Introduction
In 2001, Charles Dunlap, then a colonel in the US Air Force and a member of the Judge Advocate General Corps,Footnote 1 used the term ‘lawfare’ to suggest the recent development or popularisation of a particular practice – the practice of ‘us[ing]’ law ‘as a means of realizing a military objective’.Footnote 2 In a paper delivered at a conference sponsored by Harvard’s Carr Center for Human Rights, Dunlap claimed that, ‘[r]ather than seeking battlefield victories, per se, challengers [of the United States] try to destroy the will to fight by undermining the public support that is indispensable when democracies like the U.S. conduct military interventions.’Footnote 3 A principle way challengers do this, he claimed, is by ‘mak[ing] it appear that the U.S. is waging war in violation of the letter or spirit of LOAC [that is, the Law of Armed Conflict]’.Footnote 4
Dunlap’s writings were enormously influential, giving rise to the body of work that I refer to as ‘dominant’ lawfare literature (distinguishable from the ‘critical’ lawfare literature discussed later in this article).Footnote 5 This dominant literature – contained in articles, blog posts, conference talks, and books – was produced by high-ranking former or current military or other governmental lawyers, law professors, and members of conservative advocacy groups – generally in the United States or affiliated with the US government (but also sometimes in Israel or affiliated with the Israeli government). Many of these writers meet frequently, often at annual gatherings hosted by US military academies, which they describe as ‘de rigueur for any serious military lawyer or academic specializing in the jus ad bellum, the jus in bello or the law of the sea’.Footnote 6 They see themselves as ‘traveling the same road’.Footnote 7
The above-described writers described a range of moves as ‘lawfare’.Footnote 8 Initially, they used the term to refer to attempts by prisoners at Guantánamo Bay, and by their lawyers, to challenge their torture and imprisonment in US courts. Subsequently, they applied the term to law-based challenges to the massive Israeli attacks on Gaza in 2008–9 and 2014 (including, most prominently, to the Goldstone Report), as well as to alleged attempts by Hamas to ‘hijack’ international law by placing weapons in civilian areas to shield them from attack.Footnote 9 In fact, the Palestine-Israel conflict may today be the most-cited example in the dominant literature: one writer describes it as ‘the closest thing the world has to a lawfare laboratory’.Footnote 10
In early dominant discourse, lawfare was generally characterised as something done by ‘challengers’ or ‘foes’Footnote 11 of the US and Israel, and by their advocates.Footnote 12 Such representations were sometimes implicit, sometimes explicit. Some authors did not deny that lawfare could be practiced by liberal states: rather, they simply focused mostly or solely on invocations of law by the above-described ‘challengers’ or ‘foes’.Footnote 13 Other writers ruled out the possibility of liberal lawfare through their very definitions.Footnote 14 Liberal lawfare often seemed not to exist in these accounts: international humanitarian law, in this context, was seen as moral constraint on, rather than tool of, liberal states. Not coincidentally, in these accounts, lawfare was generally characterised as an undesirable practice, as ‘inherently negative’.Footnote 15
Such an understanding of the practice of lawfare (as negative and practiced by others) reached its culmination in the 2005 National Defense Strategy of the United States. The document did not use the term ‘lawfare’ itself, but infamously predicted that ‘[o]ur strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism’.Footnote 16 The statement resulted in an indignant outcry from (mostly) liberal lawyers and law professors in the US, who objected to the statement’s elision of ‘legal’ and ‘terrorist’ methods, which they assumed were fundamentally opposed.Footnote 17
This ‘negative’ understanding of lawfare is still prominent in some quarters. However, in the years since the publication of the Strategy, there has been a change within much of the dominant literature. Not only have writers increasingly acknowledged that liberal states could also use law as a ‘weapon of war’: they have begun to explicitly advocate or promote such use.Footnote 18 In particular, they have characterised law as an invaluable tool of US counterinsurgency strategy and practice.Footnote 19 However, as I show in this article, these writers represent liberal lawfare as being of a fundamentally distinct sort. Although the term certainly seems to bring together liberal law and liberal war, when used in the context of the US or Israel, law is characterised as a way to avoid the infliction of ‘physical’ violence, ‘physical’ force. Law, in this account, comes to be represented as a non-violent, even a humanitarian, technology of war.
My goal in this article is not to argue that liberal states also use law as a tool, technology or weapon of warfare, and that such uses of law are inherently or effectively violent.Footnote 20 Rather, my primary goal is to show that the referents and boundaries of ‘law’, ‘war’, and ‘violence’ are contextual and contingent (which is not to say easily changeable), constantly in need of fixing and stabilisation. More specifically, it is to demonstrate that, in dominant lawfare discourse, the referents and boundaries of law, war and violence are crucially fixed and stabilised by notions of civilisational difference, which serve to give meaning to what law is, what war and violence are, and whether particular claims or practices are understood, in particular contexts, to be martial, legal or violent.
