'Lawfare' as illegal behavioral counters to superior military forces, and the limits of technological responses to it
A very considerable amount of weapons technology for war-fighting today is aimed at greater discrimination in targeting. It can be obtained in very different ways - better intelligence gathering for the sake of targeting, avoiding ambushes, the use of robots and remotely controlled platforms, greater precision in firepower, and many other things. These are very good technologies to develop for their own sakes.
But, likewise to a very considerable extent, these advances in technology are aimed to compensate for the fact that the enemy, the other side, fights by means of violations of the laws of war jus in bello. An enemy indifferent to the laws of war can counter advances in war-fighting technology by finding new ways to violate the rules of war faster than we can develop new technologies to address them. Behavior can generally change faster than technology, and bad behavior can usually outstrip the rate of advance in adaptive good technology.
One way to define ‘lawfare’, in fact, is systematic behavioral violations of the rules of war, violations of law undertaken and planned through advance study of the laws of war in order to predict how law-abiding military forces will behave and exploit their compliance; and where such violations are intended as a behavioral counter to superior military forces, including superior, yet law-compliant, technology and weapons systems.
Understood in this way, lawfare is not merely particular violations of the laws of war and particular war crimes, such as illegal use of civilian shields or the failure to wear uniforms or distinguishing marks, etc. It is conceptually, if not legally, perfidy. It seeks illegally to induce an enemy to rely for its safety and the safety of civilians upon the laws of war in order to attack through violations of those self-same laws of war.
(’Lawfare’ is used in other ways and contexts, but this is the one that is primarily relevant to the battlefield.)
3 comments:
You have previously argued that the laws of war should be applied so as to minimize the advantages and prerogatives of stateless illegal combatants. Without arguing over what the law now is, do you think there are ways we might formally alter the law to minimize the power of lawfare?
This would probably introduce a hopeless subjectivity to the problem, but do you think something like the maxim that "He who comes to equity must come with clean hands" could do some good?
It's bad form to leave several comments in succession, but let me expand a bit on the above with something specific.
Considering the laws of war as an agreement between nations, the primary inducement for any combatant to abide by them is the hope of reciprocity. There are things we will agree to do and agree not to do to our enemies, because we want them to behave similarly toward us and ours in reciprocal circumstances. This is a prudential and contingent morality, not an absolute one. A nation's reasons for signing up to such laws may well be rooted in a fundamental moral sense concerning how combatants ought to behave, but, if so, the contingent morality of the letter protects the fundamental morality of the spirit - not vice versa.
With stateless groups practicing lawfare, of course, there is no reciprocity. And one of the tricks of lawfare is that it exploits the target society's sense of fundamental morality to require it to abide by agreements that are contingent on reciprocity even in the absence of such reciprocity.
So here's the suggestion. I believe that in global counterterrorism - and in counter-insurgency - the moral high ground is strategic ground. In much of the world press, however, unlawful combatants are given a moral pass - they are assumed to be what they are by nature, or to be a faceless force of nihilism, so that the moral culpability for their acts of barbarity lies not on them, but rather lies on their targets for the crime of failing to prevent it. This is a disgusting moral inversion, but it has largely become the moral calculus of the present conflicts.
If this could be even partially reversed - if the barbarous who practice lawfare could be held publicly accountable for their barbarous acts - accountable both in the eyes of the society from which they draw their recruits and accountable in the eyes of the public opinion they target - then law-abiding countries would find it that much easier to claim the moral high ground.
How, then, to do this? One of the purposes of the laws of war has been to protect prisoners of war from shame. There is, properly, no shame in being a lawful combatant. But there ought to be shame in bombing public transit or plotting to blow ball bearings through crowded markets.
Why not, therefore, narrowly and specifically deny illegal combatants the protection from public parade that is properly given to ordinary prisoners of war? Broadcast: "This is Mr. X. He packed nails in the tanker truck that detonated in market Y two weeks ago. This is the evidence. What have you to say for yourself Mr. X? Do you find this action to be in accord with the religion you espouse?"
Of course you have to prevent lynchings if you do this, and of course you have to be reasonably certain that you have the right man. But faceless forces of nihilism do not commit terrorist barbarities, people do.
Putting faces on the more barbarous of the acts that contravene the laws of war could go a long way toward overturning the moral inversion that the practitioners of lawfare currently exploit. It is perhaps the only area of the laws of war where a lawful nation could decline to follow the current legal maximum and yet experience a net gain in public moral standing.
Is Mr. X's detention or trial then unlawful? No: he does not come with clean hands.
I am against the use of all technology for mass destructive weapons and to kill people or the "enemies" as the USA government says
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