Lawfare: Law as a Weapon of War

by Orde F. Kittrie

Overview

International military interventions endanger soldier and civilian lives, can be financially costly, and risk spiraling out of control. One incident which exemplified the risks involved a US and UK wish to stop a Russian ship from delivering helicopter gunships to the Assad regime in Syria in 2012. Forcibly intercepting a Russian ship in transit could have risked World War III, so they developed an alternative, non-confrontational maneuver: instead of military intervention, the UK persuaded the ship's insurer, London's Standard Club, to withdraw the ship's insurance. This loss of insurance caused the ship to return to Russia, thus avoiding an international clash as well as the delivery of deadly weapons to Syria. This use of legal maneuvering in lieu of armed force is known as "lawfare" and is becoming a critical tool in the foreign policy arena.

In Lawfare, author Orde Kittrie draws on his experiences as a lawfare practitioner, US State Department attorney, and international law scholar in analyzing the theory and practice of lawfare. Kittrie explains how factors including the increased reach of international laws and tribunals and the rise of economic globalization and information technology have fueled lawfare's increasing power and prevalence. The book includes case studies of recent offensive and defensive lawfare by the United States, China, all sides of the Israeli-Palestinian conflict, and several non-governmental organizations and individuals. Kittrie asserts that much of the United States' most effective and creative lawfare today is being waged by private sector or other non-governmental attorneys. He analyzes why this is the case, and describes how such attorneys' expertise and experience can contribute even more to U.S. national security. Kittrie also explains that lawfare, deployed more systematically and adeptly by the U.S. government, could likely reduce U.S. and foreign casualties, and save U.S. taxpayer dollars, by supplementing or replacing the use of armed force as a tool for achieving some significant U.S. national security objectives. Understanding this alternative to armed force has never been more important.

Product Details

ISBN-13:	9780190263577
Publisher:	Oxford University Press
Publication date:	01/04/2016
Pages:	504
Product dimensions:	6.30(w) x 9.30(h) x 1.40(d)

About the Author

Orde F. Kittrie is a tenured Professor of Law at Arizona State University's Sandra Day O'Connor College of Law, and director of its Washington, DC Semester Program. He is also a Senior Fellow at the Foundation for Defense of Democracies, a nonpartisan Washington, DC think tank. A renowned expert on lawfare, nonproliferation, the Middle East, and international security law, he served in the U.S. Department of State for over a decade in several key legal and policy positions, including as lead attorney for nuclear affairs, lead attorney for strategic trade controls, director of the Office of International Anti-Crime Programs, and special assistant to the Under Secretary for Economic and Business Affairs. He has frequently testified before Congress, and twice served on National Academy of Sciences committees. He is the recipient of a university-wide annual award honoring outstanding teaching, and previously served as President of the Hispanic National Bar Association Southwest Region.

Table of Contents

CONTENTS

Foreword by R. James Woolsey, Jr.
Chairman of the Foundation for Defense of Democracies, Former Director of Central Intelligence

Acknowledgments

Chapter One: A Conceptual Overview of Lawfare's Meaning, Variety, and Power

Chapter Two: Lawfare Waged by U.S. Private Sector and Non-Governmental Organization Attorneys

Chapter Three: The U.S. Government's Financial Lawfare Against Iran

Chapter Four: The Chinese Government Adopts and Implements a Lawfare Strategy

Chapter Five: The Palestinian Authority Wages Lawfare Against Israel

Chapter Six: Palestinian NGOs and their Allies Wage Lawfare Against Israel

Chapter Seven: Hamas Wages Battlefield Lawfare Against Israel

Chapter Eight: Israel Wages Lawfare

Conclusion

Index

Editorial Reviews

★ 11/09/2015
Kittrie, a law professor and former State Department official, provides a comprehensive introduction to a weapon whose very existence will be a surprise to many. The use of law to wage war is more than an academic exercise; Kittrie notes that “lawfare” techniques could “almost certainly save U.S. and foreign lives by enabling some U.S. national security objectives to be advanced with less or no kinetic warfare.” But the U.S. lacks a strategy or doctrine for using laws as a “substitute for traditional military means to achieve an operational objective.” Other countries are further developed: China’s similar concept of “legal warfare” is part of its strategic doctrine, and Israel has an office dedicated to offensive and defensive lawfare. Kittrie makes the book’s focus tangible in fascinating examples, including how the threat of a civil lawsuit against maritime insurers prevented a flotilla from delivering humanitarian aid to Israeli-blockaded Gaza; the insurers were deterred by the prospect of being held liable in U.S. courts for “providing material support or resources to Hamas.” China’s efforts to exclude cyberspace from the international laws of war, and the U.S.’s financial warfare against Iran, are also discussed. Kittrie’s cogent analyses address a topic that will garner more attention in coming years. (Jan.)

