Lawfare - Theory & Practice

OK, we are building it - and you are supposed to post here. You do not have to be a lawyer.

This is not a Charlie Dunlap thread; but he started writing about this topic in 2001. Let's start with two shorter articles; and end with his law review article from 2001.

Lawfare amid warfare 2007 (Wash Times)

Lawfare: A Decisive Element of 21st-Century Conflicts? 2009 (JFQ)

Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts 2001 (Duke)

Lawfare, in concept, is earlier - and was predicted in effect by the JAG School in 1959 - suggested as part of "Unrestricted Warfare" in 1999 as part of a larger concept - see links in this post.

Adoption of the 1977 Additional Protocal I to the GCs seems the earliest example of Lawfare at its highest level. See Rex A. Childers, THE RATIONALITY OF NONCONFORMITY: THE UNITED STATES DECISION TO REFUSE RATIFICATION OF PROTOCOL I ADDITIONAL TO THE GENEVA CONVENTIONS OF 1949 (2008), which discusses this example of Lawfare from the standpoint of national strategies.

Probably all the textbooks you need to get started.

Ready. Shoot. Aim. :D

Tattoo this on the inside of your skull!

From page 4 of the 2001 document.


Lawfare describes a method of warfare where law is used as a means of
realizing a military objective.16 Though at first blush one might assume lawfare would
result in less suffering in war (and sometimes it does17), in practice it too often produces
behaviors that jeopardize the protection of the truly innocent. There are many
dimensions to lawfare, but the one ever more frequently embraced by U.S. opponents is
a cynical manipulation of the rule of law and the humanitarian values it represents.
Rather seeking battlefield victories, per se, challengers try to destroy the will to fight by
undermining the public support that is indispensable when democracies like the U.S.
conduct military interventions. A principle way of bringing about that end is to make it
appear that the U.S. is waging war in violation of the letter or spirit of LOAC.

add this one from Boondoggle in this post:

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As an aside, after reading this, I wonder if there will be a time where terrorists will send some of their ilk to US law schools to become their own "mob" attorneys. There are clearly some seams to pick here and a lawyer could help them. With the admin's recent decision to emphasize the courts, this may be an unintended consequence, and a new weapon to be "acquired" by terror organizations. If the mob and drug cartels can do it, so can they now that they may end up in the courts.

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Originally Posted by jmm99

OK, we are building it - and you are supposed to post here. You do not have to be a lawyer.

This is not a Charlie Dunlap thread; but he started writing about this topic in 2001. Let's start with two shorter articles; and end with his law review article from 2001.

Lawfare amid warfare 2007 (Wash Times)

Lawfare: A Decisive Element of 21st-Century Conflicts? 2009 (JFQ)

Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts 2001 (Duke)

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I read the Dunlap pieces in chronological order. I have a few questions.

1. Dunlap asserts arguendo that landmines could be used in a creative manner, quoted below. How realistic is this?

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"In my opinion the objective of neutralizing a WMD capability might be more safely undertaken simply by dousing the installation with hundreds if not thousands of highly sophisticated landmines. Rendering it unusable until it can be brought under control by friendly forces would seem to be in keeping with humanitarian values." – page 13

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2. He suggests a similar approach to rendering an airfield unusable by the enemy. Has this ever been seriously considered?

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"... shower the runway with a variety of landmines that make it impossible for aircraft to land or takeoff." – page 13

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3. He gives an example of a use of cluster munitions. Is this how we actually have used them?

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"... where an enemy places military equipment such as an anti-aircraft system on something like a dam, cluster munitions can attack the site without risking the catastrophic destruction of the dam itself." – page 14

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4. Lastly, he states that banning cluster munitions will influence how the enemy arrays his forces.

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"... banning cluster munitions invites adversaries to wage lawfare by placing military objects on or near facilities whose destruction by other weapons (e.g., high explosives) puts civilians and their property at risk." – page 14

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Has this ever occurred? Do we suspect that any enemy has places weapons in this manner due to a belief that we would not use cluster munitions? I don’t understand why the enemy would expect us to use cluster munitions on such targets but not GPS-guided missiles. The assertion by Dunlap seems counterintuitive to me.

One comment. In his 2009 piece in Joint Forces Quarterly, Dunlap gives a lot of attention to documenting operations in order to combat the "lawfare" claims that will be made by our adversaries. I was anticipating some emphasis on decisions regarding whether or not an operation should even be attempted when the likelihood of such claims seem very likely and very damaging. It seemed odd that he made no such mention of this consideration. Did I miss it?

and obviously not my department - operational TTP. It would be nice if MG Dunlap were on deck here. Have we ever had a post by a flag officer at SWC ?

