SMALL WARS COUNCIL
Go Back   Small Wars Council > Small Wars Participants & Stakeholders > Futurists & Theorists

Futurists & Theorists Future Competition & Conflict, Theory & Nature of Conflict, 4GW through 9?GW, Transformation, RMA, etc.

Reply
 
Thread Tools Display Modes
Old 06-27-2009   #1
jmm99
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.
jmm99 is offline   Reply With Quote
Old 06-27-2009   #2
slapout9
Council Member
 
slapout9's Avatar
 
Join Date: Dec 2005
Posts: 4,817
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 05:38 AM. Reason: add stuff
slapout9 is offline   Reply With Quote
Old 06-27-2009   #3
jmm99
Council Member
 
Join Date: May 2008
Posts: 4,021
Default While getting Slap's skull tat ...

add this one from Boondoggle in this post:

Quote:
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.
jmm99 is offline   Reply With Quote
Old 07-03-2009   #4
Schmedlap
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?
Quote:
"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?
Quote:
"... 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?
Quote:
"... 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.
Quote:
"... 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?
Schmedlap is offline   Reply With Quote
Old 07-03-2009   #5
jmm99
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:

Quote:
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.
jmm99 is offline   Reply With Quote
Old 07-03-2009   #6
Schmedlap
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.
Schmedlap is offline   Reply With Quote
Old 07-03-2009   #7
jmm99
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

Quote:
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 ?
jmm99 is offline   Reply With Quote
Old 07-03-2009   #8
Schmedlap
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."
Schmedlap is offline   Reply With Quote
Old 07-04-2009   #9
LawVol
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.
__________________
-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)

Last edited by LawVol; 07-04-2009 at 02:44 AM.
LawVol is offline   Reply With Quote
Old 07-04-2009   #10
LawVol
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)
LawVol is offline   Reply With Quote
Old 07-04-2009   #11
Schmedlap
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.
Schmedlap is offline   Reply With Quote
Old 12-14-2011   #12
SWJ Blog
Council Member
 
Join Date: Mar 2009
Posts: 10,795
Default Rethinking Revolution: Lawfare

Rethinking Revolution: Lawfare

Last edited by davidbfpo; 05-15-2017 at 09:30 AM.
SWJ Blog is offline   Reply With Quote
Old 05-19-2016   #13
SWJ Blog
Council Member
 
Join Date: Mar 2009
Posts: 10,795
Default The Emergence of Lawfare (OUP Infographic)

The Emergence of Lawfare (OUP Infographic)

Last edited by davidbfpo; 05-15-2017 at 09:30 AM.
SWJ Blog is offline   Reply With Quote
Old 01-24-2017   #14
SWJ Blog
Council Member
 
Join Date: Mar 2009
Posts: 10,795
Default 'Lawfare' Could Become Trump Tool Against Adversaries

'Lawfare' Could Become Trump Tool Against Adversaries

Last edited by davidbfpo; 05-15-2017 at 09:31 AM.
SWJ Blog is offline   Reply With Quote
Old 05-07-2017   #15
Polarbear1605
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"
Polarbear1605 is offline   Reply With Quote
Old 05-08-2017   #16
slapout9
Council Member
 
slapout9's Avatar
 
Join Date: Dec 2005
Posts: 4,817
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!
slapout9 is offline   Reply With Quote
Old 05-15-2017   #17
davidbfpo
Council Member
 
davidbfpo's Avatar
 
Join Date: Mar 2006
Location: UK
Posts: 11,229
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.
__________________
davidbfpo

Last edited by davidbfpo; 05-15-2017 at 09:34 AM. Reason: 20,901v
davidbfpo is offline   Reply With Quote
Old 05-15-2017   #18
davidbfpo
Council Member
 
davidbfpo's Avatar
 
Join Date: Mar 2006
Location: UK
Posts: 11,229
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:
Quote:
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
davidbfpo is offline   Reply With Quote
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump

Similar Threads
Thread Thread Starter Forum Replies Last Post
Responsibility to Protect (R2P): Catch All marct International Politics 66 01-30-2017 01:09 PM
Fraud or Fuzziness? Dissecting William Owen’s Critique of Maneuver Warfare SWJED Futurists & Theorists 84 02-03-2009 08:34 PM
Distributed Networked Systems Theory and Practice pvebber Futurists & Theorists 10 03-03-2008 04:51 AM
Theory vs. Practice zenpundit Doctrine & TTPs 11 07-31-2006 09:13 PM


All times are GMT. The time now is 10:38 PM.


Powered by vBulletin® Version 3.8.9. ©2000 - 2017, Jelsoft Enterprises Ltd.
Registered Users are solely responsible for their messages.
Operated by, and site design © 2005-2009, Small Wars Foundation