To analyse dominant lawfare writings, I draw loosely on a now-substantial body of critical constructivist work in International Relations (IR), which examines how meanings are produced through discourse, and how meanings work to render particular courses of action reasonable, and others unreasonable.Footnote 21 Adopting analytical strategies from these writings, I examine how, in dominant lawfare discourse, particular claims and practices (for example, legal appeals by inmates at Guantánamo, or US military lawyers’ targeting advice) are cast as legal or martial, how they are articulated to law or war.Footnote 22 So too, I examine the implications of these representations, in rendering some claims and practices legitimate, others illegitimate. I suggest that, in dominant lawfare discourse, the very notions of ‘non-Western’ lawfulness or ‘Western’ lawlessness remain impossibilities, given the constitutive role of civilisational difference in giving meaning to law itself.Footnote 23
On the one hand, then, my primary goal in this article is to demonstrate how colonial discourses of legal inadequacy or excess both underlie, and are reproduced through, dominant lawfare discourse. However, I also draw on my above-described argument, about the instability of the categories and boundaries of law and war, to sympathetically reorient critical lawfare writings. Critical writers have challenged the dominant literature both directly and indirectly, by showing how US and Israeli military lawyers and governmental advisers have ‘used’ law as a ‘tool’ to enable the killing of civilians in Palestine, as well as US torture, incarceration, and assassination practices around the world.Footnote 24 These are vital contributions, which demonstrate that violence is not produced by the failure or misuse of liberal law, but by its presence and proliferation. Nonetheless, I argue that, in embracing the term ‘lawfare’ and characterising law as a ‘tool’ of war, some critical writers impute an unwarranted stability and separateness to ‘law’ and ‘war’, which they elsewhere work hard to undermine. I suggest that, rather than adopting such language from dominant lawfare discourse, these writers more extensively examine, first, the bordering and bounding of the category of ‘law’, and second, how particular people, places, practices, and institutions come to be articulated to ‘war’.
My argument proceeds as follows. In the first section of this article, I trace how, in the dominant lawfare literature, non-Western invocations of law are forged into violent martial technologies. I suggest that, in a context in which law itself, and legally constrained warfare in particular, have long been considered the preserve of the West, invocations of law, and particularly international humanitarian law, by those understood as non-Western pose a challenge. Dominant writings function to domesticate this challenge by suggesting that such invocations of law are not law at all (or not quite/not properly law): rather, they are simply martial technologies, tools of war.
There is now a substantial body of writing on the intertwined histories of law, colonialism, and imperialism, which demonstrates that non-Western law has long been characterised as something else: despotic will, custom, or simply politics.Footnote 25 Such representations have served not only to enable practices of colonial law-making and extraterritorial jurisdiction, but also to define ‘law’ as rational, unbiased, distinct from politics.Footnote 26 Drawing on these insights, in the second section, I show how, even as they characterise law as violent when misused or manipulated (as by non-Westerners), dominant writings constitute law itself as non-violent – as an alternative to physical violence or force.
In the third section, I consider the implications of my argument for critical lawfare scholarship, suggesting two reorientations.
Section I. Non-Western law as a martial technology
In this section, I show how, in dominant lawfare discourse, non-Western invocations of law are represented as violent martial technologies. By ‘martial’, I mean that writers characterise non-Western invocations of law as somehow similar, or related, to war.Footnote 27 By ‘technologies’, I mean that writers suggest that non-Western invocations of law are purposive and instrumental: these invocations are characterised as tools or implements of war.
I begin by describing how invocations of international humanitarian law by those identified as non-Western destabilise the civilisation-barbarianism distinction so central to dominant lawfare literature. Next, I argue that, in this literature, writers respond to this destabilisation by representing such invocations, first, as not law at all or as not quite or not properly law, and second, as violent technologies of warfare.
I.i. The challenge
In her critical history of the principle of distinction (between civilians and combatants), which forms the centrepiece of the laws of war, Helen Kinsella points out that the principle is not simply regulative.Footnote 28 Rather, it is productive – first, of ‘the subjects it ostensibly protects’ (that is, civilians and combatants), and second, of ‘international orders organized according to differences of civilization and sex’.Footnote 29 Kinsella traces how adherence to the principle of distinction (and to the laws of war more generally) has served, in colonial and imperial contexts, to produce civilised and barbarian entities, even as notions of civilisation and barbarity have served to delineate the categories of civilian and combatants themselves. She demonstrates, in other words, that ‘barbarians’ were not only marked as such by their failure to follow the laws of war: rather, their ‘constant potential for insurrection’ also meant that they were not ‘innocent’ enough to count as civilians, even when not actively involved in hostilities.Footnote 30 So, against them, the protections of the principle of distinction often did not apply.
Yet, Kinsella points out, the categories of civilian and barbarian have not been stable:
Although the barbarian was presumed to demarcate a clear opposite or absolute limit of civilization, the barbarian was, in fact, immanent to civilization. The barbarian was said to wage war unconstrained and without discipline: these were, in fact, some of the characteristics of barbarism. Yet, against the barbarian, civilized entities were allowed to wage a war unconstrained and without discipline. Consider the effects of this on the entire distinction between barbarian and civilized, which was believed to arise from the putative self-discipline, restraint, and moderation of civilized entities. Does the distinction disappear? Or was it simply never there?Footnote 31
The distinction between civilised and barbarian is not simply historically important – although it is certainly that.Footnote 32 Rather, it is central to, and explicitly invoked in, dominant lawfare discourse. For example, in his concluding remarks in a symposium issue of the Naval War College’s law journal, Dinstein writes:
On one side, you have the modern barbarians who are conducting hostilities in an utterly lawless fashion: not only do they ignore LOAC; they trample it underfoot. Specifically, the barbarians do not hesitate to kill civilians (including a sacrifice of their own civilians) on a large scale … On the other side, you have civilized nations. Generally speaking, civilized nations abide by LOAC. They do so notwithstanding the complications resulting from the diametrically opposite conduct of the enemy.Footnote 33
For Dinstein, writing in 2011, alleged adherence to, or violation of, the laws of war serves to distinguish between the barbarian and the civilised, and to designate certain people or groups as such.
