Hostname: page-component-cd9895bd7-hc48f Total loading time: 0 Render date: 2024-12-27T09:49:15.219Z Has data issue: false hasContentIssue false
  • English
  • Français

‘Lawfare’, US military discourse, and the colonial constitution of law and war

Published online by Cambridge University Press:  07 November 2017

Freya Irani
Freya Irani*
Affiliation:
Mellon-Sawyer Postdoctoral Associate, University of Minnesota
*
*Correspondence to: Dr Freya Irani, Mellon-Sawyer Postdoctoral Associate, Department of Political Science, University of Minnesota – Twin Cities, Social Sciences Building, 267 19th Ave, S., Minneapolis, MN 55455, United States. Author’s email: iran0004@umn.edu
Get access Rights & Permissions [Opens in a new window]

Abstract

In this article, I aim to reorient debates, in International Relations and Law, about the relationship between law and war. In the last decade, writers have challenged common understandings of law as a limit on, or moderator of, warfare. They have instead claimed that law is often used as a ‘weapon of warfare’, describing such uses as ‘lawfare’. Below, rather than arguing that law is either a constraint on or an enabler of warfare, I examine how law comes to be represented as such. Specifically, I examine representations, primarily by US military and other governmental lawyers, of ‘non-Western’ invocations of the laws of war, which seek to constrain the policies or practices of the US or Israeli governments. I show how these authors cast such invocations as not law at all, but as tools of war. I suggest that this move rests on, and reproduces, colonial discourses of ‘non-Western’ legal inadequacy or excess, which serve to render ‘non-Western’ law ‘violent’ or ‘war-like’. I show that the referents and boundaries of law and war are stabilised by notions of civilisational difference, which serve to give meaning to what law is, what war is, and whether particular claims or practices are understood as martial or legal.

Keywords

LawfareLiberal WarHumanitarian LawPostcolonial
Type
Research Article
Information
European Journal of International Security , Volume 3 , Issue 1 , February 2018 , pp. 113 - 133
Copyright
© British International Studies Association 2017 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 In the United States, Judge Advocate Generals (JAGs) are lawyers and commissioned officers in the military: each branch of the armed services has its own JAG ‘corps’. JAGs perform a range of tasks – advising members of the armed services, participating in courts-martial, and (increasingly) providing operational advice concerning the legality of, for example, targeting decisions.

2 Charles J. Dunlap, ‘Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts’, paper presented to the Humanitarian Challenges in Military Intervention Conference, Carr Center for Human Rights Policy, Washington, DC (29 November 2001), p. 4, available at: {http://people.duke.edu/~pfeaver/dunlap.pdf} accessed 12 March 2016.

3 Ibid.

4 Ibid.

5 Dunlap’s was not the only use of the term. In the same year, John Comaroff used the term to refer to ‘the effort to conquer and control indigenous peoples by the coercive use of legal means’. Comaroff, John, ‘Colonialism, culture and the law: a foreword’, Law and Social Inquiry, 26:2 (2001), p. 306 CrossRefGoogle Scholar. Comaroff’s emphasis has been taken up by a small, but growing, number of writers, who have used the term ‘lawfare’ to describe the historical and contemporary imbrications of liberal law and liberal war. These are the ‘critical’ lawfare writings I discuss in Section III.

6 Dinstein, Yoram, ‘Concluding remarks: LOAC and attempts to abuse or subvert it’, International Law Studies (International Law and the Changing Character of War), 87 (2011), p. 483 Google Scholar.

7 Ibid., p. 492. I refer to this literature as ‘dominant’ not only because the works reflect and reproduce broadly hegemonic assumptions (about the existence of, and desirability of protecting, US and Israeli ‘national interests’), but also because of the governmental connections and cultural influence of the relevant authors. A brief look at three biographies is instructive: Dunlap spent 34 years in the JAG Corps, attaining the rank of Major General. He has testified before the US House of Representatives, and has been published in military journals, law reviews, news magazines like Time, and on blogs like ‘Just Security’. He is currently a Professor at Duke Law School, and Executive Director of the Center on Law, Ethics and National Security at Duke. Duke Law School, ‘Maj. Gen. Charles J. Dunlap, Jr., USAF (Ret.)’, available at: {https://law.duke.edu/fac/dunlap/} accessed 26 March 2017. Dunlap popularised the term ‘lawfare’, and is widely cited in both the dominant literature and in critical works.

