By: Michael Dressler[*]
Published: March 6, 2021
I. Introduction
The institutional recognition and implementation of lawfare as an indispensable tool of American foreign policy is long overdue. However, the recent election of President Joe Biden provides a valuable opportunity for the United States to finally formulate and enact a grand lawfare strategy as part of its wider foreign policy efforts. Lawfare within the foreign policy arena has been broadly defined “as the strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.”[1] In a geopolitical era that is characterized more by the use of soft power and espionage rather than hard power and field armies, international actors ranging from superpowers to regional regimes have begun implementing legal strategies within and without the theater of war in pursuance of desired military outcomes.[2]
In response to the growing importance and prevalence of lawfare in twenty-first century foreign policy and international affairs, this Article details the nature of lawfare and ultimately seeks to briefly outline what it sees as the necessary foundational aspects of an effective American lawfare strategy going forward. In accordance with this end, this Article first explores the general concept of lawfare,[3] dissects both the constructive and destructive possibilities of lawfare,[4] and examines differing views related to the concept and use of lawfare.[5] Then, once the basic aspects of lawfare are established, this Article analyzes how lawfare should be viewed in light of its broad potential as a weapon of war,[6] and subsequently suggests a basic framework for implementing an effective lawfare strategy.[7] Finally, this Article concludes by summarizing lawfare and emphasizing its necessity as a tool of American foreign policy.[8]
II. Background
The concept of lawfare is one that has many facets, meanings, and definitions throughout the legal profession; the term “lawfare” can apply to various and disparate situations, from private legal transactions to the legal conflicts amongst nations within international institutions.[9] Even within the context of foreign policy alone, the lawfare label can be applied to a wide range of political and military actions, tactics, and strategies. As this Part in particular, but also this Article as a whole, attempts to illustrate, the differentiation between virtuous and vicious lawfare tactics is of the utmost importance when attempting to devise a lawfare strategy capable of being used by law-abiding, democratic nations. In order to provide a clear image of what this Article means when it refers to lawfare, the first objective of this Part will be to explore the various forms, actors, and perspectives involved in lawfare as it exists in the context of foreign policy.[10]
Furthermore, in addition to the varying forms that lawfare can take, lawfare has particular connotations depending on whether one approves or disapproves of its practice.[11] Those who criticize the use of lawfare writ large see it as a form of asymmetric warfare waged exclusively by technologically and/or morally deficient regimes that seek to disrupt the warfighting capacity of law-abiding nations.[12] On the other hand, there are those who believe and recognize that—while lawfare is dangerous when used by authoritarian actors in furtherance of unlawful and anti-democratic goals—lawfare is merely an increasingly prominent form of warfare in the twenty-first century that can be utilized to restrain those truly seeking to undermine human rights and the international rule of law.[13] Examining the specific arguments of lawfare critics and advocates is important for understanding the nature of lawfare itself, which is why such an examination will be the second objective of this Part.[14]
A. A Broad Overview of the Varying Forms of Lawfare
The tactics of lawfare take varying forms; what exactly an act of lawfare looks like depends on what actor is perpetrating the act, what outcome the act is meant to facilitate, and what type of conflict (open war or adversarial competition) serves as the backdrop of the act. For the purposes of this Article, lawfare can be split into two general categories: constructive lawfare and destructive lawfare. Furthermore, actors that engage in the use of lawfare can be also separated into two general categories: nations or groups that culturally/politically value the rule of law and nations or groups that do not culturally/politically value the rule of law. The former group is represented by liberal democracies, while the latter group is represented by oppressive authoritarian regimes and terrorist organizations. The nations that culturally/politically value the rule of law primarily employ constructive lawfare strategies, while the nations that do not culturally/politically value the rule of law primarily employ destructive lawfare strategies. These particular categorical constructions of lawfare and those who use it are the creation of this Article, and they are rooted in broad patterns of lawfare usage that have been observed throughout this Article’s research process. In order to better illustrate how the aforementioned categories of lawfare manifest in the real world, the following Sections will explore concrete examples of lawfare usage in its various forms.
