Lawfare - Theory & Practice

[LawVol]

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.

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.