As Kinsella points out, adherence to the principle of distinction (and to the laws of war more generally) has long-been represented as requiring and demonstrating a capacity for control, a capacity for mercy, and mastery of the ‘savage within’ – all signifiers of civilisation at different historical moments.Footnote 34 However, the very notion of adherence to the laws of war seems to require something more: a capacity for law itself. This is a capacity that non-Westerners have long been represented as lacking, or only possessing as potential – whether in nineteenth-century European debates about codification in India or legal extraterritoriality in the Ottoman Empire and Japan, or in US debates during the same period about the appropriateness of granting legal rights to Chinese immigrants.Footnote 35
In this context, invocations of law by (those identified as) non-Westerners against (those identified as) Westerners (primarily with regard to Israeli and US policies and practices in Palestine, Afghanistan, and Iraq) raise a dual challenge. First, invocations of law by (those identified as) non-Westerners suggest that the ‘barbarians’ might not be so ‘barbarian’ – if barbarity is defined, in part, by a refusal or inability to adhere to the laws of war, and by a lack of capacity for law itself. Second, accusations of violations, by the US and Israeli governments, of the laws of war suggest that the ‘civilised’ might not, in fact, be so ‘civilised’ (that is, if they do not adhere to the laws of war).
I.ii. Law as not-law
This dual challenge does not lead writers to question the civilisation-barbarianism distinction, or to reconsider their articulations – of law to ‘civilisation’, and of both law and ‘civilisation’ to ‘Europe’ or ‘the West’. Rather, in the dominant literature, writers respond to this challenge by representing non-Western invocations of law as not law at all – or as not quite or not properly law.
The characterisations of non-Western invocations of law as not law, or not properly law, are explicit in the dominant literature. Terms like ‘misuse’, ‘abuse’, and ‘manipulation’ (of law) appear over and over again in these writings. For example, describing insurgent warfare, Newton writes: ‘law is misused not to facilitate effective operations that minimize civilian casualties and preserve human dignity but to create greater military parity between mismatched forces’.Footnote 36 Similarly, Dinstein writes: ‘[W]hat the barbarians do is use – and generally abuse – legal arguments to foil any military success that may be scored by the armed forces of civilized nations.’Footnote 37 Dunlap writes that ‘U.S. opponents’ engage in ‘a cynical manipulation of the rule of law and the humanitarian values it represents’.Footnote 38 Often, these terms appear without being related to any particular practices: that these invocations are misuses appears self-evident in this discourse.
How, beyond explicitly describing them as abuses or misuses, are non-Western invocations of law constituted as not, or not properly, law in the dominant literature? Almost without exception, writers cast these invocations as wholly instrumental. In these accounts, law is used to reach one of two goals. First, the contention is that law is being used to prevent or limit the enemy’s military attacks. This is most often alleged to take place through the practice, often attributed to the Taliban and to Hamas, of using homes and hospitals to hide weapons and using humans as shields.Footnote 39 It is less often alleged to take place through broader legal campaigns, for example, to ban particular classes of weaponsFootnote 40 or to raise international legal thresholds for attacks on civilians or their property.Footnote 41 Second, the contention is that law is used to win ‘hearts and minds’ (primarily in Western democracies), to ‘drive a wedge between our military community and the civil society’ through ‘[a]llegations of breaches of LOAC by our troops’.Footnote 42 The alleged goal here, in Dunlap’s words, is to ‘diminish the strength of [popular] support for the military effort’.Footnote 43 Some writers further claim that attacks on civilians are deliberately instigated or ‘orchestrat[ed]’ so they can then be legally critiqued.Footnote 44 For example, the website of the Council on Foreign Relations suggests that lawfare can be used to ‘goad American forces into violations of the Law of Armed Combat, which are then used against the United States in the court of world opinion’.Footnote 45
In these accounts, writers clearly allege that law is being approached instrumentally. However, instrumentalism does not itself seem to be the problem: in their later works, these same authors advocate a more instrumentalist approach to law by the United States.Footnote 46 Rather, the problem, as constructed in the dominant literature, is that law is being invoked by those who feel little or no need to abide by law, against those who feel a great, even an excessive, need to abide by law – so the charges of manipulation and exploitation.Footnote 47
This point becomes most apparent in the work of Orde Kittie. In a recent book that has garnered much attention, Kittrie creates a lawfare ‘typology’, distinguishing between ‘instrumental’ lawfare and ‘compliance-leverage disparity lawfare’.Footnote 48 Instrumental lawfare is ‘the instrumental use of legal tools to achieve the same or similar effects as those traditionally sought from conventional kinetic military action’: such lawfare is ‘typically waged by Western state actors and Western non-state actors’ and is often desirable.Footnote 49 In contrast, compliance-leverage disparity lawfare is ‘designed to gain advantage from the greater influence that law, typically the law of armed conflict, and its processes exerts over an adversary’.Footnote 50 For Kittrie, this is a more problematic form of warfare that is ‘necessarily waged by state or non-state actors against adversaries over which law has significantly greater leverage or which otherwise feel more compelled to comply with the relevant provisions or type of law’.Footnote 51 Compliance-leverage disparity lawfare, according to Kittrie, has ‘typically’ been used ‘by terrorist groups and other non-state actors against Western state actors’: examples of such users are ISIS, Hamas, the Taliban, and China.Footnote 52 The problem with such lawfare, according to Lieutenant Colonel Eric Jensen of the Office of the Judge Advocate General, is that it benefits the less law-abiding party. Jensen writes: ‘[A] group or state that is facing a nation committed to comply with the laws of war will choose to openly violate the law not only for the tactical advantage gained but also for the strategic benefit that arises. The compliant nation, still committed to law of war compliance, is thus disadvantaged.’Footnote 53
