Lawfare is the use of

legal system The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history an ...

s and

institutions Institutions are humanly devised structures of rules and norms that shape and constrain individual behavior. All definitions of institutions generally entail that there is a level of persistence and continuity. Laws, rules, social conventions a ...

to damage or delegitimize an opponent, or to deter individual's usage of their legal rights.''Unrestricted Warfare''
p. 55
The term may refer to the use of legal systems and principles against an enemy, such as by damaging or delegitimizing them, wasting their time and money (e.g.

SLAPP suit Strategic lawsuits against public participation (also known as SLAPP suits or intimidation lawsuits), or strategic litigation against public participation, are lawsuits intended to censor, intimidate, and silence critics by burdening them with ...

s), or winning a

public relations Public relations (PR) is the practice of managing and disseminating information from an individual or an organization (such as a business, government agency, or a nonprofit organization) to the public in order to influence their perception. P ...

victory. Alternatively, it may describe a tactic used by repressive regimes to label and discourage

civil society Civil society can be understood as the "third sector" of society, distinct from government and business, and including the family and the private sphere.legal right Some philosophers distinguish two types of rights, natural rights and legal rights. * Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are ''universal'', ''fundamental right ...

s via national or international legal systems. This is especially common in situations when individuals and civil society use non-violent methods to highlight or oppose

discrimination Discrimination is the act of making unjustified distinctions between people based on the groups, classes, or other categories to which they belong or are perceived to belong. People may be discriminated on the basis of race, gender, age, relig ...

corruption Corruption is a form of dishonesty or a criminal offense which is undertaken by a person or an organization which is entrusted in a position of authority, in order to acquire illicit benefits or abuse power for one's personal gain. Corruption m ...

, lack of

democracy Democracy (From grc, δημοκρατία, dēmokratía, ''dēmos'' 'people' and ''kratos'' 'rule') is a form of government in which the people have the authority to deliberate and decide legislation (" direct democracy"), or to choose gov ...

, limiting

freedom of speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...

, violations of

human rights Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...

and violations of

international humanitarian law International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war (''jus in bello''). It is a branch of international law that seeks to limit the effects of armed conflict by prot ...

Etymology

The term is a

portmanteau A portmanteau word, or portmanteau (, ) is a blend of words A more frequently cited use of the term was

Charles J. Dunlap, Jr. Major General Charles J. Dunlap Jr. (born June 16, 1950) retired in February 2010 as the deputy judge advocate general, Headquarters U.S. Air Force, Washington, D.C. As of 2018, Dunlap is executive director of Duke Law School's Centre on Law ...

's 2001 essay authored for Harvard's Carr Center. In that essay, Dunlap defines lawfare as "the use of law as a weapon of war". He later expanded on the definition, explaining lawfare was "the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting" a superior military power. Colonel Charles Dunlap describes lawfare as "a method of warfare where law is used as a means of realizing a military objective". In this sense lawfare may be a more humane substitute for military conflict. Colonel Dunlap considers lawfare overall a "cynical manipulation of the rule of law and the humanitarian values it represents".

Benjamin Wittes Benjamin Wittes (born November 5, 1969) is an American legal journalist and Senior Fellow in Governance Studies at the Brookings Institution, where he is the Research Director in Public Law, and Co-Director of the Harvard Law School–Brookings ...

, Robert Chesney, and

Jack Goldsmith Jack Landman Goldsmith III (born September 26, 1962) is an American legal scholar. He is a professor at Harvard Law School who has written extensively in the fields of international law, civil procedure, federal courts, conflict of laws, and na ...

employed the word in the name of the

Lawfare Blog ''Lawfare'' is an American blog dedicated to national security issues, published by the Lawfare Institute in cooperation with the Brookings Institution. It has received attention for articles on Donald Trump's presidency. Background The blog ...

, which focuses on national security law and which has explored the term and the debate over what lawfare means and whether it should be considered exclusively a pejorative.

Universal jurisdiction

Lawfare may involve the law of a nation turned against its own officials, but more recently it has been associated with the spread of

universal jurisdiction Universal jurisdiction is a legal principle that allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, ...

