Lawfare or the War Behind the Curtains: An Analysis of the Russian-Ukrainian Conflict

1. Introduction

At present, war is not only conducted through direct armed action, but also through the use of non-military means that have sufficient impact to subdue enemies and lead to their acceding to the interests of the victor (Liang & Xiangsui, 1999). These non-military tools have become increasingly complex, while international law has been rendered bereft of the autonomy to respond; the power of a new world order is established de facto by the defense of its corporate interests and hidden agendas. In this landscape of so-called new-generation, or hybrid, wars, lawfare is increasingly coming to the fore. According to Alfred de Zayas, independent expert of the United Nations in the promotion of a democratic and equitable international order between 2012 and 2018, “Lawfare is a modern epidemic. In the past governments did what they wanted and got away with it. Today they try to throw a mantle of legality over their abuse of extradition treaties and subvert the administration of justice in the process” (2021). These circumstances are compounded by an unprecedented level of power of the mass media and their associated elements. Consequently, there is a clear need to determine how lawfare became so powerful and ubiquitous.

The traditional separation between the civil and military spheres that has been largely stable since Antiquity has now entered into a crisis whose roots may be traced to the end of World War II. The key point of inflection is the Nuremberg and Tokyo trials: Faced with the convergence of two ambits, the city at war and the city at peace, perhaps for the first time there was a certain fusion of both. In other words, there was an intrusion of law, of urban order, into the events that occur in times of war, or into the space of war. In the last decades of the twentieth century, there was a further series of actions dedicated to bringing conflict under the rule of law, ranging from universal jurisdiction to international justice, and including a complex network of proposals that, subject to a certain legal formality, may be considered genuine instruments of combat. At the same time, civil order pushed back and increasingly penetrated the traditional formality of armed conflict. Consequently, military terminology has incorporated the concept of “hybrid warfare”, recognizing the instrumentalization of factors other than weapons to wage war.

The classical approach to the “siege” has given way to new ways of breaking the resistance of the enemy. Assaults on the economy of an adversary is one of the principal instruments in this new “battlefield”. International trade, interbank payment systems, currency values, even inflation have all become increasingly weaponized. The flows of goods of basic necessity are distorted to break the resistance of the population; a similar disruption of monetary flows may cause financial storms of unforeseeable consequences. Beyond economic instruments, cyberspace has already become a weapon in the true military sense since it encompasses all communications, from the control of information—what at one time was called censorship—to the new forms of propaganda termed “fake news”, conveyed through the myriad platforms provided by Internet networks.

Lawfare is an ambiguous concept that can lead to confusion about its scope and application. As is clear from its etymology as a neologism, it is considered analogous to certain aspects of warfare; not those of diplomacy and politics that seek balances, commitments and agreements, but rather those that maintain the tension of conflict. It represents a change of weaponry, from the forceful and violent armaments of classical warfare, to those grounded in legal actions that may be no less effective in breaking the resistance of the enemy. While it is commonly used as a legal mechanism for bringing about a military defeat in an international conflict, it is also a disruptive instrument of political life through the devious use of judicial actions and processes; in other words, it may be directed toward the elimination of the enemy within. The judicial persecution of political opponents through the use of evidentiary instruments, including the falsification of evidence itself, can effectively bring about the destruction of political opponents by imprisonment or the ruining of their reputations. The Latin American schools generally use the term in this sense (Casado, 2021).