1. Lawfare as a Constructive Force
For instance, the United States, a liberal democracy that values the rule of law, has continuously been conducting a form of constructive lawfare in Afghanistan as part of a broader strategy to undermine the activity and effectiveness of terror organizations within the region.[15] The United States’ Rule of Law Field Force (ROLFF) conducts this strategy of constructive lawfare—or as Brigadier General Mark Martins calls it, “affirmative lawfare”—by attempting to construct, in partnership with the Afghan government, a series of civic and legal institutions necessary for the establishment of a stable, legitimate government that adheres to the rule of law.[16] As demonstrated by the length and cost of the United States’ War on Terror in Afghanistan, the goal to stabilize Afghanistan and the surrounding region has thus far been difficult to achieve by military means alone. Therefore, the use of American legal structures in the establishment of Afghan legal structures not only helps accomplish the moral mission of fostering liberalism and democracy in the Middle East but also the objective of achieving military victory on behalf of the United States.
A more direct tactic of constructive lawfare implemented by the United States in the War on Terror is the constriction and elimination of sources of terror financing, especially sources that are located or operate within the United States.[17] This tactic was first established under the George W. Bush Administration and executed by the Treasury Department, which asserted the power to freeze the financial assets of organizations found to be providing “material support or resources” to foreign terrorist organizations.[18] The weaponization of law and finance by the United States was continued and expanded under the Obama Administration and has grown into an effective means of deterrence and punishment directed toward individuals, organizations, and nations that support terrorist activity and/or otherwise directly act in opposition to United States interests.[19] Although this particular lawfare tactic does not involve the actual construction of legal institutions or the direct and explicit strengthening of the international rule of law,[20] this Article considers it a form of constructive lawfare because it intentionally and effectively injures actors who pervert the law with their illiberal actions and ideologies.
2. Lawfare as a Destructive Force
Meanwhile, some of the very same terrorist organizations that the United States has been seeking to undermine in Afghanistan and around the world, such as the Islamic State of Iraq and the Levant (ISIL/ISIS), have themselves adopted lawfare strategies of the destructive variety that instead seek to actively take advantage of liberal democracies’ adherence to the laws of international human rights and armed conflict.[21] One such tactic is the deliberate use of human shields to deter coalition forces from conducting airstrikes on ISIS targets and strongholds.[22] Not only does this tactic deter coalition airstrikes due to the coalition nations’ appreciation of and adherence to human rights and the laws of armed conflict, but also because military operations that result in heavy (and heavily publicized) civilian casualties drastically reduce a liberal populace’s support for the overall war.[23] Such a tactic represents a form of destructive lawfare that specifically seeks to exploit liberal democracies’ cultural and political respect for the rule of law for the purposes of deterrence and propaganda.[24]
A different and more sophisticated form of destructive lawfare is one characterized by technical legal tactics, often deployed by powerful global adversaries of both the United States and the wider western alliance (e.g., China), that involve actual legal filings and maneuvers executed within either national or international legal institutions for the purpose of disrupting the political and military capabilities of democratic nations.[25] In other words, whereas propaganda-based lawfare tactics use subversion, media, and extra-judicial action to publicly disparage the global images of liberal democracies, legally-oriented lawfare tactics use legal knowledge and action to induce international institutions to heap legal sanctions upon liberal democracies. While authoritarian nations like China also engage in lawfare tactics that act as propaganda, the strategies that make up the more legally-oriented form of destructive lawfare are generally out of reach for terrorist organizations and uniquely reserved for sovereign nation states.[26] A theoretical example of what form this type of destructive lawfare might take is, in the event of a conflict that either directly involves the United States or one in which the United States seeks to intervene, China might file legal motions within American courts that challenge the United States’ authority to deploy military forces.[27] Although American military forces are highly capable, and the war powers necessary to deploy said forces are vast, this Article sees it as highly likely that such a legal challenge could hamstring the United States’ ability to respond enough to result in a worthwhile advantage for its adversaries.
3. A Note on the Constructive-Destructive Lawfare Dichotomy
It should be noted that these aforementioned examples do not holistically represent the plethora of tactics and possibilities that comprise lawfare within the foreign policy context; rather, they are merely isolated examples that are intended to establish the broadest, bipolar forms of lawfare. Even within the foreign policy context alone, the complexities of certain lawfare strategies and tactics can render this Article’s constructive-destructive categorization unhelpful. For example, the effort to expand universal jurisdiction, which has been supported by various human rights groups and even some western democracies, has often been criticized as a subversive form of lawfare.[28] This effort has been criticized by the likes of former Secretary of Defense Donald Rumsfeld and former Secretary of State Henry Kissinger due to the perceived intent of the effort’s proponents to stifle the military flexibility of the United States by way of putting the nation’s political and military leaders in legal jeopardy for actions taken during wartime.[29] This example, in conjunction with the this Article’s simplified constructive-destructive categorization of lawfare, provides a barebones outline of the spectrum of lawfare within the foreign policy arena, and this resulting outline subsequently illustrates why disagreements exist in relation to whether lawfare is an existential threat to the international rule of law or an indispensable tool of American foreign policy in the twenty-first century.