, that is, one nation or an international organization hosted by that nation reaching out to seize and prosecute officials of another.

Israeli–Palestinian conflict

Many cases have been brought forward against Israeli officials and those associated with Israel's military, accusing them of war crimes. These cases have been heard in both Israel and in other countries. According to Canadian MP and former minister

Irwin Cotler Irwin Cotler, PC, OC, OQ (born May 8, 1940) is a retired Canadian politician who was Member of Parliament for Mount Royal from 1999 to 2015. He served as the Minister of Justice and Attorney General of Canada from 2003 until the Liberal gov ...

, the use of law to delegitimize Israel is present in five areas:

United Nations The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...

international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...

humanitarian law International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war (''jus in bello''). It is a branch of international law that seeks to limit the effects of armed conflict by pro ...

, the struggle against

racism Racism is the belief that groups of humans possess different behavioral traits corresponding to inherited attributes and can be divided based on the superiority of one race over another. It may also mean prejudice, discrimination, or antagonism ...

and the struggle against

genocide Genocide is the intentional destruction of a people—usually defined as an ethnic, national, racial, or religious group—in whole or in part. Raphael Lemkin coined the term in 1944, combining the Greek word (, "race, people") with the Latin ...

Joshua Mintz Joshua David Mintz (born August 22, 1965 in Mexico City, Mexico) is a Mexican TV executive. Mintz has held leadership and production positions in the four most important Hispanic TV networks in the US and Mexico, having worked at Telemundo, Tele ...

, writing in ''

The Jerusalem Post ''The Jerusalem Post'' is a broadsheet newspaper based in Jerusalem, founded in 1932 during the British Mandate of Palestine by Gershon Agron as ''The Palestine Post''. In 1950, it changed its name to ''The Jerusalem Post''. In 2004, the paper w ...

'' in September 2011, referring to the Israel fears of lawfare, says, "it's quite possible that Israel, at least within the legal landscape, may actually benefit from the Palestinian statehood bid."

South China Sea dispute

In contrast to most world governments, the

People's Republic of China China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's most populous country, with a population exceeding 1.4 billion, slightly ahead of India. China spans the equivalent of five time zones and ...

has explicitly recognized lawfare ("falu zhan" or "legal warfare") as an essential component of its strategic doctrine. The activities of the

in relation to the

territorial disputes in the South China Sea Territorial disputes in the South China Sea involve conflicting island and maritime claims in the region by several sovereign states, namely Brunei, the People's Republic of China (PRC), Taiwan (Republic of China/ROC), Indonesia, Malaysia, Ph ...

is frequently cited example of lawfare by the Chinese government. In particular, China has asserted sovereign control over several areas in the

South China Sea The South China Sea is a marginal sea of the Western Pacific Ocean. It is bounded in the north by the shores of South China (hence the name), in the west by the Indochinese Peninsula, in the east by the islands of Taiwan and northwestern Phil ...

, and has restricted access to areas within its alleged sovereign territory or exclusive economic zone. In support of its claims, China has issued official state declarations (e.g., notes verbal) and enacted domestic laws that assert its sovereignty or effective control of portions of the sea.

Other examples

The government of China has used lawsuits in foreign courts to repress Chinese dissidents abroad. Harvard School of Law professor

, an opponent to the expansion of international human rights and universal jurisdiction, states in his book ''The Terror Presidency'' that Defense Secretary

Donald Rumsfeld Donald Henry Rumsfeld (July 9, 1932 – June 29, 2021) was an American politician, government official and businessman who served as Secretary of Defense from 1975 to 1977 under president Gerald Ford, and again from 2001 to 2006 under Presi ...

was concerned with the possibility of lawfare waged against Bush administration officials, and that Rumsfeld "could expect to be on top of the list".(discussing civil lawsuit against Donald Rumsfeld by Donald Vance, a Navy veteran who says he was tortured in an Iraq prison in 2006). Rumsfeld addresses the effects of lawfare in his memoir ''Known and Unknown''.

References

{{Propaganda Political neologisms Warfare post-1945 Psychological warfare Propaganda techniques Public relations International criminal law Law of war National security International security War on terror Counterterrorism