Lawfare is the use oflegal systems andinstitutions to affect foreign or domestic affairs, as a more peaceful and rational alternative, or as a less benign adjunct, towarfare.
Detractors have alternately begun to define the term as, "An attempt to damage or delegitimize an opponent, or to deter an individual's usage of their legal rights". The term may refer to the use of legal systems and principles against an enemy, such as by damaging ordelegitimizing them, wasting their time, energy and money (e.g.,strategic lawsuits against public participation or SLAPP), or winning apublic relations victory. Alternatively, it may describe a tactic used byrepressive regimes to label and discouragecivil society or individuals from claiming theirlegal rights via national or international legal systems. This is especially common in situations when individuals and civil society usenonviolent methods to highlight or opposediscrimination,persecution,corruption, lack ofdemocracy, limitingfreedom of speech, violations ofhuman rights and violations ofinternational humanitarian law.
Since the early 2000s, the use of legal mechanisms in conflict contexts has drawn significant international attention.[1] During this period, particularly in the context of the U.S.-led "War on Terror", both theUnited States andIsrael have characterized legal challenges to their military operations as a form of lawfare—a term used to describe the perceived exploitation of legal systems to achieve political or ideological objectives.[1] Critics argue that this framing delegitimizes the legal efforts of less powerful actors who seek accountability through international institutions.[1]China has also employed lawfare, to advance its geopolitical objectives and repress dissidents abroad.
The term is aportmanteau of the words "law" and "warfare". The first documented use of the term "lawfare" was in a 1957 article regarding divorce, which states that "[t]he canton, clearly reduced in status, still isa state with standing in court to wage some lawfare on behalf of its folk, and with liability for some behavior of its folk."[2]
The term reappeared at the turn of the century, first in a 2001 article by the anthropologistJohn Comaroff, who employed it to denote "the effort to conquer and control indigenous peoples by the coercive use of legal means."[3] In his later work, the definition of the concept was broadened to encompass, more generally, "the resort to legal instruments, to the violence inherent in the law, to commit acts of political coercion, even erasure."[4]
A more frequently cited use of the term is found in a 2001 essay authored by Major GeneralCharles J. Dunlap Jr., in which Dunlap defines lawfare as "the use of law as a weapon of war"; that is, "a method of warfare where law is used as a means of realizing a military objective".[5][6] He later expanded on the definition, describing lawfare as "the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting" a superior military power.[7] In this sense, lawfare may be a more humane substitute for military conflict, although Dunlap considers lawfare a "cynical manipulation of the rule of law and the humanitarian values it represents".[6]
Benjamin Wittes,Robert Chesney, andJack Goldsmith employ the word in the name of theLawfare website, which focuses on national security law and has explored the debate over the definition of lawfare and whether it should be considered exclusively a pejorative.[8]
Recent scholarship has included non-judicial tactics in lawfare such as using legal systems and processes to achieve strategic goals outside of traditional courtroom battles.Orde Kittrie, inLawfare: Law as a Weapon of War (2016), describes compliance‑leverage lawfare as exploiting legal compliance gaps to pressure adversaries.[9] Challenging the charitable status of adversary organizations is also described as an example of lawfare.[10]
Lawfare may involve the law of a nation turned against its own officials, but more recently it has been associated with the spread ofuniversal jurisdiction, that is, one nation or an international organization hosted by that nation reaching out to seize and prosecute officials of another.[11]
According to historians Iskander Rehman and David Green, French officials deployed a form of lawfare in the lead-up to theHundred Years' War.[12][13] Rehman states:[12]
In the fraught decades leading up the Hundred Years War, French officials deployed their expertise in the arcane intricacies of feudal law to continuously underminePlantagenet (English) authority over their continental territories, 'clogging up administrative processes', 'interfering with fiscal activities' and burying English officials under a deluge of legal cases.
