‘Lawfare’, US military discourse, and the colonial constitution of law and war
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European journal of international security, Vol. 3, part 1, 2017, p. 113-133
In this article, the author aims to reorient debates, in International Relations and Law, about the relationship between law and war. In the last decade, writers have challenged common understandings of law as a limit on, or moderator of, warfare. They have instead claimed that law is often used as a ‘weapon of warfare’, describing such uses as ‘lawfare’. Below, rather than arguing that law is either a constraint on or an enabler of warfare, the author examines how law comes to be represented as such. Specifically, he examines representations, primarily by US military and other governmental lawyers, of ‘non-Western’ invocations of the laws of war, which seek to constrain the policies or practices of the US or Israeli governments. The author shows how these authors cast such invocations as not law at all, but as tools of war. He suggests that this move rests on, and reproduces, colonial discourses of ‘non-Western’ legal inadequacy or excess, which serve to render ‘non-Western’ law ‘violent’ or ‘war-like’.