INTEGRATING LAWFARE AND WARFARE

INTRODUCTION Both kinetic warfare and legal dispute are forms of contestation. 1 Contestation can be physical or symbolic. 2 Legal arguments or claims are one type of symbolic contestation. 3 Other types of symbolic contestation may be based on historical justification, moral philosophy, or religious doctrine. 4 Symbolic contestation may be used alongside or in place of physical contestation. 5 Although we may plan strategy around geographically defined contested arenas like the South China Sea, the Crimea, or Syria, we may also consider functionally defined arenas such as the cyber or biological arenas. 6 Arenas for contestation may be geographic or functional, physical, or symbolic. 7 Any particular conflict may play out on multiple boards at once, and a move that is advantageous to a cause on one board may be disadvantageous on another board. The legal battlefield is largely a symbolic functional arena. 8 We may refer to legal activity that supports, undermines, or substitutes for other types of warfare as "lawfare." 9 Because of its capacity to support, undermine, or substitute, lawfare must be integrated into military strategy. 10 I. DEFINING LAWFARE IN THE 21ST CENTURY Retired Air Force General, now a professor, Charles Dunlap has defined "lawfare" as "the strategy of using--or misusing--law as a substitute for traditional military means to achieve a warfighting objective." 11 Is this a good thing or a bad thing? When the school at which I teach, The Fletcher School of Law and Diplomacy, ...