Counterlawfare in Counterinsurgency

In recent years, something akin to a cottage industry has grown around the definition, analysis, and denouncement of “lawfare” as a strategy in asymmetric conflict. Many of these political commentaries and analyses have interpreted the effectiveness of “lawfare” tactics as evidence of the dangers inherent to international legal institutions, media organizations, and human rights NGO’s as enablers of anti-American forces in the international system. Supporters of this widely supported view argue that for the United States and its allies to successfully combat terrorist or insurgent organizations in Iraq, Afghanistan, and elsewhere, the United States must oppose and eventually rollback the influence of international legal norms both in the United States and abroad. The strategy implied by this interpretation of the contemporary battlespace is both ill-informed and militarily damaging. Counterinsurgency theory and historical experience both suggest that international legal institutions, media outlets, human rights NGO’s, and other supposed pawns of insurgent “lawfare” strategies can and should be leveraged to the United States advantage in low-intensity conflict as part of a focused and coherent “counterlawfare” strategy.

Defining Lawfare

To formulate an effective counterlawfare strategy, lawfare itself must be clearly defined. While many alternative definitions of “lawfare” have been suggested, almost all fail to recognize the significance of the term in the context of the work that popularized its use in the counterinsurgency community.[1] Returning to this foundational understanding of lawfare, namely that of an increasingly significant lever in twenty-first century conflict, clears the way for deeper analysis of insurgent lawfare strategies and how best they might be countered.

The current popular misunderstanding of lawfare as a strategic concept is largely a result of the term’s misappropriation by a wave of op-ed and analysis pieces published during the Bush Administration. In one way or another, these newspaper and blog articles usually invoked the term with reference to the United States’ Guantanamo Bay detention facilities or the broader “War on Terror.” The application of the term “lawfare” was particularly favored in discussions of detainee treatment and right to legal counsel.  As a result of this pattern, although the term’s was originally intended to serve in a strictly military context, lawfare came to be perceived as synonymous with anti-American litigation on the part of unpatriotic human rights lawyers.[2]

This stretching of the term “lawfare” to include a wide variety of legal and extra-legal dynamics unrelated to asymmetric conflict is inherently unproductive and usually results in outright politicization what was originally an apolitical concept. Commentators Alan Dershowitz and Elizabeth Samson, for example, construe the term lawfare to include libel lawsuits by Islamic charity organizations against private entities since such lawsuits are intended to “silence critics of controversial Islamic organizations.”[3] Similarly, Brooke Goldstein of the New York Hudson Institute formulated her own definition of lawfare to include a wide variety of legal proceedings with no clear connection to asymmetric conflict:

[Lawfare] techniques include frivolous and predatory libel and “hate speech” lawsuits brought against authors, politicians, members of the media, and even cartoonists who are brave enough to speak publically about, or satirically on, issues of national security and public concern. The techniques also include workplace harassment lawsuits against counter-terrorism experts that our military and police officers about radical Islam.[4]

The term has also been stretched to include the legal work of various human rights NGOs organization as well as the court-martial of U.S. Navy SEALs for prisoner abuse and lying under oath.[5] It should be noted that the vast majority of these definitions, all of which fail to define lawfare in a general sense, and tend to focus on supposed instances of lawfare without contextualizing them within a broader strategic or theoretical framework.

By contrast, the definition offered by Major General Charles. J Dunlap, who actually coined the term “lawfare”, at least in its modern usage, is far more specific in its description of what constitutes an act of lawfare. According to Dunlap, the most refined definition of lawfare available today is “the strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.”[6] In comparison to the alternative set of definitions and usages of “lawfare” promulgated by Dershowitz, Samson, and Goldstein, the Dunlap’s relatively austere definition promises several advantages. First, and perhaps most significantly, it avoids reducing the concept of “lawfare” to a conservative catch-phrase in debates over civil liberties. Second, its greater generality promises a wider and more flexible scope than definitions which construct “lawfare” as a purely insurgent strategy. Third, and most significantly, Dunlap’s definition (in part as a result of its greater flexibility) allows for the possibility of state actors developing effective lawfare strategies of their own.