In any event, any AF types (or anyone else) knowledgeable about these operational questions ?

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As to the final comment:

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One comment. In his 2009 piece in Joint Forces Quarterly, Dunlap gives a lot of attention to documenting operations in order to combat the "lawfare" claims that will be made by our adversaries. I was anticipating some emphasis on decisions regarding whether or not an operation should even be attempted when the likelihood of such claims seem very likely and very damaging.

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my 2 cents on pre-event planning is that we should look at legalities, morals and ethics before getting involved in situations - and, where they are brain busters we should agonize before acting. If you are talking about agonizing after the fact, my position is that is closing the door after the horse has escaped. At best, that is a lesson learned.

Predicting the fallout from Infofare and Lawfare is even less certain than the risks of the military operation itself - they are added to those risks. Going too far - and becoming risk averse because of potential Infofare and Lawfare problems could be very much self-defeating.

I was thinking along the lines of something like this...

We are about to conduct an operation, but we see via satellite imagery that the enemy has placed his weapons in and around mosques, schools, hospitals, orphanages, etc. We hold a big news conference, show off the photos, and declare that, "the enemy has violated the LOAC by deliberately placing his weapons in areas that are intended to put civilians in unnecessary danger. In light of this moral and ethical quandary, we have chosen to stand down our forces. The enemy is clearly in violation of international law, but we nonetheless cannot rely upon our moral superior position as justification to attack when we know that it will result in civilian casualties. We value human life and rule of law more than short-term tactical victories."

Good message, imo.

there is promise for your future as an infantry officer. :) :D Or as an information specialist :(

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We are about to conduct an operation, but we see via satellite imagery that the enemy has placed his weapons in and around mosques, schools, hospitals, orphanages, etc. We hold a big news conference, show off the photos, and declare that, "the enemy has violated the LOAC by deliberately placing his weapons in areas that are intended to put civilians in unnecessary danger. In light of this moral and ethical quandary, we have chosen to stand down our forces. The enemy is clearly in violation of international law, but we nonetheless cannot rely upon our moral superior position as justification to attack when we know that it will result in civilian casualties. We value human life and rule of law more than short-term tactical victories."

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That's the easy one. What if the operation is an absolute military necessity ?

What is your announcement then - if you have to clear the village ?

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Originally Posted by jmm99

That's the easy one. What if the operation is an absolute military necessity ?

What is your announcement then - if you have to clear the village ?

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Then, imo, it's about timing. Instead of trying to "get ahead of the news cycle" after the fact (which, by definition, is too late), you hold the press conference as the operation kicks off. "This is what is occurring now. This is the most recent satellite imagery that we have. In order to mitigate this clear violation of the LOAC, these are the measures that we have taken. We will continue to update you as the operation unfolds." Ideally, the spokesperson would also take a moment to flip off any reporters from al-Reuters and challenge them, "try to spin that into another baseless allegation, you POS."

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Then, imo, it's about timing. Instead of trying to "get ahead of the news cycle" after the fact (which, by definition, is too late), you hold the press conference as the operation kicks off. "This is what is occurring now. This is the most recent satellite imagery that we have. In order to mitigate this clear violation of the LOAC, these are the measures that we have taken. We will continue to update you as the operation unfolds."

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from an Infofare and Lawfare standpoint (those two are joined at the hip), but I think there could be some rebuttal from an OpSec standpoint. There always is a potential Infofare and Lawfare vs OpSec debate.

Probably, some sort of a generalized Infofare and Lawfare campaign should be planned and implemented ahead of any operations clearing villages - and even in a peace enforcement operation those situations will occur.

A perception problem comes from the publication of a zero civilian casualities goal (see thread on Astan ROE Change). Once that policy is tatted into people's skulls, any civilian casualties become a breach of faith by the US.

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Originally Posted by jmm99

from an Infofare and Lawfare standpoint (those two are joined at the hip), but I think there could be some rebuttal from an OpSec standpoint. There always is a potential Infofare and Lawfare vs OpSec debate.

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Once the operation is underway, I think the OPSEC concern is negligible, most of the time, other than the threat of attacking the force during exfil. But that threat already exists during any significant operation due to the early warning systems that the enemy generally has in place (if it doesn't tip-off the target, it at least alerts operatives in the surrounding vicinity).

on evaluating OpSec in terms of operations.

Would like to hear from more of them in this thread. Lawfare is much more operational and informational than legal.

We need to find Charlie Dunlap.....get his email and send him SWC Draft notice.....nah send him a subpoena:wry:

Major General Charles J. Dunlap, Jr., USAF, is Deputy Judge Advocate General, Headquarters U.S. Air Force - official bio.

Sam Liles knows him. Anyone else ?