Publishers Weekly

"Lawfare...provides a fascinating analysis of how the vacuum caused by the lack of a sheriff is playing out today in the international legal arena...[T]he book provides numerous, painstakingly documented examples of how, in recent decades, both other governments and non-state actors have increasingly altered and deployed law both to augment their own power and constrain that of the U.S. and its allies...[W]hile Lawfare does an outstanding job of diagnosing the role of law in the international arena, its greatest strength lies in its proposed antidotes - its balanced and practical recommendations for how the U.S. and its allies should respond. U.S. and allied policymakers and lawyers should read this important book and heed its call to action." -R. James Woolsey, Jr., Chairman of the Foundation for Defense of Democracies, Former Director of Central Intelligence (From the Foreword)

"Orde Kittrie has written a fascinating and thought-provoking analysis of lawfare - the use of law as a substitute for armed force to accomplish international security objectives. Among the book's many strengths are its meticulously researched yet highly readable case studies exploring the cutting-edge sophistication and intensity of lawfare in the Israeli-Palestinian conflict...This book will be valuable to both national security practitioners, who will benefit from its rigorous analysis of this increasingly powerful weapon, and attorneys, who will be fascinated and inspired to see law used to such creative and powerful effect in the international arena." -Joseph I. Lieberman, Former U.S. Senator, Vice Presidential Nominee, Attorney General of Connecticut

"Orde Kittrie has written a practical, thoughtful, and balanced description of lawfare. This fascinating book will be inspiring to attorneys, valuable to national security practitioners, and read with great interest across the political spectrum." -Evan Bayh, Partner and Former U.S. Senator and Governor of Indiana,

"With this seminal volume, Orde Kittrie opens a novel and exciting branch of scholarship and international practice. Alongside conventional tools — diplomacy, economic sanctions, covert action, and kinetic warfare — lawfare can now take its proper place both for offense and defense in the realm of international combat. The United States excels at deploying conventional tools, but it is far behind the curve in applying lawfare. Kittrie not only spells out the possibilities but also sounds a much needed wake-up call." -Gary Clyde Hufbauer, Reginald Jones Senior Fellow, Peterson Institute for International Economics, and Former Deputy Assistant Secretary of the Treasury

"In the first comprehensive study of 'lawfare,' Orde Kittrie very ably analyzes how terrorists and insurgents around the world now use legal procedures and allegations of legal violations to hobble nations committed to the rule of law. While lawfare is generally an asymmetric threat—a tactic of conflict that is more effectively employed against developed nations than by them—Kittrie also describes emerging ways in which private parties have employed civil litigation to undermine terrorist organizations and their sponsors. This thorough volume is mandatory reading for scholars and policy makers in the field of counter terrorism." -Gregory E. Maggs, Professor of Law, The George Washington University Law School, and Colonel, Judge Advocate, U.S. Army Reserve

"Law has become an important weapon in the strategic arsenal. In this remarkable book, Orde Kittrie gives us the first comprehensive examination of the techniques, promises, and perils of 'lawfare.' I believe Kittrie's book will long remain the best such examination of lawfare, for it unites a scholarly meticulousness with a pragmatic flair for policy proposals. This fine book is lucid and systematic, rich with valuable and pragmatic proposals. It will become a vade mecum, a manual kept close at hand, for a new generation of officials who must cope with the rise of market states-those decentralized . . . networked post-industrial states that are at present emerging-and with the vulnerabilities that come with this development." -Philip C. Bobbitt, Herbert Wechsler Professor of Jurisprudence and Director of the Center for National Security, Columbia Law School

"Provides a comprehensive introduction to a weapon whose very existence will be a surprise to many...Kittrie makes the book's focus tangible in fascinating examples...Kittrie's cogent analyses address a topic that will garner more attention in coming years." -Publishers Weekly (starred review)

"Lawfare is a must read and belongs in the library of strategic thinkers, in and out of the government!"-The Strategy Bridge

"Lawfare deserves a prominent place on bookshelves at the State Department and the Pentagon, as well as ministries of defense and foreign affairs across the globe. I suspect that it is already being read with great interest in places like Tehran and Beijing, which is all the more reason that American lawmakers and policymakers should absorb and apply its lessons as swiftly as possible." -David Adesnik, The Weekly Standard

"Orde Kittrie's Lawfare is a primer on how nations and non-state actors can supplement their hard power by using the court system to achieve their strategic objectives. With its clear explanations, broad scope, and comprehensive documentation, Lawfare should be influencing the way the U.S. government uses this tool for years to come." -David Gerstman, The Tower

"Lawfare is an exhaustive study of innovative financial and legal actions that can influence a change in the behavior of rogue regime. For any reader interested in the business of blunting terrorism and inflicting pain on the growing list of rogue regimes with a tool kit of empirically tested lawfare and economic warfare methods, this book should be on the syllabus." -Benjamin Weinthal, The Jerusalem Post

"Lawfare opens up a new area of inquiry through its systematic, detailed, and in some ways visionary synthesis of these different uses of law in relation to national security and armed conflict. This encyclopedic work should be required reading for any military strategist or scholar of armed conflict who is attempting to keep pace with the rapidly evolving world of national security practice." -Claire Finkelstein, Ethics & International Affairs

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