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'''Lawfare''' is the use of [[legal system]]s and [[Legal institutions|institutions]] to damage or delegitimize an opponent, or to deter an individual's usage of their legal rights. |
'''Lawfare''' is the use of [[legal system]]s and [[Legal institutions|institutions]] to damage or delegitimize an opponent, or to deter an individual's usage of their legal rights. The term may refer to the use of legal systems and principles against an enemy, such as by damaging or [[Delegitimisation|delegitimizing]] them, wasting their time and money (e.g., [[SLAPP suit]]s), or winning a [[public relations]] victory. Alternatively, it may describe a tactic used by [[Authoritarianism|repressive regimes]] to label and discourage [[civil society]] or individuals from claiming their [[legal right]]s via national or international legal systems. This is especially common in situations when individuals and civil society use [[Nonviolent resistance|nonviolent methods]] to highlight or oppose [[discrimination]], [[corruption]], lack of [[democracy]], limiting [[freedom of speech]], violations of [[human rights]] and violations of [[international humanitarian law]]. |
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==Etymology== |
==Etymology== |
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The term is a [[portmanteau]] of the words "law" and "warfare". Perhaps the first use of the term{{Original research inline|date=May 2024}} "lawfare" was in the 1975 manuscript ''Whither Goeth the Law'', which argues that the Western legal system has become overly rational and treats persons like objects as compared to so-called "Community Law", which is based more on humanity and intuition. As an example of the use of such an approach, the [[Li (Confucianism)|Confucian Code of Propriety (Li)]] is mentioned, which was used in China and Korea in the past.<ref name=whither>{{cite book |url=http://www.laceweb.org.au/whi.htm |title=Whither Goeth the Law – Humanity or Barbarity, The Way Out – Radical Alternatives in Australia |editor=M. Smith |editor2=D. Crossley |year=1975 |location=Melbourne |publisher=Lansdowne Press}}</ref> |
The term is a [[portmanteau]] of the words "law" and "warfare". Perhaps the first use of the term{{Original research inline|date=May 2024}} "lawfare" was in the 1975 manuscript ''Whither Goeth the Law'', which argues that the Western legal system has become overly rational and treats persons like objects as compared to so-called "Community Law", which is based more on humanity and intuition. As an example of the use of such an approach, the [[Li (Confucianism)|Confucian Code of Propriety (Li)]] is mentioned, which was used in China and Korea in the past.<ref name=whither>{{cite book |url=http://www.laceweb.org.au/whi.htm |title=Whither Goeth the Law – Humanity or Barbarity, The Way Out – Radical Alternatives in Australia |editor=M. Smith |editor2=D. Crossley |year=1975 |location=Melbourne |publisher=Lansdowne Press}}</ref><ref>{{Cite book |last=Smith |first=Margaret |title=The Way Out: Radical Alternatives in Australia |last2=Crossley |first2=David John |date=1975 |publisher=Lansdowne |isbn=978-0-7018-0429-9 |language=en |oclc=2538964}}</ref> |
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A more frequently cited use of the term is found in a 2001 essay authored by [[Charles J. Dunlap, Jr.]], in which Dunlap defines lawfare as "the use of law as a weapon of war"; that is, "a method of warfare where law is used as a means of realizing a military objective".<ref name="Dunlap-p4">{{cite journal |author=Dunlap Jr. |first=Charles J. |author-link=Charles J. Dunlap Jr. |date=29 November 2001 |title=Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts |url=http://people.duke.edu/~pfeaver/dunlap.pdf |journal=Humanitarian Challenges in Military Interventions Conference |page=4}}</ref> He later expanded on the definition, describing lawfare as "the exploitation of real, perceived, or even orchestrated incidents of [[law of war | law-of-war]] violations being employed as an unconventional means of confronting" a superior military power.<ref>{{cite news |author=Dunlap Jr. |first=Charles J. |author-link=Charles J. Dunlap Jr. |date=3 August 2007 |title=Lawfare amid warfare |url=https://www.washingtontimes.com/news/2007/aug/3/lawfare-amid-warfare/ |newspaper=[[The Washington Times]]}}</ref> In this sense, lawfare may be a more humane substitute for military conflict, although Dunlap considers lawfare a "cynical manipulation of the rule of law and the humanitarian values it represents".<ref name=Dunlap-p4/> |
