Tag: lawfare

Crime and Punishment in Syria

The ICRC has stated that the violence in Syria constitutes an non-international armed conflict. This is significant because it means the organization tasked with guarding and promoting the Geneva Conventions is declaring that at least portions of the Geneva Conventions (especially Common Article 3) applies to the conflict and unlawful attacks on non-combatants could be prosecuted as war crimes.

At Lawfare Blog, University of Texas’ Robert Chesney has a terrific round-up of legal questions this raises, including the “legal geography of war,” whether Assad will draw on precedent set by US targeted killings to argue that some noncombatants are legitimate targets, whether the war is already internationalized, and how far the ICRC’s view on the matter is decisive.

One other thing that should be noted: Reuters’ story on this declaration makes it sound as if heretofore atrocities against civilians were beyond judicial scrutiny, though as Chesney notes the article does point out that human rights law did and continues to apply. But in fact most of the previous violence in Syria would also be judiciable through the concept of “crimes against humanity” under the Rome Statute of the ICC. Of course, since Syria has signed but not ratified the Rome Statute, the court would only have jurisdiction if Assad or a ranking official traveled to the territory of a state party and were extradited the court, or if the Security Council were to act.  Since this appears unlikely, any international war crimes court would need to be constituted ad hoc, most likely by a regional organization. Still, governments could also try Assad or his officials under the principle of universal jurisdiction for some crimes, notably torture.


Peace vs. Justice: Is the ICC Doing It Wrong?

Photo from Still Burning

The Canadian International Council has rolled out a series of interviews and essays on “Peace v. Justice: The ICC and its Alternatives”. Far from flogging a dead theoretical horse, it’s a great renewal of a debate on the realities of the seemingly dichotomous choice between peace and justice.

Not to mention it’s a solid dose of Canadian scholarly insight and we debate very politely.

There are interviews with Kathryn Sikkink on the “justice cascade,” Leslie Vinjamuri on the role of the ICC in conflict zones, and Louise Arbour on the general debate. There are also essays on individual case studies that collectively demonstrate how peace and justice can be mutually reinforcing or come to blows when politics inevitably gets in the way. Check out essays by Mark Kersten on Libya, Stephen Brown on Kenya, Valerie Oosterveld on the Taylor trial, Rosalind Raddatz on the infamous General Butt Naked, and Simon Collard-Wexler on Timor Leste.  (More to come on Sudan, Kony 2012 and Canada’s truth commission.)
My own modest contribution is on “The Paradox of Lawfare.” Here’s a snippet:

The International Criminal Court precariously sits at the intersection of law, conflict, and politics. As such, the Court’s judicial intervention in ongoing conflicts and targeting of elite perpetrators of atrocities render it both an agent and a tool of what has been called “lawfare.” On the one hand, lawfare can refer to judicial interventions to curb atrocities through means that are coercive but morally preferable to military force. This form of lawfare is an ideal expression of liberal internationalism. On the other hand, the Court and global rule of law can be abused by states and political elites that seek to eliminate rivals and protect their own impunity. This is the paradox of the ICC – that it has so far been implicated in both legitimate and illegitimate uses of lawfare…


Targeting…targeting: What are reasonable expectations?

Blue moon, you targeted me standing alone…

Yesterday Charli wrote a post on whether or not those opposed to the use of drones should use the concept of “atrocity law” instead of “war crimes” or human rights violations.

I wonder if others who generally oppose “targeted killings” think the concept of “atrocity law” might be a more useful way of framing this problem publicly than talking about “war crimes” or “human rights” specifically – concepts that by their nature draw the listener’s attention to a legal regime that only partially bears on the activity in question and invites contrasting legal views drawn from contrasting legal regimes.

Charli asks this question given that:

I think there is significant and mounting evidence of normative opposition to the targeted killings campaign (regardless of arguments some may make about its technical legality under different legal traditions), and according to even the most conservative estimates it meets the other criteria of a significant number victims and large-scale damage. No one can doubt it’s highly orchestrated character.

I’m going to go with “no” on these questions. First, unlike Charli, I’m not certain there is “mounting evidence of normative opposition to the targeted killings campaign” in anything other than the protests of a relatively insular group of legal-academics-activists (Phil Alston et al) who tend to be critical of these kinds of things anyway. In previous posts I have raised doubts about whether or not we can determine if targeted killing is effective, and how some activities have challenged and changed legal framework for the War on Terror. However, if anything, I think there is growing consensus within the Obama administration that the program works, it is effective and I think it is popular.

Additionally, I do not see how invoking the term “atrocity” will get us beyond many of the political problems involved in invoking other terms like “human rights law” or “war crimes”. If anything, “atrocity” seems to be an even less precise, more political term.