— Iskander Rehman, Planning for Protraction
United States sanctions against Iran since the 1980s have been described as a form of financial lawfare. They were levied citingIran's link to terrorism as well as a way to disruptits nuclear program, costing tens of billions to the country's economy and foreign banks doing business with it.[14]: 111–160
During thewar on terror, reports ofprisoner abuse atGuantanamo Bay and debates about the legality of their detention led to actions that have been described as a form of lawfare or even "war" against the United States.[15][16]
Thegovernment of the People's Republic of China has recognized lawfare ("falü zhan" or "legal warfare") as an essential component of its strategic doctrine.[9]: 161–164 It is one of thePeople's Liberation Army (PLA)'s "three warfares" approved by theChinese Communist Party (CCP) for guidingpolitical warfare andinformation influence operations.[17][18]
Examples cited as lawfare include the PRC's activities in theEast China Sea,South China Sea, and legal actions regardingTaiwan. In 2013, the PRC created anAir Defense Identification Zone that covers the disputedSenkaku Islands.[19] It has issued officialnotes verbales and enacted laws to assert sovereignty or effective control overdisputed portions of the South China Sea.[9]: 165–168 [20][21] The PRC has attempted to framecross-strait relations as an internal dispute,[22][23] attempted to apply its 2005Anti-Secession Law to Taiwan and make itsOne China principle a matter of international law.[22][24] The PRC has enacted laws against supporters ofTaiwanese independence, regardless of their location,[25][26] and issuedbounties forTaiwanese military personnel as well as TaiwaneseYouTubers.[27][28][29]
The PRC and its proxies have also filedInterpol notices and suits in foreign courts torepress dissidents abroad.[30][31][32]Defamation lawsuits against foreign publications criticizing China or its companies have been described as lawfare.[33][34]
Both pro-Israeli groups and pro-Palestinian groups have been accused of using lawfare against one another.[35]
In Israel and some US states, theBoycott, Divestment and Sanctions (BDS) movement has been met withanti-BDS laws.[36]
In 2011, Israeli groupShurat HaDin prevented some ships in aGaza-bound flotilla from leaving Greece by warning several companies involved that they could face legal charges.[37]: 311–328
Many cases have been brought forward against Israeli officials and those associated with theIsrael Defense Forces (IDF), accusing them ofwar crimes. They have been heard in Israel[38] and other countries.[39]
According to Canadian lawmaker and former ministerIrwin Cotler, the use of law to delegitimize Israel is present in five areas:United Nations,international law,humanitarian law, the struggle againstracism, and the struggle againstgenocide.[40]
Israeli officials have referred to Palestinian initiatives at theUnited Nations Human Rights Council, theInternational Criminal Court (ICC), and theUnited Nations Security Council as examples of political and legal warfare.[1] U.S. Secretary of StateMarco Rubio has referred to the ICC as an "instrument of lawfare."[41]NGO Monitor, a pro-Israel organization, has argued that certain non-governmental organizations (NGOs) such as the Center for Constitutional Rights and Defense for Children International – Palestine are promoting legal actions that challenge Israeli policies.[1]
In 2017,Christian Aid, a British NGO, was sued in the United States by the director of the Zionist Advocacy Center for "providing material aid to Hamas".[42] The case was dismissed by the courts, but the charity had spent £700,000 in defending itself.[42]
In 2019, theNATO Strategic Communications Centre of Excellence stated that theuse of human shields by groups likeHamas as an example of lawfare hinging on exploitingcivilian casualties and the sensitivity of Western public opinion.[43][44]
In 2024, theEuropean Parliament expressed support for French-Palestinian politicianRima Hassan against what it described as "an attempt of lawfare intended to silence, intimidate and criminalise" critics of theGaza war.[45]
According to international law experts, Israel's human shield accusations against Hamas are not substantiated and are intended as a rationalization for its destruction of Palestinian medical facilities.[46]
Harvard School of Law professor Jack Goldsmith, an opponent to the expansion of international human rights and universal jurisdiction, states in his bookThe Terror Presidency that Defense SecretaryDonald Rumsfeld was concerned with the possibility of lawfare waged against Bush administration officials, and that Rumsfeld "could expect to be on top of the list".[47] Rumsfeld addresses the effects of lawfare in his memoirKnown and Unknown.[48]
During a panel discussion on lawfare at the 2024Vancouver International Security Summit Panelist Cynthia Alkon, law professor and director of theTexas A&M University Criminal Law, Justice & Policy Program, and instructor of the first university class on lawfare in the United States at Texas A&M Law School said, "A lot of lawyers don’t know they are in a case of lawfare." Alkon went on to described the primary form of lawfare as "a state acting through corporations and lawyers to file injunctions and lawsuits against investigative reporters, researchers, and security consultants warning against various forms of contentious action covertly taken by that state against others."[49]
At the same 2024 Vancouver International Security Summit, Panelist Scott McGregor, a former military and RCMP intelligence official, cited his work as an author resulted in a defamation claim against him and his co-author, Ina Mitchell, by a group associated with theChinese Communist Party (CCP). "In lawfare, there is an intention to suppress what you’re saying, to deter," said McGregor, noting that the authors became a target of the CCP despite British Columbia's new law to preventstrategic litigation against public participation (SLAPP).[49]
The Chinese military prioritizes lawfare as one of the "Three Warfares" that shape its military's influence operations.
