Learning About Lawfare

On our main website, we wrote a brief primer on international law, mostly for our own enjoyment.  (The same reason why we write this blog, actually.)  To our constant amazement, it gets cited heavily around the internet, and has been on the syllabus of at least a couple law school classes.  So now we feel all obligated and stuff to keep it accurate and up to date.  At some point, we added a section on the subject of Lawfare.  Briefly put, Lawfare is the use of the law (yours or your opponent’s) as a tool of warfare, either to gain a military advantage, or to deny one to your adversary.  It’s too long to excerpt here, but you can read the section here, if you’re interested.

But if you’re really interested, an even better précis of Lawfare can be found in Gen. Mark Martins’ guest post this morning over at Lawfareblog.  His posts this week have been building up to this one, a great summary of the concept, with the depth of insight one would expect from the commander of the Rule of Law Field Force in Afghanistan.  Go read all of his posts, for sure, but this one is outstanding.

First, Gen. Martins sums up three competing definitions of the term.  “Meaning A,” as he puts it, refers to the hijacking of Western sensibilities of justice and civil rights, by those who do not share such sensibilities, in order to undermine Western resistance.  “Meaning B” is a wholly unrelated concept, an intellectual battle over the scope of national security law.  “Meaning C” is a Western strategy that turns the cynical strategy of Meaning A on its head, an approach that applies the rule of law to all counterinsurgency tactics, thereby providing the legitimacy that is so important in a war of perceptions.

If he had stopped right there, this would have been a valuable enough contribution.  But he goes on to provide five clear observations about each of these three concepts, which makes it a must-read.  The first point is probably his best, that each definition contains a kind of hamartia or tragic flaw that could undermine it.  Meaning A cries “unfair,” which is sort of silly in the context of war, where ruses and propaganda are about as fair game as it gets, and without which few victories are ever achieved.  Meaning B, the contest of ideas alone, can bestow undeserved legitimacy and moral equivalence on the ideas of the enemy, which could lead to the very undermining of the principles one seeks to advance.  Meaning C, “by placing the law in service as a ‘tool’ of war, risks undermining the authority of law itself.”

Go over there and read the rest of it.  In the meantime, we need to go update our primer.

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UPDATE: Happy Thanksgiving!  Gen. Martins posted a followup this morning, “Lawfare: So Are We Waging It?” Written from Parwan, Afghanistan, it begins:

The week’s posts up until now—written on a Blackberry while we moved or found small spaces of time between engagements—position me finally to move from the definitional and philosophical matters I pondered yesterday in Khost to Jack’s September question: Do I consider counterinsurgency (COIN) in Afghanistan to be “lawfare.” The BLUF (“bottom line up front”), an expression used by each of the U.S. military services represented here in Parwan province and throughout our military around the world, is that yes, we are waging a form of affirmative lawfare.

I am confident enough in that to have provided the BLUF at the outset on Monday, even before trying to put into clear text and thus confirm my precise reasoning. The conclusion that we are indeed waging a form of lawfare is particularly true of the Rule of Law Field Force (ROLFF).  But there are important caveats, and I will draw illustrations from the preceding four days’ blogs to make the point.

The most obvious of the caveats is that we want no part of the perfidious lawfare described as Meaning A in my post of yesterday—except, that is, to combat those who wage it. Jack specifically distanced COIN operations in Afghanistan from this sense of lawfare, which is not only punishable under multiple articles of the Uniform Code of Military Justice, but is also regarded as dishonorable conduct within our uniformed ranks. Compliance with law is what legitimates the actions of our troops and separates their actions—sometimes necessarily violent and lethal—from what very bad people in criminal mobs do.

The post goes on to discuss the subject in more detail.  But we want to stop right there and shout out “he’s writing all this in between engagements in a goddamn war!”