by Charani LCM Patabendige
Published on The Morning on 18th February 2024
The tactics and strategies of wars have drastically changed resulting in a change in the threat landscape. War at present is not wholly physical in nature, in fact at present wars can be handled utilizing other mechanisms including information war, cyber war, net war as well as lawfare. Where earlier in society, warfare was based on procurement, shipping, and logistics but now it has taken a turn to include soft threats. However, regardless of tangibility, these wars are capable of disrupting peace, and harmony, causing instability, eroding the rule of law, and breaching the rights of citizens. Lawfare is one such way utilized to wage war to gain objectives including political, military, and strategic.
As stated by (Mattingly,2016), “Kittrie points out that lawfare is traceable to Hugo Grotius and his book Mare Liberum, published in 1609. In this book, he argued that under “the Law of Nations the sea is common to all,” that through it the Dutch accomplished what their naval and military forces could not, and they thereby “solidified the concept of freedom of the seas.” Kittrie also points out a more recent interpretation of lawfare by two Chinese People’s Liberation Army colonels who in 1999 published Unrestricted Warfare which “lists examples of non-military warfare,” including “establishing international laws that primarily benefit a certain country.” Additionally, the colonels argue for “the use of domestic trade law on the international stage” which they equate to being “equal to that of military operations.” These are a testament of the gravity of Lawfare and use of it which dates to decades. Lawfare became well known with the definition by Major General Charles J. Dunlap. According to him, “lawfare” can be regarded as the “strategy of using or misusing law as a substitute for traditional military means to achieve an operational objective.” Further, Dunlap mentions that “in the context of domestic US legal practices, in transnational legal incidents and, of course, within the realm of public international law, particularly in the context of the law of armed conflict. All accounts do share a conception that recognizes that lawfare is concerned with the instrumentalization or politicization of the law to achieve a tactical, operational, or strategic effect”.
As per the definition stated by Dunlap, it is crucial to mention that lawfare is not solely about misuse since it includes use as well. Therefore, utilizing the law to strategic advantages to further military accomplishments is permissible by stated. When perusing the terminology, Dale Stephens states that “the term “Lawfare” has established a distinctly pejorative connotation within the prevailing literature. This seems unusual, as the term, itself is value-neutral. It is neither intrinsically “good” nor “bad,” but rather an agnostic phenomenon.”
This brings into question which lawfare is threatening and who commits so. Lawfare waged by nonstate actors including rebels can have disastrous consequences since they will utilize Lawfare to question the legitimacy of wars conducted by the state, Lawfare by terrorist sympathizers, front, cover, and sympathetic organizers will cause fear in the public, the erosion of law, and instability in politics. According to Dale Stephens, “In the contemporary environment, allegations of lawfare are routinely cited as a tool used by insurgents or other non-State actors in actions against State military forces. This is the version of lawfare that has become more typically associated with the term. Hence, United States Army lawyer Eric Jensen identifies that in the context of asymmetric warfare, an opponent will seek to exploit an adversary’s weaknesses to seek tactical or strategic advantage. Such weaknesses are not necessarily those of military capacity, but rather are more intangible and revolve around inciting violent reaction that feeds public disquiet.” Nonetheless, regardless of the lack of tangibility, ill will, feelings of fear and misery too have grave consequences, which threaten stability of countries and the legitimacy of war.
According to (Dressler, 2021), Lawfare can be a constructive force or destructive force. According to him, The United States of America employs a strategy of constructive lawfare, such an example was in Afghanistan. America aimed to undermine terrorist activities by establishing civic and legal institutions through its Rule of Law Field Force (ROLFF). On the other hand, destructive lawfare is where terrorist organizations, such as ISIS, employ destructive lawfare strategies, by exploiting liberal democracies' adherence to international human rights and humanitarian laws. To do this, they utilize various activities including human shields to deter airstrikes, capitalizing on democratic nations' respect for human rights. According to (Williams,2011), Lawfare can be offensive as per his categorization. Accordingly, “The recent case by Serbia against Kosovo in the International Court of Justice (ICJ) on the question of the legitimacy of Kosovo’s declaration of independence is a prime example of how a party switched to an offensive lawfare tactic after losing on the battlefield.”
