Lawfare is a recently coined word not yet appearing in the Oxford English Dictionary, a portmanteau of the words 'law' and 'warfare', said to describe a form of asymmetric warfare. Lawfare is asserted by some to be the illegitimate use of domestic or international law with the intention of damaging an opponent, winning a public relations victory, financially crippling an opponent, or tying up the opponent's time so that they cannot pursue other ventures such as running for public office, similar to a SLAPP lawsuit. Other scholars see it more neutrally as a reference to both positive and negative uses of law as an instrument of warfare or even to the legal debates surrounding national security and counterterrorism.
Origin of the term
Perhaps the first use of the term "lawfare" was in a 1975 manuscript called Whither Goeth the Law, which argues that the Western legal system has become overly contentious and utilitarian as compared to the more humanitarian, norm-based Eastern system.
A more frequently cited use of the term was Charles J. Dunlap, Jr.'s 2001 essay authored for Harvard's Carr Center. In that essay, Dunlap defines lawfare as "the use of law as a weapon of war." He later expanded on the definition, explaining lawfare was "the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting" a superior military power.
Lawfare defined as "Law to Subordinate"
Some critical scholars understand lawfare as the use of law to effectuate subordination, conquest or control of subaltern or, generally, less powerful groups. The use of legal discourse (e.g., drafting and circulation of “internal” government legal memoranda rationalizing the use of widely condemned interrogation practices) often accompanies various forms of imperial, nationalist or even social hegemony. John Comaroff, writing of colonial African contexts in 2001, defined as “lawfare: the effort to conquer and control indigenous peoples by the coercive use of legal means.”
Lawfare in the book
In the book Unrestricted Warfare, lawfare is described as "International Law Warfare" and is mentioned alongside several other means by which offensive action may be carried to the enemy without force of arms. In a more detailed aside, it is further described as "Seizing the earliest opportunity to set up regulations." The book notes that powerful nations take a prerogative to make their own rules, but at the same token bind themselves with them. A second actor could circumvent these regulations because it is not similarly bound by them. Thus, it would be a serious disadvantage to the powerful nation, allowing the smaller nation comparative freedom.
The book also calls for many of these forces to be used in concert against an opponent. Lawfare could be used in concert with "media warfare" (i.e., propaganda) to bring enormous public pressure against an operation by a target power. Such an attack would weaken the enemy's resolve, as contrasted with the strengthening of resolve that follows a traditional offensive action. Such methods are best used in an orchestrated campaign.
Lawfare and universal jurisdiction
Lawfare may involve the law of a nation turned against its own officials, but more recently it has been associated with the spread of universal jurisdiction, that is, one nation or an international organization hosted by that nation reaching out to seize and prosecute officials of another. Behind universal jurisdiction lies an Enlightenment view that all persons are endowed with basic human rights, and that infringing the rights of anyone no matter where they are violates internationally agreed principles of right and wrong.
Justice Robert H. Jackson speaking as a chief prosecutor in the Nuremberg Trials famously stated that an international tribunal could punish acts by captured Nazi officials which may have been perfectly legal in Fascist Germany (indeed one charge was they distorted the law itself into an instrument of oppression), but went well beyond "what is tolerable by modern civilization." In the jargon of "Lawfare," the Nuremberg Trials might be described as a kind of universal jurisdiction lawfare against German officials following the actual warfare of World War II. Though the asymmetry in that case would be strong against weak since the Allies had defeated the Nazis, and the desired public relations victory the detailed exposure of Holocaust atrocities.
Positive connotations of lawfare
Some advocates have argued for using the term without negative connotations. Benjamin Wittes, Robert Chesney, and Jack Goldsmith appropriated the word as the name of the Lawfare Blog, which focuses on national security law and which has explored the term and continued the debate over what lawfare means, and whether it should be considered an offensive term. Benjamin Wittes, a Senior Fellow at the Brookings Institution, has argued that lawfare should not have only a negative connotation, but that it also refers to the sharply contested legal debates in the U.S. surrounding national security, and national security law. Wittes writes, “The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others." Jack Goldsmith wrote about two uses of the term lawfare that are not derogatory:
"First, there is a war of sorts going on over the content and applicability of the laws of war to terrorist activities. Second, it is natural to see contemporary U.S. counterinsurgency (COIN) operations as an attractive form of lawfare – especially those aspects that involve the construction of legal institutions as a tool to defeat insurgents. The latest example is the brand new Rule of Law Field Force (ROLFF),” which aims “to bring ordinary Afghans criminal justice capacity, dispute resolution services, and anti-corruption institutions, all with the aim of promoting the legitimacy of the Afghan government and defeating the insurgency."
