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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., strategic lawsuits against public participation), 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, persecution, corruption, lack of democracy, limiting freedom of speech, violations of human rights and violations of international humanitarian law.
The term is a portmanteau of the words "law" and "warfare".[citation needed] Perhaps the first use of the term "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 Major General 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]
Adversarial uses of legal systems by non-state actors has also been identified under the similar classification of paper terrorism, based on an analogous comparison to conventional armed terrorism.[citation needed]
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]
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.
In 2017 Christian Aid, a British charity that does humanitarian work for Palestinians (and others), was taken to court in the US for "providing material aid to Hamas", by David Abrams, director of pro-Israeli organization, the Zionist Advocacy Center.[10] The case was dismissed in US courts, but Christian Aid had spent £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[by whom?] to have used lawfare to prevent a Gaza-bound flotilla from leaving Greece.[11]: 311–328 Many cases have been brought forward against Israeli officials and those associated with the Israel Defense Forces (IDF), accusing them of war crimes. These cases have been heard in Israel[12] and other countries.[13] Attempts to suppress the Boycott, Divestment and Sanctions (BDS) movement have also been called lawfare.[14] In Israel and many US states, supporting the BDS movement is criminalized.[clarification needed][14]
The NATO Strategic Communications Centre of Excellence has cited the alleged use of human shields by groups like Hamas as an example of lawfare, hinging on exploiting Israeli claims that they minimize civilian casualties, as well as 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 lawmaker 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
The government of the People's Republic of China has explicitly recognized lawfare ("falu zhan" or "legal warfare") as an essential component of its strategic doctrine.[11]: 161–164 Lawfare is one of three components of the People's Liberation Army (PLA)'s three warfares doctrine, which was approved by the Central Committee of the Chinese Communist Party and the Central Military Commission in December 2003 to guide PLA political warfare and information influence operations.[18][19]
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.[20][21][22] 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.[11]: 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.[20][23] China's attempts at framing cross-strait relations with Taiwan as an internal dispute is also cited as an example of lawfare.[24] Academic Hung Chin-fu of National Cheng Kung University has described Chinese legislation to prevent Taiwan from culturally asserting its own identity as a form of lawfare.[25] China's 2013 creation of its Air Defense Identification Zone that cover the disputed Senkaku Islands has also been cited as lawfare.[26]
The government of China has also used lawsuits in foreign courts to repress Chinese dissidents abroad,[27][28] which has also been labeled as lawfare by academic Diego A. Zambrano of Stanford Law School.[29]
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".[30] Rumsfeld addresses the effects of lawfare in his memoir Known and Unknown.[31]
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