Lawfare

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Lawfare is the use of legal systems and institutions to affect foreign or domestic affairs, as a more peaceful and rational alternative, or as a less benign adjunct, to warfare.

Contents

Detractors have alternately begun to define the term as, "An attempt to damage or delegitimize an opponent, or to deter an individual's usage of their legal rights". 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., strategic lawsuits against public participation or SLAPP), 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, persecution, corruption, lack of democracy, limiting freedom of speech, violations of human rights and violations of international humanitarian law.

Since the early 2000s, the use of legal mechanisms in conflict contexts has drawn significant international attention. [1] During this period, particularly in the context of the U.S.-led "War on Terror", both the United States and Israel have characterized legal challenges to their military operations as a form of lawfare—a term used to describe the perceived exploitation of legal systems to achieve political or ideological objectives. [1] Critics argue that this framing delegitimizes the legal efforts of less powerful actors who seek accountability through international institutions. [1] China has also employed lawfare, to advance its geopolitical objectives and repress dissidents abroad.

Early use and definitions

The term is a portmanteau of the words "law" and "warfare". The first documented use of the term "lawfare" was in a 1957 article regarding divorce, which states that "[t]he canton, clearly reduced in status, still is a state with standing in court to wage some lawfare on behalf of its folk, and with liability for some behavior of its folk." [2]

The term reappeared at the turn of the century, first in a 2001 article by the anthropologist John Comaroff, who employed it to denote "the effort to conquer and control indigenous peoples by the coercive use of legal means." [3] In his later work, the definition of the concept was broadened to encompass, more generally, "the resort to legal instruments, to the violence inherent in the law, to commit acts of political coercion, even erasure." [4]

A more frequently cited use of the term is found in a 2001 essay authored by Major General 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". [5] [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]

Recent scholarship has included non-judicial tactics in lawfare such as using legal systems and processes to achieve strategic goals outside of traditional courtroom battles. Orde Kittrie, in Lawfare: Law as a Weapon of War (2016), describes compliance‑leverage lawfare as exploiting legal compliance gaps to pressure adversaries. [9] Challenging the charitable status of adversary organizations is also described as an example of lawfare. [10]

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. [11]

Examples

Hundred Years' War

According to historians Iskander Rehman and David Green, French officials deployed a form of lawfare in the lead-up to the Hundred Years' War. [12] [13] Rehman states: [12]

In the fraught decades leading up the Hundred Years War, French officials deployed their expertise in the arcane intricacies of feudal law to continuously undermine Plantagenet (English) authority over their continental territories, 'clogging up administrative processes', 'interfering with fiscal activities' and burying English officials under a deluge of legal cases.

— Iskander Rehman, Planning for Protraction

United States and Iran

United States sanctions against Iran since the 1980s have been described as a form of financial lawfare. They were levied citing Iran's link to terrorism as well as a way to disrupt its nuclear program, costing tens of billions to the country's economy and foreign banks doing business with it. [14] : 111–160 

Guantanamo Bay detention camp

During the war on terror, reports of prisoner abuse at Guantanamo Bay and debates about the legality of their detention led to actions that have been described as a form of lawfare or even "war" against the United States. [15] [16]

China

The government of the People's Republic of China has recognized lawfare ("falu zhan" or "legal warfare") as an essential component of its strategic doctrine. [9] : 161–164  It is one of the People's Liberation Army (PLA)'s "three warfares" approved by the Chinese Communist Party (CCP) for guiding political warfare and information influence operations. [17] [18]

Examples cited as lawfare include the PRC's activities in the East China Sea, South China Sea, and legal actions regarding Taiwan. In 2013, the PRC created an Air Defense Identification Zone that covers the disputed Senkaku Islands. [19] It has issued official notes verbales and enacted laws to assert sovereignty or effective control over disputed portions of the South China Sea. [9] : 165–168  [20] [21] The PRC has attempted to frame cross-strait relations as an internal dispute, [22] [23] attempted to apply its 2005 Anti-Secession Law to Taiwan and make its One China principle a matter of international law. [22] [24] The PRC has enacted laws against supporters of Taiwanese independence, regardless of their location, [25] [26] and issued bounties for Taiwanese military personnel. [27]

