Integrating Lawfare and Warfare

IntroductionBoth kinetic warfare and legal dispute are forms of contestation.1 Contestation can be physical or symbolic.2 Legal arguments or claims are one type of symbolic contestation.3 Other types of symbolic contestation may be based on historical justification, moral philosophy, or religious doctrine.4 Symbolic contestation may be used alongside or in place of physical contestation.5 Although we may plan strategy around geographically defined contested arenas like the South China Sea, the Crimea, or Syria, we may also consider functionally defined arenas such as the cyber or biological arenas.6 Arenas for contestation may be geographic or functional, physical, or symbol© ic.7 Any particular conflict may play out on multiple boards at once, and a move that is advantageous to a cause on one board may be disadvantageous on another board. The legal battlefield is largely a symbolic functional arena.8 We may refer to legal activity that supports, undermines, or substitutes for other types of warfare as "lawfare."9 Because of its capacity to support, undermine, or substitute, lawfare must be integrated into military strategy.10I.Defining Lawfare in the 21st CenturyRetired Air Force General, now a professor, Charles Dunlap has defined "lawfare" as "the strategy of using-or misusing-law as a substitute for traditional military means to achieve a warfighting objective."11 Is this a good thing or a bad thing? When the school at which i teach, The Fletcher School of Law and Diplomacy, was founded in 1933, the idealistic motivation was to make law applicable to conflicts between countries and thereby to eliminate war.12 To those people, lawfare as a substitute for kinetic warfare seemed pretty good.13The modern conventional idea of lawfare stems from the idea that a political group will seek to use humanitarian law-the law of armed conflict-to hamper or punish military action by another political group.14 The initial way that lawfare was considered by Dunlap and others was in an asymmetric circumstance where the weaker party, such as ISIS, the Taliban, or Hamas, would use humanitarian law improperly to hamper or punish op- posing forces.15 Jack Goldsmith-now a professor at Harvard Law School but then a lawyer in the George W. Bush Justice Department16-wrote in 2002 that "various nations, NGO's, academics, international organizations, and others in the international community have been busily weaving a web of international laws and judicial institutions that today threatens [U.S. Government] interests."17 This pejorative perspective is dependent on a view that the law will be misapplied by international public opinion or any available authoritative tribunals.18 The pejorative view of lawfare risks rejecting the democratic values and rule of law that we seek to defend.19There are a number of other ways in which lawfare may operate.20 David Kennedy, also a professor at Harvard Law School, provided a more neutral definition of lawfare.21 He called it the art of "managing law and war together."22 In this Essay, I will develop a taxonomy as well as examples of different types of lawfare, cultivate a method for assessing the power and utility of lawfare, and suggest some parameters for an integrated lawfare command that would maximize the ability of a country to integrate lawfare in its offensive and defensive operations.II.Operating in a Law-Rich EnvironmentIn advanced market-based societies, there is a growing amount of law.23 This law addresses all sorts of issues, including but not limited to personal security, taxes, environmental protection, and anticompetitive practices of businesses.24 In the international law context, there is also a growing body of law of armed conflict, human rights law, environmental law, trade law, investment law, and tax law among many others.25 Human rights proliferate.26 Military forces must take into account environmental obligations, the health of the local population, local criminal responsibility for operations, and a host of other legal issues that have not traditionally been military concerns. …