Lawfare is aiding the enemy's fight agaisnt our warfare

Charles Dunlop:

"Is warfare turning into lawfare?" When I posed that question in a 2001 essay for Harvard's Carr Center, I was expressing concern about the increasing frequency with which international law was being used — and abused — by America's opponents.

At the time, I was trying to focus on the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting American military power. Make it appear that the United States is fighting in an illegal or immoral way, and the damage inflicted upon the public support the forces of a democracy need to wage war is as real as any caused by a traditional defeat.

Six years later it is clear that lawfare has become a key aspect of modern war. The abuses at Abu Ghraib and elsewhere produced effects more damaging than any imposed by our enemies by force of arms. What makes it especially maddening is that these are self-inflicted wounds; wholly preventable incidents where adherence to the rule law would have avoided the disastrous consequences that still plague America's war-fighting effort.

Today, another form of lawfare is appearing. It too is a self-inflicted wound, and it is likewise avoidable by merely adhering to the rule of law.

Consider how reports that NATO airstrikes are causing civilian casualties are being handled by the International Security Assistance Force (ISAF) in Afghanistan. In response to queries about a report of such deaths, a spokesman insisted recently that "NATO would not fire on positions if it knew there were civilians nearby." No doubt this assertion reflects a well-meant effort to prevent the noncombatant losses that every honorable soldier always wants to avoid. It also seems aimed at assuaging populations — both in Afghanistan and in NATO countries — who are understandably concerned when civilians are killed. Each such death is a terrible tragedy.

But this statement does not reflect the law, and in fact could put even more of the truly innocent at risk. First the law. While international law forbids, of course, the direct targeting of civilians, it does recognize that they are incidentally put at risk during otherwise legitimate attacks on combatants.

What the law does require is that the risk to noncombatants not be excessive in relation to the concrete and direct military advantage anticipated. That "military advantage" includes killing terrorists and other enemy fighters who threaten both friendly forces and bonafide civilians.

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It should also be recognized that the enemy is not permitted to thwart combat action against it by taking human shields. A policy that would prohibit action against the enemy in those circumstances would result in even more civilians being put at risk by cowardly groups like the Taliban. One of the things that we are not doing well is explaining the war crimes of the enemy or a regular basis. This failure has given him an advantage in the media battle space that he continues to exploit.