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SSRN

Volume 106

Article

Law as a Battlefield: The U.S., China, and the Global Escalation of Lawfare

Jill I. Goldenziel, Professor of International Law and International Relations, Marine Corps University Command and Staff College; Affiliated Scholar, Fox Leadership International, University of Pennsylvania

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23 Sep 2021

Law is increasingly being used as a weapon of war. Unable or unwilling to challenge other states militarily, states and non-state actors use legal strategies to weaken the enemy’s legitimacy. Such “lawfare” can be used to achieve a kinetic objective, to forestall one, to degrade the enemy’s will to fight, and to shape the narrative of war. For example, al-Qaeda’s use of human shields against U.S.-led coalition forces in Iraq and Afghanistan stopped the coalition from attacking certain military targets, and enabled al-Qaeda to carry the narrative of conflict among local populations when mass civilian casualties occurred. China is now the world’s leading practitioner of lawfare. The Chinese military prioritizes lawfare as one of the “Three Warfares” that shape its military’s influence operations. Meanwhile, the U.S. has no similar lawfare doctrine or strategy, even as China forces it to fight back. This Article argues that the U.S. needs to develop a lawfare strategy to combat its adversaries. It will first define the concept of lawfare and discuss how its use has evolved and escalated globally in recent years. It will illustrate this phenomenon by examining three different instances of lawfare between China and the U.S. or its allies: China’s non-uniformed maritime militias, international arbitration over China’s claims to the Spratly Islands, and litigation involving the U.S. and Huawei. After discussing the rise of lawfare globally, including lawfare efforts by Russia and the U.S., the Article concludes with recommendations for a U.S. lawfare strategy.

To read this Article, click here: Law as a Battlefield: The U.S., China, and the Global Escalation of Lawfare.

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