Orde Kittrie is a Professor of Law at Arizona State University’s Sandra Day O’Connor College of Law, and a Senior Fellow at the Foundation for Defense of Democracies (a policy institute aimed at ‘fighting terrorism and promoting freedom’). Kittrie was previously the Department of State’s lead nuclear affairs attorney and, in addition to testifying before several Congressional committees, has appeared as a commentator on NBC, ABC, Fox, PBS and Al Jazeera. Foundation for Defense of Democracies, ‘Orde Kittrie’, available at: {http://www.defenddemocracy.org/about-fdd/team-overview/orde-kittrie/} accessed 26 March 2017. Kittrie is the author of a key book-length study of lawfare, entitled Lawfare: Law as a Weapon of War (New York: Oxford University Press, 2016).

Unlike Dunlap and Kittrie, Yoram Dinstein spent much of his career in academia: he is considered an ‘expert on the laws of war’ and is a prolific writer in the field. Uri Blau, ‘Documents reveal how Israel made Amnesty’s local branch a front for the foreign ministry in the 70s’, Haaretz (18 March 2017), available at: {http://www.haaretz.com/israel-news/.premium-1.777770} accessed 28 March 2017. Dinstein is a Professor Emeritus at Tel Aviv University and has held numerous visiting positions at law schools in the US. His relationship with the Israeli government is particularly interesting. He has worked for the Foreign Ministry and served as Israeli consul in New York; however, much of his contact with the government has been less formal. A recent article in the Israeli newspaper Haaretz traces how, in the 1970s, Dinstein, then chairman of Amnesty Israel, reported to his former colleagues in the Foreign Ministry on the activities of the human rights organisation. Blau, ‘Documents reveal’.

8 Lawfare, as defined in the dominant scholarship, would seem to refer to the use of any law ‘as a means of realizing a military objective’. Dunlap, ‘Law and Military Interventions’, p. 4. The most common contention, however, is that it is international humanitarian law, of which the Geneva Conventions are the centerpiece, that is being so used.

9 See, for example, Dunlap, Charles J., ‘Does lawfare need an apologia?’, Case Western Reserve Journal of International Law, 43 (2010), p. 136 Google Scholar; Newton, Michael A., ‘Illustrating illegitimate lawfare’, Case Western Reserve Journal of International Law, 43 (2010), pp. 268–272 Google Scholar.

10 Kittrie, , Lawfare, p. 197 Google Scholar.

11 Dunlap, , ‘Law and Military Interventions’, p. 4 Google Scholar.

12 In the dominant literature, writers often represent the lawyers, who generally hail from US human rights or civil liberties groups, as unwittingly aiding the insurgents’ causes – as well-meaning but dangerously naïve, dupes. Dinstein writes: ‘The human rights-niks in the back are by no means to be confused with the barbarians in front: far from endorsing methods of barbarism, the human rights-niks would prefer a non-violent solution to every conflict. Nevertheless, the danger that the human rights-niks pose is equally acute, since they threaten to pull the legal rug from under our feet. They thus aid and abet the lawfare of the enemy by leaving the civil society with the impression that we are acting (or reacting) in a manner that is incompatible with the loftier aspirations of the law.’ Dinstein, ‘LOAC and attempts to abuse or subvert it’, p. 488.

13 See, for example, Dunlap, ‘Law and Military Interventions’; Council on Foreign Relations, ‘Lawfare: The Latest in Asymmetries’ (2003), available at: {http://www.cfr.org/defense-and-security/lawfare-latest-asymmetries/p5772} accessed 12 March 2016.

14 The ‘Lawfare Project’ continues to define lawfare as an ‘abuse of the law as a weapon of war against Western democracy’. ‘Mission’ (no date), available at: {http://thelawfareproject.org/mission-2/} accessed 10 June 2016.

15 The Lawfare Project, ‘What is Lawfare?’ (no date), available at: {http://thelawfareproject.org/lawfare/what-is-lawfare-1/} accessed 25 July 2017.

16 Department of Defense, ‘National Defense Strategy of the United States of America’ (March 2005), p. 5, available at: {http://archive.defense.gov/news/Mar2005/d20050318nds1.pdf} accessed 10 June 2016, emphasis added.

