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43 Case W. Res. J. Int'l L. 215 (2010-2011)
Whose Lawfare is It, Anyway

handle is hein.journals/cwrint43 and id is 221 raw text is: WHOSE LAWFARE IS IT, ANYWAY? David Scheffer* The growing interest in lawfare, particularly as it applies to American and Israeli military operations, requires a realistic assessment of the nature of the alleged threat and the responses to it. The popular view of lawfare, put forward by neo-conservative commentators and some military lawyers, is exceptionally myopic, oblivious to how other nations view inter- national justice, and disingenuous regarding America's own aggressive use of the law to confront perpetrators of atrocity crimes during times of armed conflict. Lawfare critics cannot have it both ways, arguing that the United States is being unfairly singled out and erroneously attacked in judicial forums for allegedly illegal conduct and then contending that unconven- tional threats permit responses and military strategies that diverge from well-established international law. Perhaps the most significant example of major-power lawfare today, at least from an African perspective, is the In- ternational Criminal Court and its five situations under investigation on the African continent. Greater care needs to be taken with use of the term lawfare, which in common parlance has come to describe how weaker nations, civil society, insurgents, terrorists, and scholars exploit domestic law, interna- tional law, and judicial institutions to influence the foreign and military policies of major powers.' Often, the target becomes U.S. or Israeli policy. Lawfare is a particular form of asymmetrical warfare using the rule of law, or a particular interpretation of the law, to thwart the use of military power . David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University School of Law. He was the U.S. Ambassador at Large for War Crimes Issues (1997-2001). 1 David B. Rivkin & Lee Casey, Lawfare, WALL ST. J., Feb. 23, 2007, at All (defining lawfare as tool of war and its growing use in international claims, with purpose of gain[ing] a moral advantage over your enemy in the court of world opinion); DAVID KENNEDY, OF WAR AND LAW 13 (2006) (To say that war is a legal institution is not only to say that war has also become an affair of rules or the military a legal bureaucracy. It is also to say something about the nature of the politics continued by military means.); David Lu- ban, Lawfare and Legal Ethics in Guantanamo, 60 STAN. L. REV. 1981, 2020 (2008) (This would be in keeping with the concept of 'lawfare,' by which is meant the use of internation- al law and litigation as a method of gaining military advantage. Some commentators regard lawfare as an insidious tool of America's enemies, including internationalist NGOs with an agenda to promote.). 215