A more frequently cited use of the term is found in a 2001 essay authored by [[Charles J. Dunlap, Jr.]], in which Dunlap defines lawfare as "the use of law as a weapon of war"; that is, "a method of warfare where law is used as a means of realizing a military objective".<ref>{{Cite journal |last=Scharf |first=Michael |last2=Andersen |first2=Elizabeth |date=2010-01-01 |title=Is Lawfare Worth Defining - Report of the Cleveland Experts Meeting - September 11, 2010 |url=https://scholarlycommons.law.case.edu/jil/vol43/iss1/2 |journal=Case Western Reserve Journal of International Law |volume=43 |issue=1 |pages=11 |issn=0008-7254}}</ref><ref name="Dunlap-p4">{{cite journal |author=Dunlap Jr. |first=Charles J. |author-link=Charles J. Dunlap Jr. |date=29 November 2001 |title=Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts |url=http://people.duke.edu/~pfeaver/dunlap.pdf |journal=Humanitarian Challenges in Military Interventions Conference |page=4}}</ref> He later expanded on the definition, describing lawfare as "the exploitation of real, perceived, or even orchestrated incidents of [[law of war | law-of-war]] violations being employed as an unconventional means of confronting" a superior military power.<ref>{{cite news |author=Dunlap Jr. |first=Charles J. |author-link=Charles J. Dunlap Jr. |date=3 August 2007 |title=Lawfare amid warfare |url=https://www.washingtontimes.com/news/2007/aug/3/lawfare-amid-warfare/ |newspaper=[[The Washington Times]]}}</ref> In this sense, lawfare may be a more humane substitute for military conflict, although Dunlap considers lawfare a "cynical manipulation of the rule of law and the humanitarian values it represents".<ref name=Dunlap-p4/> |
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[[Benjamin Wittes]], [[Bobby Chesney|Robert Chesney]], and [[Jack Goldsmith]] employ the word in the name of the ''[[Lawfare (website)|Lawfare]]'' website, which focuses on national security law and has explored the debate over the definition of lawfare and whether it should be considered exclusively a pejorative. |
[[Benjamin Wittes]], [[Bobby Chesney|Robert Chesney]], and [[Jack Goldsmith]] employ the word in the name of the ''[[Lawfare (website)|Lawfare]]'' website, which focuses on national security law and has explored the debate over the definition of lawfare and whether it should be considered exclusively a pejorative.<ref>{{cite web |title=About Lawfare: A Brief History of the Term and the Site |date=14 May 2015 |url=https://www.lawfaremedia.org/about-lawfare-brief-history-term-and-site}}</ref> |
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==Universal jurisdiction== |
==Universal jurisdiction== |
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Revision as of 17:51, 25 May 2024
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Lawfare is the use of legal systems and institutions to damage or delegitimize an opponent, or to deter an individual's usage of their legal rights. The term may refer to the use of legal systems and principles against an enemy, such as by damaging or delegitimizing them, wasting their time and money (e.g., SLAPP suits), or winning a public relations victory. Alternatively, it may describe a tactic used by repressive regimes to label and discourage civil society or individuals from claiming their legal rights via national or international legal systems. This is especially common in situations when individuals and civil society use nonviolent methods to highlight or oppose discrimination, corruption, lack of democracy, limiting freedom of speech, violations of human rights and violations of international humanitarian law.
