Positive and Negative Forms of ‘Lawfare’
Issues of law and ‘lawfare’ are recurrent features of foreign policy debates in the United States. On the side, are efforts by peace activists and others to condition the behavior of all states, and especially the United States, by reference to authoritative limits on national discretion as encoded in the UN Charter, a binding treaty. In opposition to a law-oriented foreign policy for the United States are a variety of arguments that rely either directly or indirectly on a version of ‘American exceptionalism.’ Such arguments do not repudiate international law, but condition its applicability to American behavior and that of American allies, and insist on the implementation of international law in relation to the alleged unlawful conduct of adversaries (e.g. Russia involvement in eastern Ukraine)
On the other side of this discourse is the various forms of ‘lawfare’ as an instrumental use of law to achieve valued ends, positive or negative. In these roles international law can mobilize public opinion and government policy to support or oppose particular undertakings. In this limited sense it is appropriate to conceive of ‘lawfare’ as ‘soft power goepolitics’ or as a form of ‘asymmetric warfare’ waged by political actors deficient in hard power.
It was during the presidency of George W. Bush that the neocons decided that recourse to international law was a weapon of the weak that interfered with the grand strategy of the United States, especially in the Middle East. The terminology of lawfare was adopted by both advocates of reliance on international law as constraints on American (and Israeli) policy and by those who sought to denigrate invocations of international law as obstructive tactics that interfered with the protection of security in a post-9/11 world. In reaction to the Goldstone Report (2009) there was launched a notorious ‘Lawfare Project’ that viewed reliance on international law within the UN setting in a manner highly critical of Israel was a new form of ‘asymmetric warfare’ that needed to be countered to avoid the delegitimizing of Israel as a democratic sovereign state. This kind of interpretation dominated a conference at Columbia Law School, featuring the participation of the Dean, David Schizer, that denounced the Goldstone Report and human rights NGOs and was organized by a coalition of pro-Israeli organizations.
I regard lawfare as the use of the rules and procedures of law more neutrally, as instrumental uses of law to achieve or block policy outcomes. My focus is on international law, but the same dynamics apply to internal uses of law. The website, ‘LAWFARE,’ affiliated with the Washington think tank, The Brookings Institution, and bolstered by the active participation of some Harvard Law School conservative faculty, uses lawfare in this neutral, instrumental way, although its government oriented biases dominates its commentary.
There is a problematic side to international law that reflects its crafting and evolution over the centuries. International law definitely was developed to rationalize the interests and projects of the dominant political actors in the West. International law proved useful in giving a legal cover to colonial rule, unequal and imposed treaties, and to stabilize the expropriation of the natural resources of countries in the global South. At the same time, counter-hegemonic efforts were made to give international law quite different impacts, especially in Latin American settings. The effort was to put forward international law doctrines to strengthen the sovereign rights of weaker countries, especially in the context of economic relations.
Beyond the law on the books, there are the ambiguities created by state practice, especially with regard to peace and security, given the absence of any central governing authority or legislative institution on a global level to pronounce upon disputes about interpretation or to agree upon changes in governing rules. As a result, many ‘violations’ of international law serve as ‘precedents’ for the establishment of new norms; power generates law, and its interpretation, whether or not it serves the cause of justice. Further, with the veto in the UN Security Council giving the permanent members, and also indirectly their friends, a ‘legal’ right of exception with respect to compliance with international law. Such an interface between power and law offers an additional reason to be skeptical about any present claims of a global rule of law.
Against this background, I find it clarifying to distinguish between positive and negative uses of lawfare. I identify positive uses to be efforts to insist that international law be upheld to the extent that it serves values of peace, justice, and human dignity, and that its guidelines and conceptions of right, be generally treated as authoritative in diplomatic arenas concerned with the peaceful resolution of conflicts or initiatives designed to implement international criminal law, including making use of procedures to impose accountability on leaders of sovereign states. In these positive uses, there is an overall compatibility between lawfare and the pursuit of justice, although to express this conclusion inevitably reflects subjective perceptions and outlook. Other commentators on international law can and do have different views on such matters.
