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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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  • Alan G. Kaufman

    Look at this link for an example of lawfare in action in the American Civil War:

    http://opiniojuris.org/2011/04/06/how-the-laws-of-war-helped-to-end-american-slavery/

    My definition of lawfare is this: use of law as a national security capability that can produce strategic and operational effects.

    David Kennedy’s short book, “Of Law and War,” without ever using the word, provides some insightful thinking about how leaders can use law and lawyers in this way.

    For example:

    “ .. .law is relevant to war . . .The military, like other public and private bureaucracies today, operates in war and peace against the backdrop of innumerable local, national, and international rules regarding the use of me, the financing of arms and logistics and the deployment of force. Taken together, these laws can shape the institutional, logistical, even physical landscape on which military operations occur. Today’s military is also itself a complex bureaucracy whose managers discipline their forces and organize their operations with rules. . . .”

    “…. When corporate lawyers assesses the significance of all these laws for a business client, they look not only at the formal jurisdictional validity of the rules. They also assess their likely sociological effect – their likely impact on the client’s business strategy. Who will want to regulate the transaction? Who will be able to do so? What rules will influence the transaction even absent enforcement? And they assess opportunities for the corporation to influence the rules, or to use them in new ways to achieve their strategic objective.”

    “ . . . The practice of military and humanitarian law requires complex and shifting predictions about law and fact. Whose interpretation of the law will, in fact, prevail, and before what audience?”

    “Law has become more than the sum of the rules; it has become a vocabulary for judgment, for action, for communication. Most importantly, law has become a mark of legitimacy –and legitimacy has become the currency of power.”

    “ . . .the laws in force are not necessarily the laws that are valid, in some technical sense, but the rules that are persuasive to relevant political constituencies. Whether a norm is or is not legal is a function not of its pedigree, but of its effects. Law has a effect – is law – when it persuades and audience with political clout that something someone else did, or plans to do, to or is not legitimate. The point is no longer the validity of the distinctions, but the persuasiveness of arguments.”

    “Law is a strategic partner for military commanders when it increases the perception of outsiders that what the military is doing is legitimate. And of course, it is a strategic partner for the war’s opponents when it increases the perception that what the military is doing is not legitimate.” p.41

    “Harnessing law as a strategic asset to strengthen or restrain the military requires creative use of legal pluralism — and a careful assessment of the power those with different interpretations may have to influence the context for operations. The astonishing thing is that these are differences in perspectives on a quite similar set of legal doctrines and political considerations.” p.39

    “This means doing things as a message — as an assertion of right, an expression of intent and resolve, or to alter the landscape on which the legitimacy of your campaign will be judged.” p.126

    Good little book. Princeton University Press 2006. Recommend you read it if you haven’t already.

  • Oooh! Not fair! I only got to have a beer with Dunlap at a retirement party last October. None of this fancy conference stuff!

    I’ll be back!!! (But I’m being co-opted by parents into yard work.)

    • Anderson

      Well, bless you both for actually being able to debate something cheerfully.

      • Charli Carpenter

        That’s what deliberative democracy is all about. :)

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