Lawfare

When courts attack

February 26, 2010  4 comments

Lawfare is a new one on me: it does not mean the victuals consumed by barristers, but the attempt to destroy innocent countries through the use of what an unspeak.net correspondent calls “sinister legal instruments”. ((Thanks to Gavin.)) The term is mentioned by Rory McCarthy in the Guardian:

Israel’s approach has been to refuse all participation in the Goldstone inquiry – not even allowing the judge himself into Israel – and to see all the criticism and legal challenges that have followed as a new existential threat, something Netanyahu last week described as “lawfare”. In other words, legal challenges are now to be regarded as just as unconscionable as militant violence. It is what one Israeli thinktank, the Reut Institute, called the “de-legitimisation network”, which “operates in the international arena in order to negate Israel’s right to exist and includes individuals and organisations in the west, which are catalysed by the radical left”.

The characterisation of law as a weapon and its use as tantamount to physical aggression has two handy effects: first, it implies that you can just ignore the law; and secondly, it implies that actual war is not much worse than the legal type.

Apparently the term lawfare was coined in a 1975 paper by John Carlson and Neville Yeomans, when it meant something more benign, as the modern “state monopoly of lawmaking” is seen as “a replacement of swords with words”. More recent usages have, on the other hand, been made by parties irked by legal challenges that they cast as unwarranted interference: most notably, the US Administration of 2000–2008 and its helpers. A 2001 paper by one Colonel Charles J Dunlap [pdf] opens with a testy flurry of rhetorical questions:

Is warfare turning into lawfare? In other words, is international law undercutting the ability of the U.S. to conduct effective military interventions? Is it becoming a vehicle to exploit American values in ways that actually increase risks to civilians? In short, is law becoming more of the problem in modern war instead of part of the solution?

The answer, of course, was yes; and that was the official attitude to all complaints about the legality of US “operations” over the following years. (See also Scott Horton in Harper’s.)

Thus Netanyahu’s recent reference to the lawfare being waged against Israel falls into the category of complaints by the powerful that others want their power to be fettered by rules. (Lawfare is thus contemptuously considered a “strategy of the weak”.)

On the pleasing model of lawfare, we can invent a raft of other disruptive rhyming tactics. Borefare — sending a particularly tedious person to talk for hours to a president; Pawfare — training a team of large cats for offensive operations; and, most devastatingly of all, Gorefare — blasting Al Gore into enemy territory. Why stick to bombs when war by other means could be so much fun?