Lawfare: Legal Tools in Warfare by Warsaw Institute

— SPECIAL REPORT —

2023/10/30

LAWFARE : LEGAL TOOLS IN WARFARE JOANNA SIEKIERA PHD

LAWFARE : LEGAL TOOLS IN WARFARE

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As warfare has evolved dramatically, it is critical to analyze the concept of lawfare and its implications for human rights both in warfare and once hostilities cease. With galloping advances in technology and strategies of war, protecting human rights in armed conflict is a more complex and multidimensional concept, somewhat surprisingly linked to other issues and geographical centers. It entails economic dependence and political alliances since states use cold calculation to pursue their interests while strategically depriving the population of the military or political enemy of human rights. Over the past years, the concept of lawfare has gained popularity 1. The term „lawfare“, a port-

manteau of „law“ and „warfare“, is the strategic use of legal proceedings to intimidate or hinder an opponent in modern warfare. The law is used as a substitute for traditional military means to achieve a warfighting or political objective at regional and global levels. Lawfare strategies are successfully employed by states and non-state actors. Adversaries use legal tools and institutions and interpret international law to their benefit, hoping to achieve their objectives. At stake is not to defeat the adversary but to amplify and legitimize one‘s actions directed at the population, allies, or unconvinced states. While it is critical

1. J. Siekiera, Legal culture in Protection of Civilians, “The CoESPU Magazine”, Vol. 3, 2022.

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to employ law in warfare––as per humanitarian law2, one of the oldest fields of conventional international law, also known as the law of war or the law of armed conflict––legal abuse, misinterpreting, or overinterpreting undermine transparency and respect for human rights. A question emerges how to protect human rights in warfare. Although the International Committee of the Red Cross officially refers to the International Humanitarian Law of Armed Conflicts, practically it is broken down into humanitarian law and the law of armed conflicts. The author believes that the term „law of war“ should be employed accordingly and thus regulate rules for armed conflicts. International humanitarian law (IHL) is a practical set of rules for the battlefield. It has the humanitarian objective of reducing human suffering, particularly among civilians. The rules that underpin IHL can be found in treaties between states, such as the universally-ratified Geneva Conventions of 1949 along with three Additional Protocols. Distinct from, albeit often confused with IHL, international human rights law (IHRL) is the body of international law designed to promote human rights also in peacetime. The rules enshrined in the Universal Declaration of Human Rights of 1948, a foundational document of international human rights law, and other conventions specify the conduct in warfare and in peacetime. Nonetheless, lawfare tactics, which are gaining prominence, undermine the provisions of IHRL aimed at ensuring the best protection of individuals and communities. Lawfare presents all actors with an array of opportunities and challenges for human rights protection. It could indeed help seek justice for

victims and hold offenders disciplinary or criminally responsible at national and international levels. International courts and human rights bodies could indeed mitigate human rights violations––in all types of conflicts, in both strategic states or elsewhere, where there is no extensive media coverage, such as in Yemen and Tigray or Boko Haram terror, among the deadliest wars of our time3. Any military or political action inconsistent with international law could indeed hinder humanitarian relief, perpetuate impunity, and exploit the legal framework governing warfare to rationalize illegal actions. Misinterpreting IHL and exploiting legal loopholes cause human rights violations, including unlawful detention, torture, mass attacks that do not observe the principles of distinction and proportionality as well as deliberate attacks on civilians and civilian infrastructure. The changing character of warfare––from conventional to hybrid, and thus irregular––has generated a serious legality problem with regard to human rights in armed conflicts. Factors such as the asymmetry of power between state and non-state actors, hybrid warfare, and psychological operations (PSYOPS4) pose a critical threat to underlying principles of international humanitarian law, notably those of humanity, precautions, and proportionality. Modern warfare has seen a shift from battlefields to more complex strategies, including asymmetric warfare, urban fighting, and the use of non-state actors. The evolving character of the warring parties involving military, political, and economic factors has blurred the boundaries between combatants and civilians, which poses considerable challenges to human rights and dignity. The situation is further complica-

2. Although the International Committee of the Red Cross officially refers to the International Humanitarian Law of Armed Conflicts, practically it is broken down into humanitarian law and the law of armed conflicts. The author believes that the term „law of war” should be employed accordingly and thus regulate rules for armed conflicts. 3. M. Ray for Encyclopaedia Britannica, 8 Deadliest Wars of the 21st Century: https://www.britannica.com/list/8-deadliest-wars-of-the-21st-century 4. Compare some examples presented by RAND Corporation, Psychological Warfare: https://www.rand.org/topics/psychological-warfare.html

