Results 1 to 20 of 52

Thread: Lawfare - Theory & Practice

Hybrid View

Previous Post Previous Post   Next Post Next Post
  1. #1
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default 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.

  2. #2
    Council Member slapout9's Avatar
    Join Date
    Dec 2005
    Posts
    4,818

    Default

    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.
    Last edited by slapout9; 06-27-2009 at 04:38 AM. Reason: add stuff

  3. #3
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default While getting Slap's skull tat ...

    add this one from Boondoggle in this post:

    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.

  4. #4
    Council Member
    Join Date
    Oct 2007
    Posts
    1,444

    Default

    Quote Originally Posted by jmm99 View Post
    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)
    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?
    "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
    2. He suggests a similar approach to rendering an airfield unusable by the enemy. Has this ever been seriously considered?
    "... shower the runway with a variety of landmines that make it impossible for aircraft to land or takeoff." – page 13
    3. He gives an example of a use of cluster munitions. Is this how we actually have used them?
    "... 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
    4. Lastly, he states that banning cluster munitions will influence how the enemy arrays his forces.
    "... 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
    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?

  5. #5
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Good questions ....

    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 ?

    ----------------------
    As to the final comment:

    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.
    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.

  6. #6
    Council Member
    Join Date
    Oct 2007
    Posts
    1,444

    Default

    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.

  7. #7
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Hmm ....

    there is promise for your future as an infantry officer. Or as an information specialist

    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."
    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 ?

  8. #8
    Council Member
    Join Date
    Oct 2007
    Posts
    1,444

    Default

    Quote Originally Posted by jmm99 View Post
    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 ?
    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."

  9. #9
    Council Member LawVol's Avatar
    Join Date
    Jun 2006
    Location
    Kabul
    Posts
    339

    Default

    Quote Originally Posted by Schmedlap View Post
    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.
    Last edited by LawVol; 07-04-2009 at 01:44 AM.
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

  10. #10
    Council Member LawVol's Avatar
    Join Date
    Jun 2006
    Location
    Kabul
    Posts
    339

    Default Strategic Lawfare

    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.
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

  11. #11
    Council Member
    Join Date
    Oct 2007
    Posts
    1,444

    Default

    Quote Originally Posted by LawVol View Post
    By calling off the operation in the circmstances presented above, we hand them their victory.
    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.

    Quote Originally Posted by LawVol View Post
    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.
    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.

  12. #12
    Council Member
    Join Date
    Mar 2009
    Posts
    11,074

    Default Rethinking Revolution: Lawfare

    Last edited by davidbfpo; 05-15-2017 at 08:30 AM.

  13. #13
    Council Member
    Join Date
    Mar 2009
    Posts
    11,074

    Default The Emergence of Lawfare (OUP Infographic)

    Last edited by davidbfpo; 05-15-2017 at 08:30 AM.

  14. #14
    Council Member
    Join Date
    Mar 2009
    Posts
    11,074

    Default 'Lawfare' Could Become Trump Tool Against Adversaries

    Last edited by davidbfpo; 05-15-2017 at 08:31 AM.

  15. #15
    Council Member Polarbear1605's Avatar
    Join Date
    Sep 2008
    Location
    Raleigh, NC
    Posts
    176

    Question Lawfare

    I was out on General Dunlap's Duke Law web site and found this article Lawfare 101 was recently posted.
    http://www.armyupress.army.mil/Journ...p-Lawfare-101/
    Pete McGuire in his book "Law and War - An American Story" defines Strategic legalism as "the use of laws or legal arguments to further larger policy objectives, irrespective of the facts or laws." I have a couple questions and would like to see if there is any interest with the forum participants.
    1. Is strategic legalism different from lawfare?
    2. If not, is strategic legalism included in lawfare or is lawfare part of strategic legalism?
    "If you want a new idea, look in an old book"

  16. #16
    Council Member slapout9's Avatar
    Join Date
    Dec 2005
    Posts
    4,818

    Thumbs up General Dunlap is the real deal

    Quote Originally Posted by Polarbear1605 View Post
    I was out on General Dunlap's Duke Law web site and found this article Lawfare 101 was recently posted.
    http://www.armyupress.army.mil/Journ...p-Lawfare-101/
    Pete McGuire in his book "Law and War - An American Story" defines Strategic legalism as "the use of laws or legal arguments to further larger policy objectives, irrespective of the facts or laws." I have a couple questions and would like to see if there is any interest with the forum participants.
    1. Is strategic legalism different from lawfare?
    2. If not, is strategic legalism included in lawfare or is lawfare part of strategic legalism?
    IMO Lawfare is the on the highest policy level possible! So it would follow that a strategic legalism is different and of a lower level. It deals more with the actual weaponization of the law. Corporations do this all the time often to the detriment of our Nation as a whole.

    Also IMO General Dunlap is one of greatest undiscovered Strategist we have, If his advice were ever truly followed we would start winning so much we would get tired of it...........hint:President Trump!

  17. #17
    Council Member davidbfpo's Avatar
    Join Date
    Mar 2006
    Location
    UK
    Posts
    13,057

    Default Moderator at work

    Thanks to Polarbear1605's post a week ago for rekindling this debate I have merged in one substantial thread, with 12k views and four smaller SWJ Blog pointers. The catalyst being the next post.
    Last edited by davidbfpo; 05-15-2017 at 08:34 AM. Reason: 20,901v
    davidbfpo

  18. #18
    Council Member davidbfpo's Avatar
    Join Date
    Mar 2006
    Location
    UK
    Posts
    13,057

    Default Lawfare against the Armed Forces

    A short blog article from Policy Exchange, a London-based "neo-con" think tank; with the full title and sub-title:
    Lawfare against the Armed Forces must be on the next Government’s agenda; Combatting the judicialisation of war
    Link:https://policyexchange.org.uk/lawfar...nments-agenda/
    There is considerable apprehension at the way the courts have interpreted human rights and other laws. As yet no-one has taken action, as the article commends.
    davidbfpo

Similar Threads

  1. Responsibility to Protect (R2P): Catch All
    By marct in forum International Politics
    Replies: 66
    Last Post: 01-30-2017, 01:09 PM
  2. Replies: 84
    Last Post: 02-03-2009, 08:34 PM
  3. Distributed Networked Systems Theory and Practice
    By pvebber in forum Futurists & Theorists
    Replies: 10
    Last Post: 03-03-2008, 04:51 AM
  4. Theory vs. Practice
    By zenpundit in forum Doctrine & TTPs
    Replies: 11
    Last Post: 07-31-2006, 08:13 PM

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •