Lawfare amid warfare

“Is warfare turning into lawfare?” When I posed that question in a 2001 essay for Harvard's Carr Center, I was expressing concern about the increasing frequency with which international law was being used — and abused — by America’s opponents.

At the time, I was trying to focus on the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting American military power. Make it appear that the United States is fighting in an illegal or immoral way, and the damage inflicted upon the public support the forces of a democracy need to wage war is as real as any caused by a traditional defeat.

Six years later it is clear that lawfare has become a key aspect of modern war. The abuses at Abu Ghraib and elsewhere produced effects more damaging than any imposed by our enemies by force of arms. What makes it especially maddening is that these are self-inflicted wounds; wholly preventable incidents where adherence to the rule law would have avoided the disastrous consequences that still plague America’s war-fighting effort.

Today, another form of lawfare is appearing. It too is a self-inflicted wound, and it is likewise avoidable by merely adhering to the rule of law.

Consider how reports that NATO airstrikes are causing civilian casualties are being handled by the International Security Assistance Force (ISAF) in Afghanistan. In response to queries about a report of such deaths, a spokesman insisted recently that “NATO would not fire on positions if it knew there were civilians nearby.” No doubt this assertion reflects a well-meant effort to prevent the noncombatant losses that every honorable soldier always wants to avoid. It also seems aimed at assuaging populations — both in Afghanistan and in NATO countries — who are understandably concerned when civilians are killed. Each such death is a terrible tragedy.

But this statement does not reflect the law, and in fact could put even more of the truly innocent at risk. First the law. While international law forbids, of course, the direct targeting of civilians, it does recognize that they are incidentally put at risk during otherwise legitimate attacks on combatants.

What the law does require is that the risk to noncombatants not be excessive in relation to the concrete and direct military advantage anticipated. That “military advantage” includes killing terrorists and other enemy fighters who threaten both friendly forces and bonafide civilians.

Clearly, the law calls upon commanders to make very difficult judgments, but nevertheless understands that sometimes the legitimate pursuit of military objectives will foreseeably — and inevitably — cause the deaths of noncombatants. It is important that this tenet of international law be thoroughly understood.

Of course, it is not illegal to establish a policy of “zero tolerance” of civilian casualties even though the law does not require it. Doing so, however, creates unnecessary and often counterproductive results. Among other things, the unrealistic and unachievable expectations produced stimulate a sense of betrayal when such casualties occur, and — despite all efforts — they will always occur in war.

Moreover, foreclosing an attack simply because of civilians in the area may, ironically, condemn many more innocents to be victimized in a future rampage of gunfire, improvised explosive devices or suicide bombing by the terrorists that escape. Though excessive civilian losses must always be avoided, it may very well be more humane approach to kill bad guys when the opportunity presents itself even though some civilian losses may also occur.

Establishing a paradigm of “zero tolerance” for casualties may well come back to haunt us in yet another way. Specifically, it encourages the enemy to do exactly what we do not want them to do: surround themselves with innocent civilians so as to virtually immunize themselves from attack. It creates a sanctuary that the bad guys are not entitled to enjoy, and sends them exactly the wrong message.

International law is the friend of civilized societies and the military forces they field. However, if we impose restraints as a matter of policy in a misguided attempt to “improve” upon it, we play into the hands of those who would use it to wage lawfare against us.

Maj. Gen. Charles J. Dunlap Jr. is deputy judge advocate general.