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Lawfare: The Use of the Law as a Weapon of War

"Lawfare is not something in which persons engage in the pursuit of justice, and must be defined as a negative phenomenon to have any real meaning. Otherwise, we risk diluting the threat and feeding the inability to distinguish between that which is the correct application of the law, on the one hand, and that which is lawfare, on the other. Because that is the essence of the issue here: how do we distinguish between that which constitutes a constructive, legitimate legal battle (even if the legal battle is against us and inconvenient) from that which is a counterproductive perversion of the law, which should be allocated no precedent? The delineation is not as simple as some may like to make it; that is, that lawsuits against terrorists are good, and legal actions against democracies are bad. The question is not ‘Who is the target?’ but ‘What is the intention?’ behind the legal action: Is it to pursue justice, to apply the law in the interests of freedom and democracy, or is the intent to undermine the very system of laws being manipulated?"
 - Brooke Goldstein, Director, The Lawfare Project

Lawfare denotes "the use of the law as a weapon of war"** or, more specifically, the abuse of Western laws and judicial systems to achieve strategic military or political ends.

It consists of the negative manipulation of international and national human rights laws to accomplish purposes other than, or contrary to, those for which they were originally enacted.

Lawfare is also evident in the manipulation of domestic legal systems (by state and non-state parties) to implement laws inconsistent with general principles of liberal democracy.

The principles underlying lawfare are also present in glaring failures to apply human rights law and in the disproportionate and biased application of the law.

Modern-day lawfare has five goals:

     1. To silence and punish free speech about issues of national security and public concern;

     2. To delegitimize the sovereignty of democratic states;

     3. To frustrate and hinder the ability of democracies to fight against and defeat terrorism;

     4. To confuse laws of armed conflict with human rights law; and

     5. To prevent the application of human rights law in situations where it is needed the most.

These goals are interconnected – any one instance of lawfare may serve to achieve more than one of the aims listed above.

Why is Lawfare a Threat?

The enemies of the West and liberal democracies are pursuing a campaign of lawfare that complements terrorism and asymmetric warfare. Terrorists and their sympathizers understand that where they cannot win by advocating and exercising violence, they can attempt to undermine the willingness and capacity to fight them using legal means. Moreover, serious legal questions remain unanswered which must be resolved in the best interests of democracies, such as: What legal limits should be placed on those who fight the war against terrorism and what rights should be granted to the terrorists we are fighting? Should a U.N. voting bloc comprised largely of non-democratic member states have the power to dictate international human rights norms?

The precedents set by lawfare actions threaten all liberal democracies equally. It is imperative that lawfare be opposed and that international human rights law and its interpretation be managed properly and in line with the tenets of democracy. The Lawfare Project is therefore dedicated to re-examining the processes by which human rights laws are currently enforced, the bodies by which they are being defined, and the procedures that dictate the membership of those bodies.

Lawfare's Central Issues:

  • Where does the power of a state end and the power of an international court or tribunal begin?
  • What consists of incitement to immediate violence and what is legitimate criticism of religion?
  • Should "hate speech" be outlawed?
  • When an international tribunal displays political or other bias in its deliberations, is the state's sovereign control abrogated?
  • Does the universal jurisdiction trend go against our national security interests?
  • If universal jurisdiction is a concept that should be retained, what limits should be applied?
  • From where do courts in Spain and the Netherlands derive the authority to unilaterally grant themselves universal jurisdiction and the power to adjudicate over other nation-states?
  • To what extent must classified material be released to protect the rights of terrorists that allege torture?
  • Where should terrorists and unlawful combatants be tried and imprisoned and under what law?
  • Must the "underwear bomber" be read his Miranda rights?
  • What is the source of the bias evident in many human rights reports and in certain tribunals?

Case Examples of Lawfare:

  • Al Qaeda manuals that instruct captured militants to file false claims of torture in order to reposition themselves as victims in the eyes of the law and media (see, e.g., p. 16).
  • Attempts by terrorist entities such as Hamas to impede the free movement of democratic state officials and to achieve legitimacy by hiring lawyers and instituting "human rights" litigation abroad.
  • Efforts at the United Nations to exclude attacks on civilians from any international definition of the crime of terrorism, so long as the civilians are citizens of what is termed an "occupying power."
  • Predatory defamation and "hate speech" lawsuits filed against anyone who speaks publicly about radical Islam, terrorism and its sources of financing.
  • Unilateral determinations of local/national courts to exert universal jurisdiction over heads of states and to charge "war crimes," including efforts to charge Israeli and US government officials with war crimes in the United Kingdom, Belgium, and Spain.
  • The International Court of Justice's partisan advisory ruling on the legality of Israel's security barrier, which pointedly ignored the fact that the barrier contributed to a sharp decline in terrorism attacks and failed to address the question of whether the court had jurisdiction to consider the issue in the first place.
  • The Goldstone Report and similar flawed and politicized documents masquerading as legitimate legal analysis and created solely to give legal patina to military and political goals.
  • The lack of legal accountability demanded of theocratic states that recruit their own children as suicide bombers and child soldiers.
  • The resurgence of international and national blasphemy laws (at the United Nations and in Europe).

* Brooke Goldstein, Director, The Lawfare Project

** Maj. Gen. Charles Dunlap, Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts (2001)

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