Lawfare’s Role in Irregular Conflict

Lawfare’s Role in Irregular Conflict

Thomas A. Marks Summer 2010
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Israel’s recent tussle with the Turkish-facilitated effort to break the quarantine of Hamas in Gaza unleashed powerful forces. This is a setback for all concerned, including the U.S. In another sense, though, the episode has been useful, for it serves to highlight the central role lawfare now plays in irregular conflict – the dominant mode of warfare in today’s globalized, interconnected world. Lawfare can have any number of plain text meanings, but it is most often applied to the efforts of sub-state actors, both legal and illegal, to use the law as a weapon to impose one’s will upon another – hence the play on “warfare.”

Certainly, the use of the law as a form of tactical judo has long been part of insurgent or even terrorist repertoires. What became evident in the post-Cold War era, however, in theaters as diverse as Colombia, Israel, and Sri Lanka, was the convergence of the tactical and the strategic. The result is entire conflicts driven by the process of framing and narrative, with violence relegated to a supporting role in a virtual battle of images and contending plot-lines. The goal, as with traditional information warfare, is to have a tangible impact upon the conflict. “Regular” warfare – as major combat is now categorized – always saw information as a multiplier for violent (or kinetic) action. Now, the roles are reversed.

Operation Cast Lead in Gaza saw Israel’s foe, Hamas, use collateral damage to create the imagery that was then fired off electronically to pre-determined targets. There, further dissemination of images – a virtual campaign – quickly produced mass demonstrations that demanded a tangible response against Israel upon the part of host governments.

On the one hand, Israel claimed that Cast Lead ended when its objectives had been met. On the other hand, it was clear to all that the culmination point had been reached and that further effort would produce such negative responses that not only the operation, but Israel’s strategic position, would be jeopardized. The result was the same neutralization of combat power that had earlier been seen in the 1994 Chiapas episode, which led to the emergence of the term “netwar” to describe the role energized networks of Zapatista supporters played in bringing overwhelming global pressure on Mexico over what once would have been thought a local squabble. To this day, the “liberated” portions of Chiapas remain just that, with even their funding now sustained internationally.

“New War” Battleground

Perhaps the first of the so-called “new wars,” Chiapas illustrates the central element of the term: What were once simply termed “internal wars” – as opposed to traditional state versus state wars – are “new” due to the manner in which they are embedded in the post-Cold War global context. This new context has unleashed a host of forces that revolve around individual and group search for identity, often funded by exploiting criminal economies of scale, such as narco- or human-trafficking. Necessarily, dealing with “new wars” calls for skill-sets that extend beyond kinetic action, as the Israeli commandos learned the hard way.

Lawfare builds upon netwar as seen in two specific elements that were missing (or incomplete) from the Chiapas case: intent and means.

First, though the Zapatistas certainly intended to galvanize international support, it was not, according to best evidence, their intent to wage a virtual campaign to negate Mexican state response. A confluence of propitious circumstances and developments kept their uprising from being ruthlessly crushed in the historic Mexican state approach to such challenges.

Second, in the Chiapas case, images played an important role in galvanizing support for the uprising – notably the countless photographs of Subcomandante Marcos, often accompanied by his written poetry and thoughts – but the law itself was not the key weapon in play. In lawfare, images and networks are used expressly as a means to mobilize assault upon the state target using the law.

Despite the decades with which they have had to deal with the challenge – “lawfare” as a term, for example, has been used in Colombia for several decades by the security forces – states have been slow to grasp this virtual “revolution in military affairs” created by the synergy just witnessed. Clumsy tactics on the high seas hitherto would have been inconsequential for few beyond the Israeli commandos and their Turkish IHH or Humanitarian Relief Fund (Insani Yardim Vakfi in Turkish) opponents. In this case, though, as apparent in evidence released by the Intelligence and Terrorism Information Center (ITIC) in Tel Aviv, the Mavi Marmara operation was conceived and planned to use tactical provocation to achieve a strategic shift in favor of goals envisioned by Turkish Prime Minister Recep Tayyip Erdogan.

What was needed, in other words, was “proof” of Israeli perfidy and brutality to create and support the mass mobilization that would demand an alteration of Ankara’s relations with Jerusalem. Evidence from interviews and recovered laptops, disseminated by ITIC, shows the use of thousands of unwitting (though game) activists as dupes, so that prepared militants could launch an ambush certain to produce violence that could be exploited as a “massacre of the innocents.” Much has been made of Israeli failures, but it is difficult to see how the normal fog of war could have been pierced in this case, except by exceptional Israeli intelligence produced from information gained within Turkey, a state which hitherto has not been in the Islamist camp. Israel clearly did not have assets in place to gain such information.

Once the raid occurred, events took on a life of their own, with Prime Minister Erdogan doing his best to keep the issue on the boil as he maneuvered for political advantage. In this effort, the condemnation of the alleged illegal actions of Israel was central, as was the effort to mobilize the authority and power of international bodies needed to provide legal cover for direct sanctions of various sorts. Whether Turkey had plotted in advance with a state such as Iran to facilitate its actions is unknown, but it seems likely that such coordination had been effected by IHH with other groups.