Etymology
The term is a portmanteau of the words "law" and "warfare". Perhaps the first use of the term[original research?] "lawfare" was in the 1975 manuscript Whither Goeth the Law, which argues that the Western legal system has become overly rational and treats persons like objects as compared to so-called "Community Law", which is based more on humanity and intuition. As an example of the use of such an approach, the Confucian Code of Propriety (Li) is mentioned, which was used in China and Korea in the past.[1][2]
A more frequently cited use of the term is found in a 2001 essay authored by Charles J. Dunlap, Jr., in which Dunlap defines lawfare as "the use of law as a weapon of war"; that is, "a method of warfare where law is used as a means of realizing a military objective".[3][4] He later expanded on the definition, describing lawfare as "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.[5] In this sense, lawfare may be a more humane substitute for military conflict, although Dunlap considers lawfare a "cynical manipulation of the rule of law and the humanitarian values it represents".[4]
Benjamin Wittes, Robert Chesney, and Jack Goldsmith employ the word in the name of the Lawfare website, which focuses on national security law and has explored the debate over the definition of lawfare and whether it should be considered exclusively a pejorative.[6]
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.[7]
Examples
Hundred Years' War
French officials deployed a form of lawfare in the lead-up to the Hundred Years' War, according to historians Iskander Rehman and David Green.[8][9] Rehman states:[8]
In the fraught decades leading up the Hundred Years War, French officials deployed their expertise in the arcane intricacies of feudal law to continuously undermine Plantagenet (English) authority over their continental territories, 'clogging up administrative processes', 'interfering with fiscal activities' and burying English officials under a deluge of legal cases.
— Iskander Rehman, Planning for Protraction
Israeli–Palestinian conflict
Both pro-Israeli groups and pro-Palestinian groups have been accused of using "lawfare" against one another.
Christian Aid, a British charity that does humanitarian work for Palestinians, was taken to court in 2017 by a pro-Israeli organization called "Zionist Advocacy Center".[10] While the case was ultimately dismissed in US courts, the organization had to spend £700,000 in defending itself, and said it was an act of "lawfare" against organizations that help Palestinians.[10]
A pro-Israeli group, Shurat HaDin, acting on information from the Israeli government, is believed to have used lawfare to prevent Gaza-bound flotilla from leaving Greece.[11] 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[12] and in other countries.[13] Attempts to suppress the BDS movement have also been called lawfare.[14] In Israel and many US states, supporting the BDS movement is criminalized.[14]
The alleged use of human shields by groups like Hamas has been seen as an example of lawfare, hinging on exploiting Israel's aim to minimize civilian casualties and the sensitivity of Western public opinion. This tactic allows Hamas to either accuse Israel of war crimes if civilian casualties occur or to protect its assets and continue operations if the IDF limits its military response.[15][16] 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.[17]
People's Republic of China
In contrast to most world governments, the People's Republic of China has explicitly recognized lawfare ("falu zhan" or "legal warfare") as an essential component of its strategic doctrine.[18]: 161–164 The government of China has used lawsuits in foreign courts to repress Chinese dissidents abroad.[19][20][21]
The activities of the People's Republic of China in relation to the territorial disputes in the South China Sea is frequently cited example of lawfare by the Chinese government.[22][23] In particular, China has asserted sovereign control over several areas in the South China Sea, and has restricted access to areas within its alleged sovereign territory or exclusive economic zone.[18]: 165–168 In support of its claims, China has issued official state declarations (e.g., notes verbal) and enacted domestic laws that assert its sovereignty or effective control of portions of the sea.[22][24]
Commentary
Harvard School of Law professor Jack Goldsmith, an opponent to the expansion of international human rights and universal jurisdiction, states 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".[25][26] Rumsfeld addresses the effects of lawfare in his memoir Known and Unknown.[27]
See also
- Asymmetric warfare
- Bush Six
- Fourth generation warfare
- Hong Kong protests against China extradition and national security laws
- Roerich Pact
- Strategic lawsuit against public participation
- Tibet since 1950
- Unrestricted Warfare
- Vexatious litigation
- War as metaphor
References
- ^ M. Smith; D. Crossley, eds. (1975). Whither Goeth the Law – Humanity or Barbarity, The Way Out – Radical Alternatives in Australia. Melbourne: Lansdowne Press.
- ^ Smith, Margaret; Crossley, David John (1975). The Way Out: Radical Alternatives in Australia. Lansdowne. ISBN 978-0-7018-0429-9. OCLC 2538964.
- ^ Scharf, Michael; Andersen, Elizabeth (1 January 2010). "Is Lawfare Worth Defining - Report of the Cleveland Experts Meeting - September 11, 2010". Case Western Reserve Journal of International Law. 43 (1): 11. ISSN 0008-7254.
- ^ a b Dunlap Jr., Charles J. (29 November 2001). "Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts" (PDF). Humanitarian Challenges in Military Interventions Conference: 4.