Goldsmith asked Brigadier General Mark S. Martins, then head of the ROLFF to write on whether he was engaged in lawfare in Afghanistan. Writing on his blackberry from Afghanistan, Martins concluded,
"This is affirmative lawfare in Afghanistan: a conscious and concerted reliance upon law to defeat those inside and outside of government who scorn it. Surely, it must be waged as part of a comprehensive COIN campaign and must be focused upon the building and protection of those key rule of law nodes and institutions—formal and informal—upon which the authorities’ legitimacy depends. Great care must also be taken to preserve the initiative of the individual troops who continue to shoulder the most dangerous and significant burdens of this decentralized conflict. But if prosecuted effectively within these ground rules, it may well prove decisive."
The NGO Forum of the 2001 Durban Conference called for the "establishment of a war crimes tribunal" against Israel. NGOs have used universal jurisdiction statutes in Europe and North America to bring forward such cases. These statutes allow courts to preside over cases in which one or more of the parties (or events at issue) are foreign. In some countries, such as Spain, an NGO can apply to a court directly for an arrest warrant or to launch a criminal investigation without the knowledge or approval of the government. Prof. Gerald Steinberg, Chairman of the Political Studies Department at Bar Ilan University and President of NGO Monitor says that "NGOs manipulate international legal terminology and exploit the rhetoric of human rights to accomplish their political goals." Many cases have been brought forward against Israeli officials and those associated with Israel's military, accusing them of war crimes. These cases have been heard in both Israel and in other countries.
US Ambassador John Bolton has characterized Palestinian attempts to seek UN recognition for a state as "lawfare", because he accuses the Palestinian state of delegitimizing Israel.
Some supporters of Israel, such as Shurat HaDin (Israeli Law Centre), have been accused of using "lawfare" to get authorities to seize activist ships bound for Gaza (known as the "Gaza flotilla").
According to Canadian MP and former minister Irwin Cotler, the use of law to delegitimize Israel is present in five areas: United Nations, international law, humanitarian law, the struggle against racism and the struggle against genocide.
Joshua Mintz, writing in the Jerusalem Post in September 2011, referring to the Israel fears of lawfare, says that "it’s quite possible that Israel, at least within the legal landscape, may actually benefit from the Palestinian statehood bid." Douglas Bloomfield writes that "Palestinian lawfare against Israel could further isolate the Jewish state" as well as raise issues regarding overseas travel for Israeli leaders who might fear arrest on war crimes charges. In addition, Bloomfield suggested that "if Abbas goes ahead with waging lawfare, he will open a new stage in the conflict that is likely to set back the cause of peace."
Other examples of lawfare
The Wall Street Journal said in an editorial, regarding the Padilla case, that "the lawyers suing for Padilla aren't interested in justice. They're practicing 'lawfare,' which is an effort to undermine the war on terror by making U.S. officials afraid to pursue it for fear of personal liability." Padilla was arrested in 2002 for planning to carry out a terror attack within the United States, was convicted and sentenced to prison, but has continued his legal battle via the ACLU and the National Litigation Project at Yale Law School, and his case has been ruled on numerous times.
A notable US official cited in connection with asserted lawfare is Henry Kissinger. Dr. Kissinger faced questioning and possible prosecution in France, again in Brazil, and then in England (the latter initiated by Spanish magistrate Baltasar Garzón) because of Kissinger's involvement as a Nixon Administration official with Operation Condor. Kissinger subsequently opined that universal jurisdiction risks "substituting the tyranny of judges for that of governments."
Harvard Law Professor Jack Goldsmith, known for his scholarship voicing opposition to the expansion of international human rights and universal jurisdiction, reveals in his book The Terror Presidency that Defense Secretary Donald Rumsfeld was concerned with the possibility of lawfare waged against Bush administration officials, and that Rumsfeld "could expect to be on top of the list." Rumsfeld addresses the effects of lawfare in his memoir Known and Unknown.
Questions remain unresolved of the possibility of lawfare-type prosecution in Italy and Germany of CIA agents involved in international abduction known as extraordinary rendition by the United States, and in Spain before Magistrate Garzón of the Bush 6, American attorneys who created what the New York Times called "the legal framework to justify the torture of prisoners at Guantanamo Bay.".
An opinion piece in the New York Daily News asserts that the United States is already dealing with "a variety of lawfare stratagems." In New York, anyone who reports an event as part of the "If You See Something, Say Something™" public awareness campaign is "protected from frivolous lawsuits" by the "Freedom to Report Terrorism Act," and journalists and authors who report on terrorism are protected from lawsuits by the "Libel Terrorism Protection Act," as well.
- Is Lawfare Worth Defining? Case W. Res. J. Int'l L. Vol. 43:1(September 11, 2010)
- Unrestricted Warfare, p. 55
- On Wikipedia, Lawfare, Blogs, and Sources (Wittes & Leutert, Harvard Law School, National Security Journal, 2013)
- Whither Goeth the Law - Humanity or Barbarity, The Way Out – Radical Alternatives in Australia (M. Smith & D. Crossley, eds., 1975)
- Dunlap, Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts (29 Nov 2001).
- Dunlap, “Lawfare amid warfare,” Washington Times (3 Aug 07).
