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.[1][2][3][4]
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., SLAPP suits), or winning a public relations victory.
The term is a portmanteau of the words "law" and "warfare". Perhaps the first use of the term "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.[5]
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".[6] 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.[7] 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".[6]
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.[8][9]
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.[10]
In the 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".[11] 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.[11]
A pro-Israeli group, Shurat HaDin, acting on information from the Israeli government, is believed to have used lawfare to prevent Gaza-bound flotilla from leaving Greece.[12]
Many cases have been brought forward against Israeli officials and those associated with Israel's military, accusing them of war crimes. These cases have been heard in both Israel[13] and in other countries.[14]
Attempts to suppress the BDS movement have also been called lawfare.[15] In Israel and many US states, supporting the BDS movement is criminalized.[15]
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.[16][17]
In contrast to most world governments, the People's Republic of China has explicitly recognized lawfare ("falu zhan" or "legal warfare") as an essential component of its strategic doctrine.[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.[22] 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.[23][24]
Other examples
The government of China has used lawsuits in foreign courts to repress Chinese dissidents abroad.[25][26][27]
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".[28][29] Rumsfeld addresses the effects of lawfare in his memoir Known and Unknown.[30]
^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 Nato Strategic Communications Centre of Excellence, 5 June 2019 pp.147-169, 152
^Kittrie, Orde (2016). Lawfare: Law as a Weapon of War. New York, NY: Oxford University Press. pp. 161–164. ISBN9780190263577.
^Lorteau, Steve (2018). "China's South China Sea Claims as "Unprecedented": Sceptical Remarks". Canadian Yearbook of International Law. 55: 72–112. doi:10.1017/cyl.2018.6. S2CID158337369.
^HSIAO, ANNE HSIU-AN (16 December 2016). "China and the South China Sea "Lawfare"". Issues & Studies. 52 (2): 1650008. doi:10.1142/S1013251116500089.
^Kittrie, Orde (2016). Lawfare: Law as a Weapon of War. New York, NY: Oxford University Press. pp. 165–168. ISBN9780190263577.
^Lorteau, Steve (2018). "China's South China Sea Claims as "Unprecedented": Sceptical Remarks". Canadian Yearbook of International Law. 55: 79–99. doi:10.1017/cyl.2018.6. S2CID158337369.
^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. S2CID55162381.
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