The Age of Lawfare

AuthorDale Stephens
PositionCaptain, CSM, Royal Australian Navy
Pages327-357
XIII
The Age of Lawfare
Dale Stephens*
Weare currently living in the age of lawfare; perhaps we always have been.
The term, in its relationship to armed conflict, was most recently popu-
larized by Major General Charles Dunlap ofthe US Air Force in 2001 land has gen-
erated an exponential and diffuse trajectory of meaning and critique since that
time. The term "lawfare" has no real fixed definition, but has come to be generally
understood as the "use or misuse of law as asubstitute for traditional military
means to achieve military objectives."2It has been examined in the context of do-
mestic US legal practices,3in transnational legal incidents 4and, of course, within
the realm of public international law, particularly in the context of the law of
armed conflict (LOAC).5All accounts do share aconception that recognizes that
lawfare is concerned with the instrumentalization or politicization of the law to
achieve atactical, operational or strategic effect.
The reference to the "use or misuse" of law in the Dunlap definition reveals an
essentially neutral perspective. The fact is that modern State military forces do le-
gitimately use the law to achieve military outcomes. This is done as asubstitute for
the application of force and hence represents aform of lawfare so defined. This
may be manifested with, for example, aUN Charter, Chapter VII, "all necessary
*Captain, CSM, Royal Australian Navy. The views expressed in this paper are entirely those of
the author in his personal capacity and do not necessarily reflect the views of the Australian
government, the Australian Defence Force or any other body with whom the author is
associated.
The Age ofLawfare
means" Security Council resolution that displaces the law of neutrality or other-
wise shapes the tactical or strategic military environment.6Alternatively, it may
also be manifested in aformal determination as to whether an armed conflict exists
at all, whether it is international or non-international and/or whether an opposi-
tion group is to obtain prisoner of war rights or not. In this sense, the law is
"weaponized" to achieve adesired military outcome that negates the need to apply
force to obtain the same result. Indeed, recent scholarship on this body of law has
highlighted the notion that LOAC practice itself is aprocess of construction,
contestation and strategic instrumentalization that usually advantages State mili-
tary forces. 7That the existing architecture of LOAC possesses this apparent bias8
for State military forces is not surprising. Under classical views States are the sub-
jects, and not the objects, of international law. Moreover, from apolicy perspec-
tive, this preference is both appropriate and necessary under the existing
international legal structure. This is to ensure the right balance between interna-
tionally recognized military and humanitarian aims in warfare is maintained and
that institutional accountability is effectively preserved.
While States engage in atype of structural lawfare to achieve military aims, the
primary focus of this article is to examine the converse situation, namely, the man-
ner in which lawfare is exercised against States. The strategic use of the law by non-
State groups engaged in asymmetric warfare has been recognized as asignificant
tool to obtain military and political advantage. In these contexts, such groups will,
inter alia, invite the application of force against themselves or their proxies, inno-
cent civilians (as incidental injury), or ostensibly civilian objects (that have lost
their protection) that, while strictly lawful, nonetheless generate political costs
and/or moral dilemmas for the attacking force. The goal is to undermine the resolve
of State military forces by generating negative reaction by relevant constituencies
with political power.
Predictably, this type of lawfare prompts reactions concerning the "unfairness"
of legal constraints applying to one side as compared to the wanton disregard oflegal
compliance by the other.9Such asymmetric disadvantage is usually framed in
terms of adilemma within the literature for Western "law-abiding" military forces
in meeting the threats while retaining afidelity to the law. Lawfare is thus charac-
terized in the register of formal legality ofbeing arefuge of the weak, 10 ofbeing dis-
ingenuous by unfairly manipulating the law to achieve arelevant extra-legal and
asymmetric effect.
It is the purpose of this article to review the phenomenon of lawfare to highlight
how law is situated within the broader political, moral and social terrain of military
decision making. The reactions against lawfare disclose anumber of assumptions.
Principally, the reactions against lawfare evidence aparticular interpretive attitude
328

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT