Article

The age of lawfare

by Dale Stephens

• Israel yearbook on human rights, Vol. 41, 2011, p. 1-30

English

The term lawfare has no real fixed definition, but has come to be generally understood as the "use or misuse of law as a substitute for traditional military means to achieve military objectives". It has been examined in the context of domestic US legal practices, in transnational legal incidents and, of course, within the realm of public international law, particularly in the context of the Law of armed conflict (LOAC). All accounts do share a conception that recognizes that lawfare is concerned with the instrumentalization or politicization of the law to achieve a tactical, operational or strategic effect. The reactions against lawfare evidence a particular interpretive attitude to LOAC, specifically one based squarely within a positivist orientation. Positivism remains the dominant interpretive idiom of LOAC, but it contains a number of vulnerabilities in its theoretical structure. It is a goal of this article to identify such vulnerabilities and to propose remedies that might be used to prompt a more self-aware counter-lawfare response within positivism's interpretive enterprise.

• Israel yearbook on human rights / publ. under the auspices of the Faculty of Law, Tel Aviv University
• Israel yearbook on human rights [Vol. 41, 2011] / publ. under the auspices of the Faculty of Law, Tel Aviv University