Because of his position, he might well be unlikely to post here. It would be nice though to get his views directly.

Schmedlap could get his questions answered.

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Originally Posted by Schmedlap

I was thinking along the lines of something like this...

We are about to conduct an operation, but we see via satellite imagery that the enemy has placed his weapons in and around mosques, schools, hospitals, orphanages, etc. We hold a big news conference, show off the photos, and declare that, "the enemy has violated the LOAC by deliberately placing his weapons in areas that are intended to put civilians in unnecessary danger. In light of this moral and ethical quandary, we have chosen to stand down our forces. The enemy is clearly in violation of international law, but we nonetheless cannot rely upon our moral superior position as justification to attack when we know that it will result in civilian casualties. We value human life and rule of law more than short-term tactical victories."

Good message, imo.

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One use of lawfare by our opponents is to manipulate the perception of our adherence to law to attack our legitimacy. This supports their battlefield objective of having us withdraw since they cannot, typically, defeat us militarily. By calling off the operation in the circmstances presented above, we hand them their victory.

Getting ahead of the news cycle (i.e. part of the friction) is the key since we cannot necessarily prevent their use of lawfare. Our deficiency in combatting this form of "tactical" or "operational" lawfare is our inability to win the infowar. Alot of AQ media vis-a-vis lawfare goes unanswered.

Perhaps a method of combatting this is to bifurcate the legal and the moral/ethical. Law and morality are not inherently identical. For example, the death penalty is legal in most of the US, but may not be moral in some people's eyes. In looking at your scenario above, and accounting for issues of proportionality, attacking a target despite civilian casualties can be lawful. A focus on law rather than morality (which may differ according to culture, etc.) may assist in our fight. Of course, this may not really be feasible since everyone does not have the ability to coldly consider law in light of some of its consequences. I'd be interested in hearing thoughts on this.

Much, but not all, of the discussion on lawfare centers on its use at the tactical or operational level. The typical scenario is something like AQI sniping from a school, we return fire killing civilians, AQI then publicizes the civilian casualties. Although this tacticial or operational use of lawfare can have strategic implications, its actual use is confined to the battlefield and thus either tactical or operational.

Lawfare, however, can be used at the strategic level. Two examples: (1) the Brussels Act of 1890 sought to ban the sale, by its European signatories, of breech-loading weapons in equatorial Africa. This had the strategic effect of maintaining, at least for awhile, the European firepower advantage. (2) China has recently increased its activity within its exclusive economic zone to preclude US surveillance missions in an effort to assert its claim of some form of expanded jursidiction within that area. This attempt at redefining international law serves the strategic purpose, if ultimately successful, of extending its defensive perimeter (I think they call it the "string of pearls" strategy).

As this is something I have just begun exploring, I'd be interested in hearing thoughts on this topic or in reading anything related that some of you may have come across.

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Originally Posted by LawVol

By calling off the operation in the circmstances presented above, we hand them their victory.

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I can't really think of any one operation that we've done in the past 8 years that was so important that it would have significantly changed things had we opted to stand down. On the other hand, we get our balls stomped on a regular basis in the media. I was just suggesting that in some situations like this, it might be to our advantage to attack them with information, rather than bombs.

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Originally Posted by LawVol

In looking at your scenario above, and accounting for issues of proportionality, attacking a target despite civilian casualties can be lawful. A focus on law rather than morality (which may differ according to culture, etc.) may assist in our fight. Of course, this may not really be feasible since everyone does not have the ability to coldly consider law in light of some of its consequences. I'd be interested in hearing thoughts on this.

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I agree. I wasn't suggesting that a scenario such as the one I proposed would legally require us to stand down. In regard to law and morality, I think our laws and morality are the outer bounds within which we must confine our actions. Other laws and the morals of appropriate target audiences are the more restrictive bounds within which we may choose to confine certain operations.

1977 Additional Protocal I to the GCs and the Childers thesis cited in my OP #1 is certainly the modern classic example. Written from the standpoint of international politics - politfare at its best hardball.

from its Abstract

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On December 12, 1977, the U.S. signed a treaty offered through the ICRC entitled Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. This treaty drastically altered the relationship between individual behavior in warfare and combatant status. For the United States, the impact of domestic political tensions, the fresh and painful experience in Vietnam, and a continued emphasis on Détente all played parts in the decision to participate in the conference and sign the treaty. Signature during the Carter administration would not be followed by ratification, and would be rejected by subsequent administrations. Was this decision, continued through every administration to date, a simple outcome of a “rogue” nation exercising its sovereign right based upon its own ability to wage war, or is there more to the story? In this thesis, a new analysis of the political processes and environment surrounding the final treaty’s outcomes is offered. The global tensions between superpowers are examined, emphasizing the United States response, in the context of its perceptions of the treaty’s requirements. A broader coalition of actors, both state and non-state, would ultimately hold the key to the treaty’s significance to conventional warfare.

