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.

[LawVol]

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.

[Schmedlap]

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.

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.

[jmm99]

1977 Additional Protocal I to the GCs and the Childers thesis cited in my OP #1 is certainly the modern classic example. Written from the standpoint of international politics - politfare at its best hardball.

from its Abstract

On December 12, 1977, the U.S. signed a treaty offered through the ICRC entitled Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. This treaty drastically altered the relationship between individual behavior in warfare and combatant status. For the United States, the impact of domestic political tensions, the fresh and painful experience in Vietnam, and a continued emphasis on Détente all played parts in the decision to participate in the conference and sign the treaty. Signature during the Carter administration would not be followed by ratification, and would be rejected by subsequent administrations. Was this decision, continued through every administration to date, a simple outcome of a “rogue” nation exercising its sovereign right based upon its own ability to wage war, or is there more to the story? In this thesis, a new analysis of the political processes and environment surrounding the final treaty’s outcomes is offered. The global tensions between superpowers are examined, emphasizing the United States response, in the context of its perceptions of the treaty’s requirements. A broader coalition of actors, both state and non-state, would ultimately hold the key to the treaty’s significance to conventional warfare.

The Global South engaged the issue of lawful behavior in war with a distinct set of outcomes in mind. Their ability to gain agency, build effective coalitions addressing inequities in the asymmetry of warfare that had historically disadvantaged them, and then alter the outcomes of international humanitarian law through democratic practices, are placed in the context of rational choice theory. The logical and methodical approach used by these actors to deconstruct the central premise of conventional warfare distinctions between combatants and noncombatants, consistently the hallmark of advancing improvements in international humanitarian law, resulted in a treaty reversing advancements in civilian protections through a new set of dangerous behaviors made allowable for a new category of privileged combatants (organized resistance movements). The United States’ options were limited, and a new and regressive standard for conventional warfare was instituted.

[jmm99]

and about irregular combatants and non-combatants, I've read - well written and researched.

Richard D. Rosen (Associate Professor of Law and Director, Center for Military Law & Policy, Texas Tech University School of Law; Colonel, U.S. Army, ret.), Targeting Enemy Forces in the War on Terror: Preserving Civilian Immunity, Vanderbilt Journal of Transnational Law, Volume 42, Number 3: May 2009.

It can be downloaded (as of today) by going to the current index. That will probably end when it goes into the archives. This is a direct link (now).

ABSTRACT

Protocol I to the Geneva Conventions of 1949 and the interpretation given to it by many in the international community (e.g., UN, NGOs, media) provide perverse incentives to terrorist and insurgent groups to shield their military activities behind civilians and their property. In other words, the law governing targeting is fundamentally defective; it allows terrorist and insurgent groups to gain strategic and tactical advantages through their own noncompliance with the law and their adversaries’ observance of it. The consequence has been increasing noncompliance with the law and growing civilian casualties. This Article proposes structural changes to the law governing targeting and attitudinal changes by those who interpret it to ensure that civilians receive adequate security from armed attack.

and, from the body (p.8):

In short, Protocol I provides a powerful incentive for insurgents and terrorist organizations to rely on their enemies’ observance of the law of war. It creates a “win-win-win” situation for such groups: either their adversaries avoid striking them altogether out of fear of causing civilian casualties (win); or they attack them, cause civilian casualties, and suffer international condemnation (win); or they forego air power and artillery and attack using ground troops, thereby incurring much greater casualties and the loss of their public’s support for the conflict (win).

I love it when a COL agrees with me

So, COL Rosen, if you (or one of your friends willing to act as messenger) see this, please come to SWC and join the choir. We'd love to have you - and I'll try to keep smarta$$ remarks to a minimum.