B. The Differing Views on the Nature and Appropriateness of Lawfare
The tactics and examples included under the label of destructive lawfare, especially tactics employed with the intention of assigning an appearance of impropriety to the military operations of liberal democracies, are the kinds of lawfare that are often cited by lawfare critics as the true and inevitable form of lawfare.[30] One critic, Brooke Goldstein, the Executive Director of the Lawfare Project, has characterized lawfare as something that is incongruous with “the pursuit of justice.”[31] Moreover, Goldstein has suggested that lawfare is a purely negative legal phenomenon that uses international and domestic legal systems and values to undermine “the rule of law, the sanctity of innocent human life, and the right to free speech.”[32] Furthermore, and as previously alluded to, lawfare as a whole has even been criticized by those within the United States government.[33] For example, in 2005 the Department of Defense, under the leadership of then-Secretary Donald Rumsfeld, published the National Defense Strategy of the United States, which alluded to lawfare in its warning that the United States’ “strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.”[34] From the various statements and criticisms made by critics of lawfare, including those included in this Article, it can be discerned that pure critics of lawfare consider strategies and tactics that could be labeled as such are, as a whole, the preferred weapon of morally deficient nations and militarily deficient terrorist organizations.[35]
On the other hand, those who contend that lawfare is either unavoidable or an actively useful strategy with which liberal democracies can reinforce the culture and practice of the rule of law around the world see the example of the United States’ work in Afghanistan as a model form of constructive lawfare.[36] This perspective can be witnessed in Brigadier General Mark Martins’ defense of the United States’ efforts in Afghanistan as “a conscious and concerted reliance upon law to defeat those inside and outside of government who scorn it.”[37] Even the man who is widely recognized as the father of lawfare, Major General Charles J. Dunlap, Jr., of the United States Air Force, has come to the conclusion that lawfare “is a means that can be used for good or bad purposes.”[38] Dunlap initially suggested that he viewed lawfare as “a cynical manipulation of the rule of law and the humanitarian values it represents,”[39] but he has since reformulated his perception of lawfare as something that “can operate as a positive ‘good.’”[40] Most importantly for the purposes of this Article, one could even make the case that the United States government as a whole, despite its consistent hesitance to endorse any engagement in lawfare,[41] has made an implicit endorsement of lawfare as a general concept and strategic option by implementing constructive lawfare tactics for the purpose of achieving military goals around the world.[42]
III. Analysis
When confronted with the destructive possibilities of lawfare—even in the simplest constructions of the concept—as it is used by actors without a care for the value or integrity of the rule of law and with the purpose of disrupting the just causes of liberal democracies, it is clear to see why the practice, its various forms, and those who use it would be condemned. However, when one considers the increasing concern and conversation in relation to lawfare both within and without the United States government—as well as both China’s[43] and Russia’s[44] explicit formulation and adherence to grand lawfare strategies—it is also clear why lawfare would be seen as an unavoidable aspect of modern warfare.[45]The fact that both perspectives contain merit shows that there exists the possibility for a synthesis of the two outlooks, which—from the perspective of this Article—would allow for a foundational acceptance of both the dangers and realities of lawfare[46] and set the necessary intellectual conditions for the further development of an effective lawfare strategy for the United States.[47]
A. Accepting Lawfare as Both an Illiberal Danger and an Inevitable Reality
Critics of lawfare do draw important attention to the unlawful, undemocratic, and often inhumane examples of lawfare perpetrated by authoritarian regimes and terrorist organizations around the globe.[48] Not only do the asymmetric lawfare tactics of illiberal adversaries logically put the United States and its allies at a disadvantage when it comes to international competition, but the potential corruption of international legal institutions by the most sophisticated lawfare tactics threaten to possibly remove means by which the United States can address the asymmetric warfare of authoritarian regimes within the international community. Furthermore, shining a spotlight on the broader strategy of delegitimizing coalition military action by way of using inhumane tactics weakens the effectiveness of said strategy, as exposing such acts allows them to be more widely recognized as hypocritical propaganda packaged within egregious war crimes. While the recognition of lawfare as an incredibly dangerous form of warfare should not be coupled with a complete abandonment of it as a tactical military option, intense attention must be paid to the fact that lawfare is a loaded legal weapon of war rather than mere legal trickery.