The PRC and its proxies have also filed Interpol notices and suits in foreign courts to repress dissidents abroad. [28] [29] [30] Defamation lawsuits against foreign publications criticizing China or its companies have been described as lawfare. [31] [32]

Israeli–Palestinian conflict

Both pro-Israeli groups and pro-Palestinian groups have been accused of using lawfare against one another. [33]

In Israel and some US states, the Boycott, Divestment and Sanctions (BDS) movement has been met with anti-BDS laws. [34]

In 2011 Israeli group Shurat HaDin prevented some ships in a Gaza-bound flotilla from leaving Greece by warning several companies involved that they could face legal charges. [35] : 311–328 

Many cases have been brought forward against Israeli officials and those associated with the Israel Defense Forces (IDF), accusing them of war crimes. They have been heard in Israel [36] and other countries. [37]

According to Canadian lawmaker 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. [38]

Israeli officials have referred to Palestinian initiatives at the United Nations Human Rights Council, the International Criminal Court, and the United Nations Security Council as examples of political and legal warfare. [1] NGO Monitor, a controversial Israeli organization, has argued that certain non-governmental organizations (NGOs) such as the Center for Constitutional Rights and Defense for Children International – Palestine are promoting legal actions that challenge Israeli policies. [1]

In 2017 Christian Aid, a British charity that does humanitarian work for Palestinians and others, was sued in the United States by the director of the Zionist Advocacy Center for "providing material aid to Hamas". [39] The case was dismissed by the courts, but the charity had spent £700,000 in defending itself. [39]

In 2019 the NATO Strategic Communications Centre of Excellence cited the alleged use of human shields by groups like Hamas as an example of lawfare hinging on exploiting civilian casualties and the sensitivity of Western public opinion. [40] [41]

In 2024 the European Parliament expressed support for French-Palestinian politician Rima Hassan against what it described as "an attempt of lawfare intended to silence, intimidate and criminalise" critics of the Gaza war. [42]

Commentary

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". [43] Rumsfeld addresses the effects of lawfare in his memoir Known and Unknown. [44]

During a panel discussion on lawfare at the 2024 Vancouver International Security Summit Panelist Cynthia Alkon, law professor and director of the Texas A&M University Criminal Law, Justice & Policy Program, and instructor of the first university class on lawfare in the United States at Texas A&M Law School said, "A lot of lawyers don’t know they are in a case of lawfare." Alkon went on to described the primary form of lawfare as "a state acting through corporations and lawyers to file injunctions and lawsuits against investigative reporters, researchers, and security consultants warning against various forms of contentious action covertly taken by that state against others." [45]

At the same 2024 Vancouver International Security Summit, Panelist Scott McGregor, a former military and RCMP intelligence official, cited his work as an author resulted in a defamation claim against him and his co-author, Ina Mitchell, by a group associated with the Chinese Communist Party (CCP). "In lawfare, there is an intention to suppress what you’re saying, to deter," said McGregor, noting that the authors became a target of the CCP despite British Columbia's new law to prevent strategic litigation against public participation (SLAPP). [45]