[davidbfpo]

Foreign Policy and the New America Foundation bring you a new weekly brief on the legal war on terror. You can read it on foreignpolicy.com or get it delivered directly to your inbox -- just sign up here:http://visitor.constantcontact.com/m...5Zsz0tQA%3D%3D

[Schmedlap]

The more that I think about this topic, the more that I think it is just Americans whining about more difficult security challenges. It sounds very similar to complaints of "criminals getting acquitted on minor technicalities" or "criminals hiding behind the law." I think those complaints are better directed at the lawyers who failed to get the prosecution or the evidence gatherers who were not meticulous enough. We can say that it shouldn't be so difficult, but that presupposes that "we know he did it" before the trial goes forth. On the issue of trying terrorists, we can also say that it should not be so difficult, but that presupposes that wars will always be fought fairly and on our terms. Welcome to the 21st century.

On the specific issue of terrorists, I wonder if perhaps it is time for a "minimum contacts" test to assert Constitutional protections. Put the burden on the prosecution to demonstrate no "minimum contacts" with this country.

If a strong case can be made that you only came here to blow stuff up and it is demonstrated that you are not a citizen and you are here on a temporary visa (or cannot produce any documentation at all), then we notify your countr(y/ies) of citizenship. Then...

1) no foreign state is willing to intervene on your behalf, then you fall under jurisdiction of the military tribunals.

2) if a country in which you have citizenship is willing to intervene, or if your country asks another country to do so on its behalf, then you are detained, like any nonresident criminal suspect, and your processing through the legal system is suspended until arrangements can be made for your return to your home country.

This would mean that a terrorist from a country with poor relations with us might get returned. Say, for example, some terrorist from a state that doesn't like us shows up, attempts a terror attack, we capture him, and his country of nationality says, "we want him back" and we know that he will return to a hero's welcome. So what? He still gets questioned and still gets detained for a long period of time while the legal haggling occurs. In the meantime, he gets no miranda rights and no access to a lawyer. If his country of nationality says "we don't want him" and he gets tried in our legal system, then only evidence that can pass muster of our rules of evidence gets admitted. That, too, could result in a "known terrorist" being acquitted and deported. So what? Look how many Gitmo detainees have returned to being terrorist operatives. Have we all spontaneously combusted as a result?

[jmm99]

by whatever (), the LWOT (presumably the Legal War On Terror) can be accessed at FP's mainpage - nearer bottom under "The Latest from FP" (same place as Bob Haddick's SWJ weekly feed to FP); but it also has its own section, THE LWOT (presently, 4 articles). The latest article is The LWOT: The “Al Qaeda Seven” Revealed; Supreme Court Hears Foreign Torture Trial.

This appears to be more a news item feed than a legal analysis blog. Of course, you can then follow up the news item to get (eventually) to the meat of the situation.

And, from one of the news items, a cheerful note from the UK via the Telegraph, Guantanamo: £30m torture case bill for taxpayers:

Compensation claims lodged against the Government by six former Guantanamo Bay detainees are likely to cost the taxpayer more than £30 million in legal bills, The Daily Telegraph has learnt.

By Gordon Rayner, Chief Reporter
Published: 7:30AM GMT 01 Mar 2010

Binyam Mohamed, who is at the centre of a row over Britain’s alleged complicity in torture, and five other men are each suing MI5 and MI6, claiming the security services were complicit in their alleged torture in custody.

They could be awarded between £200,000 and £500,000 each if they win their cases, but spiralling legal bills will dwarf any damages awards, as the joint action by the men is currently expected to take seven years to work its way through the courts.

Sources close to the case have disclosed that 75 lawyers have been hired by the Government to sift through hundreds of thousands of classified documents relating to the detainees’ arrests and treatment.

It will take up to five years for the Government to prepare its defence, at a predicted cost of £20m, and because all six of the former detainees are being given legal aid to fight for compensation, their own lawyers’ fees and court costs are expected to add another £10m.

A source within Whitehall told The Daily Telegraph that £30m was “a conservative estimate” for the final cost of the case. ... (more in story)

Who says Lawfare does not pay ?

Regards

Mike