I identify negative uses of lawfare to be efforts to denigrate reliance on the procedures and norms of international law in seeking to pursue rights or hold individuals accountable for violations of international criminal law. The neocons were clear about their refusal to bind the pursuit of American foreign policy goals by shows of respect for international law. Their visions of American grand strategy regarded it as naïve and unhelpful to introduce international law dimensions into policy debates about the use of force. In this vein, thinking mainly about uses of force in defiance of the UN Charter and international law, several prominent neocons, including Douglas Feith and Paul Wolfowitz, showed their contempt of international law as nothing more than ‘a weapon of the weak’ that should not be allowed to alter the behavior of the strong, and in effect, justify the disregard of such legal objections to hegemonic policies as mere tactics of the outgunned side in an asymmetric war.
By way of illustration, the exclusion of international law from the Oslo Framework for resolving the Israel-Palestine conflict was clearly an effective instance of negative lawfare, denying for many years the Palestinians the benefit of claiming their rights by reference to international law. An example along the same lines were the punitive responses made by Israel and the United States to initiatives of the Palestinian Authority to seek statehood within the UN System and then on that basis to become a party to international treaties, including most controversially the Rome Treaty, which facilitates access to the International Criminal Court. The essence of this important example of negative lawfare centers on blocking, retaliating against, and denigrating attempts by political actors to make use of available procedures and legal norms to uphold their rights against those who rely on hard power to sustain oppressive structures. .
Lawfare can operate negatively or positively on any level of social interaction. When activists seek to encourage divestment of holding in companies doing business associated with seeking commercial gain from transactions or projects with unlawful Israeli settlements this is positive lawfare, with unlawfulness serving as an indicator of illegitimate behavior. When such initiatives are blocked by a legal technicality to frustrate efforts to encourage or demand divestment, invoking law becomes negative lawfare. This happened recently at the University of California at Davis. Interestingly, as in this divestment context, what is being called ‘law’ are organizational rules operative with a university setting, and not associated with legal rules generated by governmental institutions.
There is no way to simplify or generalize the role of law in human affairs. Its proper assessment depends on taking into account the structural circumstances (for instance, law as administered by Israel as the occupying power in the West Bank imposes unjust and coercive policies and practices) and on context (for instance, Palestinian reliance on their claims of right based on international law with respect to the right of return of Palestinian refugees, Israeli settlements, status of Jerusalem, control of water). Legal discourse disputes these rights in a variety of ways. Palestinians invoke the authority of the UN General Assembly to vindicate their claims, while Israel claims the authority to put forward its own ideas about insisting that occupied Palestine is a territory of ‘disputed sovereignty’ and as such outside the domain of international humanitarian law.
As long as complex societies exist and actors have their own agendas and priorities, rules and procedures will be manipulated for the benefit of one or
another actor. This inheres in social process. What has happened recently calls for further reflection. Law has been used as an instrument to seek justice and law has been used as a means to gain and secure positions of strategic advantage. ‘Lawfare’ merely makes this tug of war between those that want to invoke international law and those that believes it unduly burdens statecraft
a more systematic reality.
Global Justice in the 21st Century 
Reflections on the Brussels Attack
26 Mar[Prefatory Note: A much abbreviated version of this post was published in Al Jazeera English on March 24, 2016. Although the essential analysis is the same, the reasoning here is greatly elaborated. The themes addressed and the policies proposed are advanced in a tentative spirit. Debate and reflection are urgently needed with respect to the political violence that is being unleashed in various forms in the West and non-West.]
This latest terrorist outrage for which ISIS claimed responsibility exhibits the new face of 21st century warfare for which there are no front
lines, no path to military victory, and acute civilian vulnerability. As such, it represents a radical challenge to our traditional understanding of warfare, and unless responses are shaped by these realities, it could drive Western democracies step by step into an enthused political embrace and revived actuality of fascist politics. Already the virulence of the fascist virus dormant in every body politic in the West has disclosed its potency in the surprisingly robust Trump/Cruz run to become the Republican candidate in the next American presidential election.
