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Debating Lawfare

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Stephanie Carvin and I have been having another of our friendly little cat-fights over at Duck of Minerva on the technicalities of humanitarian law discourse. She thinks I was too hard on Posner for his conflation of General Dunlap’s “lawfare” concept with the naming and shaming efforts of NGOs or the invocations of war law by whistleblowing websites.

She points out that lots of people conflate this term (I agree there) and seems to say this therefore makes the conflation by any particular actor less problematic than I have argued. She also suggests that a good definition of lawfare would be “the politics of international law” which would dramatically expand the general conflation of lawfare beyond what I already find problematic. In comments at the Duck I elaborated a little more on why I think Dunlap’s original use is important analytically and why all this rhetorical slippage is analytically unhelpful. Stephanie replies I may have too limited an understanding of the concept either conceptually or pragmatically.

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.

But Dunlap also candidly described the raison d’etre behind his coinage of the concept. Apparently it wasn’t actually to create a new analytical category, as I’ve interpreted its value (though I stand by that argument). Rather it was designed as a political buzzword aimed to help military practitioners and defense specialists see the political and military utility of taking humanitarian law seriously. I don’t know whether this view from the source lends greater support to my view or Stephanie’s, but I do think that given Stephanie’s definition this act alone would make Dunlap a practitioner of lawfare, whereas I see him, in that essay, acting as a theorist of lawfare.

If nothing else, it was an interesting insight about norms and law – one of many I’ve received since arriving here in Ithaca. Developing…

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