Dunlap recognizes this last advantage by asserting that “lawfare is more than something adversaries seek to use against law-abiding societies; it is a resource that democratic militaries can—and should—employ affirmatively.”[7] In other words, rather than abandoning the legal battlespace to asymmetric opponents, modern militaries should seek to map the contours of international law (particularly the law of armed conflict) and structure their operations accordingly.

Before moving on, it should be noted that while the relationship between lawfare and asymmetric warfare remains conceptually underdeveloped, a few significant steps have been take to orient questions of law within contemporary U.S. national security strategy and military doctrine. One of the earliest examples of this sort of integration is found in Section IX of the 2005 U.S. National Security Strategy. According to the document, the United States’ interests depend on taking,

The actions necessary to ensure that our efforts to meet our global security and protect Americans are not impaired by the potential for investigations, inquiry, or prosecution by the International Criminal Court (ICC), whose jurisdiction does not extend to Americans and which we do not accept.[8]

The statement is significant insofar as it identifies international law, for the first time in a major statement of policy, as a potential strategic liability for the United States. Furthermore, the 2005 National Defense Strategy holds that lawfare is here to stay, stating that “our strength as a nation will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.”[9] Taken together, these statements suggest that the United States has taken note of emerging relationships between law and strategy.

“Lawfare” in Counterinsurgency

Although the introduction of lawfare concepts into U.S. and NATO operational planning has already begun, much remains to be done in establishing the legal battlespace as a leading concern in higher-level strategic planning. Moreover, the need for such a shift is not likely to dissipate anytime soon, since it is nowhere more crucial than in the small wars western militaries are already waging, and will continue to wage, for the foreseeable future. As a result, in Clausewitzean terms, it can be argued that law has become a key “center of gravity” in modern conflict. International legal scholar William G. Eckhardt offers a succinct description of this new reality, recognizing that:

Although the United States is not likely to lose militarily on the battlefield, the United States is far more vulnerable in the world court of public opinion. Knowing that our society so respects the rule of law that it demands compliance with it, our enemies carefully attack our military plans as illegal and immoral and our execution of those plans as contrary to the law of war.[10]

In response to this trend, the United States and its allies should ensure that military-legal preparations and capabilities are taken into account in the formulation of their respective counterinsurgency (COIN) doctrines and strategies. This task should not prove too arduous, at least at a conceptual level.

At this point, a case study is necessary to outline what shape these capacities might take. Fortunately, the Palestinian intifada offers several insights into the relationship between lawfare and counter-insurgency. The Palestinian Intifada, beginning on December 8, 1987, is a prime example of true lawfare in the context of insurgency. This particular episode in the conflict between Israel and its Palestinian population stemmed from a serious, but otherwise unremarkable, traffic accident in which an Israeli truck struck a vehicle carrying Palestinian workers, killing four and injuring several others.[11] The similarly unremarkable riot that followed was viewed with little concern by Israeli authorities. Then something unexpected transpired. Throughout the Israeli occupied Gaza strip (the area in which the accident occurred), Palestinians took to the streets in spontaneous demonstrations, seizing the moment to express popular frustration and anger over years of Israeli mistreatment. Even more surprisingly, when an Israeli Defense Force (IDF) patrol attempted to disperse the demonstrators, they were driven back into their compound. Another Israeli military compound was surrounded and pelted with Molotov cocktails and stones by enraged locals.

Normal Israeli countermeasures, such as shots fired in the air, continued to prove ineffective. After the riots failed to disperse at nightfall (as would usually be the case), it became clear to Israeli intelligence that the disturbances were something unusual and that the people of Gaza had found a new type of resistance against Israeli occupation. Nevertheless, even after two days of uninterrupted rioting, major authorities on both sides failed to acknowledge the significance of these developments.[12] The Israeli minister of defense decided not to cancel his trip to the United States and, even more amazingly, failed to dispatch IDF reinforcements to Gaza until December 18. On the Palestinian side, Yassir Arafat’s Palestinian Authority, then located in Tunisia, was also taken by surprise and failed to take action until December 19, only after the uprising had spread to the West Bank. Even then, only two members of Arafat’s organizations responded, the brothers Mohammed and Majid Labani, by positioning activists in Jerusalem who triggered city-wide riots that quickly overwhelmed the local Israeli police force.

