Indeed, such concerns are hardly hypothetical: consider the US experience with Iraqis in the 2003 conflict (where Iraqi forces were stationed near mosques and hospitals) and the Israeli experience in Lebanon in 2006 (where Hezbollah forces distributed forces and equipment among civilians) – two recent examples of deliberate attempts to provoke DCA violations. The potential resources available to a nation as large and prosperous as the PRC would greatly multiply the problem. Other possible forms of legal warfare could include activities designed to cast doubt on the nation that triggered a conflict. [27] This short paper briefly introduces the concepts of hybrid warfare and lawfare, the use of law as a weapon, and seeks to stimulate discussion and reflection on how lawfare can be used affirmatively to support its own goals and prevent opponents from successfully using the law maliciously for their own ends and purposes. To this end, we seek to provide an up-to-date and comprehensive definition of hybrid warfare and explore some recent developments in this emerging area of research, including some reflections on NATO`s open source perspective on „hybrid threats“. Next, we will look at different areas where law has been or is being used as a method of warfare. Lawfare includes both positive activities aimed at strengthening the rule of law (often in a defensive context) and its misuse and exploitation (in an offensive context) by an adversary to achieve strategic objectives. Lawfare can be successfully practiced in the following three areas of law: jus ad bellum, jus in bello and finally contract law in international relations. In detail, we will examine some present and past examples where lawfare has been maliciously used to undermine and delegitimize the adversary by ignoring or even abusing the law, with the intention of creating confusion in internal and external public opinion or countering any positive use of lawfare for the tactical or operational advantage of the adversary. The document concludes by noting that lawfare has become an integral part of any hybrid warfare strategy, and that its affirmative application must become an element of Western military thinking and planning.
Moreover, China`s legal war in the context of an emergency in Taiwan would most likely include not only offensive legal operations against the US and its allies, but also a campaign in support of public opinion and media war measures designed to show that China`s actions were justified. Such a campaign would include references to the anti-secession law, perhaps as part of a legal and opinion struggle to portray the CCP as having no choice but to act. At the same time, Beijing would almost certainly argue that such a conflict is an internal affair because, as the PRC believes, Taiwan is part of China. It is not clear how such a legal argument (that the conflict with Taiwan is an internal matter) would affect Chinese policy, ranging from the PRC`s „no first use“ of nuclear weapons to the treatment of prisoners of war. The above shows that Russia is currently maliciously using lawfare in an attempt to confuse public opinion by devaluing the law. The cumbersome interpretation of international agreements amounts to a lack of good faith, which ultimately leads to abuse and may give rise to state responsibility71, in the case of Russia as an example of states supporting non-state actors. In this context, more longitudinal studies of other fundamental elements of international responsibility are needed to provide empirical evidence and observations to support the argument that those who use malicious law, which constitute an abuse of rights, are responsible for internationally wrongful acts. Legal warfare is also an important tool for consolidating the gains made during a war.
A second strategic difference is that the Chinese begin legal warfare (as well as public opinion and psychological warfare) as before formal hostilities began and continue thereafter. This distinction has important implications because it involves „preparing the battlefield“ before the war and the post-conflict period with legal maneuvers aimed at achieving broader strategic objectives, such as wartime legal warfare. These efforts include legal preparations to ensure that legal warfare has an adequate basis. While much of the discussion will focus on national laws and regulations, it is also likely to focus on influencing international laws and customary arrangements. One Chinese article noted that the publication of Chinese laws and regulations is essential for China`s legal perspectives to be „recognized by the international community.“ [23] 44 W. Heintschel von Heinegg, quoted in `Int`l Legal Experts Slam idf – For Over-Warning Gazans. Experts from us, Germany, warn that the IDF`s `legal zeal` sets a dangerous precedent that ties the hands of counterterrorism democracies,“ www.israelnationalnews.com/News/News.aspx/196506 (last accessed February 3, 2017). On the other hand, the proper conduct of armies and nations, particularly in the context of the Law of Armed Conflict (LOAC), is considered an integral part of legal warfare. A brief, non-exhaustive review of the U.S.
literature suggests that U.S. legal warfare analysts focus on how accusations of DCA violations could be used to thwart or impede U.S. military operations, particularly in the context of counterinsurgency operations (COIN). Analysts should consider the „Three Wars“ as the People`s Liberation Army`s decision to conceptualize the various tasks of shaping the environment in which the army operates. Some of the examples used by defense analysts, such as the founding of the city of Sansha in 2012, are clearly not military leadership. Elsewhere, the Propaganda Department and the State Department provide the public rebuttals and legal justification for the PLA`s interception of foreign vessels such as the USNS Bowditch in the South China Sea as domestic law enforcement operations. To be as effective as possible, psychological and legal warfare requires the use of public opinion. Public opinion and legal warfare require psychological warfare so that their goals and methods can be refined.
Public opinion and psychological warfare, in turn, are strengthened by the information obtained through legal warfare. [1] As the use of lawfare increases worldwide, the United States has largely left the legal battlefield to its adversaries. Unlike China, the United States has no military doctrine regarding lawfare. The UK and NATO have recognized lawfare as part of their military doctrine, and Israel employs dedicated lawfare staff in its Justice Department. Malaysia, Vietnam and Indonesia are actively using lawfare against China. But the U.S. is doing little to combat legal warfare or train its personnel to do so. To fight its adversaries – and work with its allies and partners – the US needs a lawfare strategy.
Legal warfare is essentially about „arguing that one`s side obeys the law, criticizing the other side for breaking the law, and presenting arguments for one`s own side in cases where there are also violations of the law.“ [3] The instruments of legal warfare include national laws as well as the full range of legal instruments: legislation, judicial law, legal declarations, prosecutions and legal training. In Operation Allied Forces Kosovo, for example, „differences among the nineteen coalition members over what constituted a legal and legitimate objective affected unity of effort, prolonged NATO`s military decision-making cycle, and affected the effectiveness and morale of units at the tactical level.“ [31] Lawyers for many coalition forces controlled targets in accordance with national laws and regulations, seemingly uncoordinated, and often with very different views on what constitutes a legitimate military target. NATO forces faced a relatively overwhelmed adversary that had not spent months or years preparing for legal warfare (including influencing domestic and international laws). Against the PRC, such legal interoperability issues could be problematic – especially if exacerbated by pre-war attempts to change or modify legal concepts such as what constitutes valid military targets. To avoid potential problems of irreconcilable legal restrictions, key pre-war allies must be involved when it comes to issues such as targeted policies and balancing points. Just as communications, logistics and other support functions cannot be coordinated „on the fly,“ neither can the legal guidelines that govern how the military selects its targets be coordinated. In this regard, the General Political Department can simplify the PLA`s legal warfare efforts. At present, there is an entire chain of command of the GPD that is separate from the operational chain of command (but still within the PLA). Therefore, the People`s Liberation Army is potentially capable of waging unified political warfare from the strategic to the tactical level.
Moreover, because of the close and deep links between operational and political officers, it is possible that legal warfare can be integrated more easily into military operations than into Western military operations.
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