Further actions, therefore, will follow – as one already has – with the same goal: to paint Israel as the aggressor and to mobilize tangible assault. This assault has already happened sporadically, such as in certain sanctions announced by European sympathizers with Palestinian causes, but has not yet reached the level hoped for by Erdogan, Hamas, and IHH. It soon may.

A Wake-up Call

The main users of lawfare, the international human rights organizations, have not yet entered the fray in any substantive form. This, though, they will do, using their normal mixture of legal jargon and orchestrated outrage to advance tactical, non-contextual interpretations of the laws of war. Though problematic, these also will seek the deployment of the law as a weapon against Israel.

The ground has already been prepared. Indispensable for the successful use of lawfare is shaping the battlefield by a determined effort of framing and narrative; that is, the creation of a negative picture and accompanying story-line which portray the target state as “the bad guys,” thus to alter the very nature of the field of battle. The goal is to fill those virtual spaces of legitimacy that even a state as aware as Israel has simply never thought or sought to fill.

As well documented by, among others, NGO Monitor (disclaimer, also Israeli), key international organizations such as Human Rights Watch have waged a systematic campaign against Israel, seeking to portray it as disproportionately responsible for the present state of Middle Eastern affairs. Lip-service is paid to Palestinian violations, which has the effect that the Hamas effort to destroy Israel is framed as quasi-legitimate rebellion by the oppressed and marginalized against an imperfect, brutal state (enabled by the usual suspects in America, especially the “Jewish lobby”). The narrative describes the frame in various ways but always with the goal of portraying the Israeli state as both suspect and murderous, especially its security forces. The dead “peaceful activists” on the Mavi Marmara were thus necessary only for the manner of their deaths, which attacking the paintball-armed commandos was more than likely to provoke.

Giving this effort still more power, within the context of globalization, is the evolution of thousands of parastates, such as Human Rights Watch. Once used to refer to any sub-state challenge, legal or (more often) illegal, to an existing state, the “parastate” label has evolved. It is now more widely attached to organizations which have taken unto themselves many of the attributes of states but exist in a parasitic or (forced) symbiotic relationship with states themselves and the international community. The case of organized crime is well known.

As observed above, parastates can be both tangible and intangible (virtual) phenomena. International human rights organizations, for example, are often as much virtual as physical realities. They are a particularly formidable foe because, even as they attack a state such as Israel, they claim a certain sovereign immunity by virtue of the nobility of their cause (often termed the “halo effect”). Consequently, even as they wage a sustained assault upon state processes and legitimacy, they hide behind the law to discourage response.

The result is to intertwine the law with the commission of violence. The ultimate aim, in the extreme, is to negate the right of self-defense by a state such as Israel. The minimum aim is to claim that self-defense can be exercised only as sanctioned by international entities such as the United Nations and its constituent organs (e.g., the UN Human Rights Council). Failure to adhere to such strictures is to invite the likes of the Goldstone Report. Regardless of its flawed nature, the Report has proved a potent weapon in the lawfare arsenal.

Logical End

Where does this lead? Sri Lanka provides a timely illustration. Building upon national mobilization, insurgent strategic missteps, and superb military performance, Colombo was finally able, in May 2009, to eliminate one of the most ruthless and blood-soaked terrorist groups in the world, Liberation Tigers of Tamil Eelam (LTTE). Having decided to defend its “liberated” territory, LTTE was systematically encircled and then crushed in an effort which took several years.

As the noose tightened, LTTE increasingly resorted to lawfare. The methodology was not unlike that seen by the Israelis in Gaza or this June aboard the Mavi Marmara. Placing its positions and combatants within the population, who were used as shields, the Tigers sought to use images of collateral damage to mobilize not only the Tamil Diaspora (located overwhelmingly in the West) and neighboring Tamil Nadu population (some 60 million Tamils) but sympathetic global forces. If netwar was the means, the lawfare strategy was to excite such passions abroad that Sri Lanka, like Mexico, would be forced to end its Vanni Humanitarian Operation (the Vanni is the region in which the LTTE stronghold was located).

LTTE was not ultimately successful strategically but succeeded tactically in ways which would have excited Erdogan’s envy. Charges of genocide were filed by a fellow-traveler organization in the U.S. court system, and pro-Tamil European governments, notably the UK, demanded that operations cease. The parastates were beside themselves, using every resource at their disposal, including the innovative exploitation of satellite imagery, to publicize the obvious: major combat is a nasty business that produces casualties, many of them innocent. In the end, four major human rights organizations demanded “humanitarian intervention” – that is, the invasion of Sri Lanka as per Bosnia – under the cover of international law.

Mercifully, no state or coalition was foolish enough to undertake such a course of action, since the results would have been catastrophic – not least because the Sri Lankan forces by that point were a very large, battle-tested, effective body. Of more relevance to the discussion is that the circle has come around. The goal of the Erdogan-engineered effort that is ongoing is to end the quarantine of Gaza (“blockade” seems a misnomer, though it is a legally necessary term). To this end, all the forces of the law will be mobilized, ultimately, to fulfill Ankara’s hope for international intervention by a “coalition of the Islamist willing.”

The perversion of the law has brought us to this end.

Dr. Thomas A. Marks is a political risk consultant in Honolulu, Hawaii and a senior correspondent for Counterterrorism magazine.

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