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Lawfare, or legal warfare as means of realizing a military objective

Legal warfare, at its most basic, involves “arguing that one’s own side is obeying the law, criticizing the other side for violating the law [weifa], and making arguments for one’s own side in cases where there are also violations of the law.” Lawfare, or legal warfare, exploits “all aspects of the law, including national law, international law, and the laws of war, in order to secure seizing ‘legal principle superiority’ and delegitimize an adversary.”

 

It raises doubts among adversary and neutral military and civilian authorities, as well as the broader population, about the legality of adversary actions, thereby diminishing political will and support—and potentially retarding military activity. It also provides material for public opinion/media warfare. Legal warfare does not occur on its own; rather, it is part of the larger military or public opinion/media warfare campaign.

 

Lawfare is one of the elements of China’s Three warfare strategy. Chinese writings often refer to the “three warfares” (san zhan): public opinion warfare, psychological warfare, and legal warfare. Chinese analyses almost always link the three together, as they are seen as interrelated and mutually reinforcing. In order to be as effective as possible, both psychological warfare and legal warfare require the use of public opinion warfare. Public opinion warfare and legal warfare require psychological warfare guidance so that their targets and methods can be refined. Public opinion warfare and psychological warfare are, in turn, strengthened by information gleaned through legal warfare.

 

Halper cites an example of a possible PRC three warfares operation against the United States as follows: “If the U.S. objective [is] . . . to gain port access for the [U.S. Navy] in a particular country, for example, China would use the Three Warfares to adversely influence public opinion, to exert psychological pressure (i.e., threaten boycotts) and to mount legal challenges—all designed to render the environment inhospitable to U.S. objectives.

 

The People’s Republic of China (PRC), and, in particular, the People’s Liberation Army (PLA), is approaching lawfare from a different perspective: as an offensive weapon capable of hamstringing opponents and seizing the political initiative in wartime. From the Chinese perspective, political warfare, including legal warfare, is seen as a form of combat. Chinese writings specifically note that the purpose of legal warfare is to obtain military, and not legal, victory. In this regard, it is essential to recall that legal warfare occurs only in the context of actual warfare; legal disputes and proceedings in a non-military context are not legal warfare. Consequently, legal warfare, from the Chinese perspective, must focus on a conflict’s political objective: attaining previously determined objectives and retaining the political initiative.

 

U.S. analysts, who define legal warfare (or lawfare) as “a method of warfare where law is used as a means of realizing a military objective. Colonel Charles Dunlap has  described legal warfare as “the strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective,” ”Thus, both Chinese and American analysts, at one level, see legal warfare as the use of law as an instrument of war.

 

Kittrie, who served for over a decade as a U.S. State Department attorney, explains how China, Israel, and the Palestinian Authority have made “lawfare” a core part of their military and diplomatic strategy. Kittrie also describes the remarkable effectiveness in waging lawfare of several non-governmental organizations and individual attorneys. Kittrie draws a contrast with the U.S. government, which he explains has failed to systematically wage or defend against lawfare. He characterizes this as a tremendous missed opportunity and source of vulnerability. He argues that a more systematic and vigorous approach to lawfare would help the U.S. to achieve some national security objectives with less or no armed force, thus saving U.S. taxpayer dollars and some U.S. and foreign lives.

 

Military combat preparations include the development and innovation of military political work, as well as more kinetic forms of operations. Indeed, political warfare is seen as a vital complement for more traditional forms of military operations. While they may not be decisive in their own right, political warfare tactics nonetheless may allow their practitioner to seize the initiative and otherwise multiply the effects of military power.

