The shifting relationship between humanitarian law principles and sovereignty provides opportunities that state and non-state actors exploit in numerous ways, with some of the most creative methods being employed by weaker powers who view international law as a tool to extract otherwise unobtainable advantages from major powers. There are three different examples in which weaker powers have used international law in their relations with stronger powers. One example is Central Asia, where the post-Soviet states of Kazakhstan, Tajikistan, Turkmenistan, and Uzbekistan have used the West’s own humanitarian and democratic principles against them to protect their regimes. A second example will examine Hamas’ exploitation of International Humanitarian Law(IHL) to gain battlefield advantages against Israeli Defence Forces in Gaza. The final example is of individuals and private groups aligned with non-state actors engaged in warfare with the West who are using lawsuits to intimidate opponents, quash public criticism, and accuse Western governments of violating international laws. The strongest practitioners of this method have arguably been Islamist supporters.
Although International Humanitarian Law (IHL) has evolved to justify intervention in the internal affairs of sovereign states, some weak states have found in humanitarian law principles useful leverage to preserve their sovereignty. The growing emphasis on human rights and democratic values places international pressure on some states to conform to the new norms. These internationally-imposed values are often at odds with their own domestic values or threaten the power of the ruling regime. Some of these states have figured out how to balance their internal concerns against this external pressure.
These states have found that by enacting and paying a minimal amount of lip service to token measures, such as laws to protect minorities, they can manage a certain degree of exploitation of these same minorities without outside interference. By avoiding the most outrageous acts that would trigger intervention, these governments articulate policies with enough rhetorical support to international humanitarian values to ensure they have a relatively free domestic hand.
One way in which Central Asian states balanced international demands with domestic concerns was by conflating democratization with regime integrity in the wake of the Color Revolutions. “In reacting to the perceived threat to regime integrity posed by so-called Western-style democracy and human rights appeals, the Central Asian states grafted a set of alternative norms, practices, and institutions, supported by Moscow and Beijing, which stressed the importance of sovereignty and cultural relativism . . . .” Kazakhstan’s President Nursultan Nazarbayev has “been one of the leading proponents of this cultural relativism.” Turkmenistan’s president “painted with a broader brush, accusing all external efforts to raise issues of democracy or human rights as unacceptable infringements on Turkmen sovereignty.” By cloaking their interests in the language of international norms and values, these states sowed enough confusion over the true nature of their programs to block negative international reactions.
Central Asian states “strategically and expediently used the norms and justifications provided by foreign powers to guard and support their own domestic political practices.” Besides “cultural relativism,” Central Asian countries also added “sovereign democracy” to their list of normative shields. Originally a Russian idea, sovereign democracy argues that democratic reforms must be enacted incrementally and modified to fit the domestic political culture. These regimes protected themselves by exploiting the confusion in international law over whether sovereignty or human rights have primacy; “by grafting their own domestic pushback against Western democratic standards onto Russia’s ‘sovereign democracy’ concept, Central Asian elites mounted an ideological and normative counteroffensive against the West.”
Central Asian countries used the sovereign democracy concept to justify crackdowns on non-governmental organizations (NGO) that allegedly threatened their unique domestic form of developing democracy and therefore managed to “de-universalize democratic standards and values.” For example, Central Asian governments enacted laws to prevent foreign NGOs from mobilizing political opposition. Primary targets were NGOs such as Freedom House and Amnesty International. Uzbekistan tightened its domestic laws, for example by criminalizing unapproved gatherings, to close approximately 300 NGOs between 2004 and 2007. Kazakhstan passed new tax and security laws to close over 30 NGOs. Using these measures, Central Asian states barred external non-state actors they considered politically destabilizing.
Such instrumentalization of law to achieve security objectives has come to be termed “lawfare.” Lawfare is defined as “the strategy of using–or misusing–law as a substitute for traditional military means to achieve an operational objective.” Lawfare is a deliberate strategy “to gain advantage from one side’s greater allegiance to international law and its processes.” Also considered as lawfare is the abuse of International Humanitarian Law (IHL) to destroy public support for military operations. Lawfare is also described as the use of law as a weapon of war and an obstacle to the state’s legitimate use of armed force.