17 See, for example, Waters, Melissa A., ‘“Lawfare” in the war on terrorism: a reclamation project’, Case Western Reserve Journal of International Law, 43 (2010), p. 330 Google Scholar; Horton, Scott, ‘The dangers of lawfare’, Case Western Reserve Journal of International Law, 43 (2010), p. 167 Google Scholar.

18 See, for example, Dunlap, Charles J., ‘Lawfare today … and tomorrow’, International Law Studies (International Law and the Changing Character of War) , 87 (2011), pp. 315–325 CrossRefGoogle Scholar; Sitaram, Ganesh, The Counterinsurgent’s Constitution: Law in the Age of Small Wars (New York: Oxford University Press, 2013)CrossRefGoogle Scholar; Kittrie, Lawfare.

19 See, for example, Sitaram, The Counterinsurgent’s Constitution.

20 This is for two reasons, both discussed in Section III. First, critical scholars have already made this important argument very convincingly. Second, there can be disadvantages to characterising law as a ‘tool’ of war.

21 See, for example, Doty, Roxanne L., Imperial Encounters (Minneapolis: University of Minnesota Press, 1996)CrossRefGoogle Scholar; Weldes, Jutta, ‘Constructing national interests’, European Journal of International Relations, 2:3 (1996), pp. 275–318 CrossRefGoogle Scholar. For an overview of this scholarship, see Milliken, Jennifer, ‘The study of discourse in International Relations: a critique of research and methods’, European Journal of International Relations, 5:2 (1999), pp. 225–254 CrossRefGoogle Scholar.

22 I draw here on Weldes’s theorisation of ‘articulation’, which builds on the work of Stuart Hall. Weldes draws on many of Hall’s works, which can’t all be cited here. But, one particularly relevant work is: Stuart Hall, ‘On postmodernism and articulation: an interview with Stuart Hall’, Journal of Communication Inquiry, 10:2 (1986), pp. 45–60. For Weldes, the process of articulation is key in understanding how meaning is produced through discourse. Articulation involves the (temporary) bringing together of linguistic elements that begin to connote one another: each element in the connotative chain gains meaning from the elements to which it is attached. Weldes points out that ‘[w]ith their successful repeated articulation, these linguistic elements come to seem as though they are inherently or necessarily connected and the meanings they produce come to seem natural’. Weldes, ‘Constructing national interests’, p. 285 (citations removed). Of course, contrary to appearances, these linguistic elements are not naturally linked, and so, under certain circumstances, can be detached or ‘uncoupled’ from their connotative chains and reattached (or rearticulated) to new chains, gaining new connotations or meanings in the process. Weldes, ‘Constructing national interests’, p. 285.

Weldes’s theorisation helps us examine not only how particular practices or claims come to be attached to, or separated from, law and war, but how the concepts of law and war come to be linked and de-linked to and from one another.

23 A note on terminology: I use the terms ‘West’/‘Western’/‘Westerner’/‘non-West’/‘non-Western’/‘non-Westerner’ in this article not because people, places, or institutions can ever actually be so classified, but because I am critiquing a discourse that divides the world into these categories (and related dichotomies – Europe/non-Europe, the Occident/Orient). The terms, then, are used to describe how people, places and institutions are understood and identified within this discourse.In using the terms, I do not mean to suggest that their (internal and external) borders are stable: they are constructed, contextual, constantly shifting. See, for example, Barkawi, Tarak and Laffey, Mark, ‘The postcolonial moment in security studies’, Review of International Studies, 32 (2006), p. 341 Google Scholar (discussing the characterisation of Germany as ‘non-Western’ following the Holocaust); Massad, Joseph, ‘Zionism’s internal others: Israel and the Oriental Jews’, Journal of Palestine Studies, 25:4 (1996), pp. 53–68 Google Scholar (describing the contested process of constituting Israel as ‘European’). In the dominant lawfare literature, Israel is represented as part of ‘the West’.

24 See, for example, Lisa Hajjar, ‘Lawfare and Armed Conflict: Comparing Israeli and US Targeted Killing Policies and Challenges Against Them’, International Affairs Research Report, Issam Fares Institute for Public Policy and International Affairs, American University of Beirut (January 2013), available at: {https://www.aub.edu.lb/ifi/international_affairs/Documents/20130129ifi_pc_IA_research_report_lawfare.pdf} accessed 25 March 2017; Jones, Craig A., ‘Frames of law: Targeting advice and operational law in the Israeli military’, Environment and Planning D: Society and Space, 33:4 (2015)CrossRefGoogle Scholar; Weizman, Eyal, ‘Legislative attack’, Theory, Culture and Society, 27:6 (2010), pp. 11–32 Google Scholar.