 

Carl von Clausewitz provides the keystone for analysis of all wars by reminding us that “war can be of two kinds, in the sense that either the objective is to overthrow the enemy [an unlimited aim]—to render him politically helpless or militarily impotent, thus forcing him to sign whatever peace we please; or merely to occupy some of his frontier-districts [a limited aim] so that we can annex them or use them for bargaining at the peace negotiations.” “No one starts a war—or rather, no one in his senses should do so—without first being clear in his mind what he intends to achieve by that war and how he intends to conduct it.” The last part of the passage demonstrates a key reason why understanding the political objective is so important. Everything else flows from this: “The political object—the original motive for the war—will thus determine both the military objective to be reached and the amount of effort it requires.”

 

In the PRC’s efforts to assert control over the South China Sea dispute, lawfare “has involved the utilization of rather tortuous interpretations of international law to oppose the Philippines’ position and seek to delegitimize the arbitration process.” In addition, the PRC has used lawfare to bolster its territorial claims by designating the South China Sea village of Sansha, on the disputed Paracel Islands, as part of Hainan Prefecture in an attempt to extend China’s control far into the South China Sea. Beijing also uses lawfare to block vital U.S. Marine Corps and other military activities in Japan and in U.S. Pacific island territories.

 

Like more conventional forms of warfare, legal warfare is conducted under a unified command organization. It will include the use of the law in implementing offensive actions, defensive actions, counterattacking actions, and other forms of combat. Legal warfare includes such operations as legal deterrence (falu weishe) and the imposition of sanctions (zhicai).

 

In order to influence domestic and foreign populations and leaders, legal warfare is most commonly employed before the outbreak of physical hostilities. Furthermore, such a preemptive legal strike can weaken opposing coalitions while building support for one’s own side. In wartime, “The aim is to psychologically dissipate the other sides’ fighting will in both the military and the civilian realms, while exciting one’s own military and civilian passions and obtaining international sympathy and support.”

 

A second strategic difference is that the Chinese view legal warfare (as well as public opinion warfare and psychological warfare) as beginning before the onset of formal hostilities—and continuing afterward. This distinction has important implications, as it entails pre-war “preparation of the battlefield” and post-conflict legal maneuverings that, like wartime legal warfare activities, are aimed at fulfilling larger strategic goals. In this regard, PRC writers assign equal importance to preparing the legal and physical battlefields. Such preparations include the creation of legal experts—both military lawyers and a cadre of internationally recognized legal scholars—whose opinions will carry influence abroad as well as at home.

 

In the pre-war context, some of the possible legal warfare measures include research into third-party laws and regulations and exploitation of identified vulnerabilities, influencing international legal customs and laws, and creating a cadre of international legal experts.

 

Chinese writings suggest a conception of legal warfare that would involve a range of activities intended to seize the initiative on the legal and public opinion battlefield in addition to disrupting an opponent’s military activities. These activities would include legal coercion/deterrence efforts, which would warn an opponent that they were under close scrutiny for possible violations of the laws of armed conflict; legal strikes, which would charge the enemy with operational activities in violation of international and domestic laws; and legal counterattacks, which would highlight the enemy’s attempts to slant or misrepresent international law, unfavorably contrast their conduct with one’s own (in legal terms), and counter any enemy legal activities.

 

One Chinese article noted that publicizing Chinese laws and regulations is essential so that Chinese legal perspectives are “recognized by the international community.” In this light, the passage of several Chinese laws governing territorial claims over Taiwan should be seen both as providing a foundation for legal warfare and as a means of influencing the broad international community. In particular, the 2005 Anti-Secession Law should be seen as providing the basic legal justification for any move against Taiwan (or Tibet or Xinjiang).

 

Even as India and China hold a flurry of talks to ease a months-long stand-off at their undemarcated 3,488km border, Beijing’s resurrection of an old claim line and its comments on the Himalayan region of Ladakh threaten to heighten suspicions and push both back to the brink of conflict, analysts say. Beijing said it would abide only by a “very clear” border alignment first spelt out in 1959 by late Chinese Premier Zhou Enlai.

 

 

References and Resources also include:

https://www.heritage.org/asia/report/winning-without-fighting-chinese-legal-warfare

 

About Rajesh Uppal

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