The problem with compliance-leverage disparity lawfare,Footnote 54 then, is not simply that law is being used instrumentally: rather, it lies at least partly in who is ‘using’ law, against whom. Dunlap writes: ‘[L]awfare is much like a tool or weapon that can be used properly in accordance with the higher virtues of the rule of law – or not. It all depends on who is wielding it, how they do it, and why.’Footnote 55 Crucially, the ‘who/whom’ is defined culturally: often explicitly in terms of the West versus the non-West. For Kittrie, the first factor that ‘substantially contribute[s] to the different leverage that law and its processes exert over some actors as opposed to others’ is the legal ‘propensity’ or ‘law abidingness’ of a ‘political and legal culture and subculture’.Footnote 56 The US ‘propensity’ for law, he contends, may be favourably compared with the ‘dismissive’ approach to law of China and Iran.Footnote 57
Expanding upon this notion of cultural legal incapacity, Kittrie begins a later chapter of his work, on China’s ‘embrace of lawfare’, with a section entitled ‘Lawfare in Chinese Strategy and Culture’.Footnote 58 Explaining how it has come to pass that ‘the PRC is currently waging lawfare much more diligently and systematically than is the United States’, even though the latter ‘is a far more law-oriented society’, Kittrie gives a brief and remarkably reductionist history of China’s ‘lawless[ness]’ and legal deviance (jumping between Mao Zedong, Sun Tzu and ‘the Marxist view’ of law in order to support his sweeping claims):
China’s vigorous use of lawfare is rooted in the exceptionally instrumental role of law in historical and contemporary Chinese culture. In pre-Communist imperial China, law served as a tool of authority, not a constraint upon it. Following the Communist revolution of 1949, China adopted the Marxist view that law serves as an instrument of politics (rather than, for example, a check on politics and an autonomous, objective arbiter of justice).
Then, during the Cultural Revolution of 1966 to 1976, China dismantled its legal system, including by closing down its Ministry of Justice, abolishing its law schools, and re-educating lawyers by ordering them to work as farmers and factory workers. China became practically a ‘lawless nation’.Footnote 59
In his history, Kittrie draws liberally on tropes of Oriental despotism – of a strong, unrestrained and corrupt state – to suggest that invocations of law by the Chinese government can rarely be anything other than instrumental: even at its best, ‘Chinese law was largely an instrument of (rather than a constraint upon) state power’.Footnote 60 In doing so, he follows a long tradition of comparative legal scholarship that suggests that China, for instance, does not have law (or the rule of law).Footnote 61
Non-Western legal incapacity, however, is not enough, alone, for the prosecution of compliance leverage disparity lawfare. Rather, the very notion of compliance leverage disparity lawfare depends on the claim that ‘different political and legal cultures and subcultures … vary in their general ideological senses of obligation to follow the law’.Footnote 62 Kittrie’s argument depends centrally on the positing of difference: both non-Western legal lack and Western law-abidingness. In these accounts, non-Westerners are characterised as taking advantage of the law-respecting or law-abiding nature of Western militaries and populations: so the description of lawfare as a vehicle to ‘exploit American values’.Footnote 63 Not only would such militaries be unlikely to violate the laws of war, the claim is that they would be unlikely to allow even the appearance of impropriety or illegality, because of the need to maintain the ‘public support that is indispensable when democracies like the U.S. conduct military interventions’.Footnote 64
In this way, the very charge of illegality by those not identified with the West, against those identified as Western, becomes a signifier of the lawful nature of the West, of its vigilance about abiding with international law – rather than as reasons to rethink the notions of Western lawfulness and non-Western legal lack.
But what is the precise nature of this lack? The lack, as suggested in dominant lawfare discourse, is not in ability to master legal intricacies and technicalities, or to use them strategically: it is not a shortfall in lawyering or litigating. Here, there is excess: excess litigiousness. The lack is just the opposite: it is in an ability to approach law other than superficially or strategically, other than as a tool or technology. It is a lack of law-abidingness,Footnote 65 an inability to understand law’s deeper purpose, its deeper logic or ends. For example, critiquing the report of the United Nations Fact Finding Mission on the Gaza Conflict (also known as the ‘Goldstone Report’), Newton writes: ‘When purported legal “developments” actually undermine the ends of the law, they are illegitimate and inappropriate.’Footnote 66 Of course, that law even has such a deeper logic, such deeper ends, is debatable. However, in dominant lawfare writings, there remains a notion of a kind of central legal ‘corpus’,Footnote 67 which can be separated from ‘mere’ invocations of or changes in law. The latter, when inconsistent with the former, are not really law at all: in this way, law and civilisation may be rearticulated with ‘Europe’ and ‘the West’.
Implicit in these characterisations is a particular attribution of, and arrogation of, authority to determine the proper use and ultimate ends of international law. The above-described writers posit themselves as arbiters of the propriety of particular invocations of law, quite literally, as the ‘proper guardians of the laws and customs of war’.Footnote 68 Non-Westerners, then, become interlopers in the world of international humanitarian law even as they invoke such law: so we have Dinstein’s closing exhortation to his audience at a 2011 conference at the US Naval Academy to ‘keep poachers off the grass’.Footnote 69
But the above-described writers do more than suggest that non-Western invocations of international humanitarian are not law at all. They also suggest that such invocations are martial technologies, describing them as ‘means’, ‘method[s]’, or ‘weapon[s]’ of warfare.Footnote 70 Dinstein even terms such invocations ‘weapon[s] of mass destruction’.Footnote 71
In the dominant literature, non-Western invocations of law are represented as weapons or tools of war in two senses: first, in the sense that such invocations are instrumental (as discussed above), and second, in the sense that such invocations have effects similar to those of ‘traditional’ weapons of war – that is, violent effects.Footnote 72 Violence (understood narrowly in these accounts, as physical violence, inflicted directly, usually through contact) is alleged to be both a short- and a long-term effect of non-Western invocations of law.