From the way events transpired, it is clear that Arafat’s organization lagged behind what was happening on the ground in part because failed to understand the nature of the movement it aimed to exert influence over.[13] Consider that the first action taken by the Palestinian Authority was to order their armed units to attacks Israeli patrols and installations. By the time this order was issued, Palestinians at street-level had discerned that the only form of resistance the IDF was ill-equipped to control were unarmed attacks by rock-throwing protesters. As a result, when Arafat’s orders were received, they were simply ignored. In fact, protesters quietly went about disarming any students or activists who brought firearms to the streets. Somewhat comically, it took the Palestinian Authority several weeks to respond to this trend by reversing its orders and claiming credit for the lack of armed attacks by suggesting that the restriction on firearms was Arafat’s idea.[14]

Besides opposing Arafat’s early move towards the use of weapons against Israeli forces, local leaders of the intifada issued a number of other directives offering tactical guidance to Palestinian protestors, all of which had their basis in basic considerations of asymmetric warfare.[15] For example, the movement’s leaders understood that Palestinian demonstrators could not successfully engage the Israeli’s in struggle involving the use of modern weaponry. Giving the Israeli’s license to use lethal force in this manner would only assure the movement’s defeat. Moreover, using weapons would eliminate the most important advantage the Palestinians possessed: the image of rock-throwing young protesters fighting fully armed and armored Israeli security forces (the Israeli situation was further undermined by the fact that a rubber bullet looks much the same as an actual bullet on television). The same sort of reasoning led to the eventual abandonment of Molotov cocktails as makeshift munitions. After all, any Israeli use of force against fire-bomb wielding Palestinian’s would doubtlessly seem more reasonable than firing on unarmed teenagers.

There are numerous other examples of Palestinians leveraging international concern for the laws of armed conflict to achieve operational and strategic objectives during the intifada. For instance, demonstrators would often interpose woman and children between IDF units and demonstrators when international media, particularly of the televised variety, was present.[16] Indeed, the presence of cameras often served as a trigger for Palestinian action. Local leaders and ordinary protesters understood that provoking apparent violations of human rights law before a global audience would tend to erode both domestic and international support for Israel’s Palestine policy. In fact, this media-centric component of the Palestinian strategy became so crucial that Palestinian civil authorities developed a sophisticated system to ensure that international media was present at pre-planned protest sites.[17] It should be noted that the system was comprehensive enough to provide international journalists with free transportation, translation, documentation, and communication services.

This sort of image consciousness, underpinned by the local Palestinian leadership’s understanding of international human rights law, assured the eventual success of the first Intifada. After four years of sustained resistance, with only sixteen civilian and eleven Israeli military fatalities, the Palestinians successfully forced the Israelis to yield territory through their signing of the 1993 Oslo accords.

The Significance of Lawfare in Counterinsurgency

As the Palestine case demonstrates, international human rights law and the law of armed conflict can be utilized to mitigate or even neutralize the advantages of an otherwise militarily superior opponent. As the Intifada unfolded, the Israeli military failed to recognize the significance of the Palestinian’s hard-won advantage in the realm of international legal and moral opinion until it’s defense forces had lost most of their international and domestic support for continued operations in Gaza and the other occupied territories. More significantly, the case study suggests that the loss of international support engendered by Israel’s lack of attention to the legal dimension of its counter-insurgency campaign allowed the PLO to achieve a major military objective (securing a legal claim to the occupied territories) of the sort described by Dunlap in his definition of lawfare.

