Lawfare: The Mortal Kombat of Jurisprudence

Carl von Clausewitz, a prominent Prussian military theorist at the beginning of the 19th century, in his major work “Vom Kriege” (On War), described war as nothing more than the continuation of politics by other means. While von Clausewitz primarily focused on military means and methods as the main components of war, 200 years later, modern warfare extends far beyond traditional battlefronts. Contemporary armed conflicts, whether international or non-international, are rarely fought only by soldiers. Instead, they often involve mobilizing various organizations, institutions, and inhabitants of a territory/state in war representing different professions. Even ordinary citizens can contribute to the war effort through their smartphones. This broadening of warfare has created space for other domains such as economic warfare, political warfare, cyber warfare, propaganda, etc. Altogether, these elements are usually categorized under the term “hybrid warfare” or “hybrid wars”, a concept popularized by Frank Hoffman in 2007. While hybrid warfare combines conventional and unconventional tactics, it also encompasses a distinct dimension known as “lawfare”.

Since its introduction to the public by John Carlson and Neville Yeomans and its resurgence in 2001 by Charles J. Dunlap Jr., lawfare has been largely understood as a method or means of warfare. One of the most quoted definitions describes lawfare as the strategic use of law with the purpose of delegitimizing, harming, or annihilating an enemy. Given that the term “lawfare” is a blend of “law” and “warfare”, it is unsurprising that many scholars directly connect such use of law with securing military advantages during armed conflicts. In 2025 lawfare is a complex phenomenon and while technology evolves, defining lawfare becomes even more challenging.

Contrary to the above-mentioned approach, this research holds the position, that lawfare is not necessarily a component of an armed conflict, and additionally does not inevitably constitute a negative phenomenon. Having in mind the two mutually exclusive approaches in recent years scholars have attempted to classify lawfare. Definitions and classifications for lawfare range from narrow interpretations, which confine it to wartime applications, to broader frameworks that divide the concept into several subcategories, while also including so-called “peacetime lawfare”. Adhering to the latter approach, as well as considering existing classifications of the concept, the present study categorizes lawfare into the following subcategories:

• Battlefield lawfare, applicable by parties to a conflict within the theatre of war or having a visible impact on the battlefront
• War-effort lawfare, directed to back the military without having a direct impact on the battlefront, but creating legal and plausible justification for the activities of the armed forces.
• Institution-based (Courtroom) lawfare, waged through legal argumentation within established institutions (including courts) and directed toward delegitimization of the opponent, without presupposing the existence of an armed conflict.
• Other (Mixed) lawfare, the most complex type of lawfare which includes but is not limited to legal actions and may be combined with other types of coercion such as economic or political.

To sum up, this paper describes lawfare as a strategic application of law by states and non-state actors aimed at weakening the position of adversaries either in peacetime or in situations of armed conflict.

The first two subcategories in the abovementioned classification presuppose the existence of an armed conflict where lawfare is either part of military operations (as in the case of battlefield lawfare) or contributes to the war-effort activities of a party to a conflict (as in the second subcategory).

Battlefield Lawfare

Although lawfare is usually considered as a more humane approach to problem-solving than traditional kinetic warfare, there are instances where its application has drawn criticism from the international community. One notorious example is the use of human shields during armed conflicts. This strategy implies locating civilians or civilian objects near the area of hostilities in order to deny the attacker the possibility to carry out its military activities without damaging civilian infrastructure or avoiding casualties. This morally reprehensible yet battlefield-effective tactic has been employed in many modern armed conflicts, such as the Russia-Ukraine and Israel-Hamas. Within this context, both states and non-state actors conduct hostilities from places of worship such as mosques as well as from densely populated areas which serves as a preventive measure for the backfire. If such locations are targeted, the attacking forces will be most likely accused of violation of international humanitarian law. In these cases, the misuse of the law may attract criticism from the international community and humanitarian organizations but remain extremely useful from the perspective of gaining military advantage. However, the flip side is that such tactics usually violate principles of international humanitarian law, such as distinction (between civilian population and combatants and between civilian objects and military objectives) and the principle of precaution, which obliges both the attacking and the defending sides to take all feasible precautions to avoid or to minimize civilian casualties as well as any harm to civilian population and civilian objects. Additionally, utilizing this approach during hostilities leads some authors to argue that lawfare in general is a negative phenomenon that denies the law.

