Law as a weapon

Enforcement of international law has always been difficult, although it has gone through a fast development in the past sixty years. Reference to violation of the law of war has probably never been as crucial and influential on warfare as today. Even superpowers were inclined to change their actions as a consequence of world pressure urging to respect international law. It may be observed that, even more now than before, considerations of avoidance of IHL violations are taken into account already during the strategic set-up of military operations, due to, in part, of the close and immediate media attention.

183 Report of the Secretary-General on the scope and application of the principle of universal jurisdiction (A/65/181)

184 See Wolfgang Kaleck, From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998-2008, in: 30/927 Michigan Journal of International Law (2009) 927-980, p. 931.

Considering the closure of the Guantanamo detention facility, the review of detention conditions, interrogations and procedures and the release of numerous prisoners by President Obama was doubtless largely the result of loud protests against interrogation techniques, the circumstances in which detainees were held and the fact that they had been held without any due legal procedures having been initiated against them. The need to respect the rules of armed conflicts has tied the hands of many financially and, as to the war machinery and equipment they had developed in organization and technology, technically strong states in the way they waged war and was therefore used as a ‘shield’ by their much weaker opponents.

Playing with legal arguments therefore became a basic instrument – mainly in asymmetric conflicts - and has consequently a huge effect on how wars are waged in our days. This phenomenon, linked together with the recognition of individual criminal responsibility for violations under international law, may be decisive in influencing leaders of conflicting states and non-state actors in how to act.

Since the core subject of the present thesis is domestic war crime trials, the significance and power of respect for the law must be underlined; the present sub-chapter shortly deals with the phenomenon often labeled as “lawfare”.

„That this strategic military disaster [the detainee abuses in Abu Ghraib] did not involve force of arms, but rather centered on illegalities, indicates how law has evolved to become a decisive element – and sometimes the decisive element – of contemporary conflicts.”¹⁸⁵ This quote illustrates how much modern military forces realize that compliance with the law can be a tactical advantage – or disadvantage – to them. The consequence of which is that the possibility of sanctioning a wrongful act must be real: if the general feeling is that even if someone does something wrong he gets away with it, the theoretical presence of criminal sanctions does not have a deterring effect.

This was perfectly reflected in a change of approach of many states worldwide since the Second World War to the necessity to train soldiers on international humanitarian law. In Hungary for instance and in many other countries, a few years ago humanitarian law was seen as one of the “nice to have” issues, but by today, the teaching of international humanitarian

185 Charles J. Dunlap, Jr., Lawfare – A Decisive Element of 21st-Century Conflicts? In: 54/3 Joint Force Quarterly (2009), p. 34.

law has become a priority in both general and pre-deployment trainings, and the number one goal of the military commander – apart from fulfilling the mission – is to carry out the mission adopting all precautions possible in a way that there will be no legal hick-ups.

At times, the effort to make sure that no violations take place turned to extremes. In Afghanistan, for instance, a serious and very unfortunate incident resulting in the death of a number of soldiers occurred when militant groups attacked a camp of UN multinational forces. Although the soldier on watch saw the attackers coming, he did not dare to shoot, because the ‘advice’ he allegedly received from his commander earlier was not to shoot under any circumstances because he didn’t want to be engaged in any legal controversies.

The term ‘lawfare’ is relatively new and primarily means that in today’s conflicts, law is used as a weapon. This phrase was first popularized in this meaning by the US Air-Force Colonel – now General – Charles J. Dunlap in a paper in 2001¹⁸⁶. The questions Dunlap examined were situations in which relatively weak enemies of the United States used American values

“dishonestly” to undermine US military efforts. Dunlap notes that “[w]e must remind ourselves that our opponents are more than ready to exploit our values to defeat us, and they will do so without any concern about LOAC. Consider this disquieting statement from Chinese military leaders: ‘War has rules, but those rules are set by the West...if you use those rules, then weak countries have no chance...We are a weak country, so do we need to fight according to your rules? No.’ ”¹⁸⁷.

