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“Lawfare” is the use of law as a weapon of war against a military adversary. Lawfare critics complain that self-proclaimed “humanitarians” are really engaged in the partisan and political abuse of law—lawfare. This paper turns the mirror on lawfare critics themselves, and argues that the critique of lawfare is no less abusive and political than the alleged lawfare it attacks. Radical lawfare critics view humanitarian law with suspicion, as nothing more than an instrument used by weak adversaries against strong military powers. Casting suspicion on humanitarian law by attacking the motives of humanitarian lawyers, they undermine disinterested argument, and ultimately undermine the validity of their own critique.

The paper then explores the vision of politics and law underlying the lawfare critique through a reading of the most significant theorist who defends that vision, the German theorist Carl Schmitt. Through a reading and critique of Schmitt, the article examines both the force of the lawfare critique and its flaws.

Publication Citation

43 Case W. Res. J. Int'l L. 457-471 (2010)