This brings into the necessity of examining examples of Lawfare from both positive and negative lenses. One real-world example of positive Lawfare is the case of apartheid in South Africa. In South Africa, the use of legal strategies played a crucial role in the fight against racial segregation and discrimination. Social and human rights activists and organizations played a vast role. For example, the African National Congress (ANC), employed legal challenges, both domestically and internationally, to challenge apartheid policies, which is a positive example of Lawfare. The International Criminal Court is another example, which merits attention, it is the permanent international tribunal created to prosecute individuals for grave offences of international concern, including crimes of genocide, crimes against humanity and war crimes. According to (CIVICUS LENS, 2022), “The first ICC conviction came in March 2012, when Thomas Lubanga Dyilo was found guilty of war crimes for using child soldiers in the conflict in the Democratic Republic of the Congo. The Court has now heard 31 cases and convicted 10 people.”
An example where lawfare is utilized as a destructive force is the conduct of Hamas. According to (Dunalp, 2023), “Hamas’ strategy is, however, quite different. Lobbing rockets indiscriminately at Israeli population centers along with engaging in a few firefights to kill at least some Israelis is not, militarily speaking, a meaningful warfighting effort. Hamas is employing a “Lawfare” strategy. A Lawfare strategy uses (or misuses) law essentially as a substitute for traditional military means; it employs law much like any “weapon” to create effects or obtain results in an armed conflict that can be indistinguishable from those typically produced by kinetic methods” As cited by Dunlap, “an analyst of the 2014 Gaza war concluded, [that] Even though Hamas, like the Taliban in Afghanistan, violated international laws by using civilians as human shields, Hamas has shed enough public doubt on Israel’s conduct to advance a “both sides are guilty” argument. The spectre of this gives Hamas perpetual victim status and deters Israel from exercising the full range of its options against the group, one of which is its destruction. While not a triumph for Hamas, it gives them time to renew their resources and regroup.” This finely portrays how terror groups are utilizing Lawfare for military gains.
Even though Lawfare is a grave threat and a modern warfare strategy, its gravity is not understood in detail compared to physical war. The truth is, Lawfare is also serious and its impact is disastrous and cannot be underestimated. According to (Marti,2020), the Lawfare “phenomena today are a serious danger to the health and the consolidation of our democracies”. The author states that “the increasing use of lawfare as an everyday political weapon an alternative to ordinary democratic processes, the judicialization of politics, complemented by the politicization of justice, the growing repression of protest movements and the general abuse of criminal law to restrict fundamental rights, especially those of a more political nature.” In addition to what the learned author has stated it is also crucial to state that “media” also play a crucial role in propagating lawfare by disseminating news as well as times magnifying or exaggerating the content. Even though such acts by media is highly unethical due to the lack of sufficient media literacy, information literacy as well as digital literacy destructive Lawfare thrives in uncontrollable ways. Such actions demonstrates that Lawfare cannot be isolated as it is inextricably interlinked with other cardinal facets of societies.
The rationale behind law is to have a law abiding society which upholds the rule of law. In doing that judicial independence, parliamentary sovereignty and democracy can be regarded as critical elements. When the law which is supposed to be a guiding and abiding force becomes a weapon of destruction then it becomes chaotic. However, this brings into the necessity of identifying how to segregate lawfare as constructive or whether destructive. To do this, it is essential to identify the motive and legitimacy as factors. If the motive is ill and cause is illegitimate it eventually is to cause segregation and gain ulterior advantage. Such Lawfare is inherently evil since it will lead to disruption of peace and tranquility of the society. In addition, it is crucial for any state to be prepared to counter Lawfare which is destructive. To achieve this, it is imperative to have legal preparedness, have necessary diplomatic channels and support as well as manage media appropriately.
Link to the original source : Click here
* Ms. Charani Patabendige is an Acting Research Analyst and a Research Assistant at the Institute of National Security Studies (INSS), the premier think tank on National Security established and functioning under the Ministry of Defence) The opinions expressed are her own and do not necessarily reflect the views of the Institute or the Ministry of Defence.