Later Dunlap extended the meaning of the expression to strategies of using the law as a substitute to traditional military means to achieve an operational objective¹⁸⁸. The term today is understood both as a negative phrase and as a value-neutral term, in that the negative understanding would only incline that lawfare is solely a distort of legal principles to gain military advantage¹⁸⁹; whereas the value-neutral understanding, more acceptable to the present author, would simply mean that contents and interpretations of the law of war are

186 Colonel Charles J. Dunlap, Jr. USAF, Law and military interventions: preserving humanitarian values in 21st century conflicts, available online at:

http://www.hks.harvard.edu/cchrp/Web%20Working%20Papers/Use%20of%20Force/Dunlap2001.pdf (last visited on 14 March 2012).

187 Dunlap (2009), p. 36.

188 For a summary of different issues of ’lawfare’, see http://www.lawfareblog.com/about/ (last visited on 14 March 2012).

189 See for instance The Lawfare Project, available on http://www.thelawfareproject.org/ (last visited on 14 March 2012).

being questioned, discussed and analyzed by various players, including governments, international and non-governmental organizations, defence lawyers, courts and prosecutors – with all of them believing that they represent the true understanding of international law. Such discussions include the real meaning of “direct participation in hostilities”, the qualification of a conflict against terrorist groups or the legal frameworks of detaining and proceeding against so-called terrorists.

Since there is nothing new in the existence of legal discussions and different interpretations, this value-neutral understanding of lawfare simply inclines that – probably due to an enormous change of the features of today’s armed conflicts and consequently a difficulty in applying traditional legal frameworks to it – international law is widely debated among various players and the outcomes of such debates have a decisive effect on warfare – probably much more so than before.

According to all predictions and the common phenomena of today’s wars, 21^st century wars are different from traditional conflicts¹⁹⁰. Public opinion and the opinion of the international community have a huge weight and can make a party to the conflict substantially weaker or stronger, both at home and at the international fora. Even super-powers cannot get away with serious breaches; the mistreatment of detainees in Abu Ghraib or in other detention facilities in Iraq¹⁹¹ or the already mentioned questionable physical and legal treatment of detainees in Guantanamo had and still have a huge undermining effect on the US military, and this ultimately has a direct consequence on how to plan and execute their operations on the field.

Public opinion has a strong political influence which in turn may, and most probably will, result in military advantage or disadvantage: the enemy will not hesitate for a moment to use public hesitation or discontent either at home or at the international level to further its military goal. If a soldier is blamed for any act that could qualify as a war crime, the only way his/her state can escape or at least diminish the political and military consequences is bringing the perpetrator to justice. This seems to be the most effective way for the state to demonstrate that

190 Questions such as whether international humanitarian law applies to terrorist acts are also on the legal agenda.

Although it has been generally accepted that those forms of terrorism that constitute armed conflict are consequently covered by international humanitarian law, an exact definition of terrorism has not been adopted yet. See Elisabeth Kardos Kaponyi, Fight Against Terrorism and Protecting Human Rights: Utopia or Challenge? (Ad Librum Ltd, Budapest, 2012), p. 13 ff.

191 Abu Ghraib was probably the most known but definitely not the only case of mistreatment of prisoners.

Another well-covered case was the Baha Mussa case in the United Kingdom, see http://www.bahamousainquiry.org/ (last visited on 27 March 2012).

these persons were not executing illegal state policy, but the wrongful acts were one-off actions. Obviously, this was also used for its reverse: when soldiers were believed to be carrying out an illegal state policy through their illegal actions, prosecution of low-ranking soldiers was basically to shield the state policy and the responsibility of high level commanders.

The fact that law has become so paramountly important in today’s warfare, more decisive in exerting genuine influence on warfare than it was before, calls for a special attention to respect for the law and makes it the ultimate interest of warring parties to demonstrate their willingness to abide by the rules in the form of enforcement. This is why punishment of violations of the law of war is so important and is, or should be, in the best interest of states themselves.