The Duck of Minerva

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Posner, Dunlap and Lawfare

April 4, 2011

Eric Posner had a recent piece in The National Interest on the concept of “lawfare,” in which he appears to define “lawfare” as efforts to undermine powerful states’ foreign policy goals by holding them accountable to international norms (he lumps Wikileaks and Human Rights Watch together as two such entities), then to say that NGO activity in this area isn’t really “lawfare,” (well duh) and then goes on to say (conflating NGO activity with lawfare) that actually, the non-state sector is so powerless that really, states like the US shouldn’t worry too much about all this “lawfare.”

Lawfare is both the efforts of enemy nations, terrorist organizations and their supporters to counter American military superiority by threatening U.S. policy makers and soldiers with prosecution and civil litigation, and the pressure brought to bear by NGOs who take to the media marketplace insisting that international law places sharp limits on military action…. But the very idea of lawfare is perplexing. How can “law”—a set of rules applied by unarmed institutions like courts—stand up to bombs and missiles? The answer is that it cannot. Laws do not enforce themselves. If a weak country cannot coerce a more powerful country through force of arms, then it cannot coerce the other country with law either. The lawfare threat is greatly exaggerated…. NGOs advance interpretations of the law, but their interpretations do not have any legal authority, nor can they make, change or enforce the law. WikiLeaks and other media do not demand legal compliance. All they do is push toward transparency and the curtailment of military operations that generate grisly images. In the end, these are political, public-relations and technological threats, not legal ones.

A number of blogs I respect, including the Lawfare Blog and the International Jurist have been surprisingly uncritical about this piece. Rob had some thoughts on this back when the essay came out. For my part, I’d just like to add three things:

1) It’s inappropriate to equate human rights NGOs like Human Rights Watch, who specialize in interpreting and invoking international human rights and humanitarian law, with Wikileaks, which as I’ve argued before has a slim grasp of what the law actually says or how it may be invoked and is more about promoting an emerging norm of information transparency that is not yet very salient as an international norm (though some say it should be).

2) Posner’s dismissal of NGO influence on the law itself is factually incorrect. NGOs have a hand in creating, monitoring and implementing the laws of war. In fact one of the key purposes of the first Geneva Convention in 1864 was to establish the right of neutral aid workers to assist the wounded on the field – acknowledging the role of non-partisan civilian humanitarians to help implement noncombatants’ right to medical assistance. The ICRC’s role as “humanitarian diplomat” and monitor of POW treatment, enshrined in the Conventions, also demonstrates that non-state humanitarian players are a fundamental part of the Geneva regime.

3) But most perplexing is Posner’s misinterpretation of the concept of lawfare itself, whose conflation with NGO advocacy has always been erroneous at best. Of lawfare Charlie Dunlap, who originally coined the term, defined it simply as “the use of the law as a weapon of war.”

But Dunlap wasn’t saying that prosecuting war criminals is an illegitimate tool of war. He was writing about actors who exploit their enemy’s expected adherence to the law as a tactic of armed conflict, as civilian Khaddafi supporters were reported to have done when they volunteered themselves and their families as human shields.

Nor does Dunlap share the view that the promotion of humanitarian norms as lawfare itself. Quite the reverse. As he writes in a more recent article on the concept:

What does all this mean for commanders in 21st-century conflicts? In the first place, it is imperative that warfighters reject interpretations of lawfare that cast the law as a villain.

A better, more realistic assessment is set forth by attorney Nathanial Burney: “[Lawfare] is often misused by those who claim that there is too much law, and that the application of law to military matters is a bad thing that hamstrings commanders in the field. The fact of the matter is that lawfare is out there; it happens. It is not inherently good or bad. . . . It might be wiser for such critics to take it into account, and use it effectively themselves, rather than wish it didn’t exist.”

Besides the fact that law may sometimes offer ways of bloodlessly achieving operational objectives, it is simply historically untrue that [those] who operate outside of humanitarian norms that the law reflects are more likely to succeed

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Charli Carpenter is a Professor in the Department of Political Science at the University of Massachusetts-Amherst. She is the author of 'Innocent Women and Children': Gender, Norms and the Protection of Civilians (Ashgate, 2006), Forgetting Children Born of War: Setting the Human Rights
Agenda in Bosnia and Beyond (Columbia, 2010), and ‘Lost’ Causes: Agenda-Setting in Global Issue Networks and the Shaping of Human Security (Cornell, 2014). Her main research interests include national security ethics, the protection of civilians, the laws of war, global agenda-setting, gender and political violence, humanitarian affairs, the role of information technology in human security, and the gap between intentions and outcomes among advocates of human security.