Lawfare - Theory & Practice

[jmm99]

While I like playing bad guys, I have to get back to real life as a good guy and get some non-virtual work done.

Looking at the LIFG Wiki, I noticed this in the first paragraph (emphasis added):

The Libyan Fighting Group (LIFG) also known as Al-Jama’a al-Islamiyyah al-Muqatilah bi-Libya is the most powerful radical faction waging Jihad in Libya against Colonel Moammar al-Qadhafi. Shortly after the 9-11 attacks, LIFG was banned worldwide (as an affiliate of al-Qaeda) by the UN 1267 Committee.

Going to the United Nations Security Council Committee 1267, we find:

The United Nations Security Council Committee 1267, also known as the Al-Qaeda and Taliban Sanctions Committee, was established by the United Nations Security Council on 15 October 1999, pursuant to UN Security Council Resolution 1267 concerning al-Qaeda and the Taliban and associated individuals and entities.

The committee has established and maintains a consolidated list which serves as the foundation for the implementation and enforcement of sanctions against Al-Qaeda and the Taliban. The list currently contains nearly 500 names and is split into four sections covering (1) individuals and (2) entities associated with the Taliban, and (3) individuals and (4) entities associated with al-Qaeda. The resolutions have all been adopted under Chapter VII of the United Nations Charter and require all member states to: "freeze the assets of, prevent the entry into or transit through their territories by, and prevent the direct or indirect supply, sale and transfer of arms and military equipment to any individual or entity associated with Al-Qaeda, Osama bin Laden and/or the Taliban as designated by the Committee".

Now, my point in quoting this is NOT that it squelches Bob Jones. My point is that all of this goes well beyond some isolated "Intel guys" deciding who enemies, neutrals and friends are.

Have to run.

Regards

Mike

[Bob's World]

"Now, my point in quoting this is NOT that it squelches Bob Jones. My point is that all of this goes well beyond some isolated "Intel guys" deciding who enemies, neutrals and friends are."


The Intel guys develop the list, the ops guys approve the lists, the lawyers cast the list into a status that allows the desired engagement within the current laws.

My point is that these lists enable dangerous perspectives and engagement and prevent much that could be far more effective. And yes, they are driven by a very threat-centric Intel community that is probably over reacting after having the full blame of 9/11 dropped on their heads as "a failure of Intel." While Intel could have been better, 9/11 is much more accurately cast as a "failure of policy." I pick on the Intel community because they deserve it, but I'll also defend them as being dedicated professionals who were unfairly blamed for allowing 9/11 to happen. They do what they do very well. My criticism is that they need to evolve in what they do and apply their considerable talents to that.

This is ripe ground for the lawfare crowd. How do we get away from legal lists that constrain as much as they enable? How do we create new laws for dealing with this problem of empowered actors who operate outside the state construct?

[Bob's World]

Dayuhan

Certainly doing nothing is always an option, and probably more often than we would like admit, the best one. It means relinquishing control of outcomes though, and that makes us nervous.

What I offer is an alternative to current perspectives on engagement. One based in recognizing that it is governments that cause insurgency, and not insurgents that cause insurgency. I see no need to reinforce positions rooted in list-driven CT; capacity building of security forces for governments widely recognized as despotic; or nation building among the populaces of those same governments. Those COAs already have plenty of supporters and Cheerleaders.

All engagement is not however inherently bad. It is possible to help people to get to a better place through wise, tailored engagement that never forgets where we fit into the equation as an outside party.

Maybe it is ok to shoot missiles at a nationalist insurgent group that associates with AQ but not ok to talk to them and see if we can't offer them a better alternative. Maybe building the capacity of governments with questionable records on civil rights to better go out and "enforce the rule of law" against insurgent organizations within their populace who also happen to associate with AQ is the smartest way to "defeat terrorism." Maybe, and I am not saying that you think it is, but many do. I disagree. I think we can engage smarter. I also believe that smart engagement is better than doing nothing at all.

[jmm99]

Looking to the webpages for that agency, we find the index with multi-links and a brief explanation of it:

The Security Council Committee established pursuant to resolution 1267 (1999) on 15 October 1999 is also known as "the Al-Qaida and Taliban Sanctions Committee".

The sanctions regime has been modified and strengthened by subsequent resolutions, including resolutions 1333 (2000), 1390 (2002), 1455 (2003), 1526 (2004), 1617 (2005), 1735 (2006), 1822 (2008) and 1904 (2009) so that the sanctions measures now apply to designated individuals and entities associated with Al-Qaida, Usama bin Laden and/or the Taliban wherever located. The names of the targeted individuals and entities are placed on the Consolidated List. Narrative summaries of reasons for listing of the individuals, groups, undertakings and entities included in the Consolidated List (where available) can be found at the following URL: http://www.un.org/sc/committees/1267/narrative.shtml.

