Lawfare
Lawfare is the use of international law as a component of [[grand strategy]. A Council on Foreign Relations conference defined it as
...a strategy of using or misusing law as a substitute for traditional military means to achieve military objectives. Each operation conducted by the U.S. military results in new and expanding efforts by groups and countries to use lawfare to respond to military force. [1]
It is also seen as a form of asymmetrical warfare to counter superior military force, especially by non-national actors. American conservative legal theorists, such as Jack Goldsmith, and organizations, such as the Federalist Society, regard it with especial concern.[2] Goldsmith, however, is a relative moderate compared to Dick Cheney and some of his advisers, such as David Addington, who based much of the George W. Bush Administration policies in dealing with terrorism on American immunity to international law. George W. Bush, for example, ruled, on February 7, 2002, wrote
"I determined.... that members of al-Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war." [3]
U.S. concerns preceded the Bush Administration, although the term is relatively new. Concern over the effect, if not the term, is a major reason that several major nations did not ratify the Rome Treaty for the International Criminal Court (ICC). They feared that the ICC might be used to harass rather than in the interest of justice. There have been some attempts separate from the ICC, under the doctrine of universal jurisdiction.
Goldsmith specifically called the ICC "self-defeating".[4] There is some sentiment, however, that a body like the ICC will be more just in applying universal jurisdiction than individual nations who have tried to extradite or prosecute individuals who neither performed the act in areas under their national jurisdictions, or against their citizens, such as Spain's extradition from Britain of Chilean president Augusto Pinochet. This is a more extensive interpretation than actions taken against foreign defendants who are variously either resident in the country taking the action (e.g., Filartiga v. Pena-Irala) or by citizens of the national actor.
Other aspects of international law are being used among nations, such as maritime law by China; this would not be under ICC jurisdiction.[5]
References
- ↑ Lawfare, the Latest in Asymmetries, Council on Foreign Relations, 18 March 2003
- ↑ Aziz Huq (22 November 2006), Waging Lawfare: Commentary, Brennan Center for Justice, New York University
- ↑ George W. Bush (July 20, 2007), Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, Executive Order 13440
- ↑ Jack Goldsmith (2003), "The Self-Defeating International Criminal Court", University of Chicago Law Review
- ↑ James Kraska and Brian Wilson (11 March 2009), "China wages maritime "lawfare"", Foreign Policy