Does Lawfare Need an Apologia?

By Jack Goldsmith
Wednesday, September 15, 2010, 7:14 AM

That is the title of General Charles Dunlap’s latest reflections on lawfare.  The abstract:

Few concepts in international law are more controversial than lawfare. This essay contends that lawfare is best appreciated in the context of its original meaning as ideologically neutral description of how law might be used in armed conflict. It emphasizes that although law may be manipulated by some belligerents for nefarious purposes, it can still serve to limit human suffering in war. In discussing the current state of the concept of lawfare, the essay reviews several contentious areas, and recognizes the concerns of critics. The paper concludes that lawfare is still a useful term, and is optimized when it is employed consistent with its original purpose of communicating to non-specialists how law might be used as a positive good in modern war as a substitute for traditional arms.

The essay discusses how some American military operations are lawfare, criticizes the U.N. Report by Phillip Alston on targeted killings, suggests that overly restrictive targeting rules can perversely increase civilian casualties, touches on the Goldstone report and the al-Awlaki lawsuit, analyzes “lawfare’s critic's legitimate concerns,” and concludes by quoting former Deputy Assistant Secretary of Defense for Detainee Affairs Phil Carter: “Truth be told, we have every reason to embrace lawfare, for it is vastly preferable to the bloody, expensive, and destructive forms of warfare that ravaged the world in the 20th century.”