Lawfare: Law as a Weapon of War by Orde Kittrie

| September 8, 2017
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Lawfare: Law as a Weapon of War, Orde F. Kittrie (New York: Oxford University Press, 2016), 504 pp., $29.95 cloth.

With the growing awareness of Russia’s attempts to weaken democratic institutions worldwide, the security practices of democratic nations are facing unprecedented challenges. Arguably, the most significant threat to Western-style democracy at the present moment comes not from kinetic action, but from the use of subterfuge and manipulation to influence public opinion. From elections in the United States, France, and the Netherlands, the U.K. referendum on exit from the European Union, as well as less visible political events around the globe, there is now clear evidence that Russia has dangerously stepped up its efforts to influence global affairs through online activities, including cyber-hacking, the “weaponization” of social media, and cyber-attacks on critical infrastructure, such as election registration software.

Slightly less visible than Russia’s attempts to achieve dominance through the production of “alternative facts” has been the increasing use of tactics by governments around the world to do the same through the use of what we might call “alternative law.” In some cases, these efforts involve a distortion of legal precedents and practice in order to create the appearance of legal process, and the United States has sometimes been on the wrong side of this weaponization of law. The attempt by the second Bush administration to justify the use of torture on detainees at Guantánamo Bay by writing secret “legal” memos purporting to bless the torture program with specious legal argumentation provides a case in point. Whether based on misapplied legal methods, as in this case, or on legitimate legal argumentation, the use of law to accomplish military aims now has a name: “lawfare.”

This fascinating and complex topic is the subject and title of Orde Kittrie’s impressive new book. A significant undertaking, this work covers topics as seemingly diverse as financial sanctions against Iran, Chinese attempts to claim dominance over outer space, and the use of civilian sites by Hamas for the purpose of crippling Israeli military action. It would be natural to question whether these instances form the basis of a single concept, but the brilliance of Kittrie’s analysis is precisely to demonstrate the common theme running through them. In a narrow sense, “lawfare” is the idea of using law to accomplish aims that one might otherwise seek to accomplish with traditional military force, and for the most part Kittrie’s examples all exemplify that theme.

To impose some order on this cacophony, Kittrie divides the concept of lawfare into two basic types: the instrumental use of legal tools, and what he calls “compliance-leverage disparity.” A little-known example of the first type is the effort by the United Kingdom in 2012 to prevent the shipment of helicopter gunships by Russia into Syria to assist the Assad regime, a task that could not be accomplished kinetically without grave risk of sparking a broader military conflict. The U.K. government managed to convince the British insurance company Standard Club to cancel its insurance policy on the shipment, forcing the Russians to halt the shipment mid-journey and send it back home.

Situating terrorists in militarily protected areas such as hospitals or schools is an example of the second type of lawfare, as are attempts to hold those responsible for terroristic activities liable through civil suits or criminal prosecutions. There is also a welter of civil suits and criminal prosecutions filed in attempts to induce compliance with international and domestic laws governing armed conflict more generally, and Kittrie would extend the term “lawfare” to these actions as well. The Palestinian Authority, for example, has filed dozens of lawsuits and criminal actions against Israel, and lawsuits now also abound for terrorism-related injuries against alleged state-sponsors of terror, including a suit by victims of the September 11 attacks seeking reparations from the Kingdom of Saudi Arabia.

The U.S. government, however, lags behind in the exploration of such uses of law, and Kittrie makes a compelling case that other nations, particularly China, have used lawfare far more effectively than has the United States. According to Kittrie, the Chinese government “is currently waging lawfare much more diligently and systematically than is the United States,” despite the fact that the United States is a more law-oriented society. In 2003, China explicitly adopted three types of nonkinetic, or “marginal,” warfare: psychological, media, and legal. In the area of legal warfare in particular, China has been systematizing its efforts by producing literature and handbooks on this topic for use by its own intelligence operatives, as well as by following Western literature and using it proactively. These strategic efforts are dangerous, not just in the hands of the Chinese but also as deployed by nations with lesser military might. Given the theoretical equality of nations in the international arena, the weaponization of international law supplies significant leverage that military might alone does not.

Assuming that International Humanitarian Law (IHL) imposes duties that are not contingent on the other side’s compliance, compliant states are likely to be repeated targets of compliance-leverage lawfare by any group that is not itself compliant with IHL. This is the central conundrum of Kittrie’s fifth chapter, “The Palestinian Authority’s Lawfare Against Israel.” According to Kittrie, the Israeli-Palestinian conflict is “the closest thing the world has to a lawfare laboratory” (p. 197). The constant exploitation of the Law of Armed Conflict by running terrorist operations out of hospitals or near schools hoists Israel on the petard of its self-declared compliance with its duties under IHL and requires it to adopt a number of defensive techniques to combat these practices. In Kittrie’s view, the use of lawfare by all parties to this conflict—albeit in different ways—foreshadows the course of war to come.

Fascinating as Kittrie’s discussion of lawfare in the Israeli-Palestinian conflict is, it is this discussion that best suggests the overbreadth of his analysis. Kittrie treats Palestine’s efforts to gain recognition as a separate state as one of three types of lawfare that the Palestinian Authority is waging against Israel; he appears to understand any attempt to use law as a vehicle to advance national interests as an exemplar of “lawfare.” If any use of law by a state to pursue national interests counts as lawfare, the line between international diplomacy and the military aims that lawfare is supposed to be advancing becomes effaced. Arguably, it would be better to restrict the term “lawfare” to the use of legal instrumentalities or constraints that are specifically designed to replace military measures or accomplish military goals, rather than broadening the term to encompass quasi-diplomatic aims as well. Palestinians believe they are entitled to a homeland in the region of Palestine; and although statehood would, to be sure, confer benefits that would facilitate the accomplishment of military aims, the legal efforts of the Palestinian Authority to achieve statehood are not mere substitutes for military tactics.

Still, Lawfare opens up a new area of inquiry through its systematic, detailed, and in some ways visionary synthesis of these different uses of law in relation to national security and armed conflict. This encyclopedic work should be required reading for any military strategist or scholar of armed conflict who is attempting to keep pace with the rapidly evolving world of national security practice.

—Claire Finkelstein

Claire Finkelstein is Algernon Biddle Professor of Law and Professor of Philosophy, and Faculty Director of the Center for Ethics and the Rule of Law at the University of Pennsylvania.


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Category: Book Review, International Law and Human Rights, Issue 31.3

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