by Eric Gordy
So where do professional goals and practices in international law intersect with efforts to provide legal protection to victims of conflict-related violence? You might think it is a silly question: don’t all practitioners in international law share the goal of providing the protection of international law? The ultraquick answer is no, they do not all have the same orientations, the same sympathies, or the same employers. Some of them want to establish and expand legal protection and some want to limit it.
Since these two groups are fundamentally opposed in terms of what they are trying to achieve, it is not too surprising that they should frequently try to discredit one another. It’s not much of a challenge to discredit projects that have the mission of exempting violence from legal oversight, of course. But what about the other side? Well, what if you were given the opportunity to argue that people interested in protecting civilians while you are fighting are strategic tools of the enemy? The opportunity has been provided, and it traces its origins to the effort of right-wingers to redefine the world after the 9/11 terrorist attack in New York.
Enter one very modern major-general (a brigadier-general actually, but it doesn’t scan). Speaking at Harvard University in the aftermath of the attack in 2001, Charles Dunlap (he was a colonel then), asked:
Is warfare turning into lawfare? In other words, is international law undercutting the ability of the US to conduct effective military interventions? Is it becoming a vehicle to exploit American values in ways that actually increase the risk to civilians? In short, is law becoming more of the problem in modern war instead of part of the solution?
Funny I should ask, General Dunlap answers himself, before going on to quote approvingly two people who agree with his contention, to the effect that
…a “new” kind of international law is emerging that is “profoundly undemocratic at its core” and “has the potential to undermine American leadership in the post-Cold War global system” ….”If the trends of international law are allowed to mature into binding rules,” they state, “international law may become one of the most potent weapons ever deployed against the United States.”
He defines this tendency as “lawfare” and offers a definition:
Lawfare describes a method of warfare where law is used as a means of realizing a military objective.
And Dunlap identifies non-governmental advocates of international law as the prime perpetrators. He has some more words about them too:
…Americans are inclined to be wary of those NGOs who purport to speak – literally – for the “world” on political issues, including LOAC [law on armed conflict]. Too often NGO positions look like political agendas. With respect to LOAC, it must always be kept in mind that NGOs are not political entities equivalent to sovereign nations; rather, they are no more than self-selected, idiosyncratic interest groups that are not accountable to any ballot box. This perspective is sometimes ignored, to the detriment of LOAC development and interpretation.
Consequently (?), Dunlap tells us, “there is an undeniable element of anti-Americanism in international law as it is developing today.” The danger can come from the application of law to violations, or it can come simply from people knowing about violations, as the good general instructs us:
The velocity of today’s communications capabilities presents real challenges to democracies as well as to those governments that, if not truly democratic, nevertheless depend upon support from constituencies that have access to globalized information sources. When television airs unfiltered, near real-time footage of what appear to be LOAC violations, complications result.
Or to put it another way,
The traditional US approach to accomplishing victory – and the one LOAC endorses – focuses on the military element and seeks to diminish the enemy’s armed strength. America’s challengers focus on the people element and seek to diminish the strength of their support for the military effort.
Now, General Dunlap wanted to defend some things in labeling the legal critique of military activity as “lawfare.” On a general level, he wanted to defend targeting civilian objects. On a level more specific than that, he wanted to defend the bombing by NATO of the Radio-Television Serbia headquarters in Belgrade:
Apparently relying on evidence that indicated that RTS broadcasts whipped up ethnic hatreds for years, Air Commodore David Wilby, a NATO spokesman, insisted, “Serb radio and TV is an instrument of propaganda and repression … It is … a legitimate target in this campaign.” His statement is consistent with US legal thinking. [ellipses in original]
He pointed a finger at NGOs as a collective (and Human Rights Watch in particular) as carrying out interest-damaging “lawfare” by criticizing the attack, and of course conveniently overlooked that the attack had no effect on either propaganda or military communication, and that the 16 people who were killed in the attack were technical employees of the television who had no control over editorial or any other policy. The concurrently developing doctrine of (enemy!) force protection enters into Dunlap’s calculation as well, since he contends that large numbers of opposing soldiers were spared at the cost of “small, albeit regrettable, numbers of civilian casualties.”
A couple of quick points about the implications of this fascinating “lawfare” doctrine:
- Lawfare is conceived as an enemy strategy. That is to say that the reason the term is invented is so that it can be invoked against advocates of law in order to associate them with military opponents. Sometimes, of course, advocates of law might be associated with military opponents. But the global deployment of the term, in conjunction with Dunlap’s sweeping statements about the nature and orientation of NGOs, does not suggest a strong willingness to make distinctions.
- Lawfare occurs in “asymmetrical” conflict, in which one party is smaller and less well armed than the other. For Michael Schmitt of the US Naval War College, this means that the “disadvantaged party has an incentive to blur the distinction between its forces and the civilian population in the hope that this will deter the other side from attack.” This worries Laurie Blank who points to “the great fluidity between hostile persons and innocent civilians,” but if there is fluidity the “lawfare” analysts seem to have a consensus about the direction of the flow: it goes from innocence to hostility and consequently expands the pool of legitimate targets.
- Contesting lawfare requires the cooperation of (people in) legal institutions. On the one hand this means lawyers involved with military planning and target selection to try to prevent violations occurring (this is a good thing), but on the other hand it means reducing risk by opposing international courts and tribunals, and if their founding and operation cannot be prevented, limiting their oversight.
