Mar 29, 2011 | Greg Rose
By Greg Rose
‘Lawfare’ is the waging of war by law. It is, typically, the resort of the militarily weak. It engages law as a weapon against a foe that is militarily superior by bringing in the aid of third party advocates and judges who fight in the courts of law and public opinion. Lawfare, therefore, works only against a foe that operates in an open and democratic environment, a government accountable to its law and its public.
There is nothing inherently wrong in using legal manoeuvres as a substitute for traditional means to achieve military objectives. The rule of law is a central pillar of every free society. Legal actions are fairly used to promote an endless range of political objectives. However, the application of the “rule of law” is not usually the same thing as waging “lawfare”.
The popular usage of the term “lawfare”, adopted here, is the use of law as a weapon in itself. Its goal is to weaken an enemy, primarily through demoralisation. There are strategic and tactical dimensions to it. Strategic lawfare warriors seek over the longer term to shape and formulate the law to meet their military goals, whether to defeat a particular party or to impose constraints on the enemy’s options.
Examples of strategic weapons crafted to combat Israel include prohibiting the separation barrier through the International Court of Justice, condemning the use of the Gaza blockade through the United National Human Rights Council, and obstructing the adoption of a comprehensive prohibition on terrorism in the UN General Assembly. The tactical dimension of lawfare engages in shorter term, reflexive, situation-focused military support. Examples include the use of civilian shields and false surrenders, false reports of massacres, and misuse or misrepresentation of the law to falsely allege war crimes. Sensational entertainment and news media play a critical role in multiplying the impact of these tactics to confuse a disinformed enemy command, demoralise its law-abiding armed forces and erode its democratic support.
In circumstances where the law is misrepresented, misused or manipulated by those who apply it falsely, then harm is done to the law itself. The quality and status of and our trust in the justice system deteriorates. In such lawfare, the rule of law itself is a casualty. Some might counter that the notion of ‘misuse’ of the law to wage war is just a matter of perspective – i.e. a militarily superior foe uses this “lawfare” rhetoric because it cannot abide being the loser in a moral and legal contest, it resents being held back by the rule of law. Yet that suggestion is deceptively simple. It elides the issue of what the “rule of law” actually is.
Abusing the Rule of Law
The rule of law concept developed from the English doctrine that all men are equal before the law. It implies the subordination of the three arms of government (i.e. executive, legislature and judiciary) to legal process under ordinary law. All persons are to have access to and be treated equally before the law. Government is restricted from the arbitrary exercise of power and a person may not be punished except for a breach of law, as found in the courts.
The rule of law is premised on the sovereignty of the law-makers as the peak body of an elected government, i.e. the legislature. It is given a democratic mandate to make law to resolve political issues affecting its electors. To ensure the legislature’s democratic basis is maintained, the rule of law makes it accountable to the people and courts. The separation of power between the legislature, executive and judiciary, and the fundamental rights of the represented people, such as to freedom of speech, association and elections, create checks and balances that are legal safeguards for the democracy under rule of law. Lawyers also play a key role by upholding professional ethics that require they follow rather than bend the law. To maintain the rule of law, they should be independent of governmental influence, serve with fidelity and without personal political bias, and not abuse legal process for a client’s benefit.
Legal systems are more prone to bending by lawfare warriors if they lack these safeguards for democratic accountability. International law is one such weak plank in the platform for rule of law and susceptible to easy misuse as it lacks the democratic mandate of the world’s ‘public’ that is the fundamental premise of the concept of the rule of law. Much of its rule-making is made by committees of representatives from unelected governments. Nor are they otherwise accountable to the “international community” – an amorphous society not represented under democratic electoral rules typically found in an open and accountable polity. It comprises multiple law-making systems without a consistent integrating hierarchy. It lacks a separation of powers between the various arms of international government to provide checks and balances against abuses of legislative, executive or judicial fiat. Nor does it have other democratic safeguards: its subjects are not protected by meaningful guarantees for their political freedoms and its legal practitioners are not accountable for their professional ethics.
Nevertheless, the international legal system operates reasonably satisfactorily despite these deficiencies. It “muddles through” issues of legitimacy and accountability. Vaguely articulated “consensuses”, confidential committee processes and procedural flexibility are used without dire consequence, as outcomes usually lack enforceability and implementation is weakly monitored. International law is essential in everyone’s life and does huge good in the world. Think of trade, transport and telecommunications, as well international cooperation in shared and trans-boundary resource management. Undeniably, international law does far more good than harm. However, international law lacks the democratic legitimacy and institutional machinery necessary for its system to be characterised as being under the “rule of law”. It is vulnerable to arbitrary abuses of legal power, and is thus susceptible to what might be called the “misrule of law”.
Such misrule does do harm. The authority, integrity and utility of the international legal system itself erodes, as suggested by the decline in disputes that democratic developed countries bring for resolution by the World Court these days. The victims of misrule, whether states or individuals, are isolated, bullied and injured. Israel has long been a victim of such bullying, demonstrated by the anti-Israel fixation of the UN Human Rights Council, prosecutions for alleged universal crimes, political blockades in international fora, and the Boycott Divestment and Sanctions campaign. Such practices of discrimination, demonisation and double standards – disregarding equality before the law – demonstrate the vulnerability of international law to abuse.
Australia has strongly identified its interests in the rule of law. It is a constitutional monarchy, founded upon the rule of law and its legal system functions relatively fairly and free of corruption. This provides benefits of domestic security and stability.
