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

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

Fernando Casado Gutiérrez, Fernando Oliván López, Arturo Luque González
Copyright: © 2023 |Pages: 17
DOI: 10.4018/978-1-6684-6741-1.ch013
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This study provides a general framework of the processes of lawfare from a critical and propositional perspective. The concept deployed here derives from previous international studies that relate it to the war between East and West as manifested in the Ukraine-Russia conflict, taking into account its etymology and academic scope within Anglo-Saxon and European contexts. Lawfare processes, in addition to being a weapon to wear down an opponent, also involve the manipulation of public opinion by relying on the mass media, social networks, and supranational organizations to serve specific interests. The analysis presented here shows that this polysemic term can take numerous and sometimes ambiguous forms that inadvertently become interwoven. Clearly, since wider society is not privy to lawfare processes, they often go undetected, and there is a lack of preparedness, such as effective tools, to deal with them and provide redress.
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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).

Key Terms in this Chapter

Legalized Corruption: dishonest processes that, both by act and omission, contribute to the demoralization of the individual and of all kinds of public and private organizations by benefitting these through regulatory protection based on the abuse of authority, conventions, legal vacuums, impunity, etc.

Resilience: transformations within a complex system related to the capacity for self-organization while maintaining internal structure, together with the ability to create adaptive responses, generate knowledge, experience, and learning. Resilience and sustainability are directly related to changes within societies, economies, and the human system as a whole. The transformation of systems is inevitable since it allows systems to strengthen.

LAWFARE: usually describes the use of law as a weapon of war.

Public Policy: this refers to decisions and actions that a government takes when addressing public or collective issues.

Economic Globalization: this is a phenomenon in expansion that causes profound changes on the world stage. It revolves around trade, the flow of investment, financial capital, division of labor and specialization. The concept is not limited only to economic variables since its effects extend to individuals, society to the state. Developing countries are experiencing stagnation in the face of their inability to cope with globalization, which is compounded by poor management of their financial markets, leading to an increase in the income inequality gap. Economic globalization brings with it the mobilization of goods and capital, reduces distance between borders and energizes international trade with some alterations to sovereignty.

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