The Global South engaged the issue of lawful behavior in war with a distinct set of outcomes in mind. Their ability to gain agency, build effective coalitions addressing inequities in the asymmetry of warfare that had historically disadvantaged them, and then alter the outcomes of international humanitarian law through democratic practices, are placed in the context of rational choice theory. The logical and methodical approach used by these actors to deconstruct the central premise of conventional warfare distinctions between combatants and noncombatants, consistently the hallmark of advancing improvements in international humanitarian law, resulted in a treaty reversing advancements in civilian protections through a new set of dangerous behaviors made allowable for a new category of privileged combatants (organized resistance movements). The United States’ options were limited, and a new and regressive standard for conventional warfare was instituted.

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and about irregular combatants and non-combatants, I've read - well written and researched.

Richard D. Rosen (Associate Professor of Law and Director, Center for Military Law & Policy, Texas Tech University School of Law; Colonel, U.S. Army, ret.), Targeting Enemy Forces in the War on Terror: Preserving Civilian Immunity, Vanderbilt Journal of Transnational Law, Volume 42, Number 3: May 2009.

It can be downloaded (as of today) by going to the current index. That will probably end when it goes into the archives. This is a direct link (now).

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ABSTRACT

Protocol I to the Geneva Conventions of 1949 and the interpretation given to it by many in the international community (e.g., UN, NGOs, media) provide perverse incentives to terrorist and insurgent groups to shield their military activities behind civilians and their property. In other words, the law governing targeting is fundamentally defective; it allows terrorist and insurgent groups to gain strategic and tactical advantages through their own noncompliance with the law and their adversaries’ observance of it. The consequence has been increasing noncompliance with the law and growing civilian casualties. This Article proposes structural changes to the law governing targeting and attitudinal changes by those who interpret it to ensure that civilians receive adequate security from armed attack.

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and, from the body (p.8):

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In short, Protocol I provides a powerful incentive for insurgents and terrorist organizations to rely on their enemies’ observance of the law of war. It creates a “win-win-win” situation for such groups: either their adversaries avoid striking them altogether out of fear of causing civilian casualties (win); or they attack them, cause civilian casualties, and suffer international condemnation (win); or they forego air power and artillery and attack using ground troops, thereby incurring much greater casualties and the loss of their public’s support for the conflict (win).

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I love it when a COL agrees with me :)

So, COL Rosen, if you (or one of your friends willing to act as messenger) see this, please come to SWC and join the choir. We'd love to have you - and I'll try to keep smarta$$ remarks to a minimum. ;)

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The more that I think about this topic, the more that I think it is just Americans whining about more difficult security challenges. It sounds very similar to complaints of "criminals getting acquitted on minor technicalities" or "criminals hiding behind the law." I think those complaints are better directed at the lawyers who failed to get the prosecution or the evidence gatherers who were not meticulous enough. We can say that it shouldn't be so difficult, but that presupposes that "we know he did it" before the trial goes forth. On the issue of trying terrorists, we can also say that it should not be so difficult, but that presupposes that wars will always be fought fairly and on our terms. Welcome to the 21st century.

On the specific issue of terrorists, I wonder if perhaps it is time for a "minimum contacts" test to assert Constitutional protections. Put the burden on the prosecution to demonstrate no "minimum contacts" with this country.

If a strong case can be made that you only came here to blow stuff up and it is demonstrated that you are not a citizen and you are here on a temporary visa (or cannot produce any documentation at all), then we notify your countr(y/ies) of citizenship. Then...

1) no foreign state is willing to intervene on your behalf, then you fall under jurisdiction of the military tribunals.

2) if a country in which you have citizenship is willing to intervene, or if your country asks another country to do so on its behalf, then you are detained, like any nonresident criminal suspect, and your processing through the legal system is suspended until arrangements can be made for your return to your home country.

This would mean that a terrorist from a country with poor relations with us might get returned. Say, for example, some terrorist from a state that doesn't like us shows up, attempts a terror attack, we capture him, and his country of nationality says, "we want him back" and we know that he will return to a hero's welcome. So what? He still gets questioned and still gets detained for a long period of time while the legal haggling occurs. In the meantime, he gets no miranda rights and no access to a lawyer. If his country of nationality says "we don't want him" and he gets tried in our legal system, then only evidence that can pass muster of our rules of evidence gets admitted. That, too, could result in a "known terrorist" being acquitted and deported. So what? Look how many Gitmo detainees have returned to being terrorist operatives. Have we all spontaneously combusted as a result?