The above-mentioned resolutions have all been adopted under Chapter VII of the United Nations Charter and require all States to take the following measures in connection with any individual or entity associated with Al-Qaida, Usama bin Laden and/or the Taliban as designated by the Committee:

•freeze without delay the funds and other financial assets or economic resources of designated individuals and entities [assets freeze],

•prevent the entry into or transit through their territories by designated individuals [travel ban], and

•prevent the direct or indirect supply, sale and transfer from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types, spare parts, and technical advice, assistance, or training related to military activities, to designated individuals and entities [arms embargo].

The current Chairman of the Committee, for the period ending 31 December 2010, is His Excellency Mr. Thomas Mayr-Harting (Austria). The two Vice-Chairs for 2010 are Brazil and Russian Federation. This website contains general information on the work of the Committee as well as a latest news section. The Committee has guidelines for the conduct of its work. You can also find fact sheets providing basic information on the listing and de-listing procedures as well as on the exemptions to the assets freeze and from the travel ban. The Committee publishes annual reports of its activities and the Chairman of the Committee briefs the Security Council regularly. ..... (more at site).

If you meant this to describe the workings of the 1267 Committee (which I doubt):

from BW
The Intel guys develop the list, the ops guys approve the lists, the lawyers cast the list into a status that allows the desired engagement within the current laws.

it does not correctly describe the scope of the agency or its listing process. Many (probably a majority of) nations involved take the law enforcement approach to counter-terrorism.

Regards

Mike

PS:

1. Speak very softly.

2. Carry a very large stick.

3. Stay out of neighborhoods where you don't belong.

[Bob's World]

Ok, all well and good, but what does any of that activity do toward resolving the problems that actually create the conditions that give rise to such individuals and organizations?

I always bring this back to our own experience as I believe most Americans can empathize with other Americans better than they can with others; and also because what we are primarily taliking about are American approaches that are presumably cast within a context of the American ethos that was shaped back in the 1700s.

Imagine if the edict you cite was published by the British Government in response to the insurgency in the American Colonies?

You have a populace that already questions the legitimacy of its government, finds the rule of law as applied to them to be unjust, believes with good reason that they are treated as second class citizens simply because they were born in the colonies; and don't believe that they have any legal recourse to effectively resolve their concerns.

So in response an edict is published to render them outlaws for daring to stand up to tyranny, and bannishing them from all form of legal enterprise. How does this help?

This my biggest beef with my fellow lawyers. They think the rule of law is more important than justice under the law. Do we send people to places like Afghanistan to create justice? No, we send them there to help enforce the rule of law. It is not the same thing.

I have said it before, I will say it again: Rule of Law without Justice is Tyranny. Is enforcing tyranny the "big stick"? If so, don't drop the soap, because any populace subjected to such legally enforced tyranny is apt to find creative places to lodge said "big sticks."

This is why America recognized the Right and the Duty of a populace to rise up in insurgency when faced with what they perceived to be despotic governance when all legal means fell short.

Lawfare needs to focus on identifying and creating such legal means for populace to act out short of insurgency.

Lawfare needs to focus on the enhancement of perceptions of Justice rather than the enhancements of the mechanics of the rule of law.

[Dayuhan]

Certainly doing nothing is always an option, and probably more often than we would like admit, the best one. It means relinquishing control of outcomes though, and that makes us nervous.

On this we agree. We also desperately need to accept that in most cases our ability to influence the internal affairs of other countries is quite limited.

What I offer is an alternative to current perspectives on engagement. One based in recognizing that it is governments that cause insurgency, and not insurgents that cause insurgency.

This is in most cases true, though as with any blanket statement there will be exceptions and variations on the rule. It would be an important issue if insurgency were our problem. However, except where we have created insurgencies by removing governments and trying to model their successors according to our preference, we don’t have an insurgency problem. Except for the insurgencies we created, there isn’t an insurgency on the planet that would require a significant US combat commitment, or where a significant US combat commitment would be desirable.

We need to keep in mind that AQ – our enemy – is not an insurgency, and doesn’t truly thrive on insurgency unless that insurgency is directed against a foreign invader in Muslim territory. AQ has only flourished when foreign intervention has been present, which is why they were so desperate to provoke the US into direct military engagement in the Muslim world. They have endured where they have had sympathetic governments: under the Taliban in Afghanistan and to some extent in the Sudan. They have established presences where government has been absent or ineffectual, as in Somalia or Yemen. Their attempts to marshal insurgency against established governments have done very badly, not because those governments are popular or good, but because populaces generally have not seen government by AQ or their ilk as an acceptable alternative.

All engagement is not however inherently bad. It is possible to help people to get to a better place through wise, tailored engagement that never forgets where we fit into the equation as an outside party.

I’d rather say “where or whether we fit into the equation”. The example you gave above represents to me a fairly obvious case of inserting ourselves into an equation where we have no reasonable place: we cannot run around conducting UW against governments because we don’t approve of the way they handle relations with their populaces.