Perhaps, the most important dimension of this 21st century pattern of warfare, especially as it is playing out in the Middle East, is the will and capacity of violent extremists to extend the battlefield to those perceived to be their enemies, and to rely on acutely alienated Europeans and North Americans to undertake the suicidal bloody tasks. The British Independent struck the right note in its commentary, almost alone among media commentary that went beyond condolences, denunciations, and statements of resolve to defeat and destroy ISIS. It included a quote from the ISIS statement claiming responsibility for the Brussels attack: : ‘Let France and all nations following its path know that they will continue to be at the top of the target list for the Islamic State and that the scent of death will not leave their nostrils as long as they partake part in the crusader campaign … [with] their strikes against Muslims in the lands of the Caliphate with their jets.’ … ISIS also released an undated video today threatening to attack France if it continued intervention in Iraq and Syria. ‘As long as you keep bombing you will not live in peace. You will even fear traveling to the market,’ said one of the militants, identified as ‘Abu Maryam the Frenchman.'” It follows this statement with the report that there have been 11,111 air strikes launched by Western and Gulf states against targets in Syria and Iraq, causing massive casualties, human displacement, and great devastation, especially in areas controlled by ISIS. Evidently, given the Belgian attack, for ISIS European unity if accepted as a given, making France as a
locater of an epicenter, but Europe as a whole as circumscribing one crucial combat zone
Noticing this reality is not meant to diminish or offer a rationalization for the barbarism involved in the Brussels attacks, as well as the earlier Paris attacks, but it does make clear that intervening in the Middle East, and conceivably elsewhere in the Global South, no longer ensures that the intervening societies will remain outside the combat zone and continue to enjoy what might be called ‘battlefield impunity.’ By and large the sustained violence of the major anti-colonial wars, even the long Vietnam War, were confined to the colonized society, at most affecting its geographic neighbors. In the 1970s and 1980s there were sporadic signs of such a tactical shift: the IRA extended their struggle in Northern Ireland to Britain, and the PLO via airplane hijacking, Libyan explosions in a German disco frequented by American soldiers, and the PLO Munich attack on Israeli Olympic athletes also prefigured efforts to strike back at foreign hostile sources believed to be responsible for the failure to achieve political goals. ISIS seems more sophisticated in the execution of such operations, has the advantages of home grown adherents willing to engage in suicide missions that is often accompanied by a religious motivation that validates the most extremist disregard of civilian innocence.
As in any armed confrontation, it is essential to take account of innovative features and opt for policies that seem to offer the most hope of success. So far the public Western responses have failed to appreciate what is the true novelty and challenge associated with the adoption by ISIS of these tactics involving mega-terrorism in the homeland of their Western adversaries as asymmetric ways of extending the battlefield.
The Attack
The attacks of March 22 in Belgium occurred in the departure area of the international airport located in the town of Zaventem, seven miles from Brussels and in the Maelbeek metro station in the heart of the city, nearby the headquarters of European Union. Reports indicate over 30 persons were killed and as many as 250 wounded. The timing of the attack made the motivation at first seem like revenge for the capture a few days earlier in Brussels of Salah Abdelslam, the accused mastermind of the Paris attack of November 13, 2015. It hardly matters whether this line of interpretation is accurate or not. It is known for sure that there are clear links between the Paris events and what took place in Brussels, and the scale of the operation depended on weeks, if not months, of planning and preparation.
The essence of the event is one more deeply distressing challenge to the maintenance of domestic public order in democratic space as the conflict that becomes ever more horrible, with ominous overtones for the future of human security in urban environments throughout the world. The hysterical surge of xenophobia is one expression of fear and hate as American politicians debate closing off national access to all Muslims and Europeans pay a large ransom Turkey to confine Syrian refugees within their borders. We are not supposed to notice that recent terrorist acts are mainly the work of those living, and often born, within the society closing its doors to outsiders, moves likely to deepen the angry alienation of those insiders whose ethnic and religious identity makes them targets of suspicion and discrimination.
