From Shield to Sword: Offensive Lawfare and the Role of Lawyers
Abstract
As lawfare becomes an increasingly central feature of modern conflict, the United States faces growing pressure to adopt a comprehensive strategy. However, in order to form the most effective lawfare strategy, the US must contend with the likelihood of offensive lawfare, where law itself is actively, and sometimes harmfully, deployed as a strategic instrument. This essay argues that military lawyers should be central to the design and execution of lawfare, ensuring both effectiveness and the preservation of legitimacy in contested legal and operational environments.
Lawfare—the use of law as a means of achieving strategic or military objectives—has become an increasingly important dimension of modern conflict. States and non-state actors alike now recognize that legal arguments and processes can shape outcomes on the battlefield as powerfully as weapons and traditional kinetic warfare. Recently, the discourse around lawfare has gained traction, with calls for the United States to adopt a “whole of government” strategy growing louder.
Yet lawfare has often been framed as a defensive strategy—what might be called counter-lawfare—focused on correcting adversaries’ distortions of the law and securing operational advantage. This framing risks obscuring lawfare’s most consequential dimension: the very real possibility that the United States could adopt offensive lawfare as part of its national defense strategy.
Lawyers should remain key players in the lawfare space to ensure that the strategic lawfare adopted remains bounded, credible, and distinct from the kinds of offensive lawfare practiced by adversaries like Russia and China.
Not only is the consideration of offensive lawfare important in developing broad US strategy on lawfare generally but it is also important when determining who should take the lead on developing such strategy. Because offensive lawfare involves active manipulation of legal processes and norms, it is lawyers—not irregular warfare (IW) operators or information operation practitioners, as some have proposed—who must be central actors in shaping and executing lawfare strategy. Lawfare is not merely a subset of influence or psychological operations. It is a form of strategic action in which legality is both the weapon and the source of authority.
Defining Counter-Lawfare and Offensive Lawfare
It is worth considering first the role that definitions play. Although the concept of lawfare has been around for quite a while, the term itself is still arguably in its teenage years. And because of the ubiquitous nature of a term that is supposed to capture the use of law as tool of war, decisive and clear-cut definitions of subcategories within that concept remain elusive. However, not all “lawfare” is created equal, and understanding the different ways in which lawfare could be employed is important to understanding its implications and, for the purposes of this article, who should lead.
What is counter-lawfare?
Counter-lawfare can be understood as the use of law to neutralize adversaries’ manipulations of institutions, claims, and norms—for example, challenging unlawful territorial assertions or resisting distortions of international treaties. Its aim is ultimately corrective: restoring law to its proper place in order to preserve operational and tactical advantage. The usage of this term is very new, most notably found in US Indo-Pacific Command’s (INDOPACOM) strategic planning as it attempts to counter aggressive Chinese territorial claims in the South China Sea.
What is offensive lawfare?
On the other hand, offensive lawfare can be defined as the deliberate use of law, legal processes, or legal arguments as an active instrument of strategy, aimed at compelling or constraining an adversary, or at shaping the operational environment to one’s advantage. It would properly differentiate classic counter-lawfare operations such as the US’ freedom of navigation operations and, for example, China’s abrupt declaration of an Air Defense Identification Zone over the East China Sea in 2013.
So what makes the difference between counter-lawfare and offensive lawfare so consequential? When considering hypothetical offensive lawfare operations, it quickly becomes clear how easily such a tool could be abused. More notable—and perhaps infamous—examples of strategic offensive lawfare include China’s island-building in the South China Sea and Russia’s “passportization” of the Donbas prior to its invasion of Ukraine, both of which were nearly universally condemned by Western states as flagrant abuses of the rule of law under the international legal order. Offensive lawfare subsequently includes instances where, rather than using the law to ensure international compliance in a militarily advantageous way, the lawfare agent is using the law to create legality and legitimacy in their own actions where none existed before.
Many commentators have cautioned that the United States should take heed and not “stoop” to using offensive lawfare. Employing it in the same way adversaries such as China have risks “erod[ing] legal norms or stealthily reshap[ing] the international legal system.” Similarly, former General and now Professor Dunlap included in his first definition of lawfare the possibility of the misuse of law as a substitute for traditional military means.
Even if not called “offensive” lawfare, this category is meant to encapsulate the kind of lawfare that requires the active manipulation of the law. Beyond the technical definition, the important, relevant piece here is simply that lawfare, when wielded in an offensive manner, holds undeniable risks to both operational success and the ethical foundation of our armed forces.
Why Offensive Lawfare Should be Treated as an Eventual Operational Reality
It is becoming increasingly difficult to dismiss the possibility that, even if the United States adopted a “whole of government” lawfare strategy, offensive lawfare would still be implemented despite warnings against it. This is because, first, the slope from counter-lawfare operations to offensive lawfare is slippery. For example, the legitimizing effect of a counter-lawfare operation meant to neutralize hostile legal maneuvers or narratives can quickly turn into an offensive narrative that, even if slight, shapes international perception in the favor of the state employing the counter-measure. If left unchecked, the reinforcement of a legal norm can morph into the deployment of law and legal language in an exploitative way, transforming international law from an apolitical reflection of state practice into a tool skewed by the self-interest of the powerful few.