- ^ Dunlap Jr., Charles J. (3 August 2007). "Lawfare amid warfare". The Washington Times.
- ^ "About Lawfare: A Brief History of the Term and the Site". 14 May 2015.
- ^ 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).
- ^ a b Rehman, Iskander (8 November 2023). Planning for Protraction: A Historically Informed Approach to Great-power War and Sino-US Competition (1 ed.). London: Routledge. pp. 65–66. doi:10.4324/9781003464419. ISBN 978-1-003-46441-9.
- ^ Green, David (1 January 2014). The Hundred Years War: A People's History. Yale University Press. p. 53. doi:10.12987/9780300209945. ISBN 978-0-300-13451-3.
- ^ a b "Christian Aid claims it was subject to act of 'lawfare' by pro-Israel group".
- ^ "Israeli Offensive Lawfare". Retrieved 24 November 2023.
- ^ "NGO Monitor Monograph – Overview of lawfare cases involving Israel". NGO Monitor. Retrieved 13 May 2013.
- ^ "Netanyahu aide skips UK trip fearing arrest". AFP. 4 May 2011. Retrieved 13 May 2013.
- ^ a b Asaf Siniver, ed. (27 October 2022). Routledge Companion to the Israeli-Palestinian Conflict. Taylor & Francis. ISBN 978-0-429-64861-8.
- ^ "Hamas' use of human shields in Gaza" (PDF). NATO Strategic Communications Centre of Excellence.
- ^ James Pamment, Vladimir Sazonov, Francesca Granelli, Sean Aday, Māris Andžāns, Una Bērziņa-Čerenkova, John-Paul Gravelines, Mils Hills, Irene Martinez-Sanchez, Mariita Mattiisen, Holger Molder, Yeganeh Morakabati, Aurel Sari, Gregory Simons, Jonathan Terra, Hybrid Threats: Hamas’ use of human shields in Gaza Nato Strategic Communications Centre of Excellence, 5 June 2019 pp.147-169, 152
- ^ Twersky, Mordechai I. (19 May 2011). "Cotler warns of new strain in delegitimization of Israel". The Jerusalem Post. Retrieved 13 May 2013.
- ^ a b Kittrie, Orde (2016). Lawfare: Law as a Weapon of War. New York, NY: Oxford University Press. doi:10.1093/acprof:oso/9780190263577.001.0001. ISBN 9780190263577.
- ^ Rotella, Sebastian; Berg, Kirsten (22 July 2021). "Operation Fox Hunt: How China Exports Repression Using a Network of Spies Hidden in Plain Sight". ProPublica. Archived from the original on 25 July 2021. Retrieved 25 July 2021.
- ^ O’Keeffe, Kate; Viswanatha, Aruna (29 July 2020). "China's New Tool to Chase Down Fugitives: American Courts". The Wall Street Journal. ISSN 0099-9660. Retrieved 17 August 2022.
- ^ Zambrano, Diego A. (2022). "Foreign Dictators in U.S. Court". The University of Chicago Law Review. 89 (1): 157–252. ISSN 0041-9494. JSTOR 27093694.
- ^ a b Lorteau, Steve (October 2018). "China's South China Sea Claims as "Unprecedented": Sceptical Remarks". Canadian Yearbook of International Law/Annuaire Canadien de Droit International. 55: 72–112. doi:10.1017/cyl.2018.6. ISSN 0069-0058.
- ^ Hsiao, Anne Hsiu-An (16 December 2016). "China and the South China Sea "Lawfare"". Issues & Studies. 52 (2): 1650008. doi:10.1142/S1013251116500089.
- ^ Dupuy, Florian; Dupuy, Pierre-Marie (2013). "A Legal Analysis of China's Historic Rights Claim in the South China Sea". American Journal of International Law. 107 (1): 124–141. doi:10.5305/amerjintelaw.107.1.0124. S2CID 55162381.
- ^ 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". The Huffington Post. Retrieved 9 March 2009.
- ^ Rumsfeld, Donald (18 February 2011). "40". Known and Unknown. A Memoir. Sentinel. ISBN 9781595230676.