25 See, for example, Comaroff, ‘Colonialism, culture and the law’; Hussain, Nasser, The Jurisprudence of Emergency (Ann Arbor: The University of Michigan Press, 2003)Google Scholar; Ruskola, Teemu, ‘Legal Orientalism’, Michigan Law Review, 101:1 (2002), pp. 179–234 CrossRefGoogle Scholar; and Ruskola, Teemu, Legal Orientalism: China, the United States, and Modern Law (Cambridge: Harvard University Press, 2013)Google Scholar.

26 For example, Frédéric Mégret shows that the ‘savage’ is international humanitarian law’s ‘constitutive other’ – that is, ‘both a figure excluded from the various categories of protection, and an elaborate metaphor of what the laws of war do not want to be’. Mégret, Frédéric, ‘From “savages” to “unlawful combatants”: a postcolonial look at international humanitarian law’s “other”’, in Anne Orford (ed.), International Law and Its Others (New York: Cambridge University Press, 2006), pp. 266–267 Google Scholar.

27 The term ‘martial’ is not commonly used in IR or security scholarship. Nonetheless, Alison Howell suggests its usefulness in calling attention to ‘war-like relations or technologies and knowledges that are “of war”.’ Alison Howell, ‘Forget “Militarization”: Race, Disability and the Martial Politics of the Police and the University’, paper presented at the International Studies Association Annual Conference, Baltimore, MD (23 February 2017), p. 2. The term helpfully highlights how the logics, practices, and forms of knowledge or relations that we usually associate with ‘war’ are also found ‘outside’ of war. Howell further proposes the term ‘martial politics’ in order to ‘signal the indivisibility of war and peace, military and civilian, and national and social security’. Howell, , ‘Forget “Militarization”’, p. 2 Google Scholar.

28 Kinsella, Helen, The Image Before the Weapon: A Critical History of the Distinction between Combatant and Civilian (Ithaca, NY: Cornell University Press, 2011), p. 190 Google Scholar.

29 Ibid., p. 190.

30 Ibid., p. 19.

31 Ibid., p. 108.

32 Kinsella, The Image Before the Weapon; Mégret, ‘From “savages” to “unlawful combatants”’.

33 Dinstein, , ‘LOAC and attempts to abuse or subvert it’, p. 485 Google Scholar.

34 Kinsella, , The Image Before the Weapon, p. 109 Google Scholar.

35 See, for example, Hussain, The Jurisprudence of Emergency, ch. 2 (describing British debates about codification, which hinged partly on the question of whether Indians were capable of law, given traditions of ‘Oriental despotism’); Ruskola, ‘Legal Orientalism’; Ruskola, Legal Orientalism (for genealogies of the notion, common in comparative legal scholarship, of a lack of law in China and a Chinese lack of capacity for law); Kayaoğlu, Turan, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (New York: Cambridge University Press, 2010)Google Scholar (for an account of European legal extraterritoriality in China, Japan and the Ottoman Empire, a practice which was enabled, in part, by discourses of non-European legal inadequacy).

The above-described debates were all ones in which Europeans debated whether non-Europeans had the capacity for ‘law’ itself. A related debate, also taking place in the nineteenth century among (primarily positivist) European legal scholars, was whether non-Europeans had international legal personality, whether they were sovereign subjects of international law – and so entitled to its protections. In his Imperialism, Sovereignty and the Making of International Law (New York: Cambridge University Press, 2004), Antony Anghie describes this debate, showing how European definitions of sovereignty were forged through colonial encounters. Classed as non- or quasi-sovereigns by these definitions, non-Europeans were denied full legal personality and excluded from the protections of international law.

