Several days ago, Professor Eric A. Posner of the University of Chicago wrote an essay in the conservative bi-monthly The National Interest, ‘Dockets of War,’ in which he argues that the threat of “lawfare,” so often discussed in the United States as a potential threat to American interests in particular abroad, is “over-hyped.” As an international lawyer, my point of view is radically different from Posner, but I found the article well-written and thought-provoking enough to share some ideas with you.
The term lawfare, before referring to the excellent American national security blog, was coined by U.S. Air Force then-Colonel Charles Dunlap in an article to designate “the use of law as a weapon of war.” In his words, Professor Posner explains:
“By this reading, lawfare is both the efforts of enemy nations, terrorist organizations and their supporters to counter American military superiority by threatening U.S. policy makers and soldiers with prosecution and civil litigation, and the pressure brought to bear by NGOs who take to the media marketplace insisting that international law places sharp limits on military action.”
The phrasing of Eric Posner’s interpretation of lawfare is somewhat surprising, considering that he gives the impression that “enemy nations,” “terrorist organizations and their supporters” and “NGOs” are on the same side. Nevertheless, his definition is not far from the truth: “lawfare,” once you go past the negative connotation of the word, really amounts to individuals or groups who for a reason that is their own oppose a State’s policy, in this case the United States, will attempt to affirm their rights and curb the prejudicial policy through legal processes.
Eric Posner is far from being the only one to present lawfare in such a manner. Authors of the United States’ 2005 National Defense Strategy famously wrote “[o]ur strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes and terrorism,” consciously putting on the same level of threat international organizations such as the United Nations, Courtrooms, whether international or domestic, and terrorism.
Screenshot taken from NGO Monitor's website
Unsurprisingly perhaps, the situation that most directly generates controversies regarding lawfare is the Israeli-Palestinian conflict. Several organizations, such as The Lawfare Project or NGO Monitor have made it a speciality to loudly denounce any attempt by Palestinian groups to affirm their rights through legal processes as a “case of lawfare,” which The Lawfare Project calls “the newest, most visible and increasingly emergent form of asymmetric warfare.” Which is not to say that pro-Israel groups have not shown themselves to be equally prone to forms of lawfare… (Continued)
If you have not heard yet, former President of the United States George W. Bush 