In the case of lawfare’s proponents, those who recognize that lawfare is a new reality of warfare in the twenty-first century[49] are correct insofar as lawfare does not seem to be going away anytime soon. As already mentioned, the United States’ primary geopolitical foes, China[50] and Russia,[51] have already made explicit commitments to using the power of the law—whether in the form of propaganda, technical legal maneuvers, or quasi-legal justifications for illegal foreign policy actions—to siphon away reservoirs of American power and advance their interests on the world stage. To simply abandon lawfare because of authoritarian regimes’ and terrorist organizations’ vicious propensities for using lawfare in an illiberal manner would not only put the United States and its allies at an absurd military disadvantage but it would also rob the United States of a useful avenue with which to stabilize certain chaotic portions of the world and establish functional democracies where they do not currently exist. The concerted effort of the United States to use the mechanisms of the law, a law-based value system, and an adherence to the international rule of law as a means of constructing legitimate institutions at local, national, and international levels is both advantageous foreign policy and a moral duty. Furthermore, as the technological sophistication of weapons of war continue to advance and the potential human cost of full-scale war rises, the use of lawfare as an alternative means of objective accomplishment seems on pace and more likely than warfare and occupation to deeply address the root causes of terrorism and authoritarianism.
Ultimately, both sides of the argument have a part to play in the recognition of lawfare’s vices and virtues. Just as conventional warfare, even in its most unfortunate and violent incarnations, can preserve the values of democracy, liberalism, and the rule of law when harnessed and deployed in service of a worthy goal, lawfare can do just the same. Similarly, just as legal institutions, rules, and procedures can be exploited for personal or party gain in the arena of domestic civil litigation, there exists the same avenues for abuse in foreign policy, global diplomacy, and international law. These illiberal loopholes are often inherent to a complex legal system, but the loopholes and strategies that fall under the umbrella of lawfare will not be defeated with mere negative labels and solely defensive footing. But rather, the misdeeds of those who would take advantage of the values and institutions that adhere liberal democracies to the rule of law, both domestically and internationally, must be publicly identified as doing so and touted as enemies of liberalism and justice. Meanwhile, the United States and its global allies must use their own values to formulate constructive, values-based strategies of lawfare that seek to both counteract the illegalities of their adversaries and spread the benefits of democracy’s law-based value system.
B. Establishing the Necessary Foundations for an Effective Lawfare Strategy
Now that it has been established that the United States should, and even must, adopt a lawfare strategy as part of its foreign policy arsenal,[52] this Article now proposes a possible framework for implementing an effective lawfare strategy under the Biden Administration. With the recent election of President Biden and the assembly of a fresh, yet experienced, national security brain trust within the Executive Branch, it is likely that the foreign policy of the United States will undergo a shift from the purposeful isolation of the Trump Administration toward a more traditional policy of the United States as an internationally involved hegemon.[53] Therefore, with a renewal of American engagement on the world stage looming in the near future, now would seem the most opportune time to construct the basic foundations and fundamentals of a more prominent American lawfare strategy that is effective, engaging, and firmly rooted in cooperation between the United States and its international allies.
Both throughout the 2020 presidential campaign and his life as a foreign-policy-oriented public servant, President Biden has expressed an overwhelming desire to have the United States be the leader of a broad international coalition of democratic nations.[54] He has also been explicit about his desire to see the existing international democratic coalition expand and include as many countries as possible by both welcoming countries that are currently fully democratic and supporting countries that have the potential to transition to full democratic governance.[55] Despite these ambitious goals for American stature and foreign policy, President Biden recognizes that the United States has “[t]oo often . . . relied solely on the might of our military instead of drawing on our full array of strengths.”[56] This statement by President Biden is correct on multiple levels, but where he is particularly correct is on the practical level.
