8/12/2021 From ‘Lawfare’ to ‘Lawcraft’: Law in the Service of Contemporary Statecraft and Foreign Policy – War Crimes Research

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From ‘Lawfare’ to ‘Lawcraft’: Law in the Service of

Contemporary Statecraft and Foreign Policy
Kerry-Luise Prior 12/08/2021

By Francisco Lobo

This year the Stockdale Center for Ethical Leadership at the U.S. Naval Academy
held the “2021 McCain Conference: The Ethics of Intelligence and Grey
Zone Operations.” The last session of the Conference was devoted to the topic
of ‘Lawfare.’ Despite enjoying doctrinal recognition in contemporary literature,
this portmanteau combining the words “law” and “warfare” is admittedly still
difficult to grasp among practitioners. This may stem from its relative short life,
as well as from some lack of clarity surrounding its conceptual contours.

Although it was popularized by U.S. Air Force Colonel Charles J. Dunlap in a

2001 address on law and military interventions within the framework of the then
incipient war on terror,[1] the origin of the concept of lawfare can be traced back
to an obscure 1975 book chapter written by two Australian legal experts: John
Carlson and Neville Yeomans. The chapter, titled “Whither Goeth the Law –
Humanity or Barbarity,” contrasts the Chinese and oriental dispute resolution
tradition focusing on humanity and mediation with the Western tradition, which
is reportedly more legalistic and aggressively adversarial or combative. Thereby,
what happens in Western courtrooms is that “The search for truth is replaced by
the classification of issues and the refinement of combat. Lawfare replaces
warfare and the duel is with words rather than swords”[2] (emphasis added).
Interestingly, there have been some recent attempts to inform this metaphorical
view of the law with the same ethical values of honor and fair play undergirding
the military profession.[3]

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Yet, a concept that initially conveyed a metaphor to describe a particularly

aggressive legal tradition became, in the pen of Dunlap, a descriptor of a literal
relationship between law and warfare: “I now define ‘lawfare’ as the strategy of
using – or misusing – law as a substitute for traditional military means to
achieve an operational objective.”[4]

Now, the most comprehensive taxonomy of lawfare thus far has been developed
by Orde Kittrie.[5] Besides Dunlap’s canonical definition, which has come to be
accepted as neutral in normative terms, Kittrie identifies two further uses of the
word ‘lawfare’[6]: (a) one to illustrate an ingrained contestation within American
society around matters of national security and, in particular, the role law plays
in the wars waged by the U.S., as seen in the renowned blog “Lawfare: Hard
National Security Choices;” (b) another corresponding to a purely negative
connotation that conveys the abuse of Western laws and judicial systems to
achieve strategic military or political ends, as used by the advocacy group called
the “Lawfare Project,” and closer to the original, metaphorical use of the term.
This latter connotation has been further denounced in recent years by some
South American politicians who claim that legal procedures have been instituted
against them for political gain.[7] It arguably also reflects the failed strategy
followed by Trump supporters before U.S. courts to challenge the results of the
2020 presidential election.

Returning to Dunlap’s conception, Kittrie presents a subclassification of lawfare

into the following two categories:

(i) “Instrumental lawfare,” or the instrumental use of legal tools to achieve

the same or similar effects as those traditionally sought from conventional
kinetic military action – which we could also call “lawfare proper” or
“traditional lawfare.” For instance, filing a lawsuit in a domestic court seeking
an injunction to prevent a ship from carrying weapons to a warzone on the
basis that the vessel lacks the proper maritime insurance. According to Kittrie,
the Chinese have become alarmingly proficient at waging this type of lawfare,
under the label “legal warfare.”[8] Other authors believe that other countries
too, especially the U.S. and Israel, have grown very keen of using legal
advice in the service of targeted killings, otherwise known as “juridical
warfare.”[9]

(ii) “Compliance-leverage disparity lawfare,” that is, actions performed on

the kinetic battlefield to gain advantage from the greater influence that law

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8/12/2021 From ‘Lawfare’ to ‘Lawcraft’: Law in the Service of Contemporary Statecraft and Foreign Policy – War Crimes Research

exerts over an adversary, for instance, the use of human shields that prevent a
law-abiding belligerent from targeting an objective.[10]

Summing up, we find that there are two main groups or families of lawfare
conceptions: first, a more expansive group of uses that may or may not relate to
armed conflict, corresponding to the Lawfare Blog (letter a above) and the
Lawfare Project (letter b above); and a more restrictive set of conceptions
anchored in armed conflict, corresponding to lawfare proper (number i above)
and to compliance-leverage disparity lawfare (number ii).

Despite all these doctrinal developments, the term ‘lawfare’ remains covered
under a shroud of conceptual ambiguity and political contestation. In particular,
outside of the context of an armed conflict, it is far from clear how ‘lawfare’ as
used, for instance, by the Lawfare Project, differs from other instrumental uses of
the law for policy purposes, namely strategic human rights litigation and
“folk international law,” that is, the “law-like discourse that relies on a confusing
and soft admixture of IHL [International Humanitarian Law], jus ad bellum, and
IHRL [International Human Rights Law] to frame operations that do not,
ultimately, seem bound by international law.”[11]

On the other hand, within the context of an armed conflict, it is not clear either
how ‘compliance-leverage disparity lawfare’ differs from more familiar
phenomena such as terrorism, war crimes, and ‘dirty wars’ in general. Further, it
may be argued that ‘lawfare proper’ or ‘instrumental lawfare’ has been known of
old under a different name whenever belligerents resort to non-military means to
achieve strategic foreign policy goals: diplomacy, or in the more convoluted
formula used by Kittrie, “proactive legal public diplomacy.”[12] Diplomacy,
understood as a system of structured communication between parties,
certainly does not, or should not, cease to operate among countries during an
armed conflict.

