Newton on the Distinction Between Legitimate and Illegitimate "Lawfare"

Mike Newton (Vanderbilt) has just posted an interesting new essay, “Illustrating Illegitimate Lawfare,” which emphasizes an important distinction: between activities that might be described as “lawfare” yet are wholly legitimate, and activities that might also fit that title but that are illegitimate (because their practical effect is to undermine compliance with and enforcement of the law).  This is an important distinction, one that often goes unrecognized in light of the temptation to assume that use of the word "lawfare" aims only to delegitimize someone's resort to litigation or legal argumentation.  In any event, the abstract for Mike's essay appears below:

Lawfare that erodes the good faith application of the laws and customs of warfare is illegitimate and untenable. This essay outlines the contours of such illegitimate lawfare and provides current examples to guide practitioners. Clearly addressing the terminological imprecision in current understandings of lawfare, this essay is intended to help prevent further erosion of the corpus of jus in bello. Words matter, particularly when they are charged with legal significance and purport to convey legal rights and obligations. When purported legal “developments” actually undermine respect for the application and enforcement of humanitarian law, they are illegitimate. Although the laws and customs of war create a careful balance between the smoke, adrenalin, and uncertainty of a modern battlefield, and the imperative for disciplined constraints on the unlawful application of force, inappropriate lawfare permits the public perceptions to be manipulated Illegitimate exploitation of the law in turn permits the legal structure to be portrayed as a mass of indeterminate subjectivity that is nothing more than another weapon in the moral domain of conflict at the behest of the side with the best cameras, biggest microphones, and most compliant media accomplices. In this manner, the media can be misused to mask genuine violations of the law with spurious allegations and misrepresentations of the actual state of the law. Illegitimate lawfare is that which, taken to its logical end, marginalizes the precepts of humanitarian law and therefore creates strong disincentives to its application and enforcement. It logically follows that any efforts to distort and politicize fundamental principles of international law should not be meekly accepted as inevitable and appropriate “evolution.”