The progressive degradation of Israel’s legitimacy in the estimation of major media forces supports this intermediary conclusion. Note that after months of inconclusive fighting, major Israeli media outlets had begun to question the IDF’s approach to the conflict, adding credence to the argument that Israel’s heavy-handed security measures had become self-destructive. An early example of this trend came in a January 1989 Israeli News article which questioned why, despite Israeli success in targeting and arresting the Intifada’s local organizers, violence and casualties continued to increase.[18] It concluded that the movement’s continued vitality must be attributed, at least in part, to the PLO’s heightened international prestige. Not a month later, another news article published comments suggesting that at least some of the deaths of children involved in “protest activities” could not actually be attributed to deadly threats to soldiers’ lives.[19] Finally, in March 1990, an Op-Ed piece published in the Jerusalem Post gave voice to an emerging consensus among Israeli moderates that the IDF’s methods were not only moral, but inherently counter-productive.[20] Moreover, as domestic criticism mounted, the Israeli opposition began to seize on moral and strategic arguments of the IDF’s opponents to undermine Israel’s prevailing counter-insurgency strategy and the legitimacy of the ruling party.

While political wrangling undermined the IDF’s domestic support, Israel’s international image suffered greatly, with even Israel’s long-time ally, the United States, having begun to take potshots at the IDF’s human rights record. By mid-1990, Israel’s control over the conflict’s narrative had grown so tenuous that many influential American political figures, including former U.S. President Jimmy Carter, had begun to argue that the ongoing conflict was a direct result of Israeli human rights violations.[21] The analytical significance of these limited samples of public opinion from the conflict period stems from the effect they, in combination with a torrent of other commentaries, had on Israeli security policy. Indeed, their influence can hardly be underestimated. It seems clear that at the Intifada’s outset, few Israeli policymakers would have considered ceding territory to the occupied territories’ Palestinian population a viable option for resolving the conflict. By 1993, which saw the signing of the Oslo accords, Israel’s reluctance to relinquish its hold on the same territories seems to have dissolved.

The jarring nature of this shift is a prime example of the effects of lawfare, properly exercised, on the asymmetric battlespace. It also clarifies the nature of actual lawfare and the distinction between it and simple human rights litigation. In contrast to the erroneous understandings of lawfare outlined earlier, namely the sort adduced by Dershowitz, Samson, and Goldstein, the Palestinian Intifada suggests that the significance of lawfare does not lie strictly in its legal dimension, but rather in the impact of legality on public opinion. This in turn suggests that an effective counterlawfare strategy will not limit itself to, or even necessarily include, criticizing human rights litigators.

Counterlawfare for the 21^st Century

The question remains, if effective counterlawfare does not necessarily imply a propaganda campaign against human rights litigators or NGOs, what other shapes might it take? To answer this we must look more carefully at past efforts at managing the effects of lawfare and what might be done to modify or replace them. Since the United States has been the most cited targets of insurgent lawfare strategies in recent years, it makes sense to focus on its particular approach to counterlawfare made evident in its handling of the “War on Terror.” Generally speaking, it can be divided into three distinct components, namely: (1) Preparation of the Legal Battlespace; (2) Deny, Disrupt, Degrade; and (3) Delegitimize.[22]

The first component, preparation of the legal battlespace, involves efforts to establish legal authority for military activities before they are carried out. Since it involves quashing legal disputes before they emerge, preparation of the legal battlespace might best conceptualized as a preemptive counterlawfare tactic. Most often, it will involve laying out a convincing moral and legal case for armed action before the outbreak of hostilities. Examples of this sort of counterlawfare tactic include the Bush Administration’s appeal to the collective self-defense provision of the NATO Charter and its obtaining of a Joint Resolution of Congress providing Authorization for the Use of Military Force in preparation for its war in Afghanistan.[23] It would also include the Administration’s efforts to justify its denial of prisoner of war (POW) status to suspected terrorist detainees and the withholding of their Geneva Convention Common Article 3 rights.[24]

