Lawfare

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Lawfare is the use of legal systems and institutions to damage or delegitimize an opponent, or to deter an individual's usage of their legal rights. [1] [2] [3] [4] The term may refer to the use of legal systems and principles against an enemy, such as by damaging or delegitimizing them, wasting their time and money (e.g., SLAPP suits), or winning a public relations victory. Alternatively, it may describe a tactic used by repressive regimes to label and discourage civil society or individuals from claiming their legal rights via national or international legal systems. This is especially common in situations when individuals and civil society use nonviolent methods to highlight or oppose discrimination, corruption, lack of democracy, limiting freedom of speech, violations of human rights and violations of international humanitarian law.

Contents

Etymology

The term is a portmanteau of the words "law" and "warfare". Perhaps the first use of the term "lawfare" was in the 1975 manuscript Whither Goeth the Law, which argues that the Western legal system has become overly rational and treats persons like objects as compared to so-called "Community Law", which is based more on humanity and intuition. As an example of the use of such an approach, the Confucian Code of Propriety (Li) is mentioned, which was used in China and Korea in the past. [5]

A more frequently cited use of the term is found in a 2001 essay authored by Charles J. Dunlap, Jr., in which Dunlap defines lawfare as "the use of law as a weapon of war"; that is, "a method of warfare where law is used as a means of realizing a military objective". [6] He later expanded on the definition, describing lawfare as "the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting" a superior military power. [7] In this sense, lawfare may be a more humane substitute for military conflict, although Dunlap considers lawfare a "cynical manipulation of the rule of law and the humanitarian values it represents". [6]

Benjamin Wittes, Robert Chesney, and Jack Goldsmith employ the word in the name of the Lawfare website, which focuses on national security law and has explored the debate over the definition of lawfare and whether it should be considered exclusively a pejorative. [8] [9]

Universal jurisdiction

Lawfare may involve the law of a nation turned against its own officials, but more recently it has been associated with the spread of universal jurisdiction, that is, one nation or an international organization hosted by that nation reaching out to seize and prosecute officials of another. [10]

In the Israeli–Palestinian conflict

Both pro-Israeli groups and pro-Palestinian groups have been accused of using "lawfare" against one another. Christian Aid, a British charity that does humanitarian work for Palestinians, was taken to court in 2017 by a pro-Israeli organization called "Zionist Advocacy Center". [11] While the case was ultimately dismissed in US courts, the organization had to spend £700,000 in defending itself, and said it was an act of "lawfare" against organizations that help Palestinians. [11]

A pro-Israeli group, Shurat HaDin, acting on information from the Israeli government, is believed to have used lawfare to prevent Gaza-bound flotilla from leaving Greece. [12] Many cases have been brought forward against Israeli officials and those associated with Israel's military, accusing them of war crimes. These cases have been heard in both Israel [13] and in other countries. [14] Attempts to suppress the BDS movement have also been called lawfare. [15] In Israel and many US states, supporting the BDS movement is criminalized. [15]

The alleged use of human shields by groups like Hamas has been seen as an example of lawfare, hinging on exploiting Israel's aim to minimize civilian casualties and the sensitivity of Western public opinion. This tactic allows Hamas to either accuse Israel of war crimes if civilian casualties occur or to protect its assets and continue operations if the IDF limits its military response. [16] [17] According to Canadian MP and former minister Irwin Cotler, the use of law to delegitimize Israel is present in five areas: United Nations, international law, humanitarian law, the struggle against racism and the struggle against genocide. [18]

South China Sea dispute

In contrast to most world governments, the People's Republic of China has explicitly recognized lawfare ("falu zhan" or "legal warfare") as an essential component of its strategic doctrine. [19] The activities of the People's Republic of China in relation to the territorial disputes in the South China Sea is frequently cited example of lawfare by the Chinese government. [20] [21] In particular, China has asserted sovereign control over several areas in the South China Sea, and has restricted access to areas within its alleged sovereign territory or exclusive economic zone. [22] In support of its claims, China has issued official state declarations (e.g., notes verbal) and enacted domestic laws that assert its sovereignty or effective control of portions of the sea. [23] [24]

Other examples

The government of China has used lawsuits in foreign courts to repress Chinese dissidents abroad. [25] [26] [27] Harvard School of Law professor Jack Goldsmith, an opponent to the expansion of international human rights and universal jurisdiction, states in his book The Terror Presidency that Defense Secretary Donald Rumsfeld was concerned with the possibility of lawfare waged against Bush administration officials, and that Rumsfeld "could expect to be on top of the list". [28] [29] Rumsfeld addresses the effects of lawfare in his memoir Known and Unknown. [30]