Successful strategic performance requires an appreciation for the role of politics in war, and because law is an intensely political matter, it is an integral part of the strategic operating environment. In one of the first major works in English on the practice of lawfare, legal scholar Orde F. Kittrie analyses the increasing effectiveness of using law to achieve objectives that not long ago might only have been achievable using force. Kittrie traces the first attempts at lawfare back to the year 1609 when Grotius used legal arguments to bolster Dutch maritime power. Kittrie attributes the current rise of lawfare to three factors: the increased number and reach of international laws and tribunals, the rise of NGOs focused on the law of armed conflict (LOAC), and the advance of globalization and economic interdependence. Compliance-leverage disparity – defined as “the phenomenon of law and its processes (or particular laws and their processes) having greater leverage over some states or non-state actors (including individuals) rather than over others” – also drives lawfare.
Lawfare offers advantages that let weak powers compete in the courtroom with strong powers that they could not match on the battlefield.
Of course not all legal advantages lie with the weaker powers, and some question whether labeling adverse legal actions as lawfare is an attempt by stronger states to intimidate weaker powers. To these critics, the lawfare concept is used by some governments to cast legitimate causes of action in a negative light. These critics view lawfare as a politically-charged word “coined within the United States military and subsequently adopted by right-wing ideologues as a way of stigmatizing legitimate recourse to legal remedies, particularly within an international law context.” From this perspective, the term lawfare, “is being mobilized by neoconservatives to reframe liberal human rights NGOs as a security threat.” Labeling a legitimate cause of action as lawfare implies an improper abuse of the law, and blacklisting as “lawfare” what might be a legitimate grievance “runs counter to the right for a remedy, a firmly established principle of international law.”
The US government, according to these critics, depicts some valid legal procedures with which it disagrees as somehow unpatriotic by stigmatizing them as lawfare. Critics charge that:
The notion of lawfare has been developed to buttress this attitude. Lawfare, as it has been applied recently, is intended to intimidate and silence lawyers; it equates them with the enemy and suggests that their arguments contain at least a seed of treason.”
These critics argue that labeling legal actions designed to challenge the state’s use of force as lawfare is in reality a public information campaign against valid accusations of excessive government force. Discouraging lawfare is contrary to the purpose of law, because to “insinuate that advancing such arguments is lawfare and hence illegitimate, is to insinuate that law should never constrain armed might. Thus the radical critique of lawfare amounts to an assault on international humanitarian law and international criminal law as such.” One study found the threat of lawfare over-politicized and concluded that “litigation lawfare is largely a myth” and that the “threat of lawfare was overstated and was adequately handled by our judicial system.”
Others claim that the term lawfare abuses the law because it is a blanket term for acts that are already plainly illegal, and do not represent any essential change in the way law is perceived. To these observers of lawfare, “manipulation by belligerents of the law, for instance by hiding amongst the civilian population and leading the other party to commit possible violations of (international humanitarian law), is better described as a war crime than an act of lawfare.” The act of using civilians as a shield may be taking advantage of an opponent’s respect for IHL, but that act is already considered a LOAC violation. According to these critics, it is unnecessary to create a new “lawfare” category because these violations represent nothing new or unique.
Weaker powers, however, have effectively targeted the legitimacy of military operations by alleging battlefield IHL violations. Examples of this type of lawfare have been used against Israel and its operations in the Gaza Strip. Israel in turn has responded with its own forms of lawfare. The use of lawfare has evolved to such an extent in the Israeli-Palestinian conflict that Kittrie describes it as “the closest thing the world has to a lawfare laboratory.”
For example, Hamas has used lawfare on the battlefield against Israel by hiding among the civilian population and using protected sites as shields. Hamas counts on Israel’s greater need to comply with the protections for civilian populations, such as those proscribed in Articles 48, 51 and 52 of Additional Protocol I to the Geneva Conventions, requiring the parties in a conflict to distinguish between military and civilian persons and objects. Hamas’s IHL violation – placing civilians at risk by using them as shields – puts Israel in the position of potentially violating international law by targeting sites where civilians will be killed.