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ted by the use of emerging technologies, such as unmanned aerial vehicles (drones), cyber warfare, and autonomous weapon systems. Finally, some issues underpin the complexity of modern warfare. First, in her lectures for military and civilian students, the author insists on the dynamic character of 21st-century warfare where so-called grey zones have become prevalent in a legal environment as the applicable treaties no longer tackle legal and systemic mechanisms used by an adversary5. In addition, targeted killing by drones as well as members of special forces and intelligence agencies has changed the strategic landscape of warfare. Although executions have historically been imposed as part of warfare or to ensure domestic security, efforts to interpret the international legal framework to approve murder, and not just detention of individuals or groups, is a new addition. The use of robotics in a theater

of war, which could indeed reduce human casualties by carrying out precise attacks, raises some legal concerns about criminal liability, privacy violation, or no clear boundaries between combatants and civilians as even the best robotic soldier is unable to verify who is an actual target. Thirdly, as states and other actors increasingly resort to operations in cyberspace, this new and rapidly developing means of warfare could destabilize even those not involved in any war. Cyber warfare has challenged the traditional legal environment of all armed conflicts. The absence of a shared definition of cyber attack and thus legal liability for cyber warfare compromises the stability of critical state infrastructure as well as civilian facilities that could fall victim to natural disasters or sabotage, including well poisoning or personal data breaches. All this matters considerably for human rights whose provisions could no

5. Cf. J. Siekiera, International legal framework regulating military exercises – Lawfare potentially associated with military exercises as a hybrid threat, “Polish Quarterly of International Law” Vol.1, 2023.

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longer effectively protect individuals due to legal loopholes and the lack of adequate protection mechanisms. Finally, hybrid methods, which incorporate a full range of different modes of warfare including conventional capabilities and irregular tactics, have irreversibly blurred the lines between war and peace. This ambiguity undermines the paradigm of international law and thus the maintenance of peace and stability worldwide. Quite naively, IHL introduced a ban on waging wars, now referred to as „armed conflicts.“ Unfortunately, all adversaries of the democracy-based Western system of values seem fine in a new legal order as they have instrumentalized legal thresholds and conducted psychological operations compiled with other irregular warfare tactics while Western states still perceive warfare as conventional aggression within geographical and not even cyberneticborders of an adversary. Against this backdrop, applying the whole range of internationally recognized human rights standards and principles is illusory as international law does not provide for mechanisms or instructions while political decisions and research papers fail to describe the framework of IHRL with regard to irregular actions. Who reaps benefits? Hostile states and non-state actors. So what can and should be done in this respect? Factors that hinder further efforts to enforce the rules underpinning international humanitarian law include distinct political interests of states and non-state actors, limited resources that prompt some actors to fight for them, and the absence of worldwide consensus on a binding international legal framework. A complex ring of actors involved in modern warfare is another nuisance to human rights observance. Consequently, coordination and cooperation at the

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regional level amid the weakness of a global system where not all states share the same values as was demonstrated by the failures of the League of Nations and the United Nations seem crucial for developing effective actions. Although any breaches of the law of war and emerging challenges to modern warfare are factors that hinder the protection of human rights, a legal, political, and economic balance must be achieved to ensure that human dignity is observed across the globe. Some key points include: Efforts to strengthen international institutions, such as the United Nations (to be eventually replaced with a similar organization resembling a worldwide government) as well as their authority to address breaches of law and their impact on human rights. Increased accountability: encouraging states to comply with the existing legal framework and promoting accountability for human rights violations during armed conflicts. Being a law-abiding state offers a set of prestigious economic privileges while states that fail to be in accordance with international laws and norms should suffer severe consequences not just niche treaty sanctions imposed by a handful of states. The evolving legal framework: it is advisable to regularly review the international legal framework to tackle new challenges, with a focus on cyber warfare and targeted killings. Raising awareness: training schemes and educational programs are vital to build awareness of human rights in armed conflict, including irregular warfare. These should be taught as functionally as the law of war during regular warfare.

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To conclude, the concept of lawfare should receive close attention amid the changing character of warfare and strategies with regard to the international legal framework governing warfare. An international amendment to the conduct of war and grey zones in hybrid warfare poses a challenge to human rights protection as the bedrock of international law. It is critical to strengthen the core principles of IHL and efforts to hold accountable states, non-state actors, and individuals for any instances of human rights violations. Finally, international humanitarian law should be enforced also by military means that are legitimized under specific provisions of the law of war.

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Furthermore, it is critical to address challenges to human rights through cooperation between states, international organizations, and legal communities, also to ensure that human rights are put at the center of their collective efforts. It is possible to strike a balance between attaining military objectives and protecting human dignity through international cooperation, a more robust legal framework, and efforts to raise civic awareness.

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Autor: Joanna Siekiera PhD Joanna Siekiera is an international lawyer with a PhD in public policy studies. She works as a legal advisor and lecturer in many military institutions: NATO, the US Marines, the armed forces of Finland and Turkey, among others. She completed a post-doctorate at the University of Bergen in Norway and a PhD at the University of Victoria in New Zealand. She is the author of 100 scientific publications in several languages, 40 legal opinions for the Polish Ministry of Justice and the book “Regional Policy in the South Pacific,” and the editor of 7 monographs on international law, international relations and security.

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