In the short term, as previously mentioned, the contention is that insurgents provoke attack. For example, Dale Stephens claims that ‘non-State groups engaged in asymmetric warfare’ ‘invite the application of force against themselves or their proxies, innocent civilians …, or ostensibly civilian objects’.Footnote 73 Similarly, Dunlap asserts that ‘opponents unconstrained by humanitarian ethics now … orchestrat[e] situations that deliberately endanger noncombatants’.Footnote 74 In these excerpts, violence is not represented as an unfortunate consequence of non-Western lawfare: rather, it is cast as the intended effect. For the most part, these writers give flimsy (or no) evidence to support these claims about intentionality. The ease with which such intentions can be imputed has much to do with the long-standing Orientalist notion that, as stated by the chief counsel for war crimes at Nuremberg, ‘individual lives are not valued so highly in Eastern mores’.Footnote 75 This notion serves to render reasonable the possibility that non-Westerners deliberately engineer attacks on civilians in their own communities for public relations purposes – think, for example, of the amount of evidence that a US newspaper or law journal would likely require before a similar accusation could be leveled at the US government.
In the long term, the suggestion is that non-Western invocations of law could lead to violence by ‘undermin[ing] respect for the application and enforcement of humanitarian law’ among law-abiding militaries.Footnote 76 For example, Newton claims that ‘spurious allegations and misrepresentations of the actual state of the law’ by lawfare practioners could ‘lead to a cycle of cynicism and second-guessing that could weaken the commitment of some military forces to actually follow the law’.Footnote 77 Some lawfare writers additionally make the realist point that ‘if no feasible options of conducting hostilities were left to belligerent parties in war [because of the efforts of lawfare practioners seeking to stymie their opponents] – ultimately, no rules would survive, inasmuch as the legal paper-constraints would simply be ignored by clashing armies’.Footnote 78
The attributions of responsibility in these accounts are notable: US attacks on civilians become the product of insurgent goading; (potential) US violations of international humanitarian law become the product of insurgent lawfare; (potential) ‘lawlessess’ becomes something that is ‘inflicted on our own side’.Footnote 79 In these dominant accounts, as often in colonial and liberal warfare, our ‘lawlessness’ or ‘barbarity’ becomes a response to their ‘lawlessness’ or ‘barbarity’ – and so not ‘lawlessness’ or ‘barbarity’ at all.Footnote 80
Section II. Excising violence from liberal law
Above, I have argued that, in the dominant lawfare literature, writers confront the challenge posed by non-Western invocations of international humanitarian law by suggesting that such invocations of law are not law at all, but are violent martial technologies. What, then, of liberal invocations of international humanitarian law in a context of war? In this section, I trace the shift that takes place within the dominant literature over the course of the first decade of the twenty-first century, as many writers move from often not recognising, to advocating, liberal lawfare. I argue that this shift is made possible by these writers’ representation of law as not itself violent, and as only leading to violence if misused (as by non-Westerners). Such a representation enables these writers to distinguish between liberal and non-Western lawfare, and to promote the former even as they condemn the latter.
As mentioned in the Introduction, in dominant lawfare discourse, prior to about 2007 or 2008, liberal lawfare was rarely discussed or seemed not to exist.Footnote 81 Not by coincidence, in these early writings, ‘lawfare’ was generally considered a pejorative term. However, around this time, a change began to occur in the dominant literature. In a context in which the US military and its affiliates were devoting considerable attention to (supposedly) ‘non-traditional’ and ‘non-kinetic’ forms of warfare, some authors began to advocate lawfare by the United States – often using exactly that term. These authors began to argue that law should be made an integral part of US counterinsurgency strategy and practice.Footnote 82 Given the previously negative connotations of the term and its identification with the practices of opponents of the United States, the rehabilitation of lawfare required substantial representational work.Footnote 83
The changing meanings and connotations of the term ‘lawfare’ within dominant lawfare discourse are best exemplified by Dunlap’s work. In his early work, Dunlap focuses mostly on the lawfare engaged in by ‘challengers [of the United States]’;Footnote 84 furthermore, as Kittrie points out, he ‘describe[s] lawfare’s impact as largely malign’.Footnote 85 For example, Dunlap states that ‘there is disturbing evidence that the rule of law is being hijacked into just another way of fighting (lawfare) to the detriment of humanitarian values as well as the law itself’.Footnote 86 However, in later articles, Dunlap departs from this negative understanding of lawfare.Footnote 87 In 2010, he asks whether lawfare requires an ‘apologia’, going on to defend both the concept and the practice. As a concept, he contends, lawfare is ‘ideologically neutral’.Footnote 88 So too, as a practice, lawfare is ‘simply another kind of weapon’ that can ‘be used for good or bad purposes, depending upon the mind set of those who use it’.Footnote 89
As the above-described writers began to advocate US lawfare, they explicitly redefined the term itself. In his original article, Dunlap defines lawfare as a ‘method of warfare where law is used as a means of realizing a military objective’.Footnote 90 Although this definition is agnostic as to whether such a use of law is ‘good’ or ‘bad’ (and so does allow for the possibility of ‘good’ lawfare), Dunlap later amends it in a way that makes this possibility much clearer. Lawfare, in later works, is a ‘strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational [or, in some accounts, a military] objective’.Footnote 91 This definition, which is widely cited as authoritative, clearly stresses the division of lawfare into the desirable and the undesirable, the proper and the improper, into that which should be promoted and that which should be condemned.Footnote 92 To advocate the former practice – to ‘communicat[e] to non-specialists [in the US military] how law might be used as a positive good in modern war’ – is Dunlap’s explicit goal in his later works.Footnote 93
What reasons are given for this new advocacy of US lawfare in the dominant literature? According to Orde Kittrie, the US should embrace lawfare because to do so would have the benefit of ‘saving … some U.S. and foreign lives’.Footnote 94 The suggestion here is that law, when used by the United States, would not inflict or effect violence. Contrast this to the effects attributed to, or predicted for, non-Western lawfare, described in the previous section. Non-Western lawfare is alleged to cause civilian deaths (when civilians are used as shields), the destruction of property (near which weapons are hidden), and the long-term decline of respect for international humanitarian law (and so any rise in physical violence that this might entail).