Various international investigations have become mired in controversy over whether investigators emphasized Israeli IHL violations while failing to address Hamas’s inappropriate use of protected objects such as hospitals. For example, in 2008 Israel launched a three-week military offensive in the Gaza Strip that killed approximately 1,300 Palestinians and wounded over 5,000 persons. These military operations led to allegations against both Israel and Hamas of war crimes and IHL violations. The UN set up a “Fact Finding Mission on the Gaza Conflict” led by international lawyer Richard Goldstone that came to be known as the “Goldstone Mission.” The mission report – called the “Goldstone Report” – concluded that “both Israel and Hamas committed international law violations by indiscriminately targeting civilians.”
The controversial Goldstone Report had some far-reaching strategic implications. First, it placed what some criticized as disproportionate blame on the Israelis. Second, it provided Hamas an opportunity to attack the legitimacy of Israel’s military operations and claim the moral high ground in the conflict. Finally, the report’s conclusions set a potential precedent that could affect the military practices of other states facing a similar dilemma as Israel. Regardless of whether the report was biased or not, the controversy itself contributed to weakening domestic and international support for Israeli military operations in the Gaza Strip.
Critics complained that the report unjustly placed the blame and culpability for human rights violations heavily upon the Israelis. The report was simply “far more willing to draw adverse inferences of intentionality from Israeli conduct and statements than from comparable Palestinian conduct and statements.” According to the report, “Israel used the rocket attacks on its citizens as a pretext, an excuse, a cover for the real purpose of the operation, which was to target innocent Palestinian civilians – children, women, the elderly – for death.”
The UN investigators laid the blame for war crimes squarely upon the Israeli leadership rather than Hamas. The report concluded that Israel’s “failure to distinguish between combatants and civilians appears to the Mission to have been the result of deliberate guidance issued to soldiers, as described by some of them, and not the result of occasional lapses.” Furthermore, “responsibility lies in the first place with those who designed, planned, ordered and oversaw the operations.” In contrast, investigators found no evidence that Hamas fighters donned civilian clothes or fought from protected sites such as mosques, and concluded that Hamas “was not guilty of deliberately and willfully using the civilian population as human shields.”
Hamas, in effect, exploited compliance-leverage disparity to take advantage of Israel’s greater interest in abiding by IHL. The less militarily capable side had successfully gained an edge over its opponent because of its willingness to “openly violate the law of war to gain a tactical advantage in specific operations by handicapping the ability of the IHL-compliant military to carry out its mission within the bounds of the law.”51 Hamas succeeded in casting doubt on the legitimacy of Israel’s military actions by targeting public and international opinion that was critical to political support for Israel’s war effort. Hamas’s exploitation of IHL exemplified a strategy where the “technologically and militarily disadvantaged forces target public support and seek to force a political end to the fighting.”
Supporters of the Goldstone Report fired back against these critics by denouncing the accusations of lawfare and arguing that the report served a useful purpose. Supporters objected to the way critics cast the report as an example of lawfare, claiming that the term lawfare itself was being “used abusively to attack critics who invoke the illegality of the behavior of certain military forces, including those of Israel and the United States.” To its supporters, the Goldstone Report deterred future Israeli excesses because it “heightened the risk for Israel that another sovereign state will choose to prosecute its political or military leaders.”
The US government did not support the Goldstone Report and stood among the report’s critics. An official public response noted that “actions by terrorist groups that have the effect of employing civilians as human shields put enormous pressures on militaries that are trying to protect civilians and their own soldiers, an issue faced by many militaries today.” The US government recognized that the dilemma in which Hamas placed Israel was one in which US military forces could also find themselves. The increasing use of international law as a weapon of war is significant to the US because, as one military lawyer explains, resort to such strategic lawfare alters “the traditional warfare paradigm since the effects – real or perceived – of international treaties, laws, and resolutions will not only affect policy choices, but also military decision-making and, indeed, the very legitimacy of American military operations.”
