Lawfare is the practice of using the legal system, the rules and institutions of law to accomplish political or military goals. The use of courts, treaties, criminal investigations, sanctions, and public legal claims to weaken an opponent is another way for states, armed groups, political movements, and private actors to do so, in addition to relying on soldiers, weapons, and economic pressure. The word does not imply that the law is a bad thing in itself. Instead, it emphasizes the role of law as a tool of conflict in order to gain an advantage in litigation, prosecution or legal pressure.
The Expanding Battlefield
Conflicts today are much more than the classic arena of armed combat. What governments and the armed forces can do is influenced by international humanitarian law, human rights law, trade rules, maritime law, and domestic criminal statutes. A military action can be questioned in an international court; a political head can be issued with an arrest warrant in a foreign country; a company can be sanctioned for its support of a hostile state. These can have impacts on military planning, diplomatic relations, public opinion, and financial stability.
The strength of lawfare is that legal arguments can give legitimacy. A state can get allies and neutral countries to approve of its actions if it characterizes them as “self-defence”, “counterterrorism” or “enforcement of international law”. Meanwhile, an adversary may have recourse to the legal system to allege that that state has committed war crimes, unlawful occupation, genocide, or treaty violations. The process of adjudication can also be costly, even if the case does not lead to a final verdict or decision, in terms of reputational damage or restrictions on travel, legal fees, or political attention.
Tools of Legal Conflict
Tools of lawfare include court actions, administrative and regulatory actions. International tribunals have jurisdiction over alleged violations of the laws of war. In some cases, national courts have jurisdiction over crimes committed outside their borders. Governments have the ability to impose sanctions, freeze assets, limit visas and/or ban trade with designated entities and persons.
Campaigns can also be legal campaigns that address information and narrative. Human rights groups, journalists, lawyers, and advocacy groups can gather evidence, publish reports, and present cases to courts or treaty bodies. They can force governments to change policies or hold the military back. This in some instances increases accountability and provides victims a route to justice. In other cases, actors might file weak or politically-motivated claims, mostly to distract, stigmatize, or burden an opponent.
Lawfare and Democratic Politics
Lawfare does not apply just to international conflict. In democratic societies, law may be a battleground over intense political conflict. Political leaders and institutions could be significantly affected by allegations of corruption, election disputes, defamation actions, campaign-finance probes, and constitutional challenges. An important principle of democracy is that there must be legal accountability, but the distinction between legitimate enforcement and weaponized prosecution can be a matter of contestation.
The risk lies in the fact that the law is applied in a partisan way, delayed on purpose or exaggerated for political benefits. A government can look into the opposition’s eyes and investigate while turning a blind eye to allies. Political groups can file lawsuits to drain opponents or discourage dissemination of information. At the other end of the spectrum, influential politicians can accuse any probe of “lawfare” so as to sidestep proper investigation. So the word should be used with caution: there is not an abundance of political cases where the law is abused.
Law, Legitimacy, and Restraint
The heart of the lawfare is that law can be used to limit the power and law can be used to serve the power. The institutions of law are intended to take the place of arbitrary force with rules, evidence, due process and accountability. They can have a civilian protective role when they operate on their own, and they can have a punitive role to fight abuses, resolve conflicts and prevent escalation. However, their power can be used wrongly by those who play with the words rather than uphold the spirit of the law.
One of the challenges of lawfare is the need to have more robust institutions, not contempt for law. Courts must be independent, investigators must have credible evidence and governments must apply the law consistently. International organizations must make it clear what their powers are and how they work; media and people must differentiate between serious legal claims and propaganda. Today, law has entered the war zone, in a hybrid world of conflict. But its greatest value is that it does not have to become one more weapon; it is just as important to maintain boundaries on those who would use all the weapons at their disposal to win.