In the 16th century, Niccolo Machiavelli wrote:
You must understand, therefore, that there are two ways of fighting: by law or by force. The first way is natural to men, and the second to beasts. But as the first way often proves inadequate one must needs have recourse to the second. So a prince must understand how to make a nice use of the beast and the man.
This notion of using law as a strategic tool is not the thing for which Machiavelli is most remembered. However, the idea has recently resurfaced. “Lawfare replaces warfare and the duel is with words rather than swords,” wrote John Carlson and Neville Yeomans in the 1970’s. “Small nations hope to use the rules to protect their own interests, while large nations attempt to utilize the rules to control other nations,” wrote Chinese strategists Qiao Liang and Wang Xiangsui in 1999.
And the man normally credited with thrusting this notion to the forefront of Western security strategy is Air Force Major General Charles Dunlap. In a 2001 essay, he asked:
Is lawfare turning warfare into unfair? 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?
Dunlap’s answer was yes. He argued that “the rule of law is being hijacked into just another way of fighting (lawfare), to the detriment of humanitarian values as as the law itself.” His proposed solution, though, was to revise and strengthen the law of armed conflict (LOAC). He wrote:
We also must have a better linkage between those knowledgeable of military affairs and those civilian specialists expert in LOAC. Only productive cooperation can achieve the critical mass necessary to sustain international law as a guiding element in military interventions. We should encourage other nations to develop a robust cadre of uniformed lawyers ready to provide insightful advice to commanders in the field. Finally, we must not allow thoughtless, ill-informed, and politically motivated accusations to trivialize LOAC’s fundamental principles. If it does, LOAC will lose its credibility with the very people – and the very nation – it most needs to make certain it is observed and, more importantly, preserved.
Donald Rumsfeld, as Defense Secretary, seized on this lawfare notion, but argued the opposite solution. Contrary to Dunlap’s proposal of strengthening the law, Rumsfeld advocated dislodging the U.S. from its international legal obligations. However, his proposal fell flat, in part over State Department and Justice Department objections. As Jack Goldsmith wrote in this book:
The Department of State argued that any effort by the United States to oppose the increasingly powerful institutions of international justice would seem like a defensive admission of the very war crimes charges it wanted to avoid. The effort would also smack of hypocrisy, the State Department emphasized, since the United States aggressively used human rights institutions – including universal jurisdiction lawsuits – to check human rights abuses by other nations. The Department of Justice also opposed any anti-universal jurisdiction campaign on the ground that it would jeopardize its ability to bring its own universal jurisdiction prosecutions against foreign leaders and terrorists.
In other words, law could not be divorced from security strategy. Dunlap’s further assessments of the wars in Iraq and Afghanistan underscore this point. He said in 2005 of the Abu Ghraib abuses that they “had the same effect as a traditional defeat. The reality is Americans have died and will continue to die as an indirect result of this. It energized the enemy, it eroded the Coalition, it achieved all those kinds of things that you would want if you were going to oppose it through a battlefield defeat.” He wrote in 2007 of an International Security Assistance Force (ISAF) spokesman’s statement that ISAF would not attack Afghan military targets if they knew civilians were nearby, “this statement does not reflect the law, and in fact could put even more of the truly innocent at risk.”
What role does international and domestic law truly play in the world order? What are the political and strategic consequences of violating the law? How can international law be improved to better ensure global security? How has international law and its role evolved throughout history?
This blog will examine these questions.