We also have to remember that in many of the cases involved, government, populace, and insurgents all view us on a fundamental level as a dangerous, acquisitive power that is fundamentally hostile toward people of their religion and/or ethnicity and is bent on gaining control over their land and resources. Whether or not this perception is accurate is irrelevant, it exists and as long as it exists our intervention is going to be rejected by all parties no matter how good our intentions are… and we all know where the road paved with good intentions leads. Our ability to fit into these equations is directly related to the perception the affected populace has of us, and that generally isn't very positive these days. We may be able to improve that erception, but it will require many years and we aren't going to do it by forcing ourselves onto other people's problems.

I always bring this back to our own experience as I believe most Americans can empathize with other Americans better than they can with others; and also because what we are primarily taliking about are American approaches that are presumably cast within a context of the American ethos that was shaped back in the 1700s.

If we proposed to intervene in the America of the 1700s, this would be very useful. The environments in which we propose to intervene are unique and something other than 1700s America, and while the solutions we developed for ourselves worked very well for us, the degree to which they are appropriate to other people’s problems may be limited… and our right to impose solutions on other people’s problems is even more limited.

[jmm99]

Case Western Reserve (Vol. 43, Nos. 1 & 2, 2011) has created what, in effect, is an online course in "Lawfare", which presents different issue areas and differing points of view in answer to the question: LAWFARE!:ARE AMERICA'S ENEMIES USING THE LAW AGAINST US AS A WEAPON OF WAR?

Here are the contents (each a separate .pdf) which can be reached from the link above:

Foreward: Lawfare!
Michael P. Scharf & Shannon Pagano

Is Lawfare Worth Defining? Report of the Cleveland Experts Meeting
Michael Scharf & Elizabeth Andersen, assisted by Cox Center Fellows Effy Folberg, Michael Jacobson, & Katlyn Kraus

Historical and Semiotic Origins of "Lawfare"

Historical and Semiotic Origins of "Lawfare"
Susan W. Tiefenbrun

The Curious Career of Lawfare
Wouter G. Werner

Lawfare or Strategic Communications?
Dr. Gregory P. Noone

Lawfare: A Rhetorical Analysis
Tawia Ansah

Is "Lawfare" a Useful Term?

Does Lawfare Need an Apologia?
Major General Charles J. Dunlap, Jr.

Lawfare: A War Worth Fighting
Dr. Paul R. Williams

On Legal Subterfuge and the So-Called "Lawfare"
Leila Nadya Sadat & Jing Geng

The Dangers of Lawfare
Scott Horton

Lawfare and War Crimes Tribunals

Lawfare: Where Justice Meets Peace
The Honorable Principal Judge of Uganda, Justice James Ogoola

Lawfare and the International Tribunals: A Question of Definition? A Reflection on the Creation of the "Khmer Rouge Tribunal"
Robert Petit

The Take Down: Case Studies Regarding "Lawfare" in International Criminal Justice: The West African Experience
David M. Crane

Whose Lawfare is it, Anyway?
David Scheffer

Lawfare and the Israeli-Palestine Predicament

The Gaza Strip: Israel, Its Foreign Policy, and the Goldstone Report
Milena Sterio

Illustrating Illegitimate Lawfare
Michael A. Newton

Finding Facts But Missing the Law: The Goldstone Report, Gaza, and Lawfare
Laurie R. Blank

Gaza, Goldstone, and Lawfare
William A. Schabas

Litigating the Arab-Israeli Conflict in U.S. Courts: Critiquing the Lawfare Critique
William J. Aceves

Lawfare and the War on Terror

"Lawfare" in the War on Terrorism: A Reclamation Project
Melissa A. Waters

Lawfare and Counterlawfare: The Demonization of the Gitmo Bar and other Legal Strategies in the War on Terror
David J. R. Frakt

The Value of Claiming Torture: An Analysis of al-Qaeda's Tactical Lawfare Strategy and Efforts to Fight Back
Michael J. Lebowitz

Lawfare and U.S. National Security
Professor Orde F. Kittrie

Beyond Traditional Concepts of Lawfare

Lawfare and the Definition of Aggression: What the Soviet Union and Russian Federation Can Teach Us
Christi Scott Bartman, MPA, JD, PhD

The Knight's Code, not his Lance
Jamie A. Williamson

Carl Schmitt and the Critique of Lawfare
David Luban

Issues on International Humanitarian Law and Genocide

The Legality of Reciprocity in the War Against Terrorism
Ambassador Robbie Sabel

The Status of Corporations in the Travaux Preparatoires of the Genocide Convention: The Search for Personhood
Michael J. Kelly

Frederick K. Cox International Law Center Lecture in Human Rights and Humanitarian Law

Human Rights and Humanitarian Law Conflict or Convergence
Sir Christopher Greenwood, CMG, QC

Student Note

Animals Are Property: The Violations of Soldiers' Rights to Strays in Iraq
DanaMarie Pannella

Each of these are tidbits (~ 10-20 pages).

Regards

Mike