It seems logical to think that the possession of nuclear weapons by both the United States and several of its fiercest adversaries—which now includes North Korea and will likely soon include Iran—makes the Iraq War model of regime change and democratic installment obsolete; this fact is doubly true when one considers the globe-spanning system of politically expedient alliances between the United States’ primary and secondary adversaries that prevents open aggression from being carried out by the United States. When the form and nature of the foreign policy goals of the Biden Administration are examined alongside the current complex structure of international relations, the formulation and use of the United States’ very own grand lawfare strategy seems an attractive option for the future of American foreign policy. Furthermore, not only is now the right time to formulate a lawfare strategy in partnership with our global democratic allies, but the vastness of the goals at hand and the complexity of international law require democratic consensus and cooperation because, as exemplified by this Article’s brief mention of the contentious move to expand universal jurisdiction,[57] a fractious approach to using the law as a tool of foreign policy could easily lead to irreconcilable differences and unnecessary inter-coalition hostilities.
This consideration highlights the first of what this Article proposes to be three necessities of an effective American lawfare strategy: the inclusion and cooperation of the United States’ democratic allies.[58] Furthermore, for the sake of internal cohesion and remaining competitive with its international adversaries, the United States must adopt a second necessity, which is a full integration of its eventual lawfare strategy into its overall national security framework.[59]Lastly, so as to avoid a continuation of its current backfooted foreign policy, any lawfare strategy adopted by the United States must be comprised of both offensive and defensive tactics and operations.[60]
1. The Necessity of Cooperation
The United States has long been seen as being on the precipice of, if not already subsumed by, global adversarial competition with China on the level of the Cold War.[61] Additionally, although China is currently the United States’ main global competitor, Russia has proven to be both a continuous source of turmoil and a preeminent practitioner of lawfare.[62] Once one factors in the smaller adversaries of the United States, such as North Korea and Iran, it is clear to see that the United States is in the midst of a multi-front conflict against unscrupulous international actors. As evidenced by the lackluster results stemming from the recent failures and unwillingness of the Trump Administration to coalesce its allies around an effort to oppose these aforementioned adversaries,[63] the United States cannot stand alone in these current and upcoming global struggles. Despite the United States’ ongoing conflict with China being comparable to the Cold War, it is made all the more complicated by China’s deeper integration into the international community and its relevant systems as compared to the Soviet Union.[64] Therefore, any lawfare strategy adopted by the United States in relation to China and secondary adversaries must take advantage of the leverage afforded to it by its alliances.
2. The Necessity of Integration
Next, the second necessity of an effective lawfare strategy is full integration into the overall foreign policy and national security plans of the United States. While the examples of constructive lawfare enacted by the United States that have been previously cited within this Article are agreeable, they are isolated tactics that are employed in particular situations.[65] One of the primary objectives motivating this Article’s advocation for the development of a focused lawfare strategy by the United States is the need to operate tactically on par with China and Russia. However, as already evidenced by the United States’ lack of an overall lawfare strategy, the United States has not followed China’s and Russia’s lead in integrating a wide-reaching lawfare strategy within and throughout its overall national security strategy.[66] Doing so would allow for the United States to proactively participate in the various bouts of adversarial competition in which it now finds itself, instead of waiting to be attacked and seeking to turn to lawfare only when a direct military response has failed or proved too costly—as has been the reality in Afghanistan and in the War on Terror.[67]
3. The Necessity of (Re)Action
This brings us to the third and final necessity of a lawfare strategy that this Article recommends, which is the necessity that such a strategy include both offensive and defensive aspects. It should first be noted that this Article is not suggesting that the United States adopt the role of an international aggressor without cause, as doing so would be antithetical to its core international peacekeeping mission and subject it to international scorn as a warmonger. However, the United States has so far only proven itself willing and able to engage in defensive lawfare tactics, which includes—as previously mentioned—lawfare tactics employed by the United States following an attack and the failure of a direct military response.[68] While defensive lawfare appears to be increasingly necessary for open conflict, it also appears to be less helpful during times of consistent adversarial competition. If the United States were to continue to invest fully in its capabilities to respond militarily, and only resort to lawfare when such capabilities fail to be effective, it is likely that the United States will always find itself on the backfoot in its normal dealings with China and Russia. In such a case, if the time for open conflict between the United States and China and/or Russia were to ever arrive, the additional preparedness afforded to China and Russia by their use of lawfare would put the United States at an immediate disadvantage. Therefore, the United States must take proactive and offensive steps now—such as the formulation of a shared lawfare strategy with its allies or the safeguarding of international institutions against the corruption of China and Russia—to remain competitive in the short term and establish tactical footholds for the long term.