However, I think this conversation points to a third, larger issue that Charli is mostly concerned with – civilian death in armed conflict. Or, to put it another way – What expectations may we reasonably seek to place on our states when they carry out military actions? Those who write, research and teach on international law typically anchor their discussions in the legal principles of proportionality, necessity and distinction. However, these are notoriously vague terms. And, as such, when it comes to drones, many argue that these legal principles are being undermined.

In thinking about this question, I’ve been reminded of the recent controversy over the decision of the International Criminal Tribunal of the former Yugoslavia in the Gotovina Case. In it, the Court ruled that a 4% error rate in targeting in a complex military operation was tantamount to a war crime. Four percent.

Was this a reasonably conclusion for the ICTY to make? Are militaries (and the military in question here was not a Western military dealing with high-tech military equipment) really expected to do better than a 96% accuracy rate when it comes to targeting? And if so, on what grounds can we (or the Court) say this is the case? And, bringing this back to Charli’s post, would we benefit from thinking about a 4% error rate in terms of “atrocity”?

There are two very good summaries of the case at Lawfare and IntLawGrrls for more background information on the case. Some concerned former military professionals (many of whom are now professors) – admittedly, another insular group of legal-academics-activists of a very different source – have put together an Amicus Brief for the Gotovina Appeal which is well worth reading.

However, immediate questions of legality aside, I think this raises a larger question as to what we can reasonably expect from military campaigns, especially what levels of accuracy. Are all civilian deaths “atrocity”? Historically, the laws of war have said no – that proportionality may sometimes render it permissible (if no less regrettable). And I believe that all but the most ardent activists would agree with this historically rooted position. But it is clear that our perceptions of reasonable death rates have changed since the Second World War. So the question is what governs our ideas about proportionality and civilian deaths in an age of instant satellite imagery, night vision and precision guided weaponry? Unfortunately, I’m not sure the drone debate has given us any useful answers nor the basis to produce them.

I appreciate that there are important differences here – the military is, in theory, a hierarchical chain of command that is obliged to follow the laws of war. The CIA (who carries out the drone program) are civilians who do not meet these expectations and their status in law is questionable. But status here is not the issue (at least for this blog post and how it relates to Charli’s concerns). Instead, it is whether and at what point civilian deaths may be considered “atrocity”, on what basis we can and should make that decision and whether that language would make any useful or practical difference.

There is no doubt that recent move to a “zero-civilian death” or high expectations of few casualties has been rapid. Certainly it is at least part of the increased legal activity by governments, IGOs and NGOs in the realms of international law and the laws of war. However, I think it is also the result of a false promise that better technology can allow us to have “clean” wars. It is a promise that is made by governments to their populations, but one that has also clearly influenced activists in terms of their expectations – whether they are set in terms of laws, rights or atrocity.


Learn to Love Lawfare

Photo courtesy of Etsy. The perfect lawfare key chain!

Over at the Lawfare blog, Jack Goldsmith recently offered up a “mea culpa” on his changing views of the concept and practice of lawfare. I don’t want to address the specifics of that post, but this and the Libya situation got me thinking again that a non-pejorative conceptualization of lawfare needs to be put forward. Particularly in the context of the International Criminal Court. Stay tuned. But for now…

Charles Dunlap defends that his original conception of lawfare was meant to be a neutral one. But it has since been co-opted by various scholars and political actors as a pejorative accusation – meant to delegitimize those who abuse law for strategic purposes. There’s an important distinction to be made though between the understanding of lawfare as a strategic weapon of war versus a coercive alternative to war. Specifically, there is a normative gap between the pejorative conceptualization of lawfare in the realm of U.S. national security and as a “weapon of the weak” to constrain U.S. military power, and the multilateral realm of international criminal law where the lawfare of the ICC and other tribunals is viewed as a a benchmark of moral progress.

Certainly, this latter form of lawfare is both coercive and strategic, whether it’s arresting war criminals or threatening judicial intervention if human rights abuses are not curbed. Therefore, this use of lawfare is meant to prevent and end conflict, not provoke it, entrench it or restrain legitimate uses of military force. The combined use of judicial and military intervention, in the Former Yugoslavia, Sudan, Libya, and Cote d’Ivoire, etc., underscores this trend.

Among the few that have addressed this understanding of lawfare are those that participated on the international tribunals panel at a conference on lawfare at Case Western University School of Law a year ago. (I posted a brief summary of this conference here.) Discussion of the ICC was scant and the selected quotes below, from the subsequent special journal issue, demonstrate there’s little consensus on lawfare in this realm so far.

