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. 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 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[ original research? ] "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. [1] [2]

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". [3] [4] 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. [5] 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". [4]

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. [6]

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. [7]

Examples

Hundred Years' War

French officials deployed a form of lawfare in the lead-up to the Hundred Years' War, according to historians Iskander Rehman and David Green. [8] [9] Rehman states: [8]

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

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". [10] 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. [10]

A pro-Israeli group, Shurat HaDin, acting on information from the Israeli government, is believed to have used lawfare to prevent a Gaza-bound flotilla from leaving Greece. [11] : 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. These cases have been heard in both Israel [12] and in other countries. [13] Attempts to suppress the Boycott, Divestment and Sanctions (BDS) movement have also been called lawfare. [14] In Israel and many US states, supporting the BDS movement is criminalized. [14]

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. [15] [16] 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. [17]

People's Republic of China

The government of the People's Republic of China has explicitly recognized lawfare ("falu zhan" or "legal warfare") as an essential component of its strategic doctrine. [11] : 161–164  Lawfare is one of three components of the People's Liberation Army (PLA)'s three warfares doctrine, which was approved by the Central Committee of the Chinese Communist Party and the Central Military Commission in December 2003 to guide PLA political warfare and information influence operations. [18] [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. [11] : 165–168  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. [20] [22]

The government of China has also used lawsuits in foreign courts to repress Chinese dissidents abroad. [23] [24] [25]

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". [26] [27] Rumsfeld addresses the effects of lawfare in his memoir Known and Unknown. [28]

See also

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References

  1. ↑ M. Smith; D. Crossley, eds. (1975). Whither Goeth the Law – Humanity or Barbarity, The Way Out – Radical Alternatives in Australia. Melbourne: Lansdowne Press. Archived from the original on 21 May 2019. Retrieved 15 December 2006.
  2. ↑ Smith, Margaret; Crossley, David John (1975). The Way Out: Radical Alternatives in Australia. Lansdowne. ISBN   978-0-7018-0429-9. OCLC   2538964.
  3. ↑ 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.
  4. 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.
  5. ↑ 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.
  6. ↑ "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.
  7. ↑ 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).
  8. 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.
  9. ↑ 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.
  10. 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.
  11. 1 2 3 Kittrie, Orde (2016). Lawfare: Law as a Weapon of War. New York, NY: Oxford University Press. doi:10.1093/acprof:oso/9780190263577.001.0001. ISBN   9780190263577.
  12. ↑ "Overview of lawfare cases involving Israel". NGO Monitor . Archived from the original on 31 January 2016. Retrieved 13 May 2013.
  13. ↑ "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.
  14. 1 2 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.
  15. ↑ "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.
  16. ↑ 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
  17. ↑ 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.
  18. ↑ 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.
  19. ↑ 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.
  20. 1 2 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. ↑ Hsiao, Anne Hsiu-An (16 December 2016). "China and the South China Sea "Lawfare"". Issues & Studies. 52 (2): 1650008. doi:10.1142/S1013251116500089.
  22. ↑ 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.
  23. ↑ 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.
  24. ↑ 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.
  25. ↑ 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.
  26. ↑ 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)
  27. ↑ Thayer, Andy (8 March 2010). "Court Allows Torture Suit Against Rumsfeld". The Huffington Post . Archived from the original on 12 March 2010. Retrieved 9 March 2009.
  28. ↑ Rumsfeld, Donald (18 February 2011). "40". Known and Unknown. A Memoir. Sentinel. ISBN   9781595230676.
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