IV. Conclusion
In conclusion, this Article argues that the most appropriate outlook on the nature and use of lawfare is one that recognizes and greatly emphasizes the inherent dangers of lawfare as a sophisticated weapon of war when used by illiberal actors, but one that also understands that lawfare is an inevitable reality of warfare in the twenty-first century that cannot be disregarded.[69] Because the enemies of the United States and the wider liberal international order are unyielding and unscrupulous in their use of destructive lawfare to achieve their geopolitical and military goals,[70] the United States and its allies must commit to countering the concerted lawfare efforts of authoritarian regimes with lawfare efforts of their own. In a geopolitical environment where nuclear proliferation and an encompassing system of international treaties discourages the use of direct military force, a liberal lawfare strategy enacted with the purposes of spreading, preserving, and strengthening democracy around the world can even the odds of the current asymmetric nature of lawfare usage in international adversarial competition.
With the recent election of President Biden, the forthcoming return of a foreign policy that values and asserts the United States’ role as an involved hegemon on the world stage establishes the necessary conditions for the adoption of such a strategy.[71] In order to be effective, said strategy must be rooted in cooperation with democratic allies,[72]integrated into the United States’ wider foreign policy and national security plans,[73] and comprised of both offensive and defensive tactics.[74] These aspects of an American lawfare strategy are the mere foundations of what is necessary to remain competitive in the range of conflicts currently facing the United States. However, they are the start of what must become a new tool for safeguarding democracy both within the United States and around the world. For the United States to continue to deprive itself of a wide-reaching strategy that harnesses the benefits of lawfare for the purpose of upholding and expanding the American-led international order would only exacerbate the existing existential threats to the United States itself and the international rule of law.
Footnotes
[1] Charles J. Dunlap, Jr., Commentary, Lawfare Today: A Perspective, Yale J. Int’l Aff., Winter 2008, at 146 (citation omitted).
[2] See generally Charles Dunlap, Jr., Lawfare 101: A Primer, Mil. Rev., May–June 2017.
[3] See infra Part II.
[4] See infra Section II.A.
[5] See infra Section II.B.
[6] See infra Section III.A.
[7] See infra Section III.B.
[8] See infra Part IV.
[9] About Lawfare: A Brief History of the Term and the Site, Lawfare, https://bit.ly/3qEjYl6 (last visited Feb. 20, 2021).
[10] See infra Section II.A.
[11] See About Lawfare: A Brief History of the Term and the Site, supra note 9.
[12] See David Luban, Carl Schmitt and the Critique of Lawfare, 43 Case W. Res. J. Int’l L. 457, 457–62 (2010).
[13] See Jack Goldsmith, Thoughts on “Lawfare,” Lawfare (Sept. 8, 2010, 9:24 PM), https://bit.ly/3bqPyMG.
[14] See infra Section II.B.
[15] See Mark Martins, Lawfare in Afghanistan?, Lawfare (Nov. 22, 2010, 7:00 AM), https://bit.ly/2NfxehH.
[16] Mark Martins, Lawfare: So Are We Waging It?, Lawfare (Nov. 25, 2010, 12:01 AM), https://bit.ly/3pGJZ1I.
[17] See Brooke Goldstein & Benjamin Ryberg, The Emerging Face of Lawfare: Legal Maneuvering Designed to Hinder the Exposure of Terrorism and Terror Financing, 36 Fordham Int’l L.J. 634, 634–37 (2013).
[18] Id. (quoting 18 U.S.C. §§ 2339A, 2339B).
[19] See Annie Lowrey, Aiming Financial Weapons from Treasury War Room, N.Y. Times (June 3, 2014), https://nyti.ms/2M8BI97.
[20] See id.
[21] See Dunlap, supra note 2, at 10.
[22] See id.
[23] See id. at 10–11.
[24] See id.
[25] See Dean Cheng, Winning Without Fighting: Chinese Legal Warfare, Heritage Found. (May 21, 2012), https://herit.ag/2NHYAwP.
[26] See id.
[27] See id.