Justice Ogoola on the peace vs. justice nexus in Uganda:

“In many senses, lawfare is the opposite, indeed the very antithesis of warfare. Warfare is the ancient, primitive, and largely discredited mode of dispute resolution between nations and among peoples. Lawfare, on the other hand, has all the civilized undertones of letting the law fare well in the struggle to achieve peaceful resolution of disputes. If has the ring of due process, of the doctrine of the rule of law, and rule of reason – of the principles of fairness, equity, and justice in bringing a peaceful end to a  violent conflict.”

Robert Petit on political interference by the Cambodian government in the ECCC:

“If, however, we intend lawfare to equate to what is more traditionally viewed as political interference in the application of justice, then yes, lawfare is practiced in International Criminal Law.”

David Crane on the “take down” of elite perpetrators and Charles Taylor for the Special Court for Sierra Leone.

“The law is a powerful tool. Some say it can be used as a weapon. That power was used to bring down the most disruptive and evil warlord in Africa and his co-defendants not just by the stroke of a pen on March 3, 2003, but in the execution of two operations, Operation Justice and its follow-on Operation Rope.”
“The term – lawfare – has been viewed somewhat negatively and at best as a clever turn of a phrase. Used in the appropriate context it can be a force for good and positive change.”

David Scheffer on accusations against the legitimacy of the International Criminal Court:

“I plead guilty to being a major perpetrator of lawfare, on behalf of the U.S. Government, during the 1990s. My mission…was to use the power of the United States to build international and hybrid criminal tribunals that would subject the leaders of other nations and rebel movements engaged in warfare, including internal armed conflicts, to international criminal justice. I used the law aggressively and continuously and sometimes such actions served as at least a partial rationale for avoiding the use of American armed might or more political negotiations.”

“The commentariat believe that the ICC may be used by weak nations or by a rogue prosecutor to isolate and shame the United States. They fear that lawfare will prevent Washington from using its military power for just cause through the threat of investigation and prosecution of its often controversial policies and actions.”

There’s clearly room to interpret the ICC’s, or any international tribunals’, intervention in escalating conflict as a legitimate form of lawfare. Understandably, advocates of international justice will not want to associate such institutions with coercion, violence, and political strategy. But saving the concept as an alternative, not means, to war opens the door to a better understanding of the ICC’s potential role in conflict resolution.


Reciprocity and International Law: A reply to International Jurist

On Wednesday, Xavier Rauscher at International Jurist posted his response to the hullabaloo over international law and the death of bin Laden. I’ve said my piece on it here and I’m getting tired of the issue, but Rauscher’s post is interesting because he tries to look at the “big picture” – noting that the manner in which bin Laden was killed has thrown more fuel on the fire over the “war on terror” vs “law enforcement” debate.

He also notes the commentary surrounding the fact that the debate over the issue seems to highlight the fact that within international politics we now seem to have two incompatible understandings of what international law is. Rauscher quotes American University Law Professor Ken Anderson who blogged at The Volokh Conspiracy on this point:

…what we call international law has been fragmenting for some time now into different “communities of interpretation and authority” as I somewhere called it. (…) Those communities have moved sufficiently far apart that they no longer share a common basis for authoritative interpretations of international law.

While disagreeing with the “conservative” tone, Rauscher responds:

It is important that the doctrinal debate on applicable international law does not lose touch with existing State Practice and more specifically States’ security concerns, lest international law becomes less relevant and hence loses its already relatively weak authority. While I am not arguing that international lawyers need to cave in systematically when confronted with a powerful State’s slightest whim, we must be always careful to address the security needs of States and offer credible and effective solutions to such issues. In the great scheme of things, international law should always be presented as a toolbox of solutions, not problems that may be negatively perceived not only by the States, but public opinion as well.

I agree with this sentiment very much.

However, I do have one major concern about the argument that Rauscher seeks to put forward:

The reason for the urgency is something that people like Kenneth Anderson completely miss in their discourse: that international law, and the international system as a whole, is founded on a fundamental principle that is reciprocity. To claim the right to invade “rogue States” for murky security reasons, to indefinitely detain “enemy combatants” in a never-ending conflict, or to send drones to kill terrorist suspects all over the world is one thing when you are the United States and believe you are a force for good – but it’s a whole other thing when other States, with perhaps less honorable goals, build their own policies on such dangerous precedents to the disadvantage of international peace and security.

