UK paperback


When courts attack

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 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?

  1. 1  Ricardo  February 26, 2010, 1:20 pm 

    “…which are catalysed by the radical left”.

    Isn’t “catalysed” unspeak as well: implies some sort of vague cause without the ugly bother of actually having to explain your reasoning… it’s catalysed.

  2. 2  NomadUK  February 26, 2010, 1:39 pm 

    I must say that, in general, it’s difficult to see how respecting international law and undercutting the ability of the U.S. to conduct effective military interventions could do anything other than to decrease risks to civilians.

    And the rhetorical question, ‘is law becoming more of the problem in modern war instead of part of the solution?’ is just hilarious, particularly if one pictures it being asked in the War Room by General ‘Buck’ Turgidson.

  3. 3  ukliberty  March 4, 2010, 3:32 pm 

    Our Attorney General visited Israel in January. She gave a lecture on lawfare. She endorsed the rule of law and Aharon Barak’s opinion that “a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.”

    Yesterday we were told that our beloved leader intends to change law on ‘political’ arrest warrants in such cases as that of Tzipi Livni, where a campaign group asked a court to issue an arrest warrant for Livni and the court found there were sufficient grounds to do so.

    Brown asks if “our purpose” – whatever that is – “is best served by a process where an arrest warrant for the gravest crimes can be issued on the slightest of evidence.”

    I’m therefore certain that he’ll review the European Arrest Warrant and the US-UK Extradition Treaty too.

  4. 4  richard  March 4, 2010, 4:34 pm 

    Lawfare is thus contemptuously considered a “strategy of the weak”.
    This is such a beautifully precise inversion of the rule of law as I learned it – that it’s universal precisely because that is the only way to guarantee the rights of the weakest – that I can’t even call it Unspeak. It’s not even rhetorical judo: It’s just repeating the theory of democracy with a sneering tone.

    All this chimes strongly with Carl Schmitt’s “state of exception,” in which sovereignty means being able to act above the law. I think it achieves a third handy effect: it takes law off its pedestal and reduces it to the status of just another interest. To work within a legal framework becomes a political maneuver.

hit parade

    guardian articles

    older posts