The second component of the United States’ counterlawfare strategy, namely deny, disrupt, and degrade, is as multifaceted as its name suggests. This somewhat more extreme branch of the Bush Administration’s counterlawfare efforts often involved denying detainees access to legal recourse or advice since, according to the Department of Justice, no international legal statute or customary law could apply to captured terrorists.[25] The government’s choice of detention facility could also be viewed as part of the denial strategy, the Guantanamo Bay facility having been selected in large part because it was considered to lie outside the jurisdiction of any court.[26] Indeed, even after a series of Supreme Court rulings granted Guantanamo prisoners basic legal protections (as in Hamdan v. Rumsfeld) the Administration, in collusion with Congress, continued its counterlawfare efforts by disrupting the implementation of U.S. Supreme Court rulings through creative legislation and bureaucratic obstruction of habeas corpus petitions.[27] Finally, the Administration would work to degrade the detainees’ the ability of the “enemy” by invoking the state secrets privilege to block lawsuits.[28] The third and final component of the Bush Administration’s counterlawfare strategy in the War on Terror, which consisted of the delegitimization of detainee humanitarian and legal rights, as well as those who sought to uphold them, has already been alluded to.

Taken together, it seems clear that despite their successful delay or obstruction of judicial proceedings related to terrorism suspects, the Bush Administration’s counterlawfare strategy could not silence moral and legal criticism of U.S. counterinsurgency efforts. In fact, while the likely objective of the strategy was to support continued prosecution of the War on Terror without affording U.S. opponents a major public relations coup, it can be credibly argued that the strategy, and particularly its denial, delay, and degrade component, actually played into insurgent hands. Even more to the point, the institutionalized unwillingness or incapability of U.S. political leaders to address basic legal or moral considerations (including but not limited to questions of detainee treatment), stood in the way of securing and retaining what is perhaps the most significant enabler of effective counterinsurgency, legitimacy.

By refusing to properly acknowledge the importance of international law in the prosecution of its counterinsurgency campaigns or in its public rhetoric, while demonizing its proponents as either unpatriotic or sympathetic to extremism, the United States’ historical counterlawfare strategy only weakens its hand. It has allowed insurgents to cast U.S. intransigence on questions of international humanitarian law, particularly when it comes to detainee treatment, as evidence of its despotic and injurious intentions in both Iraq and Afghanistan. The resilience of this narrative has also had a significant impact domestically, fueling anti-war sentiment and undercutting political support for the global counterinsurgency effort the United States is attempting to maintain. In this way, both deny, disrupt, and degrade and delegimization tactics have proven self-defeating. Rather than handing the United States’ enemies apparent evidence of American hypocrisy, American policymakers should formulate an effective counterlawfare strategy that projects a stringently law-abiding image.

To this end, it seems clear that at least the first component of the Bush Administration’s counterlawfare strategy, preparing the legal battlespace, should form the core of a new counterlawfare strategy. Indeed, it would not be an exaggeration to claim that preparing the legal battlespace may prove to be half the battle in countering insurgent propaganda efforts both domestically and internationally. By building an airtight legal and moral case before initiating hostilities, the United States will seize the initiative in the realm of public opinion without having to resort to counterproductive tactics of the sort identified earlier. Furthermore, in order to wage effective counterlawfare, the United States military must treat its relationship with human rights NGO’s as a potential strategic asset rather than a tedious distraction. This would include facilitating access to combat zones and internment facilities, moves which would help dispel concerns related to U.S. combat tactics and detainee treatment. Finally, U.S. policymakers should learn from the Israeli experience in the first Intifada and shape the Department of Defense’s public diplomatic capabilities accordingly. One promising idea would be to make a concerted effort to provide media organizations with ample visual evidence of insurgent human rights abuses. In this regard, deploying media teams tasked with recording these abuses and bringing them to the attention of war correspondents, whether in the form of recorded video or actual tours of the sites of insurgent human rights abuses, would be a masterstroke.

While the preceding analysis and discussion only scratch the surface of lawfare and its complex relationship with counterinsurgency, the suggestions offered highlight the necessity of adapting our traditional understanding of lawfare, particularly in Washington’s defense community, and developing more nuanced means of combatting it. Rather than viewing lawfare as a strategic sideshow or treating it as evidence of a flaw in U.S. or international law, the current administration should treat lawfare, both offensive and defensive, as an emerging opportunity for leveraging traditional American values, such as respect for the rule of law, into public diplomatic tools. Having accomplished this, the United States will have taken a crucial step towards developing an effective and sustainable counterinsurgency capability.

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