No, not quite
Jon & ganulv:
Law ("Lawfare") is an instrument of policy (Politik in CvC terms); just as Force ("Warfare") is an instrument of policy (Politik in CvC terms). Obviously, the two "fares" (which boil down to how one conducts the struggle) have to co-ordinate in order to reach the endgoals set by the same policy. Law ("Lawfare") is really a subordinate instrument of the much larger political struggle. Force ("Warfare") is the primary instrument of the military struggle. All this is standard doctrine to the Russians and Chinese; and has been learned by the Iranians. Syria, of course, is a minnow here.
NB: Russia, China and Iran all have solid histories and reasons for not wanting other states to intervene in Russian, Chinese and Iranian internal affairs. They also have solid histories and reasons for intervening and in the future wanting to intervene in other states' internal affairs. As such, they have to have different sets of rules for different occasions. We (US) are remarkably naive in this area - e.g., I remarked to myself how naive Quincy Wright was in his 1962 article as I read through it.
More to the underlying policies: Russia, China and Iran have common economic interests - oil, for example; as to which others here with much more expertise can recount the precise relationships. Iran (Shia) has a strategic interest in at least equality with the ME Sunni states (Turkey, Saudi and Egypt; the last being a bit hors de combat at the moment). Turkey has moved (since 2003) into a position where it has some legitimate clout in the Sunni Arab world; and is less tied to NATO, the EU and the US. In 2003, Turkey established that its price was higher than the US was willing to pay - not a bad rep in that part of the World. Russia, of course, has a much more direct strategic interest than China in the Middle East - and a traditional interest in Iran. Turkey has been a traditional enemy of both Russia and Iran.
Lawfare has tactical, operational (the organization & placement of "stuff") and strategic aspects. Its strategic aspect is almost by definition a part of a larger strategy. In short, one wages lawfare not for its own sake or merits (good or bad); but, to assist in reaching end goals driven by a greater policy. That policy is often unstated in the "lawfare" arguments (as opposed to a "simple" case for money damages where the policy end goal is explicitly stated in the legal pleadings - $$$).
Lawfare works in part because a great many folks believe that facts and laws are determinate; that is, take a set of facts and apply the given law - and, voila, the correct (true, just, etc.) decision is derived logically. That is true only in the simplest cases; or in cases that are simplified because of the constraints imposed on the parties.
The fact is that, if legal talent, expertise, experience, etc. are not constrained by time and money, both the facts and the law are indeterminate; that is, they can be shaped (manipulated; and that legally within the constraints of the given legal system). That methodology can reach results which are totally at odds with the theory that results follow from determinate facts and law. It also allows a party to "distinguish" between two situations that appear much the same to the less experienced observer. The essence of law is not logic, but experience.
For example, the Russians have adopted positive (statutory) laws re: intervention in the internal affairs of other states that are based on international treaty laws (which the Russians initially drafted in whole or in part). Those international laws, either explicitly or by state practice, contain exceptions - which also are part of Russian law since it is based on I Law (etc.). Thus, the Russian law and I Law are really indeterminate because one can look to the rule, or to its exceptions, or to the exceptions to the exceptions. Given that the facts in interventions are complex and unclear (especially if one wants to make them such), the facts are also indeterminate.
All this is not restricted to "Lawfare", but is simply the way in which winning lawyers handle cases. Rather than reading me rattling on about 40+ years of experience, download LoPucki & Weyrauch, A Theory of Legal Strategy (2000):
Endorsed - JMM.Abstract:
By the conventional view, case outcomes are largely the product of courts' application of law to facts. Even when courts do not generate outcomes in this manner, prevailing legal theory casts them as the arbiters of those outcomes.
In a competing strategic view, lawyers and parties construct legal outcomes in what amounts to a contest of skill. Though the latter view better explains the process, no theory has yet been propounded as to how lawyers can replace judges as arbiters. This article propounds such a theory.
It classifies legal strategies into three types: those that require willing acceptance by judges, those that constrain the actions of judges, and those that entirely deprive judges of control.
Strategies that depend upon the persuasion of judges are explained through a conception of law in which cases and statutes are almost wholly indeterminate and strategists infuse meaning into these empty rules in the process of argumentation. That meaning derives from social norms, patterns of outcomes, local practices and understandings, informal rules of factual inference, systems imperatives, community expectations, and so-called public policies.
Constraint strategies operate through case selection, record making, legal planning, or media pressure.
Strategists deprive judges of control by forum shopping, by preventing cases from reaching decision, or by causing them to be decided on issues other than the merits.
The theory presented explains how superior lawyering can determine outcomes, why local legal cultures exist, how resources confer advantage in litigation, and one of the means by which law evolves.
All that being said, "Lawfare" is often just camo for what could be done straight away without providing any reason for it - just veto the resolution (the veto, of course, being in itself a legal process). However, some legal (and other) arguments are always made in support of the legal step taken. The point is not to be distracted by the legal process (esp. where as with the UNSC Syria resolution, the result was obviously going to be negative before it happened).
Regards
Mike
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