So far, the official statements of the political leaders have adhered to familiar anti-terrorist lines, disclosing little indication of an understanding of the distinctive realities of the events and how best to cope with the various challenges being posed. For instance, the Prime Minister of Belgium described the attacks as “blind, violent, cowardly,” and added a Belgian promise of the resolve needed to defeat ISIS and the threat it poses. François Hollande of France, never missing an opportunity to utter the obvious irrelevance, simply vowed “to relentlessly fight terrorism, both internationally and internally.” And using the occasion for the recovery of European unity so visibly weakened by the recent dangerous tensions generated in bitter conflicts over fiscal policy and the search for a common policy on migrants, Hollande added, “Through the Brussels attack, it is the whole of Europe that is hit.” Whether such appeals to unity will lead anywhere beyond flags lowered and empathetic rhetoric seems doubtful. What should be evident now is that it that not only Europe that is under constant threat, and understandably troubled by the prospect of future attacks, worrying aloud about such menacing relatively soft targets as nuclear power plants. It is virtually the entire world that has become vulnerable to violent disruption from these contradictory sources of intervention and terrorism.
President Obama offered sensitive condolences to the bereaved families of the victims and expressed solidarity with Europe on the basis of “our shared commitment to defeat the scourge of terrorism.” Again it is disappointing that there is not more understanding displayed that this is a kind of war in which the violence on both sides profoundly violates the security and sovereignty of the other. Until this awareness emerges, we will continue to expect that ‘legitimate violence’ is properly limited to the territories of non-Western societies as it was in the colonial era, and insist that retaliatory strikes constitute terrorism, that is, ‘illegitimate violence.’
What is so far missing from these responses is both a conceptual sensitivity to the originality and nature of the threat and a related willingness to engage in the kind of minimal self-scrutiny that is responsive to the ISIS statement that appears to express its motivation. It is not a matter of giving credence to such a rationalization for criminality, but rather finding out how best to realize what might be described as ‘enlightened self-interest’ in view of the disturbing surrounding circumstances, which might well begin with a review of the compatibility of domestic racism and interventionary diplomacy with the ethics, law, and values of this post-colonial era.
From this perspective the iconic conservative magazine, The Economist, does far better than political leaders by at least emphasizing nonviolent steps that can be taken to improve preventive law enforcement. The magazine points out that the significance of the Brussels attack should be interpreted from a crucial policy perspective: the current limitations of national intelligence services to take preventive action that would alone protect society by identifying and removing threats in advance. The Economist correctly stresses that it has become more important than ever to maximize international efforts to share all intelligence pertaining to the activities of violent extremists, although it too avoids a consideration of root causes that can alone restore normalcy and achieve human security.
This shift from reactive to preventive approaches to defending the domestic social order represents a fundamental reorientation toward the nature of security threats, and how to minimize their escalating lethality. There are three novel aspects of this type of postmodern warfare: striking fear into the whole of society; creating a huge opening for repressive and irresponsible demagogues in targeted societies; and mindlessly unleashing excessive amounts of reactive force in distant countries that tends to spread the virus of violent extremism throughout the planet more than it eradicates it. As has been widely observed, there is no way to know whether drones and air strikes kill more dangerous adversaries than have the effect of actually expanding the ranks of the terrorists by way of alienation and increased recruitment.
It is not yet sufficiently appreciated that the state terror spread by drones and missiles extends to the entire civilian society of a city or even country under attack, making it extremely misleading to treat the lethal impact as properly measured by counting the dead. People living in targeted communities or states all live in dread once a missile from afar has struck, an anxiety aggravated by the realization that those targeted have no way to strike back. The United States reliance on drone warfare in Asia, the Middle East, and Africa has recklessly set a precedent that future generations in the West and elsewhere may come to regret deeply. Unlike nuclear weaponry, there is no likely equivalent for drones to a regime of non-proliferation and there is nothing similar to the doctrine of deterrence to discourage use, and even these instruments of nuclear management, although successful in avoiding the worst, are far from acceptable.