Israel learned from the Goldstone Report experience that it needed to play a stronger role in shaping the strategic narrative. Part of the reason the report was so harsh on Israel was that Israel was uncooperative with investigators, leaving the Palestinian Authority (PA) to supply most of the evidence. During military actions in Gaza in 2008-2009, and in 2014, Israel undertook an extensive information recording and media campaign to “push back against accusations that its uses of force violated the laws of war.” For example, the Israeli military in 2014 posted a briefing online documenting evidence it collected of Hamas firing from protected sites, concluding that “Hamas’ tactics flagrantly violate international law.” Israel also instituted new methods to limit civilian casualties, such as issuing warnings before attacks by dropping leaflets, making recorded warning telephone calls, and firing warning rounds. Nevertheless, the UN investigation report issued in June 2015, although arguably more balanced than the Goldstone Report, “failed to address, and thus had the effect of encouraging, Hamas’s battlefield lawfare.”
Lawfare is a characteristic of an emerging world order where international courts and international law have a stronger role in matters concerning the use of force. Israeli legal scholar Yoram Dinstein warns that we must not underestimate the power of international law and lawfare because it is a “weapon of mass disinformation, attuned to the peculiarities of the era in which we live.” As some observers note, it is worth considering whether international investigations, such as the Goldstone Report, suggest emerging trends in how some of the basic principles of LOAC will be applied to the future use of force.
Leveraging the legal system to influence public opinion in a conflict is not limited to legal actions against states. Individuals have also been subject to lawsuits intended to intimidate a group’s critics and garner public support for a cause. Perhaps the most notable examples have been of Islamist groups that some claim use lawsuits as a weapon to indirectly augment military force. One observer, Brooke Goldstein, goes so far as to label such lawfare as the “new jihad.”
Goldstein emphasizes what she sees as two goals of Islamist supporters within the legal system. The first goal is to “abolish public discourse critical of Islam.”65 The second objective is “to impede the free flow of public information about the threat of Islamist terrorism, thereby limiting our ability to understand and destroy it.” Her argument is that lawfare has emerged as a legal campaign in domestic and international courts that complements terrorism and asymmetric warfare. The method employed is “often predatory, filed without serious expectation of winning, and undertaken as a means to intimidate, demoralize, and bankrupt defendants.” One primary example is that of “the libel tourist” Khalid bin Mahfouz, who often sued American researchers and authors in British courts for libel against Islam. The intent is to instil fear of resource draining lawsuits for publishing material offensive to Islam, thereby “creat[ing] a detrimental chilling effect on open public dialogue about issues of national security and public concern.”
Other examples of Islamists using lawfare to promote their cause include the London Muslim Brotherhood, a group that “employed a dream team of internationally renowned British lawyers . . . to start legal proceedings against the Egyptian government, potentially in the International Criminal Court.” This approach – working within the existing institutions of a non-Islamic entity to prepare the way for the eventual introduction of an Islamic system – has long been a method used by Islamists against secular regimes.
The use of Western norms and institutions against the West itself is not new to Islamists. For example, the so-called “Project” memorandums – notes from a 1991 Muslim Brotherhood meeting outlining their strategic goals for North America – advocate gradually using the West’s own institutions against it, and “frequently uses the Western-based international legal system.” Islam is flexible enough to reconcile alien legal systems with its own, as evidenced by the multicultural Islamic societies that existed in the past such as the Ottoman Empire.
Some interpretations of Islam consider such an accommodation as but a temporary step toward the recreation of a new Islamic-based system modelled on the caliphate. Supporters of the caliphate narrative, such as the Islamic State, find credibility in an interpretation of Islam that historically “refused to recognize legal systems other than its own.” For example, “the modern international system, born of the 1648 Peace of Westphalia, relies on each state’s willingness to recognize borders, however grudgingly. For the Islamic State, that recognition is ideological suicide.” The Islamic State’s rejection of the modern secular world takes these beliefs further and “looks nonsensical except in light of a sincere, carefully considered commitment to returning civilization to a seventh-century legal environment and ultimately to bringing about the apocalypse.” If this is lawfare, it is lawfare at its most extreme.
Copyrights ©️
OBSERVERTIMES GLOBAL NEWSNETWORK PRIVATE LIMITED reserves the rights to all content contained within its official website https://observertimes.in /Online Magazine/ Publications