36 Newton, , ‘Illustrating illegitimate lawfare’, pp. 259–260 Google Scholar, emphasis added.

37 Dinstein, , ‘LOAC and attempts to abuse or subvert it’, p. 484 Google Scholar, emphasis added.

38 Dunlap, , ‘Law and Military Interventions’, p. 4 Google Scholar, emphasis added.

39 See, for example, ibid., p. 5; Kittrie, , Lawfare, p. 287 Google Scholar.

40 See, for example, Dunlap, , ‘Law and Military Interventions’, pp. 12–16 Google Scholar.

41 For instance, Newton warns of the dangers of campaigns to replace the requisite threshold for seizure of property from ‘military necessity’ to ‘imperative military necessity’. Newton, , ‘Illustrating illegitimate lawfare’, p. 264 Google Scholar.

42 Dinstein, , ‘LOAC and attempts to abuse or subvert it’, p. 484 Google Scholar.

43 Dunlap, ‘Law and Military Interventions’, p. 4 Google Scholar.

44 Ibid., p. 5.

45 Council on Foreign Relations, ‘Lawfare’.

46 See, for example, Dunlap, ‘Does lawfare need an apologia?’; Kittrie, Lawfare.

47 Stephens, Dale, ‘The age of lawfare’, International Law Studies (International Law and the Changing Character of War), 87 (2011), p. 328 Google Scholar.

48 Kittrie, , Lawfare, p. 11 Google Scholar.

49 Ibid

50 Ibid.

51 Ibid.

52 Ibid., pp. 11–12.

53 Jensen, Eric Talbot, ‘The ICJ’s “Uganda Wall”: a barrier to the principle of distinction and an entry point for lawfare’, Denver Journal of International Law and Policy, 35 (2007), p. 269 Google Scholar, citations removed.

54 A note about terminology is necessary. As mentioned in the Introduction and as will be discussed in the next section, there is much disagreement about the meaning of the term ‘lawfare’ in the dominant literature, with writers differing, or even changing their minds, about whether lawfare is ‘inherently negative’ and whether it is used by liberal states. So what Kittrie calls ‘compliance leverage disparity lawfare’ (what Kittrie understands as only one kind of lawfare), others would simply describe as ‘lawfare’ (as the entirety of the practice). These latter writers have a narrower understanding of lawfare. For them, all lawfare is ‘designed to gain advantage from the greater influence that law and its processes exerts over an adversary’: as such, all lawfare is practiced against (more law-abiding) liberal states. For such authors, the instrumental use of law by Western states (which Kittrie would define as ‘instrumental lawfare’) should not be defined as lawfare at all.

55 Dunlap, Charles J., ‘Lawfare today: a perspective’, Yale Journal of International Affairs, 3:1 (2008), p. 148 Google Scholar, emphasis added.

56 Kittrie, , Lawfare, pp. 20–22 Google Scholar.

57 Ibid., pp. 21–2.

58 Ibid., p. 161.

59 Ibid., pp. 161–4.

60 Ibid., p. 164.

61 For a brilliant description of this scholarship, see Ruskola, ‘Legal Orientalism’; Ruskola, Legal Orientalism.

62 Kittrie, , Lawfare, p. 21 Google Scholar (emphasis added).

63 Dunlap, , ‘Law and Military Interventions’, p. 1 Google Scholar.

64 Ibid., p. 4.

65 See, for example, Kittrie, , Lawfare, p. 21 Google Scholar.

66 Newton, , ‘Illustrating illegitimate lawfare’, p. 277 Google Scholar.

67 Ibid., p. 255.

68 Ibid., p. 261.

69 Dinstein, , ‘LOAC and attempts to abuse or subvert it’, p. 493 Google Scholar.

70 See, for example, ibid., p. 484; Dunlap, , ‘Law and Military Interventions’, p. 4 Google Scholar; Dunlap, Charles J., ‘Lawfare’, in John N. Moore, Guy B. Roberts, and Robert F. Turner (eds), National Security Law and Policy (Durham, NC: Carolina Academic Press, 2015), p. 825 Google Scholar; Kittrie, Lawfare.