Second, what exactly offensive lawfare might concretely look like for the U.S. on all three levels of warfare—strategic, operational, and tactical—remains elusive to even those deep in the lawfare space. Strategists cannot purposely avoid what strategists do not know. Although offensive lawfare on the strategic level is easy to paint with a broad brush on paper, it becomes very unclear how that might look on the ground. The closest existing literature on lawfare has gone to touching tactical-level implementation is when it encourages commanders to create “facts on the ground” for US future advantage. No examples are given, however.
Finally, given the current administration’s recent record of more aggressive military decisions, the Department of War with Secretary Pete Hegseth at its head is likely to take an offensive tilt when crafting new strategy toward China and Iran—and lawfare will be no exception.
Why the Lawyer is Best Suited to Rein in the Risks of Offensive Lawfare
Gray areas
Offensive lawfare operates in the gray areas of the law. For example, whether a military targeting operation was valid under the principle of proportionality depends on a host of factors, from the expected military harm, civilian harm, the nature and value of the target, etc. Thus, the legitimacy effect that makes lawfare so important comes not from the answer but from the work shown. The perceived legitimacy of any legal decision or action, therefore, rests on how strongly the reasoning and analysis holds up under both domestic and international scrutiny.
The more substantive legal argumentation supporting the narrative, the more plausible and legitimate the operation. In such a scenario, lawyers—in particular military lawyers—are best positioned to bolster this kind of legitimacy. JAGs have, since the Vietnam War, concerned themselves deeply with understanding compliance and, thus, legitimacy. Look no further than Article 82 of Additional Protocol I of the Geneva Conventions, which is a provision that obligates signatories to “ensure” that legal advisors are available to military commanders.
Other non-law military operators deep in the unconventional warfare space often lack the skill that comes with years and years of experience scrutinizing, analyzing, and applying the law—a skillset that is necessary for deftly arguing the legality of gray zones.
A key player in the role of public opinion
Second, the presence and work of military lawyers is important in the court of domestic public opinion on the legitimacy of lawfare operations. The legitimacy attached to such legal advisors is more salient now considering the current political environment. After Secretary Hegseth fired the top JAGs, the New York Times framed it as “his push to remake the military into a force that is more aggressive on the battlefield and potentially less hindered by the laws of armed conflict.” Even more recently, with respect to the militarization build-up in D.C., commentators have pointed to President Trump’s “purge” of the senior-level JAG Corps as evidence of eroding rule of law in the U.S. Whether or not this will actually be the case matters less than the perception. Ultimately, the general public perceive lawyers as institutionalists; in their eyes, military lawyers add a layer of trust and legitimacy to military operations that IW operators do not.
Lawyers are already involved in operational planning
Finally, the usefulness of lawyers extends beyond the legitimacy point. Some argue that lawyers do not operate in the key lawfare terrain that includes more unconventional warfare considerations such as public opinion, culture, and other information capabilities. However, although certainly not experts, such terrain is not alien to government lawyers by any means. It is important to note that JAGs who operate deep in the ops law space appreciate and reflect upon both policy considerations and those issues in the public eye. Without the lawyer’s ability to handle and navigate complex political issues, as well as potential moral and ethical dilemmas that arise during any given legal problem in the operational space, there is little to no difference between the rule-book and the JAG.
More than that, military lawyers already have experience in operational pre-planning and “shaping the battlefield.”Especially in the post-9/11 era, the reality is that JAGs are no longer simply the compliance unit of the military, nor are they pure legal positivists. At the tactical level, JAGs sit in brigade and division command posts during combat operations, advising on rules of engagement in real time as targeting decisions are made. At the operational level, they take part in campaign planning, shaping how objectives are pursued in compliance with Law of Armed Conflict (LoAC), often helping to draft the very fragmentary orders that direct operations. At the strategic level, JAGs contribute to theater-wide policies on detention, targeting, and information operations, ensuring consistency with both domestic and international law.
Conclusion
The assumption that, if and when the U.S. employs a national lawfare strategy, it will be neatly circumscribed into counter-lawfare operations is no longer a viable one. The current defense strategy points toward the potential for aggressive use of offensive lawfare. Because counter-lawfare and offensive lawfare share the same tools, the slope between them is slippery, and each defensive move risks becoming tomorrow’s precedent for offensive use.
Lawyers should remain key players in the lawfare space to ensure that the strategic lawfare adopted remains bounded, credible, and distinct from the kinds of offensive lawfare practiced by adversaries like Russia and China.
Lawyers, however, cannot be the only ones present at the operating table. At the end of the day, a variety of skillsets, including the minds of cultural linguists, intelligence operators, and others in the unconventional warfare space, are needed. This is not a one size fits all; but, when law is the center of the weapon being deployed, lawyers should be the ones who ultimately decide how to wield it.