- J. L. Comaroff, Colonialism, Culture, and the Law: A Foreword, 26 LAW & SOC. INQUIRY 306 (2001).
- Goldsmith, Jack (2007). The Terror Presidency: Law and Judgement Inside the Bush Administration. New York City, New York: W.W. Norton. pp. 53–64. ISBN 978-0-393-06550-3.(discussing lawfare and the spread of universal jurisdiction).
- Grotius (1604). De Jure Pradae: (Of the Law of Prize and Booty). London: Oxford University Press. pp. xviii.(discussing in introductory notes Grotius' account of universal principles of right and wrong derived from reason and divine Will, the underpinning of much modern international law).
- Justice Jackson's opening statement at the Nuremburg War Crimes trial, reproduced at the Robert H. Jackson Center website, accessed 2 March 2010.
- "NGO Lawfare". NGO Monitor. Retrieved 2013-05-13.
- "NGO "Lawfare": New monograph from NGO Monitor". NGO Monitor. October 13, 2008. Retrieved 2013-05-13.
- "NGO Monitor Monograph - Overview of lawfare cases involving Israel". NGO Monitor. Retrieved 2013-05-13.
- "Netanyahu aide skips UK trip fearing arrest". AFP. 2011-05-04. Retrieved 2013-05-13.
- Kern, Soeren (2010-06-30). "Anti-Israel "Lawfare" in Europe". Gatestone Institute. Retrieved 2013-05-13.
- Bolton, John R. (2011-05-03). "BOLTON: Israel’s increasing vulnerability". Washington Times. Retrieved 2013-05-13.
- "George Jonas: Using lawfare to anchor the Gaza flotilla". National Post. 7 November 2006. Retrieved 2013-05-13.
- Twersky, Mordechai I. (2011-05-19). "Cotler warns of new strain in delegitimization of Israel". Jerusalum Post. Retrieved 2013-05-13.
- Mintz, Josh (2011-09-27). "Rhetoric vs. reality: ‘Lawfare’ and the PA statehood bid". Jerusalum Post. Retrieved 2013-05-13.
- "Waging lawfare". Washington Jewsih Week. 2011-09-28. Retrieved 2013-05-13.
- "'Lawfare' Loses Big". Wall Street Journal. 2012-01-28. Retrieved 2013-05-13.
- Kissinger, Henry (July/August 2001). "The Pitfalls of Universal Jurisdiction". Foreign Affairs. Retrieved March 2, 2009.(The Foreign Affairs website archive summarizes but does not reproduce the text of Kissinger's article for lack of copyright; Kissinger revised and published it in his book Does America Need a Foreign Policy? Kissinger, Henry (2001). Does America Need a Foreign Policy?. New York City, New York: Simon & Schuster. ISBN 978-0-684-85567-7.)
- Goldsmith, Jack (2007). The Terror Presidency: Law and Judgement Inside the Bush Administration. New York City, New York: W.W. Norton. pp. 53–64. ISBN 978-0-393-06550-3.(discussing Kissinger and Rumsfeld)
- Thayer, Andy (8 March 2010). "Court Allows Torture Suit Against Rumsfeld". Huffington Post. Retrieved 9 March 2009.(discussing civil lawsuit against Donald Rumsfeld by Donald Vance, a Navy veteran who says he was tortured in an Iraq prison in 2006).
- Rumsfeld, Donald (18 February 2011). "40". Known and Unknown. A Memoir. Sentinel. ISBN 9781595230676.
- PDF (1.44 MB), published by Statewatch, June 22, 2005
-  SpiegelOnline: Judgment Day May Be Approaching for CIA Agents(discussing German indictment of 13 CIA agents for rendition of Khaled el-Masri)
- Marlise Simons (2009-03-28). "Spanish Court Weighs Inquiry on Torture for 6 Bush-Era Officials". The New York Times. Archived from the original on 2009-05-02.
- Lancman and Ehrenmfeld Don't reward the Palestinians' 'lawfare' campaign with statehood: Make peace with Israel first New York Daily News, Sept. 22, 2011.
- Selections from Unrestricted Warfare
- Unrestricted Warfare in .pdf Format
- "Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts" in .pdf Format
- Discussion of Lawfare in A Brief Primer on International Law
- Lawfare, by David B. Rivkin, Jr. and Lee A. Casey, Wall Street Journal, February 23, 2007, p.A11 (accessed May 20, 2009).
- Lawfare Against Israel, by Anne Herzberg, Wall Street Journal, November 5, 2008.
- NGO "Lawfare" - Exploitation of Courts in the Arab-Israeli Conflict, Anne Herzberg, December 2010
- The Lawfare Project
- Lawfare: A Supporting Arm in Modern Conflict, By David B. Harris & Aaron Eitan Meyer, The Counter Terrorist, April 4, 2011.
- Brooke Goldstein: Countering Lawfare, By Pat Toensmeier, Aviation Week, January 3, 2011.
- Thoughts on how to combat lawfare being waged against civilians in United States Civil & Criminal Court
- Lawfare Blog