Strong states and weaker actors seek to use international law to further military objectives but in different ways. There are at least three major differences. First, strong states have more at stake in terms of using international law to legitimize their actions. Non-state actors often have alternative sources of legitimacy, and view legitimacy derived from international law as a state vulnerability that can be exploited. Second, strong states are better equipped to extract long-term advantages from international law. States tend to exploit more sophisticated legal areas such as financial regulations that leverage a non-state actor’s greater vulnerability to the disparate costs and benefits of compliance. States have the strategic culture to incorporate international law into their strategic thinking. States control the international law venue that makes the rules. Finally, strong states and weaker actors are both willing to manipulate, change, or simply ignore international law if necessary to further their vital interests. The unintended consequences of this behaviour for the international order probably place strong states at risk more than other actors in the system.
First, central to how states and non-state actors leverage international law are their different approaches to legitimacy. International law is a system created by states and it is natural for states to pin their legitimacy to compliance with the agreed-upon rules. States, whether strong or weak, are more concerned with appearing to act in accordance with international law and to depict their use of force as justified and legitimate. Non-state actors use international law to cast doubt on the legitimacy of their state opponents rather than to bolster their own.
Rather than defensive, the use of international law by non-state actors in these terms is almost entirely offensive. It is more difficult for states to use International Humanitarian Law(IHL) in offensive lawfare against non-state actors, for many non-state actors do not consider all international norms as entirely valid. They find legitimacy through other means such as popular support, leading to a compliance-leverage disparity with respect to international law. At one extreme are the jihadists who dream of an entirely new system of international order based on Islam, and on the other extreme are those who push for humanitarian considerations to trump more traditional concepts of international law.
Chinese thinkers have already contemplated the different approaches various actors take toward lawfare. It is noted in Unrestricted Warfare that whether or not states acknowledge the law “often depends on whether or not they are beneficial to themselves.” Another difference is that small states “hope to use the rules to protect their own interests, while large nations attempt to utilize the rules to control other nations. When the rules are not in accord with the interests of one’s own nation, generally speaking, the breaking of the rules by small nations can be corrected by large nations in the name of enforcers of the law.” Weak powers, however, have little inherent power to enforce the rules, and look more often to the growing influence of international tribunals or to the court of public opinion for leverage over stronger powers.
The use of international law by non-state actors to undermine the legitimacy of state military actions has immediate strategic implications. For example, media reports on “civilian casualties caused by state forces, whether in Gaza, Iraq, or Afghanistan, produce an immediate outcry and debates about the lawfulness of the military operation, the motives of the state forces, and the potential for criminal liability.” Non-state actors can exploit civilian deaths against the state on a strategic level to undermine popular and international support for the state’s military campaign. In addition to opportunistically exploiting civilian casualty situations, opponents that are “unconstrained by humanitarian ethics now take the strategy to the next level, that of orchestrating situations that deliberately endanger noncombatants. Civilians thus become a pawn at the strategic level as well, because they are used not only for tactical advantage (e.g., shelter) in specific situations, but for broader strategic and political advantage.”
States derive strength from legitimacy, so it is also a potential vulnerability. Announcing that one has a just cause for war and claiming moral superiority puts one at risk of forfeiting legitimacy by losing the moral high ground. Lawfare “can be effectively canvassed to corrode the indispensable home-front support for a given war.” The legitimacy of the conflict is vulnerable to public opinion, and when that legitimacy is based on following the humanitarian aspects of international law then any perceived moral failure undermines that legitimacy.
Second, strong states have proved adept at exploiting the gaps in the international legal order as well as, perhaps better than, weak powers and non-state actors. NATO and the West successfully intervened in Kosovo and secured its independence. Russia has manipulated international law to justify absorbing part of a neighboring country. China is using lawfare to try to force changes in the customary international Law of the Sea. States have proved able to successfully use legal measures to help secure their strategic objectives.
There are some who argue that the USA has yet to fully tap into its potential lawfare capabilities. The USA does not possess a comprehensive approach to lawfare strategy as China or Israel have developed. Mr. Orde Kittrie (Writer and well known Professor Of Law) describes how parts of the USA government have nevertheless successfully used legal techniques to achieve strategic results, such as the USA Treasury and its use of international financial laws against Iran. Also, some of the most effective USA lawfare has been the work of private sector attorneys rather than the USA government. Kittrie provides several examples of litigation using the Anti-Terrorism Act of 1990. A significant case was Boim vs. Holy Land Foundation, in which attorneys working on behalf of the family of a USA victim of terrorism secured a judgment against Islamic fundraising organizations, drying up a significant source of financial support to Hamas.
