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Lawfare, the Latest in Asymmetries - Part Two

May 22, 2003
Council on Foreign Relations

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[Note: A transcript of this meeting is unavailable. The discussion is summarized below.]

The seventh and final session of the FY03 National Security Roundtable was held on May 22, 2003. Building on the March discussion of lawfare from a legal perspective, the May Roundtable took a strategic approach, focusing on ways to counteract lawfare. Three experts on the topic made short opening presentations. Following the presentations, Gen. Trainor moderated the discussion.

What We Know

Although the United States military is the most powerful in the world, it faces a growing challenge from lawfare. Lawfare is a strategy of using or misusing law as a substitute for traditional military means to achieve military objectives. It is often used to fight a stronger opponent asymmetrically, targeting the opponent's vulnerabilities, such as domestic public opinion. The Roundtable discussed two major types of lawfare, that practiced by adversaries and lawfare efforts of international groups.

The first type of lawfare is asymmetrical warfare. During the recent conflict with Iraq, allied forces were the target of a persistent lawfare campaign. Even before the conflict began, international activists used legal means to try to declare military action illegitimate. In coordination with the Iraqi authorities, human shields were positioned at prospective targets to disrupt American war plans.

Once the allies invaded, Saddam's fedayeen attacked American and British troops from civilian areas in an attempt to cause civilian casualties. The Iraqi Information Ministry conducted daily briefings in which they accused American forces of wartime atrocities. This information campaign had limited success given the numerous Western journalists embedded with allied forces, but was convincing to many in the Arab world.

A second type of lawfare is often conducted during peacetime by international groups and service organizations. As one panelist noted, these groups attempt to restrict the use of certain types of weapons, many of which are used by the U.S. military. Examples include efforts to ban land mines, cluster munitions, space weapons, blinding lasers, testing of nuclear weapons, and even certain types of ammunition. These campaigns impose increased costs on the American military and can affect its wartime performance.

What We Do Not Know

Although this was the second roundtable discussion on lawfare, its definition and the limits of the phenomenon are still vague. With each conflict, new lawfare actions are used to counter American military predominance, making it difficult to forecast future lawfare tactics. The lack of a clear definition and the many activities covered by the term make it impossible to plan one response to all types of lawfare.

While an effective public diplomacy campaign and greater media access can help fight lawfare during wartime, there was little agreement about how to respond to peacetime lawfare. Some suggested withholding U.S. funding from international service groups that use these tactics or at least restricting the activities funded by U.S. contributions.

Others thought this was extreme and suggested that given the preponderance of American power, the military might be able to ignore some types of lawfare. Similarly, some felt that the United States should always reserve the right to disregard international legal restrictions in extreme circumstances. For example, we can sign agreements banning the torture of detainees, but in an extreme case involving a possible terrorist attack, we may need to set aside these regulations. A number of lawyers present argued that this sets a bad precedent and might have the effect of weakening general respect for the law.

What are the Next Steps?

From the discussions during this month's and March's roundtables, it is clear that further analysis of this topic is required.

This issue requires further study because of the changing nature of lawfare and the increased frequency of its use. As long as America remains the sole superpower, its opponents will increasingly use asymmetric means to attack its power.

The most successful response to lawfare in the recent past has been a concerted public diplomacy campaign, particularly by the Defense Department. The decision to embed journalists with combat units in Iraq played an integral role in counteracting false Iraqi claims and showing that American forces respect human rights and the law of armed conflict. If the United States is to win the lawfare battle, openness and honesty are important. If the world can be convinced that the U.S. military is professional and law abiding, attacks using lawfare will ultimately fail.

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