71 Dinstein, , ‘LOAC and attempts to abuse or subvert it’, p. 484 Google Scholar.

72 It should be noted that, in the dominant lawfare literature, writers do not only describe non-Western invocations of law as ‘means’, ‘methods’, or ‘weapons’ of warfare: rather, in later works, they sometimes also characterise liberal lawfare as involving, or potentially involving, the use of law as a ‘weapon’. See, for example, Dunlap, , ‘Lawfare’, p. 823 Google Scholar. However, they use the term differently in the two contexts. For lawfare writers, liberal lawfare involves the use of law as a ‘tool’ or ‘weapon’ only in the sense that law is used instrumentally ‘to achieve an operational objective’. Dunlap, , ‘Does lawfare need an apologia?’, p. 122 Google Scholar. Liberal law, in this context, has the potential to be ‘a non-violent substitute for [the] traditional arms’ that would usually be used to achieve such an objective. Dunlap, , ‘Does lawfare need an apologia?’, p. 121 Google Scholar. In contrast, non-Western invocations of law are alleged to not only be instrumental, but also to inflict violence, much like traditional arms. These differing representations are the focus of Section II.

73 Stephens, , ‘The age of lawfare’, p. 328 Google Scholar.

74 Dunlap, , ‘Law and Military Interventions’, p. 5 CrossRefGoogle Scholar, emphasis added.

75 Taylor, T., ‘Letter to the New York Times’ (16 July 1950), as quoted in Bruce Cumings, ‘American Orientalism at war in Korea and the U.S.’, in Tarak Barkawi and Keith Stanski (eds), Orientalism and War (London: C. Hurst and Co., 2012), p. 47 Google Scholar.

76 Newton, , ‘Illustrating illegitimate lawfare’, p. 271 Google Scholar.

77 Ibid., p. 256.

78 Dinstein, , ‘LOAC and attempts to abuse or subvert it’, p. 489 Google Scholar.

79 Ibid., p. 489.

80 See, for example, Cumings, , ‘American Orientalism at war’, p. 44 Google Scholar (highlighting a similar logic at play in Truman’s attempts to justify the United States’ indiscriminate killing at Hiroshima); Kinsella, , The Image Before the Weapon, pp. 107–108 Google Scholar (highlighting a similar logic at play in arguments made, at the end of the nineteenth century, in favour of using the dum-dum bullet in colonial warfare).

81 See, for example, Dunlap, , ‘Law and Military Interventions’, p. 4 Google Scholar; Council on Foreign Relations, ‘Lawfare’.

82 See, for example, Dunlap, ‘Does lawfare need an apologia?’; Dunlap, ‘Lawfare today … and tomorrow’; Sitaram, The Counterinsurgent’s Constitution; Kittrie, Lawfare.

83 For a dominant account of the changing meanings of the term ‘lawfare’, see Kittrie, , Lawfare, pp. 4–8 Google Scholar. For a critical account of the evolution of the dominant lawfare literature more generally, see Jones, Craig A., ‘Lawfare and the juridification of law modern war’, Progress in Human Geography, 40:2 (2016), p. 224 Google Scholar.

84 Dunlap, , ‘Law and Military Interventions’, p. 4 Google Scholar.

85 Kittrie, , Lawfare, p. 6 Google Scholar.

86 Dunlap, , ‘Law and Military Interventions’, p. 2 Google Scholar.

87 Kittrie, , Lawfare, p. 6 Google Scholar.

88 Dunlap, , ‘Does lawfare need an apologia?’, p. 122 Google Scholar; Dunlap, , ‘Lawfare today … and tomorrow’, p. 315 Google Scholar.

89 Dunlap, , ‘Does lawfare need an apologia?’, p. 122 Google Scholar.

90 Dunlap, , ‘Law and Military Interventions’, p. 4 Google Scholar.

91 Dunlap, , ‘Lawfare today: a perspective’, p. 146 Google Scholar; Dunlap, , ‘Does lawfare need an apologia?’, p. 122 Google Scholar, emphasis added.

92 See, for example, Stephens, , ‘The age of lawfare’, p. 327 Google Scholar; Kittrie, , Lawfare, pp. 6–7 Google Scholar.

93 Dunlap, , ‘Does lawfare need an apologia?’, p. 142 Google Scholar.

94 Kittrie, , Lawfare, p. 343 CrossRefGoogle Scholar.

95 Dunlap, , ‘Law and Military Interventions’, p. 4 Google Scholar (citation removed). The example Dunlap gives, in a citation here, of an occasional instance in which lawfare might result in less suffering in war, is that of the US government buying up commercial satellite imagery of Afghanistan. Dunlap, , ‘Law and Military Interventions’, p. 4 Google Scholar, fn. 17. In this early work, this kind of lawfare is cast as the exception, not the rule, as the above sentence illustrates.