Given the vast experience of the USA legal community, “the United States has the potential to be the dominant lawfare superpower.” However, the USA has refrained from incorporating law into its national strategy, with the exception of a mention in the 2005 National Defense Strategy that Kittrie notes unfortunately seemed to dismiss lawfare as a strategy of the weak that was of little use to the USA. The USA government has yet to fully tap into the national reservoir of legal talent to maximize its advantages in legal skills and abilities, advantages already being demonstrated by US private sector attorneys.
USA private sector expertise can inform potential military uses of lawfare. Kittrie describes how Special Operations Command Pacific reached out to the University of Pennsylvania’s Law School for research on foreign criminal laws that could be used to detain and prosecute foreign fighters supporting the Islamic State. In Kittrie’s assessment, if the USA properly leverages its extensive legal expertise to support a national lawfare strategy, the “USA advantage in sophisticated legal weapons has the potential to be even greater than its advantage in sophisticated lethal weapons.”
Finally, there are some looming unintended consequences implied when it comes to using international law to promote humanitarian values. Well- intentioned but potentially dangerous precedents are probably more hazardous to major powers within the current system, because major powers in general have based their security on the structures and rules created under the current world order. Humanitarian ideals are – for good reasons – being more universally applied but can also still be exploited for the legitimacy they can grant to military operations. This is not a new development. As Michael Walzer (American Political Theorist) once observed, “the idea of humanitarian intervention has been in the textbooks of international law for a long time, but it appeared in the real world, so to speak, as a rationale for imperial expansion.” Humanitarian legal principles could become mere boilerplate justifications for interventions undertaken for less than ideal reasons.
For weaker powers, the shift in priorities from sovereignty to International Humanitarian Law(IHL) can be a double-edged sword. On the one hand, humanitarian law principles can restrict the use of military methods used against weaker powers and provide political leverage against larger powers. On the other hand, the corresponding decrease in emphasis on sovereignty leaves weaker powers more vulnerable to intervention by a larger power professing to act out of noble-sounding ideals.
There are some critics who caution that “the case for humanitarian intervention is essentially misdirected. A history of black intentions clothed in white has tainted most possible applications of the doctrine.” The danger is that the cynical use of International Humanitarian Law(IHL) has an unintended consequence of undermining faith and trust in the international legal system. Ultimately, “the abuse of the legal system, of human rights laws, and of humanitarian laws by lawfare undermines the overarching goal of world peace by eroding the integrity of the legal system and by weakening the global establishment and enforcement of the rule of law.” Some warn that if international law is undermined through the excessive use of lawfare it “will erode the integrity of the national and international legal systems and result in the unfortunate and increased use of warfare to resolve disputes.”
Another unintended consequence may be the effect of introducing alternative sources of military power onto the modern battlefield. After a hiatus of over 400 years, sophisticated private organizations – akin to the medieval Italian condottieri – capable of standing up trained and equipped fighting forces have reappeared to replace or augment professional state-sponsored soldiers on the international scene. As the state’s grip on sovereignty has eased, these other actors have re-emerged to stake claims on powers previously reserved to the state. These developments suggest to some a return to similar conditions that existed during the period after the Thirty Years’ War, a period when the international order was undergoing a comparable shift in the legal operating environment.
States probably are still hamstrung by some intellectual blinders inherited from the Westphalian era. For example, non-state actors tend to disregard international boundaries and borders. This tendency is evidenced by proponents of humanitarianism who consider narrow international interests morally inferior to their universal values, as well as extreme organizations such as the Islamic State and its ambitions for a universal caliphate. This raises questions as to whether states too should reconsider the implications of borders and sovereignty when facing opponents with a transnational and borderless world view.
It is the leading theorist of war from the previous era who probably gives us the best reason for questioning the assumptions of his day. Clausewitz (Military Theorist) observed that the “first, the supreme, the most far-reaching act of judgment that the statesman and commander have to make is to establish by that test the kind of war on which they are embarking, neither mistaking it for, nor trying to turn it into, something which is alien to its nature.” The kinds of wars that will be fought in the era of an expanding humanitarian legal regime probably will be – if not actually more humane – then certainly different from the kinds of wars that came before it.
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