Again, Dunlap’s work is illustrative of the change. In his early work, when he is mostly concerned with the lawfare of opponents of the United States, Dunlap explains: ‘[t]hough at first blush one might assume lawfare would result in less suffering in war (and it sometimes does), in practice it too often produces behaviors that jeopardize the protection of the truly innocent.’Footnote 95 By 2011, however, when he is more concerned with US lawfare, Dunlap emphasises that many uses of lawfare ‘serve[] to reduce the destructiveness of conflicts’.Footnote 96
The fact that US lawfare would save lives is not simply an unintended happy outcome of the US use of law: rather, it is precisely why the United States would engage in lawfare. Dunlap writes: ‘[M]any uses of legal “weapons” and methodologies avoid the need to resort to physical violence and other more deadly means. This is one reason, for example, that the United States and other nations seek to use sanctions before resorting to the use of force, wherever possible’.Footnote 97 In contrast, the contention is, non-Westerners do not turn to law out of a desire to avoid violence. Rather, non-Westerners are routinely portrayed as invoking law because of their inferiority in conventional warfare.Footnote 98 For example, Dinstein writes that ‘[s]ince the modern barbarians are unable to win discrete battles against the technological superior armed forces arrayed against them, they try to win the war by using lawfare.’Footnote 99 So we see descriptions of non-Western lawfare as the ‘latest in asymmetries’ and a ‘strategy of the weak’.Footnote 100
For Western states, then, law is cast as the preference, precisely because it allows for the avoidance or reduction of violence. For non-Westerners, on the other hand, violence is cast as the preference: law is a second-choice, brought on by the necessity of perceived inferiority in conventional warfare. It should be noted, however, that in both cases, lawful and violent or forceful means are cast as distinct, as alternatives. In these accounts, law may effect violence (if misused): it is precisely because of such infliction that non-Western lawfare is to be condemned. However, violence or force is not integral to the very functioning of law. So, in the later dominant literature (that is, when authors are concerned with liberal lawfare), we see references to law as a ‘non-violent substitute for traditional arms’ or a ‘bloodless’ alternative to ‘bloody traditional warfare’.Footnote 101 Kittrie, for example, contrasts ‘legal’ and ‘lethal’ weapons, ‘legal’ warfare and ‘traditional, kinetic warfare (“shooting warfare”)’.Footnote 102 The implication is that legal weapons are not also lethal, that law does not involve execution (and, further, that warfare ‘traditionally’ has not involved law).
The above-described lawfare writers do not generally explicitly refer to non-Western invocations of law as non-violent, given the violent effects predicted for such invocations.Footnote 103 However, it should be noted that, so strong is the tendency to distinguish between law and violence that, as Jones usefully points out, even non-Western invocations of law work primarily because the invokers are able to take advantage of the normative pull that law has on the militaries and populations of the United States and Israel.Footnote 104 Recall the contentions about the techniques of non-Western lawfare commonly-made in the dominant literature. Writers contend that insurgents protect their bodies and their weapons by using homes and humans as shields. So too, they contend that insurgents turn liberal populations against their militaries, through false accusations of illegality. In both these instances, it is the normative power of law that is at play – whether in preventing particular military attacks (for example, those that violate the principle of distinction) or in provoking population responses.
In these dominant accounts, there is little recognition that, as critical scholars have demonstrated, violence and law are more integrally related, that law (at least in its dominant manifestations) does not simply inflict or effect violence (if misused), but itself depends on violence, that violence is a part of law.Footnote 105 For example, Former Army Officer and Pentagon official Phillip Carter writes, ‘I would far prefer to have motions and discovery requests fired at me than incoming mortar or rocket-propelled grenade fire.’Footnote 106 Law, in Carter’s account, involves simply paperwork – not confinement, physical punishment, deprivation, and death. There is little recognition here, as Craig A. Jones points out, that law does not exist without corporeal enforcement, without ‘the discrete acts of law’s agents – the gun fired by the police, the sentence pronounced by the judge, the execution carried out behind prison walls’.Footnote 107 There is little recognition that, as David Kennedy points out, ‘to use law is also to invoke violence, at least the violence that stands behind legal authority’.Footnote 108 Instead, in the dominant accounts, violence becomes something that could come after law, something that is a possible byproduct of (a misuse of) law, rather than something that is internal to or inherent in it. Such representations crucially allow for the promotion of (proper) US lawfare, specifically, as a way to avoid the infliction of violence and as an alternative to the use of force.