This brings us to the essence of war, diplomacy and the law as discrete fields with
a common substance: they are all instruments of politics. In the words of David
Kennedy: “the modernization of the law in war has transformed it into a
vocabulary for assessing military conduct in war that merges what once were
autonomous legal distinctions, ethical principles, and pragmatic military
calculations – and placed them all in the service of a broad political process
through which the legitimacy and illegitimacy of military conduct is
assessed”[13] (added emphasis).

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Following Clausewitz,[14] Dunlap also underscores the political dimension of

both warfare and the law (in the form of lawfare).[15] And as a technique to
regulate human behavior,[16] the law is quintessentially political insofar as,
although individual rights need to always be respected if they are to be taken
seriously,[17] the law is ultimately the result of political differences turned into
actionable agreement.[18] Even the concept of the ‘rule of law,’ sometimes
contraposed to teleological reasoning,[19] has a significant instrumental
dimension.[20]

Ultimately, what warfare, diplomacy, and the law as applied to both have in
common is that they are all instruments to be found in the toolkit of ‘statecraft,’
broadly understood as the art of conducting state affairs or governing a country,
both home and abroad.

A good example of the interplay between all these factors is provided by Dunlap,
when he refers to the establishment by U.S. forces of a ‘Rule of Law Complex’ in
Baghdad, both for boosting the counterinsurgency strategy in Iraq, as well as to
foster the development of legal infrastructure in the war-torn country.[21] This
capacity-building effort to shore up Iraq’s ability to administer justice within its
sovereign territory was ‘statecraft’ at its purest.

Although the term ‘statecraft’ has been displaced by that of ‘global governance’ in
recent decades, states remain key actors in international relations. Since the
modern language of global governance is rather reluctant to include warfare and
the use of force within its toolkit,[22] I believe that the traditional concept of
statecraft can more easily accommodate the notions of war, law, and ‘lawfare’
under a more comprehensive portmanteau that encompasses both peaceful and
forceful manifestations of statecraft in foreign policy through the institutionalist
language of international law: ‘Lawcraft,’ namely, law in the service of
contemporary statecraft and foreign policy.

Francisco Lobo is a Doctoral Researcher, Department of War Studies, King’s

College London. LL.M. in International Legal Studies, NYU. LL.M. in
International Law, LL.B., University of Chile. Lecturer of Legal Theory and
International Law. Email address: francisco.lobo@kcl.ac.uk

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[1] Dunlap, Charles J. “Law and Military Interventions: Preserving

Humanitarian Values in 21st Century Conflicts,” in Humanitarian Challenges in
Military Intervention Conference, Carr Center for Human Rights Policy, Kennedy
School of Government, Harvard University, Washington D.C., 29 November
2001.

[2] Carlson, John and Yeomans, Neville. “Whither Goeth the Law – Humanity or
Barbarity.” In: Smith, M. and Crossley, D. (eds.). The Way Out – Radical
Alternatives in Australia. Melbourne: Landsowne Press, 1975. Available at
www.laceweb.org.au/whi.htm (last visited 30 July 2021).

[3] Hutchinson, Allan C. Fighting Fair. Legal Ethics for an Adversarial Age. New
York: Cambridge University Press, 2015.

[4] Dunlap, Charles J. “Lawfare Today: A Perspective,” in Yale Journal or

International Affairs, No. 3 (2008), pp. 146-154.

[5] Kittrie, Orde. Lawfare. Law as a Weapon of War. New York: Oxford
University Press, 2016.

[6] Ibid., p. 7.

[7] “Qué es el ‘Lawfare’, el término que usó Cristina Kirchner para descalificar
las acusaciones en su contra,” Universidad Torcuato Di Tella. Available online:
https://www.utdt.edu/ver_nota_prensa.php?
id_nota_prensa=17775&id_item_menu=6 (last visited 2 August 2021).

[8] Kittrie, op. cit., pp. 3-5; 161-195.

[9] Jones, Craig. The War Lawyers. The United States, Israel, and Juridical
Warfare. Oxford: Oxford University Press, 2020.

[10] Kittrie, op. cit., p. 11.

[11] Modirzadeh, Naz. “Folk International Law: 9/11 Lawyering and the
Transformation of the Law of Armed Conflict to Human Rights Policy and

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Human Rights Law to War Governance,” in Harvard National Security Journal,

Vol. 5 (2014), pp. 225-304.

[12] Kittrie, op. cit., p. 270.

[13] Kennedy, David. Of War and Law. Princeton: Princeton University Press,
2006, pp. 97-98.

[14] Clausewitz, Carl von. On War. New York: Oxford University Press, 2008, p.
28.

[15] Dunlap, Charles J. “Lawfare: A Decisive Element of 21st Century

Conflicts?,” in Joint Forces Quarterly 54, No. 3 (2009), pp. 34-39.

[16] Kelsen, Hans. General Theory of Law and State. Cambridge: Harvard
University Press, 1949, p. 15; Kelsen, Hans. Pure Theory of Law. 2nd ed. Clark:
The Lawbook Exchange, 2005, pp. 24, 30.

[17] Dworkin, Ronald. Taking Rights Seriously. Cambridge: Harvard University

Press, 1978.

[18] Waldron, Jeremy. Law and Disagreement. New York: Oxford University
Press, 2004.

[19] Kittrie, op. cit., p. 33.

[20] Raz, Joseph. The Authority of Law. New York: Oxford University Press,
1979, pp. 210-218.

[21] Dunlap, op. cit. (2008), p. 147.

[22] Zürn, Michael. A Theory of Global Governance: Authority, Legitimacy, and

Contestation. Oxford: Oxford University Press, 2018.

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