Going back to General Dunlap again, he tells us something that has been represented in the pattern of responses we have been able to observe in the debate since the ICTY initiated its series of exonerations of high-ranking suspects last November:
Too often it seems that civilian lawyers and/or humanitarian actors suffer from an insufficient understanding of the military consequences of their legal positions. This can lead to situations that serve to make the law an object of disdain for many in uniform.
But in the immediate post-9/11 environment, our general was optimistic (about the “many in uniform,” that is). As he put it:
Considering Americans’ willingness to sacrifice their own legal protections, they are unlikely to be overly demanding about the supposed legal rights of foreign belligerents.
I am pretty sure that Dunlap’s essay was never translated, but I wonder whether “supposed” would have been translated as “tobože”?
In a later reflection on coining the term, General Dunlap sniffed that “the term was always intended to be ideologically neutral.” But it is fairly clear that it was not. As the debate developed, the discourse on “lawfare” came to be used for a wide variety of purposes. Mostly it was used for the intended purpose, which was to discredit criticism of the techniques and particularly the targeting used in military operations like the ones in Iraq and Afghanistan. But another was to provide a justification for the targeting of civilian objects more generally. When a concrete instance that could have led to legal charges emerged, it was used more specifically – for example by law professor (and former State Department official) Laurie Blank, who excoriated the 2009 report by Richard Goldstone on violations of the laws of war in Gaza. Professor Blank borrowed Dunlap’s argument that the presence of civilians in an area of military activity transform them into legitimate targets (so residential buildings, cultural sites and religious buildings are fair game), but also dismissed Goldstone’s report more broadly as an example of … you guessed it, “lawfare”!
There is a lot that is fairly fascinating about the whole “lawfare” discourse, and it certainly speaks to me as a lover of neologisms and portmanteaus in particular. But aside from the fairly obvious inference that everyone will make that it represents an effort to delegitimate fundamentally legitimate activity by way of verbal disqualification (nothing new there, that’s what ideology does), I would emphasize two things: 1) it shows that people in the military establishment care what people think, which is actually kind of awesome, and 2) it shows that they put a lot of energy into stopping them from thinking it, which is actually kind of creepy.
By now the canny reader will be wondering, this was a nice little journey through the mind of a portion of the military-legal establishment, but what is it doing in a blog about Balkan politics and academics? It is because some interesting relationships emerge between the “lawfare” discourse and the reasoning used in the latest generation of ICTY verdicts that have been the object of so much controversy since the first of them was handed down in November, even more so since one of the judges, Frederik Harhoff, circulated a letter that became public raising his concerns about changes in the way that evidence is evaluated and the possible influence of (and on) the ICTY’s presiding judge.
There are a couple of places where the language of “lawfare,” even though it is not explicitly invoked, made its way into the reasoning of judicial majorities, one of them indirectly and one of them fairly directly.
In February, the Perišić appeals chamber judgement found that “the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators” – a finding echoed by the trial chamber in the Stanišić-Simatović case, which “recalls the Appeals Chamber’s holding that in most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to the crimes of the principal perpetrators.” The finding is consistent with the lawfarists’ intent on protecting commanders and policymakers as far as possible from accountability for the consequences of their activity, and to limit liability to cases where there is an explicit intention to commit crimes (as opposed to failure to assure that they will not be committed, or knowledge of the likelihood that crime is a probable result). What it appears to require is a presumption that all war aims be regarded as legal – calling them into question is lawfaring.
Maybe more interesting is the reasoning of the appeals chamber in the Oluja case. A group of military lawyers filed a “friend of the court” brief that concentrated on the development of a standard to distinguish legal from illegal targets. The appeals chamber decided not to admit the brief as the association of the signers with one of the parties to the case disqualified them as “friends of the court,” but it is clear to any reader that the majority decision adopted much of the reasoning used in the brief.
The brief argued that imposing concrete limits on shelling targets “will subject military commanders to a standard of care that is impossible to satisfy and operationally untenable.”
What makes the standard impossible is those perfidious civilians, or as the amici wannabes put it, “Amici fear that adoption of an unrealistic operational standard will, in future conflicts similar to the one before the court, result in noncompliance with IHL balancing standards which may ultimately increase the risk of casualties among the civilian population by incentivizing efforts to immunize lawful objects of attack by co-mingling them with the civilian population and requiring commanders to comply with an impossible standard.”
Otherwise “the commander should benefit from the presumption that his orders and actions fully complied with obligations established by international humanitarian law.” This would serve the purpose of “protect(ing) commanders from unjustified criminal responsibility based on orders resulting from necessarily hasty preparation.”
The first of those arguments resembles quite closely the argument justifying civilian targets in Gaza that (look higher up on the page) had been offered by “lawfare” advocate Leslie Blank – who was, coincidentally, the first signer of the brief.
Let’s put this into a bit of context. What is being played out at ICTY is not a competition over what nationality the judges like the least (as a lot of domestic right-wingers across the region have liked to argue), and it is probably not a sign of direct pressure or lobbying (as Judge Harhoff implied in his letter). It is a competition between rival visions of how legal regulation relates to military activities and the policies, accompanied by a consciousness of what an outcome in favour of the capacity would imply. For now it is a competition that states and militaries are winning, and victims are losing.