See also

References

  1. 1 2 3 4 5 Erakat, Noura (2019). Justice for Some: Law and the Question of Palestine. Stanford, California: Stanford University Press. ISBN   978-1-5036-1357-7.
  2. ↑ Davies, John; Inglis, Brinsley (1957). "Divorce, The Royal Commission, and the Conflict of Laws". The American Journal of Comparative Law . 6 (3): 215. doi:10.2307/837517. JSTOR   837517 . Retrieved 17 April 2025.
  3. ↑ Comaroff, John (2001). "Colonialism, Culture, and the Law: A Foreword". Law & Social Inquiry . 26 (2): 305–314. doi:10.1111/j.1747-4469.2001.tb00180.x.
  4. ↑ Comaroff, John; Comaroff, Jean (2006). Law and Disorder in the Postcolony. University of Chicago Press. p. 1. ISBN   978-0226114095.
  5. ↑ Scharf, Michael; Andersen, Elizabeth (1 January 2010). "Is Lawfare Worth Defining - Report of the Cleveland Experts Meeting - September 11, 2010". Case Western Reserve Journal of International Law . 43 (1): 11. ISSN   0008-7254. Archived from the original on 1 March 2024. Retrieved 25 May 2024.
  6. 1 2 Dunlap Jr., Charles J. (29 November 2001). "Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts" (PDF). Humanitarian Challenges in Military Interventions Conference: 4. Archived (PDF) from the original on 25 October 2019. Retrieved 17 July 2013.
  7. ↑ Dunlap Jr., Charles J. (3 August 2007). "Lawfare amid warfare". The Washington Times . Archived from the original on 29 April 2023. Retrieved 25 May 2024.
  8. ↑ "About Lawfare: A Brief History of the Term and the Site". Lawfare . 14 May 2015. Archived from the original on 25 May 2024. Retrieved 10 January 2024.
  9. 1 2 3 Kittrie, Orde (2016). "The Chinese Government Adopts and Implements a Lawfare Strategy". Lawfare: Law as a Weapon of War. Oxford University Press. pp. 161–196. doi:10.1093/acprof:oso/9780190263577.003.0004. ISBN   9780190263577.
  10. ↑ "The Alarming Rise of Lawfare to Suppress Civil Society: The Case of Palestine and Israel". Charity & Security Network. 28 September 2021. Retrieved 20 June 2025.
  11. ↑ 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).
  12. 1 2 Rehman, Iskander (8 November 2023). Planning for Protraction: A Historically Informed Approach to Great-power War and Sino-US Competition (1 ed.). London: Routledge. pp. 65–66. doi:10.4324/9781003464419. ISBN   978-1-003-46441-9.
  13. ↑ Green, David (1 January 2014). The Hundred Years War: A People's History. Yale University Press. p. 53. doi:10.12987/9780300209945. ISBN   978-0-300-13451-3.
  14. ↑ Kittrie, Orde F. (1 February 2016). "The U.S. Government's Financial Lawfare Against Iran". Lawfare: Law as a Weapon of War. Oxford University Press. pp. 111–160. doi:10.1093/acprof:oso/9780190263577.003.0003. ISBN   978-0-19-026357-7.
  15. ↑ Luban, David (1 January 2008). "Lawfare and Legal Ethics in Guantánamo". Georgetown Law Faculty Publications and Other Works.
  16. ↑ Case Western Reserve University School of Law (20 September 2010). Lawfare: Lawfare and the War on Terror (Panel 5) . Retrieved 11 August 2025– via YouTube.
  17. ↑ Clarke, Michael (2019). "China's Application of the 'Three Warfares' in the South China Sea and Xinjiang" (PDF). Orbis . 63 (2): 187–208. doi:10.1016/j.orbis.2019.02.007. Archived (PDF) from the original on 21 September 2020. Retrieved 25 May 2024.
  18. ↑ Goldenziel, Jill I. (2020–2021). "Law as a Battlefield: The U.S., China, and the Global Escalation of Lawfare". Cornell Law Review . 106: 1085. Archived from the original on 4 March 2024. Retrieved 25 May 2024. The Chinese military prioritizes lawfare as one of the "Three Warfares" that shape its military's influence operations.
  19. ↑ Vanhullebusch, Matthias; Shen, Wei (2016). "China's Air Defence Identification Zone: Building Security through Lawfare". China Review. 16 (1): 121–150. ISSN   1015-6607.
  20. ↑ Lorteau, Steve (October 2018). "China's South China Sea Claims as "Unprecedented": Sceptical Remarks". Canadian Yearbook of International Law/Annuaire Canadien de Droit International. 55: 72–112. doi:10.1017/cyl.2018.6. ISSN   0069-0058.
  21. ↑ 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.
  22. 1 2 West, Michael J.; Insisa, Aurelio (March 2024). "Reunifying Taiwan with China through Cross-Strait Lawfare". The China Quarterly . 257: 186–201. doi: 10.1017/S0305741023000735 . ISSN   0305-7410.