See also

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References

  1. ↑ History of Lawfare, Dunlap, 2001
  2. ↑ Kittrie, Orde F. (1 February 2016), "Conclusion", Lawfare, Oxford University Press, pp. 329–344, doi:10.1093/acprof:oso/9780190263577.003.0009, ISBN   978-0-19-026357-7
  3. ↑ "Is Lawfare Worth Defining?" (PDF). Case Western Reserve Journal of International Law. 43 (1). 11 September 2010. Archived from the original (PDF) on 7 August 2011.
  4. ↑ Unrestricted Warfare, p. 55 Archived 19 November 2006 at the Wayback Machine
  5. ↑ M. Smith; D. Crossley, eds. (1975). Whither Goeth the Law – Humanity or Barbarity, The Way Out – Radical Alternatives in Australia. Melbourne: Lansdowne Press.
  6. 1 2 Colonel Charles J. Dunlap Jr. (29 November 2001). "Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts" (PDF). duke.edu: 4.
  7. ↑ Charles J. Dunlap Jr. (3 August 2007). "Lawfare amid warfare". The Washington Times.
  8. ↑ Welcome to Lawfare, By Benjamin Wittes. Wednesday, September 1, 2010
  9. ↑ "About Lawfare: A Brief History of the Term and the Site". 14 May 2015.
  10. ↑ Goldsmith, Jack (2007). The Terror Presidency: Law and Judgement Inside the Bush Administration. New York City, New York: W. W. Norton. pp.  53–64. ISBN   978-0-393-06550-3.(discussing lawfare and the spread of universal jurisdiction).
  11. 1 2 "Christian Aid claims it was subject to act of 'lawfare' by pro-Israel group".
  12. ↑ "Israeli Offensive Lawfare" . Retrieved 24 November 2023.
  13. ↑ "NGO Monitor Monograph – Overview of lawfare cases involving Israel". NGO Monitor. Retrieved 13 May 2013.
  14. ↑ "Netanyahu aide skips UK trip fearing arrest". AFP. 4 May 2011. Retrieved 13 May 2013.
  15. 1 2 Asaf Siniver, ed. (27 October 2022). Routledge Companion to the Israeli-Palestinian Conflict. Taylor & Francis. ISBN   978-0-429-64861-8.
  16. ↑ "Hamas' use of human shields in Gaza" (PDF). NATO Strategic Communications Centre of Excellence.
  17. ↑ James Pamment, Vladimir Sazonov, Francesca Granelli, Sean Aday, Māris Andžāns, Una Bērziņa-Čerenkova, John-Paul Gravelines, Mils Hills, Irene Martinez-Sanchez, Mariita Mattiisen, Holger Molder, Yeganeh Morakabati, Aurel Sari, Gregory Simons, Jonathan Terra, Hybrid Threats: Hamas’ use of human shields in Gaza Nato Strategic Communications Centre of Excellence, 5 June 2019 pp.147-169, 152
  18. ↑ Twersky, Mordechai I. (19 May 2011). "Cotler warns of new strain in delegitimization of Israel". The Jerusalem Post. Retrieved 13 May 2013.
  19. ↑ Kittrie, Orde (2016). Lawfare: Law as a Weapon of War. New York, NY: Oxford University Press. pp. 161–164. ISBN   9780190263577.
  20. ↑ Lorteau, Steve (2018). "China's South China Sea Claims as "Unprecedented": Sceptical Remarks". Canadian Yearbook of International Law. 55: 72–112. doi:10.1017/cyl.2018.6. S2CID   158337369.
  21. ↑ HSIAO, ANNE HSIU-AN (16 December 2016). "China and the South China Sea "Lawfare"". Issues & Studies. 52 (2): 1650008. doi:10.1142/S1013251116500089.
  22. ↑ Kittrie, Orde (2016). Lawfare: Law as a Weapon of War. New York, NY: Oxford University Press. pp. 165–168. ISBN   9780190263577.
  23. ↑ Lorteau, Steve (2018). "China's South China Sea Claims as "Unprecedented": Sceptical Remarks". Canadian Yearbook of International Law. 55: 79–99. doi:10.1017/cyl.2018.6. S2CID   158337369.
  24. ↑ Dupuy, Florian; Dupuy, Pierre-Marie (2013). "A Legal Analysis of China's Historic Rights Claim in the South China Sea". American Journal of International Law. 107 (1): 124–141. doi:10.5305/amerjintelaw.107.1.0124. S2CID   55162381.
  25. ↑ Berg, Sebastian Rotella,Kirsten (22 July 2021). "Operation Fox Hunt: How China Exports Repression Using a Network of Spies Hidden in Plain Sight". ProPublica. Retrieved 17 August 2022.{{cite web}}: CS1 maint: multiple names: authors list (link)
  26. ↑ O’Keeffe, Aruna Viswanatha and Kate (29 July 2020). "China's New Tool to Chase Down Fugitives: American Courts". Wall Street Journal. ISSN   0099-9660 . Retrieved 17 August 2022.
  27. ↑ Zambrano, Diego A. (2022). "Foreign Dictators in U.S. Court". The University of Chicago Law Review. 89 (1): 157–252. ISSN   0041-9494. JSTOR   27093694.
  28. ↑ Goldsmith, Jack (2007). The Terror Presidency: Law and Judgement Inside the Bush Administration. New York City, New York: W. W. Norton. pp.  53–64. ISBN   978-0-393-06550-3.(discussing Kissinger and Rumsfeld)
  29. ↑ Thayer, Andy (8 March 2010). "Court Allows Torture Suit Against Rumsfeld". The Huffington Post . Retrieved 9 March 2009.(discussing civil lawsuit against Donald Rumsfeld by Donald Vance, a Navy veteran who says he was tortured in an Iraq prison in 2006).
  30. ↑ Rumsfeld, Donald (18 February 2011). "40". Known and Unknown. A Memoir. Sentinel. ISBN   9781595230676.
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