Australia also advocates the rule of law internationally to promote its regional objectives. In the Asia Pacific region, its governments promote justice building programs and law enforcement strengthening through international aid, such as in Papua New Guinea and Indonesia. In the cases of RAMSI (Regional Assistance Mission to the Solomon Islands), UNTAET (UN Transitional Administration in East Timor) and UNTAC (UN Transitional Authority in Cambodia), Australia took a leading role in concert with others to multiply its effect in implementing justice systems. In all cases, the effective rule of law is seen as promoting security and stability in a turbulent region.
Advocating the rule of law also provides opportunities for Australia, as a middle power, to “punch above its weight” in global geo-political fora. Its leverage strengthens Australian advocacy for orderly international relations and gives a legal basis for measures to strengthen or restore the geo-political order when it breaks down. For example, international law may provide a basis for strengthening human rights to stabilise post-conflict societies.
Conversely, Australian governments have demonstrated awareness of the threat posed by lawfare to the national interest. The distinction between lawfare and the rule of law, and the harm that the former does to the latter, seems to be understood across the major political parties. The current Labor government voted in 2010 against the holding of the Durban III, the third World Conference Against Racism, because the previous two conferences under the guise of advancing human rights perversely provided platforms for anti-Israel and antisemitic hatred. The previous government, a coalition of the Liberal and National parties, lodged an Australian objection to the World Court’s proceedings on the legality of the Israeli separation barrier in 2003, asserting that it lacked jurisdiction, and also voted against adoption of the court’s decision in the UN General Assembly in 2004.
Australia has direct interests in preventing itself from becoming a target of lawfare also. Australian Defence Forces personnel are exposed to the risk of lawfare attacks wherever they are deployed around the world (Afghanistan, Cyprus, East Timor, Egypt, Iraq, Sudan, etc.). In 2010, three 1st Commando Regiment troops, the first Australian soldiers to be prosecuted for war crimes, were charged by the Director of Military Prosecutions. The accusations arose over deaths in Afghanistan during an Australian raid on a compound allegedly hiding Taliban insurgents. It is said that, on being targeted by gunfire, the troops wrongly threw a grenade at the source, causing the deaths of five children. The accusations were made by members of the family involved and were supported and sensationalised by the SBS television network. Further, although the charges are yet to be proved, they demoralise Australian troops and may induce the Australian military’s adoption of tighter constraints on use of lethal force in counter-insurgency operations. A lawfare win for the expanded use of children as human shields by the Taliban.
Renewing Old Laws for New Battlefields
Compliance with international law is not a concern that constrains contemporary insurgents, rebels or terrorists. The use of civilian shields by militarily weaker parties is now common practice in asymmetrical battles. The kidnapping of civilians for hostages or, sometimes, for grotesque beheading spectacles, together with massacres in markets, mosques, theatres, trains, buses, etc., are the stock in trade of militarily disadvantaged parties to demoralise militarily stronger foes. In 21st century asymmetrical conflict, multiplier effects of real time publicity, global reach and mass media transmission have created new battlefields with new strategies and tactics.
There is a reverse asymmetry here, as only militarily more powerful parties are held back by formally institutionalised legal restraints. Only they operate typically within a hierarchical command in an open and democratic society accountable to the public and under the law. The rule of law applies in one direction alone. This legal disadvantage has been described as democracy ‘fighting with one hand tied behind its back’. That an institutionalised democratic society is held back by law, in contrast to its opponent, is an inevitable reflection of the different structures of the conflicting parties. However, in these new battlefields, the international legal constraints need careful and critical examination. The international law currently being applied is not perfect and immutable. It inevitably needs some reconsideration and elaboration.
The 1949 Geneva Conventions responded to the lessons of the Second World War, presuming that combatants would fight predominantly interstate wars under a command responsible for the conduct of its subordinates and subject to internal discipline to enforce compliance with humanitarian law. They do not address combatants outside that framework, such as insurgents fighting in the non-interstate conflicts familiar today, except incidentally. These combatants lack definite responsibilities and there is controversy as to their rights. There is also ambiguity as to what thresholds of violence need to be crossed in low-level hostilities to trigger the application of the laws of armed conflict anyway and as to which rules then apply in particular situations. More guidance is needed as to how, for example, international combat standards of proportionality and distinction apply when the enemy deliberately merges indistinguishably with civilians in low intensity violent conflict. How do law enforcement and peacekeeping integrate with military armed force and counter-insurgency in these circumstances? To what extent might human rights law apply in counter-insurgency on foreign soil?
The multiple uncertainties in the applicable international humanitarian rules, together with the ease of misuse of international law generally, make these particular rules readily susceptible to manipulation for lawfare. Although the inadequacy of the existing international humanitarian law is denied by the International Committee of the Red Cross, which is anxious that no humanitarian protections be suspended or attenuated, it is evident on the new battlefields that some of the laws from mid last century are ill-suited to contemporary realities.
The old law needs to be amended and supplemented to adapt to the new battlefields. Clarifications of the ambiguities are needed to crystallise international principles for detaining, prosecuting or targeting of suspected combatants and for facilitating interoperability between police and military forces in counter-terrorism, counter-insurgency and stabilisation operations. There is a need to adopt appropriate defensive strategies and tactics against lawfare. To do nothing to defend oneself in the current lawfare battle means, simply, to lose.
Gregory Rose is Professor of Law at the University of Wollongong and a specialist in International Law.