Section III. Beyond ‘lawfare’
Above, I have shown how, in dominant lawfare writings, war’s violence is characterised as a product not of law itself, but only of its misuse or abuse by non-Westerners. In recent years, a number of critical writers in law, geography, and IR have countered these characterisations, instead demonstrating the violence inherent to, or inflicted by, liberal law. In this section, I describe some of the key contributions of these writings, to which I am much indebted. However, I also suggest two modifications or reorientations.
In an early but seminal work, legal scholar Nathaniel Berman demonstrated the permissive effect of the jus in bello rules of war.Footnote 109 Berman showed how, by mandating that certain ‘privileged’ combatants not be prosecuted for ‘mere participation in armed conflict’, the laws of war immunised, and so enabled, violent acts that might otherwise be prohibited (for example, under domestic law prohibitions on assault or murder).Footnote 110 A few years later, in Of Law and War, David Kennedy echoed Berman’s insight that law is ‘war-generative’ rather than war-limiting.Footnote 111 However, he went further in detailing the multiple ways in which law enables the mundane and everyday practices of warfare – ‘buying and selling weaponry, recruiting soldiers, managing armed forces, encouraging technological innovation, making the spoils of war profitable’.Footnote 112
The above-described works were not directly responsive to the dominant lawfare literature. Nor, in some cases, did they focus on or even mention ‘lawfare’.Footnote 113 Nonetheless, these writings provided the crucial groundwork for the later writings of ‘critical lawfare writers’ – those who explicitly challenged dominant lawfare discourse. Critical lawfare writers responded to the characterisation of ‘lawfare’ in the early dominant literature as a ‘weapon of the weak’, by arguing that the practice is often used by the strong.Footnote 114 So too, they challenged the suggestion, common in dominant lawfare writings, that Western states use law as an alternative to violence, by showing how military lawyers and government advisers have wielded law precisely in order to authorise ever-rising levels of force. For example, Hajjar and Jones detailed the crucial roles played by Israeli military lawyers in developing Israel’s ‘targeted killing’ policy, and in authorising particular killings.Footnote 115 Eyal Weizman described how the Israeli military uses ‘warning’ attacks to shift Palestinian civilians ‘between legal designations’, by characterising those who fail to heed the warnings as ‘voluntary human shields’ – and so allegedly-legal targets.Footnote 116 Katia Snukal and Emily Gilbert showed how US laws ‘have been wielded, articulated and interpreted to secure the impunity of private military security contractors … in Iraq’.Footnote 117
These writers adopt much of the language of the dominant lawfare literature, but apply this language to the practices of liberal states. Most common is the language of ‘lawfare’ itself.Footnote 118 For example, John Morrissey speaks of the ‘lawfare of the U.S. military’ and of ‘liberal lawfare’;Footnote 119 Weizman describes our current time as an ‘age of lawfare’;Footnote 120 and Snukal and Gilbert refer to the creation of a legal regime for US military contractors as an ‘exemplary tactic of lawfare’.Footnote 121 In addition, we see references in critical writings to law being used as a tool or weapon of war, and to law being ‘weaponised’. For example, Michael D. Smith describes the ‘central, instrumental, and political role that law continues to play in the US-led intervention in Afghanistan’, while Jones describes the ‘weaponization of law at the heart of empire and colonialism’.Footnote 122 Weizman explicitly adopts Dunlap’s early definition of lawfare – ‘the use of law as a weapon of war’ – but emphasises that ‘lawfare could also be used by the state’.Footnote 123
When critical lawfare scholars characterise particular practices as ‘lawfare’ or discuss the ‘weaponisation of law’, they clearly aim to bring together law and war. Lawfare, Jones writes, ‘is important … because it shows that war and law are entangled’.Footnote 124 Furthermore, as shown above, scholars often succeed in breaking down these oppositions through their empirical descriptions – and this is one of their most crucial contributions. Nonetheless, I want to suggest that critical lawfare scholars’ adoption of the language of lawfare, their characterisations of law as something that is ‘weaponised’ or ‘used’ as a weapon of war, may have discursive implications that cut against the (productively destabilising) general tenor and thrust of their work.
For example, the description – without more – of a particular practice as involving the use of law as a ‘tool of war’ suggests that we can easily identify particular means as ‘legal’ and particular ends as ‘martial’. Similarly, the easy description of a particular practice as ‘lawfare’ implies that that practice is somehow ‘of’ law and ‘of’ war. The problem with these characterisations is that they imply that we know what law and war are: they impute a stable, self-evident quantity to the legal and the martial. As such, they obscure the very shifting, contextual nature of the meanings of law and war that critical lawfare writers elsewhere do so much to highlight. In particular, the characterisations obscure the ways in which colonial (or as many scholars have shown, Eurocentric or Orientalist) logics have structured our very understandings of these core concepts, with crucial implications for our judgements about the legality, legitimacy, and violence of particular acts and claims.Footnote 125
The language of lawfare, the characterisations of law as something that is ‘weaponised’ or ‘used’ as a weapon of war, however, does not simply impute self-evidence and stability to the categories and boundaries of law and war. These characterisations further impute a separateness to these categories. The very use of the term ‘lawfare’ to describe some invocations of law suggests that there are other invocations of law that are not war-related, are just ‘law’ (and, by implication, are either ‘peaceful’ or ‘non-violent’). The characterisation of law as something that is ‘used’ as a tool of war similarly suggests the existence of separate practices or institutions that can, but need not, be brought together. Even more clearly, the language of weaponisation suggests a realm of law prior to such weaponisation – a moment when law was non-violent and unrelated to war.Footnote 126 As such, these characterisations work against critical scholars’ own attempts, elsewhere in their works, to break down the barrier between law, violence, and/or war.