96 Dunlap, , ‘Lawfare today … and tomorrow’, p. 316 Google Scholar.

97 Ibid., pp. 315–316 Google Scholar, emphasis added.

98 See Department of Defense, ‘National Defense Strategy of the United States of America’, p. 5 Google Scholar.

99 Dinstein, , ‘LOAC and attempts to abuse or subvert it’, p. 484 CrossRefGoogle Scholar, emphasis added.

100 Council on Foreign Relations, ‘Lawfare’; Department of Defense, ‘National Defense Strategy of the United States of America’, p. 5 Google Scholar.

101 Dunlap, , ‘Does lawfare need an apologia?’, p. 121 Google Scholar; Dunlap, , ‘Lawfare’, p. 829 Google Scholar.

102 Kittrie, , Lawfare, p. 3 CrossRefGoogle Scholar.

103 An exception is Phillip Carter, ‘Legal combat’, Slate (4 April 2005), available at: {http://www.slate.com/articles/news_and_politics/jurisprudence/2005/04/legal_combat.html} accessed 9 June 2016.

104 Jones, , ‘Lawfare and the juridification of law modern war’, p. 224 CrossRefGoogle Scholar.

105 For examples of such critical works, see Cover, Robert M., ‘Violence and the word’, Yale Law Journal, 95:8 (1986), pp. 1601–1629 CrossRefGoogle Scholar; Berman, Nathaniel, ‘Privileging combat? Contemporary conflict and the legal construction of war’, Columbia Journal of Transnational Law, 43:1 (2004), pp. 1–72 Google Scholar; Kennedy, David, Of War and Law (Princeton: Princeton University Press, 2006), p. 22 Google Scholar; Weizman, ‘Legislative attack’; Douglas, Lawrence, Sarat, Austin, and Umphrey, Martha M., ‘Law and war: an introduction’, in Austin Sarat, Lawrence Douglas, and Martha M. Umphrey (eds), Law and War (Stanford: Stanford University Press, 2014), p. 13 Google Scholar.

106 Carter, ‘Legal combat’.

107 Sarat, Austin and Kearns, Thomas R. (eds), Law’s Violence (Ann Arbor: University of Michigan Press, 1995), p. 1 Google Scholar, as quoted in Jones, , ‘Lawfare and the juridification of law modern war’, p. 224 Google Scholar.

108 Kennedy, , Of War and Law, p. 22 Google Scholar.

109 Berman, ‘Privileging combat?’.

110 Ibid., pp. 3–4. The jus in bello rules are those rules governing ‘the methods of war and the protection of those not engaged in combat’. Berman, , ‘Privileging combat?’, p. 3 Google Scholar. For a more recent account that demonstrates the permissive power of the jus ad bellum rules of war (that is, the rules governing the resort to war itself), see Hurd, Ian, ‘The permissive power of the ban on war’, European Journal of International Security, 2:1 (2016), pp. 1–18 Google Scholar.

111 Kennedy, , Of War and Law, p. 32 CrossRefGoogle Scholar.

112 Ibid.

113 Berman, ‘Privileging combat?’.

114 Jones, ‘Lawfare and the juridification of law modern war’; Weizman, , ‘Legislative attack’, p. 13 CrossRefGoogle Scholar.

115 Jones, ‘Frames of law’; Hajjar, ‘Lawfare and Armed Conflict’.

116 Weizman, , ‘Legislative attack’, p. 22 Google Scholar.

117 Snukal, Katia and Gilbert, Emily, ‘War, law, jurisdiction and juridical othering: Private military security contractors and the Nisour Square massacre’, Environment and Planning D: Society and Space, 33 (2015), p. 661 Google Scholar.

118 But see Gordon, Neve, ‘Human rights as a security threat: Lawfare and the campaign against human rights NGOs’, Law & Society Review, 48:2 (2014), p. 312 Google Scholar (adopting an approach that does not use lawfare as a ‘descriptive term’ but instead, ‘focus[es] on what lawfare does.’)

119 Morrissey, John, ‘Liberal lawfare and biopolitics: US juridical warfare in the war on terror’, Geopolitics, 16:2 (2011), p. 291 Google Scholar.

