more problematic examples of the “offensive” conduct of lawfare, though many of these are less egregious and less obvious.
There are even problems with the responsive characterization of adversary conduct as lawfare. The use of human shields may be obviously nefarious and is in any even unlawful. Yet there is a tendency to also characterize as lawfare the effort to enforce valid rights, or prosecute wrongdoing, particularly if such efforts are encouraged or supported by organizations like Hamas. And characterizing such efforts as lawfare is to suggest that they are entirely illegitimate, and to be resisted as enemy machinations. But if rights have been violated, or crimes committed, the efforts to enforce those rights or ensure the crimes are prosecuted are not invalid or illegitimate, regardless of the fact that it may incidentally confer some advantage on an adversary, or even if that adversary is encouraging the effort.
Strategic Reasons for Limits on Lawfare
While my primary argument is that to press law into the service of military operations is quite likely to undermine the rule of law, there are military and strategic reasons why one should be cautious about unlimited lawfare. Indeed, some at the conference argued in favor of lawfare from the perspective of military and strategic principles. But these arguments can be turned on their head. From a strategic perspective, one has to consider carefully what the strategic aims of one’s adversaries are. As Clausewitz taught, strategic imperatives require identifying and striking the enemy’s center of gravity, regardless of the tactical costs. Thus, we need to be mindful of what our center of gravity might be in the asymmetrical hybrid conflicts with both terrorist organizations and authoritarian states.
I would suggest that our center of gravity is precisely our system of government, founded upon democratic values, rights, and the rule of law. These are not only vulnerable in such conflicts, but they are arguably the real targets of terrorist attacks or Russian misinformation campaigns. The more they can provoke responses that corrode, corrupt and undermine our values, principles, and the integrity of our institutions, the more successful they are strategically. Thus, even from a military and strategic perspective we ought to be extremely careful not to rush after tactical advantages that provide our adversaries with strategic victories, by engaging in conduct that does violence to the integrity of our legal systems and the rule of law.
Required Limits on Lawfare
So how then should lawfare be limited? Jutta Brunnée, speaking on the “elements of legal resilience” in the very last talk of the conference, pointed us in the right direction. Drawing upon her larger theoretical work, Brunnée reminded us that resilience requires that there be congruence between conduct and the fundamental norms of the legal system, which are in turn grounded in a shared understanding of the law.
This implies that even as law may evolve there is a requirement of legality, according to which practice must reflect and respect the shared understanding of the fundamental legal norms that define the system. Thus, as she put it, lawfare that “plays fast and loose” with these norms and principles, or practice that results in divergent uses of legal rules, will be corrosive of the rule of law itself, and undermine the resilience of the legal system as a whole.
This insight can form the foundation for a set of limiting principles for the legitimate conduct of lawfare. Proponents of lawfare need to develop some explicit principles that govern the conduct of lawfare, that operationalize the idea that any effort to use law for purposes of achieving tactical or strategic objectives in conflict, must be consistent with the fundamental norms, principles, and values of our legal systems, both domestic and international. And to the extent that there are efforts to bring about change to the law—such as to the concept of imminence in self-defense, or the principle of distinction in IHL—such changes should be consistent with the fundamental objects and purposes of the underlying legal regime.
Key to such a set of principles is the requirement that they be guided by Kant’s categorical imperative. In other words, the requirement to respect the notion that legal rules are of universal application, operating for and against our adversaries and ourselves alike. It is precisely the disregard for this principle through the application of double-standards in recent efforts to re-interpret, adjust, or resist the application of international law, that threatens to corrupt and corrode the rule of law. Leaving aside the latest recognition of the annexation of the Golan Heights, there were suggestions at the conference that the use of universal jurisdiction to prosecute Western officials is somehow illegitimate. What was a great day for human rights with Pinochet, is somehow nefarious lawfare when applied to Rumsfeld or Sharon. I will leave a fuller exploration of the issue of double standards for another day, but will for now suggest that not only does such perceived hypocrisy and inconsistency do violence to the integrity and resilience of our legal system, but that it has serious strategic costs that are seldom sufficiently accounted for in the cost-benefit calculus of decision-makers.
In sum, proponents of lawfare need to develop an explicit framework that ensures that the conduct of lawfare be undertaken only in a manner that is consistent with the fundamental principles and overriding rationale of the relevant legal systems, and governed always by reference to the overriding importance of preserving the integrity of that legal system and the rule of law more generally. We cannot allow the practice of law to be subordinated to or subverted by purely operational imperatives or strategic priorities. It is by now trite but nonetheless true to note that you cannot defend democracy by destroying its fundamental values in the process.