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Transcript

Lawfare, the Latest in Asymmetries

March 18, 2003

Council on Foreign Relations

[Note: A transcript of this meeting is unavailable. The discussion is summarized below.]

The sixth session of the FY03 National Security Roundtable was held on March 18, 2003. The March Roundtable discussed

the increased use of legal tools to combat American military might. Several experts on the topic gave background

presentations. Following the presentations, Col. Peatross moderated an open discussion.

What We Know:

The intersection of globalization and the emergence of international law has resulted in a variant of warfare described by some

as lawfare. Lawfare is 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.

Although not a symmetrical threat to American military power, lawfare can be used to undercut American objectives. For

example, it can be used as a decapitation strategy as in Colombia where international groups encourage peasants to file human

rights suits with few grounds against military figures. Regardless of their validity, the legal costs of fighting these suits can

effectively remove a particular commander from active duty for years at a time as the cases work their way through the court

system.

In addition, lawfare can be used to goad American forces into violations of the Law of Armed Combat, which are then used

against the United States in the court of world opinion. Armed combatants may conceal weaponry or themselves amongst

civilians, encouraging attacks that can be used as propaganda against American forces. This can have a dramatic effect on the

use of American air power, making commanders reticent to attack targets and dragging out the conflict. Too much concern

over the legality of each and every decision can be harmful to soldiers involved in ground combat as well.

What We Do Not Know:

Since lawfare is somewhat of a new phenomenon, the full effects of its application are yet unknown. The evolution of American

military technology only raises new concerns and legal aspects.

Emerging international legal structures, such as the International Criminal Court and a widening gap between the legal culture

in the United States and Europe, create new challenges to the use of American military power. Some argue that the

International Criminal Court will deal only with cases of genocide and actions of abuse on a scale beyond anything the U.S.

military may commit. Others are concerned that court cases could become political weapons to curtail American action.

As military technology ev olves, so do the scenarios facing military planners. New ty pes of weaponry raise a host of legal and

ethical questions. For example, new weaponry that can destroy power networks through electrical transmissions may seem to

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be preferable to traditional bombs. When electricity grids are destroyed, however, hospitals and civilians will lose power as

well, possibly resulting in civilian casualties. American military authorities are still grappling with many of these issues.

What are the Next Steps?

Several participants argued that the United States should not fear lawfare, but instead embrace it and use it to its advantage.

To some extent, the military has done this in the current campaign against Iraq by embedding journalists with units. These

journalists will show the professional way in which the U.S. military operates and will be able to document any Iraqi attempts

to use civilians as shields or any Iraqi claims regarding American atrocities.

Others participating in the Roundtable were not as certain of the positive aspects of lawfare. They fear that lawfare will slowly

pervade the military forces and create a climate of fear and second guessing, with lawyers exercising combat authority over

generals and those in the field. In this line of thinking, the military should be allowed to operate as freely as possible,

recognizing that American soldiers are well trained and inculcated with a sense of moral duty.

Given the breadth of this issue, lawfare will likely be the topic of next months National Security Roundtable. This second

session will examine the boots on the ground aspect of lawfare and attempt to examine real-life scenarios that explore the

decisions that soldiers must make on the spot during warfare.

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