This New War
These deeper overlooked aspects of the Brussels attack that need to be grasped with humility, and responded to by summoning the moral and political imagination to identify what works and what fails in this new era that places such a high priority on atrocity prevention as an explanation of the most widespread, growing, and intense forms of human insecurity.
First, and most significantly, this is an encounter between two sides that ignores boundaries, is not properly equated with traditional warfare between states, and is being waged by new types of hybrid political actors. On one side is a confusing combination of transnational networks of Islamic extremists and in one instance (ISIS) a self-proclaimed territorial caliphate retaliating against the most sensitive civilian targets in the West, thereby adopting a doctrine that explicitly proclaims a strategy exalting crimes against humanity. On the other side, is a coalition of states led by the United States, which has foreign bases and navies spread around the world that seeks to destroy ISIS and kindred jihadists wherever they are found with scant regard for the sovereignty of foreign countries. The United States has long ceased to be a normal state defined by territorial borders, and for more than half a century has acted as ‘a global state’ whose writ the entirety of land, sea, and air of the planet.
Secondly, it is crucial to acknowledge that Western drones and paramilitary special forces operating in more than a hundred states is an inherently imprecise and often indiscriminate form of state violence that spreads its own versions of terror among civilian populations in various countries in the Middle East, Asia and Africa. It is time to admit that civilians in the West and the Global South are both victims of terror in this kind of warfare, which will continue to fuel the kind of mutual hatred and fervent self-righteousness toward the enemy that offers a frightening pretext for what now seems destined to be a condition of perpetual war.
What has totally changed, and is beginning to traumatize the West, is the retaliatory capacities and strategy of these non-Western, non-state and quasi-state adversaries. The colonial, and even post-colonial patterns of intervention were all one-sided with the combat zone reliably confined to the distant other, thereby avoiding any threat to the security and serenity of Western societies. Now that the violence is reciprocal, if asymmetrical (that is, each side employs tactics corresponding to its technological and imaginative capabilities) the balance of forces has fundamentally changed, and so must our thinking and acting, if we are to break the circle of violence and ever again live in secure peace. The stakes are high. Either break with obsolete conceptions of warfare or discover a diplomacy that can accommodate the rough and tumble of the 21st century.
Whether a creative and covert diplomacy can emerge from this tangled web that somehow exchanges an end terrorism from above for an end to terrorism from below is the haunting question that hangs over the human future. If this radical conceptual leap is to be made, it is not likely to result from the initiative of government bureaucracies, but rather from intense pressures mounted by the beleaguered peoples of the world.
Part of what is required, strangely enough given the borderless compulsion of the digital age and the dynamics of economic globalization, is a return to the security structures of the Westphalian framework of territorial sovereign states. Perhaps, these structures never actually prevailed in the past, given the maneuvers of geopolitical actors and the hierarchical relations of colonial systems and regional empires, but their ideal was the shared constitutional basis of world order. With the advent of the global battlefield this ideal must now become the existential foundation of relations among states, stressing the inviolability of norms of non-intervention in a new territorially based global security system. This will not overnight solve the problem, and certainly only indirectly overcomes the internal challenges posed by alienated minorities.
Obviously, this recommended approach could adversely affect the international protection of human rights and weaken global procedures of sanctuary for those displaced by civil strife, impoverishment, and climate change. These issues deserve concerted attention, but the immediate priority is the restoration of minimum order without which no consensual and normatively acceptable political order can persist. And this can only happen, if at all, by de facto or de jure arrangements that renounce all forms of terror, whether the work of states or radical movements.
Tags: asymmetric warfare, Belgium Attack, domestic public order, European Unity, Global Battlefield, ISIS, New Wars, reciprocity in war, security