On the one hand, my point here is to point out the difficulties of the language of lawfare, of characterising law as a tool or weapon of war. But I also want to draw on my above-described account – and on strategies adopted in existing critical scholarship on law and war – to suggest two ways forward: first, examining the bordering and bounding of the category of ‘law’ itself, and second, examining how particular people, places, practices, and institutions come to be articulated to ‘war’.
First, the ‘legal’. In this article, I have traced how, in dominant lawfare writings, non-Western invocations of law are characterised as not law at all, but as misuses or abuses of law. In doing so, I have drawn attention to how these writers bound the category of law itself, how they eject particular non-Western claims and practices from within those bounds. So my first suggestion is that IR scholars pay much more attention to these processes of bounding (of law) and ejection (from law), drawing on existing legal literatures that address these processes. Such an enquiry would enable us to better understand not only how particular claims, peoples, spaces, and practices come to be seen as non-legal, but would also help us understand how other claims and practices come to be seen as law, tout court (rather than as particular forms or understanding of law).Footnote 127 As such, such an enquiry would require us to rethink our own working definitions of law (as well as the very practice of defining law), whether in IR works on compliance, or in works that seek to demonstrate international law’s violent effects.
Second, the constitution of the ‘martial’. In this article, I have examined how, in dominant lawfare writings, law comes to be represented as a tool of war. However, law is not the only practice or institution that has been so represented in recent years. Rather, homes, hospitals, and even people in Palestine, Iraq, and Afghanistan (and elsewhere) have been characterised as weapons of war. Homes, hospitals, and people are alleged to function as tools or technologies of war in a manner very similar to law: in fact, they are said to work in tandem. By hiding weapons in or below homes and hospitals, and by using humans as shields, it is alleged that insurgents are attempting, first, to prevent attacks on themselves and on their weapons, and second, to wrest public relations victories from those attacks that do occur.Footnote 128
The language of ‘weapons’ and ‘weaponisation’, however, has not simply been used by those seeking to legitimise liberal violence by casting such violence as defensive (and so legal). Rather, much as they have adopted the dominant language of ‘lawfare’, many critical writers have seized upon this language of ‘weapons’ and ‘weaponisation’ to critique liberal violence. They have discussed the weaponisation of maps, of academic disciplines like anthropology, and of neuroscience – by the US government.Footnote 129 Of course, these characterisations absolutely should not be equated to the above-described characterisations of homes and hospitals as weapons of war: they are used for different political purposes and with very different political effects. Nonetheless, as Alison Howell has suggested, these latter characterisations also raise (different) difficulties, for example, in suggesting a prior separation, only recently overcome, between these disciplines and war.Footnote 130
So, rather than characterising homes or hospitals, on the one hand, or academic disciplines, on the other, as martial technologies, critical writers should examine how some people, places, practices, and institutions come to be articulated to, and others disarticulated from, war itself, paying special attention to the role of discourses of civilisation and barbarity in settling and unsettling these articulations. How, for example, are the homes of Palestinians, of Israeli settlers, or, for that matter, suburban homes in the US, differently constituted – as offensive weapons, as spaces to be defended, or as disconnected from war in every way? And what assumptions, for example, about disciplinary boundaries, underlie critical scholars’ own characterisations of cartography, anthropology, and neuroscience (for example), as ‘weapons’ or as forms of knowledge that can be ‘weaponised’?
Conclusion
Liberal warfare in the twenty-first century is crucially legitimised by its alleged lawfulness (and the law-abiding nature of its wagers), and its furtherance of the rule of law. Therefore, non-Western invocations of law that challenge the actions or policies of the US or Israeli governments pose a challenge. In this article, I have shown that, in the dominant lawfare literature, the response to this challenge is to characterise non-Western invocations of law as ‘not law’ at all, but instead, as violent martial technologies. Such characterisations work to re-inscribe the border between those who do, and those who do not, have the capacity for law, which is also the border between the civilised and the barbarian. Such characterisations additionally work to re-inscribe the border between law and violence, by characterising the latter as not inherent to, but a product of perversions of, the latter.
Unlike many critical scholars, I have not responded to the dominant lawfare literature by pointing out that lawfare is also used, violently, by liberal states. Rather, I have attempted to reorient the enquiry in question, from examining whether law is a constraint on or enabler of war’s violence, to considering how law comes to be understood as such. In addition to tracing the ways in which law comes to be bounded and articulated to, or disarticulated from, war, I have suggest the necessity of similarly tracing how people, places, practices, and institutions (besides law) come to be so articulated or disarticulated. These enquiries involve approaching law, war, and violence as concepts of (colonial) social and political theory, concepts with (colonial) histories – rather than stable practices or institutions, albeit ones whose relationships are open to reconsideration.
Biographical information
Freya Irani is a Mellon-Sawyer Postdoctoral Associate in the Department of Political Science, University of Minnesota-Twin Cities. She received her Juris Doctor from NYU School of Law, and her PhD in Politics and International Studies from SOAS, University of London. Her work examines struggles over legal authority between the global South and global North.
Acknowledgements
I would like to thank Tracey Blasenheim, Pablo Kalmanovitz, Arnulf Becker Lorca, and Jutta Weldes for their comments on, and generous engagement with, this work.