  23. ↑ "Lawfare: China's legal initiatives against Taiwan". International Institute for Strategic Studies . 27 January 2025. Archived from the original on 23 June 2025. Retrieved 10 July 2025.
  24. ↑ Hsiao, Russell; Sando, Benjamin (April 2025). "Chinese Communist Party Lawfare and Economic Coercion Against Taiwan" (PDF). Global Taiwan Institute. Retrieved 18 April 2025.
  25. ↑ "China's regulations a bid for jurisdiction: experts - Taipei Times". Taipei Times . 27 June 2024. Archived from the original on 1 May 2025. Retrieved 10 July 2025.
  26. ↑ Lee, Yimou (9 March 2025). "China could 'arrest' Taiwanese abroad". Taipei Times . Retrieved 10 July 2025.
  27. ↑ Lee, Sze-Fung (25 July 2025). "Taiwan Bounty: PRC Cross-Agency Operations Target Taiwanese Military Personnel". China Brief. Jamestown Foundation . Retrieved 26 July 2025.
  28. ↑ Rotella, Sebastian; Berg, Kirsten (22 July 2021). "Operation Fox Hunt: How China Exports Repression Using a Network of Spies Hidden in Plain Sight". ProPublica . Archived from the original on 25 July 2021. Retrieved 25 July 2021.
  29. ↑ O’Keeffe, Kate; Viswanatha, Aruna (29 July 2020). "China's New Tool to Chase Down Fugitives: American Courts" . The Wall Street Journal . ISSN   0099-9660. Archived from the original on 17 August 2022. Retrieved 17 August 2022.
  30. ↑ 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. Archived from the original on 11 June 2023. Retrieved 25 May 2024.
  31. ↑ McCabe, David; Mickle, Tripp (11 February 2025). "Chinese Companies' New Tactic to Stop Damaging Research: Legal Threats". The New York Times . ISSN   0362-4331 . Retrieved 18 February 2025.
  32. ↑ Allen, Bethany (28 July 2024). "Libel Lawfare". The Wire China. Archived from the original on 29 July 2024. Retrieved 30 June 2025.
  33. ↑ Viterbo, Hedi (2018). "Lawfare". In Ben-Naftali, Orna; Sfard, Michael; Viterbo, Hedi (eds.). The ABC of the OPT: A Legal Lexicon of the Israeli Control over the Occupied Palestinian Territory . Cambridge University Press. pp. 243–263. doi:10.1017/9781316661376.013. ISBN   9781316661376. Archived from the original on 26 July 2024. Retrieved 17 April 2025.
  34. ↑ Asaf Siniver, ed. (27 October 2022). Routledge Companion to the Israeli-Palestinian Conflict. Taylor & Francis. ISBN   978-0-429-64861-8. Archived from the original on 25 May 2024. Retrieved 28 February 2024.
  35. ↑ Kittrie, Orde F. (1 February 2016). "Israeli Offensive Lawfare". Lawfare: Law as a Weapon of War. Oxford University Press. pp. 311–328. doi:10.1093/acprof:oso/9780190263577.003.0008. ISBN   978-0-19-026357-7.
  36. ↑ "Overview of lawfare cases involving Israel". NGO Monitor . Archived from the original on 31 January 2016. Retrieved 13 May 2013.
  37. ↑ "Netanyahu aide skips UK trip fearing arrest". Agence France-Presse. 4 May 2011. Archived from the original on 25 August 2011. Retrieved 13 May 2013.
  38. ↑ Twersky, Mordechai I. (19 May 2011). "Cotler warns of new strain in delegitimization of Israel". The Jerusalem Post . Archived from the original on 15 March 2013. Retrieved 13 May 2013.
  39. 1 2 Davies, Lizzy (2 March 2023). "Christian Aid claims it was subject to act of 'lawfare' by pro-Israel group". The Guardian . ISSN   0261-3077. Archived from the original on 25 May 2024. Retrieved 30 May 2024.
  40. ↑ "Hamas' use of human shields in Gaza" (PDF). NATO Strategic Communications Centre of Excellence. Archived (PDF) from the original on 24 October 2023. Retrieved 14 November 2023.
  41. ↑ 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 Archived 8 January 2024 at the Wayback Machine NATO Strategic Communications Centre of Excellence, 5 June 2019 pp.147-169, 152
  42. ↑ "MOTION FOR A RESOLUTION on Iran's unprecedented attack against Israel, the need for de-escalation and an EU response". European Parliament. 22 April 2024.
  43. ↑ 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)
  44. ↑ Rumsfeld, Donald (18 February 2011). "40". Known and Unknown. A Memoir. Sentinel. ISBN   9781595230676.
  45. 1 2 "Foreign interference networks in Canada using 'lawfare,' security summit hears". Vancouver Is Awesome. 29 November 2024. Retrieved 4 December 2024.
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