[28] See Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, Foreign Aff. (July–Aug. 2001), https://fam.ag/2ZyVnCf.
[29] See Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration 53–64 (2009).
[30] See Brooke Goldstein, Exec. Dir., The Lawfare Project, Speech, Lawfare: Real Threat or Illusion? (Nov. 5, 2010), in Lawfare Project (Nov. 5, 2010), https://bit.ly/3pEindu.
[31] Id.
[32] Id.
[33] See Goldsmith, supra note 29, at 53–64.
[34] Id. at 53.
[35] See Luban, supra note 12, at 457–62.
[36] See Goldsmith, supra note 13.
[37] Martins, supra note 16.
[38] Dunlap, supra note 1, at 146.
[39] Charles J. Dunlap, Jr., Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts 4 (2001).
[40] Dunlap, supra note 1, at 147.
[41] See Kevin Rousseau, International Law and Military Strategy: Changes in the Strategic Operating Environment, 9 J. Nat’l Sec. L. & Pol’y 1, 22 (2016).
[42] See Martins, supra note 16.
[43] See Cheng, supra note 25.
[44] See Mark Voyger, Russian Lawfare—Russia’s Weaponisation of International and Domestic Law: Implications for the Region and Policy Recommendations, J. on Baltic Security, Dec. 2018, at 36–41.
[45] See Dunlap, supra note 2, at 12.
[46] See infra Section III.A.
[47] See infra Section III.B.
[48] See supra Section II.B.
[49] See supra Section II.B.
[50] See Cheng, supra note 25.
[51] See Voyger, supra note 44, at 36–41.
[52] See supra Section III.A.
[53] See Annie Karni & David E. Sanger, Biden’s National Security Team Offers a Sharp Turn. But in Which Direction?, N.Y. Times(November 24, 2020), https://nyti.ms/37y0xmk.
[54] See Joseph R. Biden, Jr., Why America Must Lead Again, Foreign Aff. (Mar.–Apr. 2020), https://fam.ag/3k9AcQw.
[55] See id.
[56] Id.
[57] See supra Section II.A.3.
[58] See infra Section III.B.1.
[59] See infra Section III.B.2.
[60] See infra Section III.B.3.
[61] See Alan Dupont, The US-China Cold War Has Already Started, Diplomat (July 8, 2020), https://bit.ly/3c6Sb6B.
[62] See Voyger, supra note 44, at 36–41.
[63] See Uri Friedman, America Is Alone in Its Cold War With China, Atlantic (Feb. 17, 2020), https://bit.ly/3egX67M.
[64] See Odd Arne Westad, The Sources of Chinese Conduct, Foreign Aff. (Sept.–Oct. 2019), https://fam.ag/3aDjS7B.
[65] See supra Section II.A.1.
[66] See Rousseau, supra note 41, at 22.
[67] See supra Section II.A.1.
[68] See Rousseau, supra note 41, at 27.
[69] See supra Section III.A.
[70] See supra Section II.A.2.
[71] See supra Section III.B.
[72] See supra Section III.B.1.
[73] See supra Section III.B.2.
[74] See supra Section III.B.3.
About the Author
Michael Dressler is a joint-degree J.D./M.I.A student at Penn State Law and the Penn State School of International Affairs; he is currently a first-year law student. Originally from Northumberland, Pennsylvania, Michael received his bachelor’s degree with highest honors from Lycoming College where he majored in Philosophy and minored in Political Science. While at Lycoming College, he was the President of the Penn Phi Chapter of Phi Kappa Psi and the recipient of The W. Arthur Faus Memorial Prize (awarded for outstanding work in philosophy). Before enrolling at Penn State, Michael previously worked as a staff intern for Senator Eugene Yaw (R-23) in the Pennsylvania State Senate and as a legal intern for McCormick Law Firm. His main personal interests are American electoral politics and world history, while his main professional interests are in the areas of foreign policy and national security.
Suggested Citation: Michael Dressler, Lawfare: Both an Existential Threat to the International Rule of Law and an Indispensable Tool of American Foreign Policy in the Twenty-First Century, Penn St. L. Rev.: F. Blog (Mar. 6, 2021), http://www.pennstatelawreview.org/the-forum/lawfare-both-an-existential-threat-to-the-international-rule-of-law-and-an-indispensable-tool-of-american-foreign-policy-in-the-twenty-first-century/.