There is a danger lying here in invoking reciprocity and I think the implications of it may take Rauscher to a place he may not want to go. Effectively, the principle reciprocity is what neo-conservatives in the United States have put forward as the reason to deny Guantanamo detainees any rights whatsoever. They don’t play by Geneva’s rules (or any rules, really), therefore they don’t have the right to expect treatment by the rules in turn. For example, as Alykhan Velshi and Howard Anglin have argued:

The Geneva Conventions are by no means anachronistic; they remain the proper legal framework for waging a conventional war against a regularly constituted army. But applying the strict letter of the Geneva Conventions to Islamist militants is like applying the Queensbury Rules to a donnybrook. When terrorists have shown no interest in abiding by the Geneva Conventions, it is naïve to think that we can shame them into doing so by treating them as though they have. The best way for the United States to honor the Geneva Conventions is to enforce the principle of reciprocity and deny Geneva protections to those who scorn them.

There are many other sources one could point to hear as well.

Part of the issue here is that the role of reciprocity in enforcing the law of armed conflict is not clear. The ICRC categorically rejects the idea that it plays a role in the enforcement of the laws of war (citing the first two common articles to the Geneva Conventions). However, whether or how this take on reciprocity applies to the full spectrum of war law is unclear. Keeping with Rausher’s point about state practice, I think it is fair to say that no state will constantly agree to suffer such grievances forever. As Yoram Dinstein maintains in his book on the law of armed conflict, expecting a state to do nothing in a cases involving a blatant and persistent violation of the laws of war is not reasonable and that the laws of war should not be based “on the unreasonable expectation that, when struck in contravention of LOIAC, the aggrieved State would turn the other cheek to its opponent. This sounds more like an exercise in theology than in the law of war.” (p.26)

I find myself agreeing with Dinstein,that there is still a basis for reciprocity or reprisals in the enforcement of law. However, at the same time, I would say that international law is pretty categorical on the prohibition of reciprocity against individual victims. One needs only look at Common Article 1 of the 1949 Geneva Conventions: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”

So we need to be cautious when we invoke reciprocity, particularly as it relates to the War on Terror. But despite the lack of a precise agreement over the concept, arguing that the fundamental basis of international law is reciprocity full-stop, particularly when it comes to the laws of war, is potentially very flawed. It may be fairer to say that “what goes around comes around”, or warn of the danger of precedent, but the way that Rauscher states it is probably not legally correct (although I stress that he is the actual lawyer and I am the fake one). Worse, it’s an argument that has been used to justify many of the things that Rauscher is warning against.


More blogfare on lawfare

In my Friday post I forgot to give a shout out to Ben Wittes and the Lawfare Blog who have been writing about this since last fall. In particular, they had an excellent series of posts on the concept (but way of a discussion of the Rule of Law in by Brigadier General Mark Martins (in Centcom and apparently in Afghanistan) on the concept here, here and especially here. (He offers his own interpretation of “lawfare as COIN”). It’s a very interesting discussion and highly relevant for those interested in these issues. (Although late to the party, I do mean to write my own response to this – although he lawfare blog has that too.)

However, I’m here because my mortal enemy Charli Carpenter has an excellent post in an ongoing discussion of lawfare. Rather than more speculating over the meaning of “lawfare”, she resorted to asymmetric tactics and just went and asked Charles Dunlap, originator of the term. (While I’m inclined to believe that this was a distinctly unfair advantage, unlike war, all is fair in love and blogging.)

Now, since it just so happens that I’m sitting next to Charlie Dunlap at this bombing workshop, so I’ve had time to ask him directly about where he sits in all this and what he meant by the term. He tells me he agrees that the term has generally been misused and over-conflated. But his own understanding of lawfare is a little broader than the one I’ve put forward at the Duck, though significantly narrower than Stephanie’s or Eric Posner’s. In short whereas I read Stephanie as arguing that “lawfare” should refer to all efforts to hold states’ accountable to the law, Dunlap refers to the ways in which law is used as a weapon in war by belligerents.
However I was wrong in thinking that he primarily refers to the near-perfidious use of the law by insurgents who, for example, are known to surround themselves with civilians simply because they know it makes ISAF troops less likely to target them. Dunlap also considers it “lawfare” when law-abiding states use their own adherence to the law to their own advantage – when ISAF, for example, advertises its civilian protection policies to win hearts and minds. So it’s a belligerent-focused concept, not necessarily one that focuses only on perversions of the law. This is quite distinct however, from the argument that “lawfare” is being waged by non-belligerents (NGO advocates and such) by definition when they call states to question for violating war law.

If you have any interest at all in this topic, I highly suggest that you read it.

In my defence, I just want to make clear that my points in my original post were:

  • Everyone uses the term differently and it’s being used to describe entirely different phenomenon.
  • I’m therefore not sure how useful the concept is. Maybe it just refers to the political battles over the law which have always existed, but intensified after the Cold War.

