What to Watch 2023: Unlawfare​

The MOC
Image From Wikimedia Commons.

By Dr. Ian Ralby

While the term “lawfare” has become a matter of common parlance in many military circles, its use has become too expansive to pick up on a pernicious trend that is likely to accelerate in 2023. Rather than using law and legal processes to accomplish traditional military objectives, some states have been bullying other states and the international community with completely fake legal positions. This tactic of what could be better termed “unlawfare” is growing and will cause new problems in the year ahead.

The relationship between law and war has existed for millennia. Since the Peace of Westphalia gave rise to the nation-state, the “laws and customs of war” have developed as a description of the rules by which warring parties saw fit to operate and constrain themselves. The extensive conflicts in the first half of the twentieth century produced a rapid increase both in the codification of the laws of armed conflict and the use of legal mechanisms to adjudicate activities of combatants.

The increase in legalistic thinking around how to wage war sparked new strategy and doctrine regarding how the law could be used in the midst of conflict. In an essay at Harvard University in 2001, MG Charlie Dunlap (USAF Ret) – later the Deputy Judge Advocate General of the U.S. Air Force – coined the term “lawfare.” According to him, it means “the use or misuse of law as a substitute for traditional military means to accomplish an operational objective.” While “misuse” is an important alternative to the use of law, “lawfare” necessarily presupposes actual law as the foundation for approach that is taken. Over the last 22 years, states have begun to imitate the appearance of lawfare, but their starting point is a made-up, fictious assertion; not law. This is “unlawfare.” To effectively counter this trend, it must be distinguished from “lawfare.”

No state has done more to advance the use of unlawfare than the People’s Republic of China. Not coincidentally, in 2004, just three years after MG Dunlap’s article and amid the advent of the wars in Iraq and Afghanistan, the People’s Liberation Army published “An Analysis of 100 Cases of Legal Warfare.” That document was the starting point for a new approach to military and international affairs that has accompanied and in many cases aided China’s ascendency. Referencing ancient Chinese strategy, it has become a major means of “winning without fighting.”

In implementing “legal warfare” or “lawfare,” however, China has traded on other states not being able to push back against bogus legal assertions. The law, in many respects, should be seen as an asset to any military, just as aircraft, vessels, and radar systems are all seen as assets. It is a tool that can be wielded by those with the expertise and creativity to do so. It is a framework that provides parameters and possibilities for how achieve objectives. But China has become a leader in using the trappings and appearance of law as a bludgeon to gain advantage. While the United States has been a global leader in integrating legal advisors into its armed forces, China has effectively used fake legal arguments that are so bold as to force a delay in anyone proclaiming that the proverbial emperor has no clothes.

Nowhere is this more evident than in the South China Sea. The Chinese development of artificial islands has garnered a tremendous amount of international attention, but far less attention has been paid to China’s legal claims surrounding what they can, in turn, do with them. While volumes could be written on this subject, the most notable is the assertion that not only can China claim a 12-mile territorial sea and a 200-mile exclusive economic zone around these artificial islands – which itself is inconsistent with the law – but that they can also exclude foreign warships and warplanes from the entirety of the exclusive economic zone. There is no foundation for this in the law. Indeed, there is not even a fragment of maritime law that could be used as the basis for such an assertion that is so contrary to one of maritime law’s most fundamental principles, the freedom of navigation. Yet China can make this claim with legal impunity and leave it to the courage of others to push back against it from an operational standpoint. Were China to get its way, it would be able to block any foreign warships or warplanes from transiting the South China Sea – a significant consequence for global security.

Observing the voracity of this tactic of unlawfare in action, other states are following suit. Russia has used unlawfare prolifically in its aggression toward NATO and its invasion of Ukraine, as well as its activities in other parts of the world. Indeed, the simultaneous claim of full sovereignty over Crimea and the rights of an occupying power allowed for Russia to take a wide variety of absurd and inconsistent legal positions to accompany its actions and corresponding narratives in the lead-up 24 February 2022. As the conflict continues to evolve, it is likely that unlawfare will become more evident and pervasive, especially amid ongoing Russian losses and set-backs.

Beyond China and Russia, however, unlawfare is likely to creep into the doctrines and operations of armed forces around the world. Even as a tactic to delay or to cause public outcry, advancing a position on a baseless and fake legal claim could change how states are able to antagonize each other. Most armed forces lack operational legal advisors, and even those who have them, have not integrated them into decision making processes. And even then, an operational lawyer with extensive expertise in the laws of naval warfare or the laws of maritime security operations may not be able – especially without support – to even speak to a ministry of foreign affairs. Doubt is also a major factor: a confident assertion that something is either legal or illegal may be persuasive, even to a good lawyer, as they may doubt their own contention that the assertion is unfounded.

This trend of unlawfare points to five major efforts that all states should undertake in order not to become a victim of a fake legal argument used to accomplish a strategic end. First is to ensure that legal advisors are integrated into the operational decision-making processes of the armed forces. Second is to establish functional interagency mechanisms such that the legal expertise of military lawyers can be used by ministries of foreign affairs charged with countering the discourse of unlawfare. Third is that communities of experts must work together to think through and analyze these issues and share with each other – in real time if necessary – advice on how to call out and combat these spurious tactics. Fourth is to advance the doctrine around lawfare to proactively use law as an asset and preempt some of the opportunities for unlawfare. And finally, there needs to be better strategic communication so that even non-lawyers can understand what is happening, what is at stake, what is lawful, and what is fictitious.

As a new twist on “might makes right,” a fundamental part of unlawfare is that even small states without the means to physically bully another state may take advantage of deficiencies in legal capacity to make significant strategic gains through legal bullying. No matter the size or strength of the state – large or small – such bullying cannot be tolerated. Transparency, rigor, cooperation and creativity are all therefore needed to form a community that maintains the rules-based order and definitively thwarts those who seek to use the language and trappings of the legal system in order to undermine and subvert it.

 

Dr. Ian Ralby is CEO of the consultancy I.R. Consilium, President of the charitable nonprofit Auxilium Worldwide and a Fellow at the Center for Maritime Strategy. He is a recognized expert in maritime law and security, and works with states on building the legal and operational capacity to combat a wide spectrum of threats including the emerging and evolving tactics of unlawfare.


The views expressed in this piece are the sole opinions of the author and do not necessarily reflect those of the Center for Maritime Strategy or other institutions listed.