War-Effort Lawfare

Beyond application on the battlefield, lawfare also plays an important role in supporting war efforts behind the front lines. In this regard, the law has different functions. From the perspective of law applicable in wartime, both soldiers and commanders must be well-versed in international humanitarian law (IHL) and related branches of international law before engaging in warfare. However, in the modern era relying solely on the legal knowledge of the military staff is often insufficient, therefore legitimizing military operations can help avoid serious consequences on the international scene․ Thus, actors in the international arena periodically introduce new concepts, such as humanitarian intervention or preventive self-defence, which some states use to justify jus ad bellum violations and to legitimize breaches of international law. To this end, states frequently equip civilian staff with functions to support the military from a legal perspective. Moreover, think tanks and universities can also play a pivotal role in advancing lawfare strategies. While such practice is not rare, Israel has taken the process to the next level as a country practicing scholarly-backed military operations. This approach involves leveraging international law specialists and other university professionals to legitimize state actions, particularly in the occupied Palestinian territories, but not exclusively. Unlike ordinary legal support, such professional activity can accompany a military operation through all stages from planning to execution. Although these people are often unaffiliated with the military or government, they yield significant influence within the public governance system. To some scholars, this legal support is not solely a simple cooperation but rather a mechanism through which lawyers set the tone of how IHL is interpreted.

In most countries, such cooperation is disregarded. In such states, partnership between the military and university staff is usually limited to teaching support by international law specialists to military university students and cadets as well as representatives of the military with decision-making responsibilities. However, as time evolves lawfare is becoming more integrated in armed conflicts, and deeper collaboration between international law specialists and state bodies may have a serious impact on the quality and applicability of both military operations and international humanitarian law.

Institution-Based (Courtroom) Lawfare

Although many researchers associate lawfare with the existence of an armed conflict, the current trend in international law is inclined to include “courtroom battles” within the notion. Institutions such as the International Court of Justice (ICJ), the International Criminal Court (ICC), and the European Court of Human Rights (ECtHR) are just a tiny part of international institutions that serve as platforms for modern lawfare. With the rise of asymmetric warfare, also including conflicts between states with different levels of army organization or military budgets such as Russia v. Ukraine or Armenia v. Azerbaijan, the strategic use of judicial institutions has become more popular and widespread. Lawfare in this context also carries another dimension, helping to gain a moral advantage in addition to legal victories.

For states such as Armenia and Ukraine that were not actively engaged in lawfare before, the driving force to utilize this tactic can be found in the existence or threat of an armed conflict as well as in changes in geopolitical situations. Therefore, it is not paradoxical that states are searching for new legal mechanisms to address their issues. Extensive literature exists on states’ legal endeavors in various courts and international organizations, reflecting the broader trend of seeking accountability through legal avenues beyond traditional kinetic warfare. Some states, such as Ukraine, have even launched separate projects such as the “lawfare project” that promoted filing cases and submitting complaints not only before the aforementioned courts, but also the International Tribunal on the Law of the Sea (ITLOS), World Trade Organization (WTO), and other international institutions. The idea of the project goes further than the traditional borders of public international law and includes private international law as well. However, in ongoing hostilities, lawfare is only a complementary tool rather than the primary means of achieving military or political objectives.

Other (Mixed) Lawfare

Beyond the categories discussed above, lawfare can also manifest in hybrid forms that incorporate legal elements, though not limited to legal actions, often combined with other coercive measures. This is particularly evident when political or economic measures are reinforced by legal actions creating a powerful combination that enhances the overall strategy. Sanctioning, embargoes, and other measures nowadays require strong legal support and, in some scenarios, even termination of international treaties. Hence, these actions require a strong legal justification. In recent years, states have increasingly involved private corporations in their state-driven strategic lawfare. One such case involves several Brazilian companies, including Brazilian aerospace corporation Embraer, which faced serious legal issues with the U.S. Department of Justice for several years. Another prominent lawfare example included an episode of mixed (including legal) proceedings by the United States against Chinese technology giant Huawei. These cases are another illustration of how modern lawfare extends beyond the realms of conventional warfare and pre-existing armed conflict as neither China nor Brazil has been involved in any armed confrontation with the United States in recent years.

Conclusion

While lawfare has not managed to become the dominant form of contemporary warfare, its increasing recognition and application highlight its strategic value across various contexts. Although kinetic potential in armed conflicts remains a priority for both states and non-state actors, the age of hybrid warfare demands greater attention to supplementary strategies, including lawfare. However, as indicated above, certain forms of lawfare -particularly those linked to armed conflicts may pose serious threats. Therefore, establishing mechanisms to prevent the misuse of the law should be a priority for states and international organizations. This may include stricter control over compliance with international humanitarian law and additional mechanisms to punish perpetrators of international law violations.

On the other hand, lawfare also has much to offer as an alternative to armed conflicts and other types of confrontations. In such subcategories as courtroom lawfare states and other actors involved should, vice-versa be interested in enlarging the potential of lawfare. Establishing courts and arbitration mechanisms with binding authority and widespread participation, alongside enhancing existing international legal frameworks would be a significant step toward reducing armed conflicts and resolving disputes in a more civilized way, thereby minimizing casualties and destruction.