120 Weizman, , ‘Legislative attack’, p. 16 Google Scholar.

121 Snukal, and Gilbert, , ‘War, law, jurisdiction and juridical othering’, p. 662 Google Scholar.

122 Smith, Michael D., ‘States that come and go: Mapping the geolegalities of the Afghanistan intervention’, in Irus Braverman, Nicholas Blomley, and David Delaney, The Expanding Spaces of Law: A Timely Legal Geography (Stanford: Stanford Law Books, 2014), p. 143 Google Scholar, emphasis added; Jones, , ‘Lawfare and the juridification of law modern war’, p. 232 Google Scholar, emphasis added.

123 Weizman, , ‘Legislative attack’, p. 13 Google Scholar.

124 Jones, , ‘Lawfare and the juridification of law modern war’, p. 223 Google Scholar.

125 There are now substantial literatures that trace how ‘Eurocentric [and colonial, and Orientalist] ideas and historiographies have informed the basic categories of social and political thought – literatures on which this article draws (Tarak Barkawi, ‘Decolonizing war’, European Journal of International Security, 1:2 (2016), p. 199).

Barkawi’s work has been key in tracing how these ideas and historiographies have informed our understandings of war. In ‘Decolonizing war’, he shows that ‘European histories of war provide the (provincial) basis for the putatively universal concepts and definitions in which we study war in both the global South and North’. Barkawi, ‘Decolonizing war’, p. 200. In Orientalism and War, he and his coauthors and collaborators trace the ways in which ‘orientalism participates in war through interpretation, by providing an account of the meaning of a war and the identities of the parties involved in it’. Barkawi, Tarak and Stanski, Keith, ‘Introduction: Orientalism and war’, in Barkawi and Stanski (eds), Orientalism and War, p. 3 Google Scholar.

126 Here, I am drawing on Alison Howell’s critique of the concept of ‘militarization’, a concept which, she suggests, ‘falsely presumes a peaceful liberal order that is encroached on by military values and institutions’. Howell, , ‘Forget “Militarization”’, p. 1 Google Scholar. Howell suggests that ‘[e]mbedded in the term “militarization” is a theorization of “before and after” – of movement from a non-militarized (or less-militarized) state, to a militarized one. This, however, erroneously assumes that there ever was a peaceful domain of “normal” or “civilian” politics unsullied by military intrusion.’ Howell, ‘Forget “Militarization”’, p. 2. My point here is similar: the very notion of the ‘weaponisation’ of law suggests the possibility of a non-weaponised law, much as the characterisation of only some invocations of law as ‘lawfare’ suggest that other invocations are ‘peaceful’.

127 Kinsella’s 2011 book (The Image Before the Weapon) is a prime example of a work that undertakes such an enquiry in the context of humanitarian law. For other examples that do not focus on humanitarian law, see generally Orford, International Law and Its Others; Ruskola, ‘Legal orientalism’; Ruskola, Legal Orientalism; Pahuja, Sundhya, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge: Cambridge University Press, 2011)Google Scholar.

128 Crucially, in these accounts, homes, humans and hospitals are portrayed not simply as ‘defensive’ mechanisms, but as having ‘offensive’ potential. For example, during Operation ‘Protective Edge’, Israel produced an infographic, widely disseminated on social media, which had a picture of a house, labelled ‘Gaza’, forming the head of a rocket. The tagline was: ‘Hamas Uses its Civilians to Harm Ours.’ Gordon, Neve and Perugrini, Nicola, ‘The politics of human shielding: On the resignification of space and the constitution of civilians as shields in liberal wars’, Environment and Planning D: Society and Space, 34:1 (2016), p. 181 Google Scholar. The implication here was that Palestinian civilians, and homes (and indeed, all of Gaza) were not simply shields, but weapons, since the shielded weapons could ultimately be used against civilians in Israel.

129 Bryan, Joe and Wood, Denis, Weaponizing Maps: Indigenous Peoples and Counterinsurgency in the Americas (New York: The Guilford Press, 2015)Google Scholar; Price, David H., Weaponizing Anthropology (Petrolia and Oakland, CA: Counterpunch and AK Press, 2011)Google Scholar; Howell, Alison, ‘Neuroscience and war: Human enhancement, soldier rehabilitation, and the ethical limits of dual-use frameworks’, Millennium: Journal of International Studies, 45:2 (2017), pp. 133–150 Google Scholar (critiquing the argument that neuroscience has been ‘weaponised’).

130 Howell, ‘Forget “Militarization”’; Howell, Neuroscience and war’.