So I don’t/didn’t think lawfare should just refer to all efforts to hold states’ accountable. I definitely do not agree with Posner’s position. It’s not just academics criticizing states to score political points, but it’s also states using the law to score their political points. I basically saw it as a point scoring exercise by everyone.

But I would concede that this is, perhaps too large of a definition.

Dunlap’s comments on his use of the term – as a way to get states to take IHL seriously (which until the mid-1980s was taking a bit of a beating in the wake of Vietnam) – meshes pretty well with my research on attempts of US military lawyers to do just that.

So, given the above discussions and further thought, I guess I will forward my own modified, particular, super basic and no-doubt flawed interpretation of lawfare as “the use of law as a tool as relates to the conduct of military operations”. This would be the use of law to achieve an aim, whether it is to sharpen the sword, blunt it (or just getting your superiors to take you seriously.)

How’s that? (Seriously – I’ve really enjoyed the feedback on this.) Unfortunately, I don’t have Dunlap to ask – but, um, my Dad thought that sounded good. So there!


How fares “lawfare”?

There has been so much going on with the international law front, it’s kind of hard to know where to begin. In sum:

Oy. No shortage of things to blog about. So let’s go meta, shall we? (With the hope that they’ll be a chance to return to some of these in the next couple of days.)

International law is still hot. It’s the old and new black. We’re getting our law on. I-Law is in the hizz-ay.

In short, based on the above list, it’s clear that law is being used to justify the use of force, to criticize the use of force, to question the use of force and to help us think about the use of force in general.

I make this (somewhat obvious point) in thinking about Charli’s post earlier this week about “Lawfare” where she takes to task Eric Posner’s editorial on the concept. I liked the post, but I think “lawfare” is a far more complicated phenominon than what her argument suggests (although I think Charli was more interested in talking about Posner’s argument than exploring what “lawfare” actually is.)

There seems to be general consensus that the term was created by Charles Dunlap who described it as “the use of law as a weapon of war”. Yet, beyond this, there seems to be little agreement as to what this implications of this means – except everyone seems to use the concept derisvely. Some, like Posner use the term to mean the use of law by NGOs to try and restrict military operations by powerful (particularly Western) states. Some, like David Kennedy suggest it is the manipulative use of law by states to justify violence.

Alana Tiemessen has usefully pointed out the different meanings of the term that were pointed out by the participants at a conference on the term at Case Western University last year:

Despite the speakers frequent lamentations that after much discussion we still don’t know what lawfare is, it origins and conceptual boundaries are as clear as any contested concept can be in the study of law and politics.

For most, the concept of lawfare came to the fore with Charles Dunlap’s initial definition (2001) of lawfare as “the use of law as a weapon of war.” He subsequently expanded the definition to be “the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.” Empirically, lawfare has since been applied as an accusation with respect to the detainees in Guatanamo, the Goldstone Report, tactics in the War on Terror, and yes, to question the legitimacy of international criminal tribunals.

With so many different ways to understand the concept – I wonder if “lawfare” is really just a trendy way of describing the politics of international law? And if so, is it really that useful?

I think an argument for “lawfare” being useful could be based on it being understood as a phenomenon: although international law has always been political, the way that non-state actors engaged with it changed in the 1990s (with the classic case being the 1997 Ottawa Landmines Treaty.) And since the 1990s there has been a flourishing of international humanitarian/human rights organizations which monitor international law in armed conflict. International law is being discussed in ways that it never has been before – whether its is because of the media (which makes watching and reporting alleged violations easier), the internet (which makes it easier to research and find) or changing expectations in populations (which demand that wars fought by democracies are fought in ways that reflect democratic values.) So should lawfare refer to this of hyper-discussion and awareness?

The problem with this (at the risk of having set up a straw-man) is that international law, particularly the laws of war, have always been political. Not even the participation of non-state actors is particularly new. ICRC aside, in the 1970s national self-liberation movements (such as the Palestinian Liberation Organization and the African National Congress) demanded and sometimes recieved the right to participate in IHL conferences (such as the Geneva Diplomatic Conferences which wrote the Additional Protocols). And both the United States and Soviet Union (and their client-states) were willing to use international law to score their political points (such as North Vietnam insisting that downed US navy pilots were “war criminals” rather than prisoners of war.)

It’s obvious that discussions and heated debates on international law related to armed conflict will not be vanishing anytime soon, especially as states continue to feel obligated to justifiy their actions in terms of international law and NGOs continue to push for more and more restrictions on weapons. Whether or not we choose call it “lawfare” (however defined) will make little difference.


Posner, Dunlap and Lawfare

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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