Lawfare

Lawfare is the use of legal systems and institutions to affect foreign or domestic affairs, as a more peaceful and rational alternative, or as a less benign adjunct, to warfare.

Detractors have alternately begun to define the term as, "An attempt to damage or delegitimize an opponent, or to deter an individual's usage of their legal rights". The term may refer to the use of legal systems and principles against an enemy, such as by damaging or delegitimizing them, wasting their time, energy, and money (e.g., by bringing strategic lawsuits against public participation, or SLAPP), or winning a public relations victory. Alternatively, it may describe a tactic used by repressive regimes to label and discourage civil society or individuals from claiming their legal rights via national or international legal systems. This is especially common in situations when individuals and civil society use nonviolent methods to highlight or oppose discrimination, persecution, corruption, lack of democracy, limitations of freedom of speech, violations of human rights, and violations of international humanitarian law.

Since the early 2000s, the use of legal mechanisms in conflict contexts has drawn significant international attention. During this period, particularly in the context of the U.S.-led "war on terror", both the United States and Israel have characterized legal challenges to their military operations as a form of lawfare—a term used to describe the perceived exploitation of legal systems to achieve political or ideological objectives. Critics argue that this framing delegitimizes the legal efforts of less powerful actors who seek accountability through international institutions. China has also employed lawfare, to advance its geopolitical objectives and repress dissidents abroad.

The term is a portmanteau of the words "law" and "warfare". The first documented use of the term "lawfare" was in a 1957 article regarding divorce, which states that "[t]he canton, clearly reduced in status, still is a state with standing in court to wage some lawfare on behalf of its folk, and with liability for some behavior of its folk."

The term reappeared at the turn of the century, first in a 2001 article by the anthropologist John Comaroff, who employed it to denote "the effort to conquer and control indigenous peoples by the coercive use of legal means." In his later work, the definition of the concept was broadened to encompass, more generally, "the resort to legal instruments, to the violence inherent in the law, to commit acts of political coercion, even erasure."

A more frequently cited use of the term is found in a 2001 essay authored by Major General Charles J. Dunlap Jr., in which Dunlap defines lawfare as "the use of law as a weapon of war"; that is, "a method of warfare where law is used as a means of realizing a military objective". He later expanded on the definition, describing lawfare as "the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting" a superior military power. In this sense, lawfare may be a more humane substitute for military conflict, although Dunlap considers lawfare a "cynical manipulation of the rule of law and the humanitarian values it represents".

Benjamin Wittes, Robert Chesney, and Jack Goldsmith employ the word in the name of the Lawfare website, which focuses on national security law and has explored the debate over the definition of lawfare and whether it should be considered exclusively a pejorative.

Recent scholarship has included non-judicial tactics in lawfare such as using legal systems and processes to achieve strategic goals outside of traditional courtroom battles. Orde Kittrie, in Lawfare: Law as a Weapon of War (2016), describes compliance‑leverage lawfare as exploiting legal compliance gaps to pressure adversaries. Challenging the charitable status of adversary organizations is also described as an example of lawfare.