Lawfare

Perhaps the first use of the term 'lawfare' was in the 1975 manuscript Whither Goeth the Law, which argues that the Western legal system has become overly contentious and utilitarian as compared to the more humanitarian, norm-based Eastern system. A more frequently cited use of the term was Charles J. Dunlap, Jr.'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. 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, that is, one nation or an international organization hosted by that nation reaching out to seize and prosecute officials of another. 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, Robert Chesney, and Jack Goldsmith employed the word in the name of the Lawfare 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. (See: Welcome to Lawfare, By Benjamin Wittes. Wednesday, September 1, 2010; also see: About Lawfare: A Brief History of the Term and the Site, at: https://www.lawfareblog.com/about-lawfare-brief-history-term-and-site.) Benjamin Wittes, a senior fellow at the Brookings Institution, has argued that lawfare should not have only a negative connotation, but that it also refers to the sharply contested legal debates in the U.S. surrounding national security, and national security law. Wittes writes, 'The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others.' The Lawfare Project argues lawfare is exclusively negative, defining it as 'the abuse of Western laws and judicial systems to achieve strategic military or political ends'. From this perspective, lawfare consists of 'the negative manipulation of international and national human rights laws to accomplish purposes other than, or contrary to, those for which they were originally enacted'. In a 2010 speech on the topic, Lawfare Project Director Brooke Goldstein elaborated: