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?"
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and national human rights laws to accomplish purposes other than, or contrary to, those for which they were originally enacted.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:
Case Examples of Lawfare:
* Brooke Goldstein, Director, The Lawfare Project
** Maj. Gen. Charles Dunlap, Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts (2001)