Lawfare - Theory & Practice

[Dayuhan]

Originally Posted by Bob's World

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.

Originally Posted by Bob's World

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.

Originally Posted by Bob's World

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.

Originally Posted by Bob's World

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

[davidbfpo]

A marvellous headline from The Daily Telegraph, which obscures the difficulties faced by the UK to legally deal, with a charge, trial and result; with a man who is regarded as an extremist ideologue / preacher, who officialdom regards as a risk. Note he has been in jail - without charge - for six years.

He is ostensibly awaiting deportation to Jordan, who convicted him of terrorism in absentia; some of the evidence allegedly obtained under duress / torture. The European Court of Human Rights ruled against a deportation last month.

Links:http://www.telegraph.co.uk/news/ukne...thin-days.html

Details on time in jail October 2002-March 2005 and August 2005 till today:http://www.telegraph.co.uk/news/ukne...n-Britain.html

Who is Abu Qatada? A profile:http://www.telegraph.co.uk/news/ukne...bu-Qatada.html

The shorter BBC report and details of bail conditions:http://www.bbc.co.uk/news/uk-16914401

[Jedburgh]

Harvard National Security Journal, 10 April 2012: Offensive Lawfare and the Current Conflict

The term “lawfare” has become part of the lexicon of the current global conflict and although it is defined in various ways, it is essentially a way to describe legal activities within the context of armed conflict. To date, the term has not been applied to legal activities focused on negatively impacting United States’ adversaries. This article seeks to expand the lawfare conversation and encourage a policy dialogue by weaving it together with the Army’s operational doctrine and counterinsurgency doctrine.

The United States Army’s operational concept provides a framework to conceptualize “offensive lawfare” which, in the current global counter-insurgency conflict, should be understood to include efforts to deny enemy forces sanctuary, to blunt their abuse of courts, and to use both foreign and domestic courts to better support our national security strategy. Policy discussions to improve our offensive lawfare posture should include providing support to litigants in certain domestic and foreign court actions that are deemed to be congruous with these ends. More specifically this article advocates broadening the national security policy discussion to include providing support to plaintiffs in terrorism related civil litigation domestically, to certain defendants in certain foreign criminal actions, to defendants in foreign civil litigation that is deemed to be related to the current conflict, and to plaintiffs pursuing foreign causes of action against terrorist organizations and their supporters...

[Presley Cannady]

Originally Posted by Jedburgh

Harvard National Security Journal, 10 April 2012: Offensive Lawfare and the Current Conflict

Just so I'm clear, today's gunslinger engages the brutality of war with the brutality of nonsense. Right?

The United States Army’s operational concept provides a framework to conceptualize...

Can't go to war without conceptualizing concepts.