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Abstract: Current military campaigns are not waged solely on the physical battlefield, but in multiple other arenas. One such arena is lawfare: legal activity that supports, undermines, or substitutes for other types of warfare. In today's law-rich environment, with an abundance of legal rules and legal fora, strategists must evaluate the full scope of possible legal argumentation. Lawfare can substitute for warfare where it provides a means to compel specified behavior with fewer costs than kinetic warfare, or even in cases where kinetic warfare would be ineffective. As a result, lawfare can be strategically integrated into military command structures to bring about desired outcomes.
Introduction
Both kinetic warfare and legal dispute are forms of contestation.1 Contestation can be physical or symbolic.2 Legal arguments or claims are one type of symbolic contestation.3 Other types of symbolic contestation may be based on historical justification, moral philosophy, or religious doctrine.4 Symbolic contestation may be used alongside or in place of physical contestation.5 Although we may plan strategy around geographically defined contested arenas like the South China Sea, the Crimea, or Syria, we may also consider functionally defined arenas such as the cyber or biological arenas.6 Arenas for contestation may be geographic or functional, physical, or symbol© ic.7 Any particular conflict may play out on multiple boards at once, and a move that is advantageous to a cause on one board may be disadvantageous on another board. The legal battlefield is largely a symbolic functional arena.8 We may refer to legal activity that supports, undermines, or substitutes for other types of warfare as "lawfare."9 Because of its capacity to support, undermine, or substitute, lawfare must be integrated into military strategy.10
I.Defining Lawfare in the 21st Century
Retired Air Force General, now a professor, Charles Dunlap has defined "lawfare" as "the strategy of using-or misusing-law as a substitute for traditional military means to achieve a warfighting objective."11 Is this a good thing or a bad thing? When the school at which i teach, The Fletcher School of Law and Diplomacy, was founded in 1933, the idealistic motivation was to make law applicable to conflicts between countries and thereby to eliminate war.12 To those people, lawfare as a substitute for kinetic warfare seemed pretty good.13
The modern conventional idea of...