What It Means in Practice
Lawfare describes the strategic use of legal systems and international law as instruments of conflict or competition between states. The term was coined by US Air Force Major General Charles Dunlap in 2001 and has since been adopted across the strategic-studies vocabulary. Lawfare is what happens when courts, legal arguments, treaty mechanisms, , and discovery processes become weapons in geopolitical struggle.
Lawfare can take many forms. A state may file strategic litigation at the or to constrain an adversary. It may exploit international jurisdiction to harass adversary officials with universal-jurisdiction prosecutions in third countries. It may instrumentalize international humanitarian law claims to delegitimize an adversary's military operations. It may use extraterritorial sanctions to coerce third-country firms into avoiding business with a rival. All of these can be perfectly lawful actions — the lawfare framing describes their strategic intent, not their legality.
Why It Matters
Lawfare is a substitute for kinetic conflict in an era where direct military confrontation between major powers is too costly. Where the 20th century saw great-power competition expressed in , the 21st century increasingly expresses it through tribunals, sanctions designations, and treaty disputes. The case files are the new battlefields.
The asymmetry of lawfare also makes it attractive to weaker actors. A small state cannot fight a great power militarily but can drag it into the ; a non-state human-rights organization cannot defeat a regime in arms but can build a documentation case that survives the regime. South Africa's 2023 ICJ case against Israel under the is the highest-profile recent example of a smaller state using international courts to constrain a vastly more militarily capable one.
Lawfare in State Doctrine
Lawfare is no longer just analytical vocabulary — several states have formalized it. China's 'Three Warfares' doctrine (三种战法), introduced in 2003 by the People's Liberation Army, pairs lawfare with psychological warfare and public-opinion warfare as recognized instruments of the political–military toolkit. Russia's hybrid-warfare frameworks include legal harassment as a component. Israel's military advocates' corps explicitly considers lawfare risks when planning operations. US administrations have developed extensive secondary-sanctions infrastructure that, while described in regulatory terms, functions as a lawfare instrument.
Offensive and Defensive Lawfare
Lawfare is symmetric. Just as states use it offensively against rivals, they defend against it. The US has invested heavily in defensive lawfare — legal arguments that constrain ICC jurisdiction over US personnel, sanctions designations targeted at ICC investigators, and the American Service-Members' Protection Act (2002) authorizing the US to use 'all means necessary' to free a US citizen detained by the ICC. Russia has developed defensive lawfare around the ICJ's jurisdiction in Genocide Convention proceedings. Israel has built defensive lawfare around universal-jurisdiction prosecutions in European courts.
Lawfare vs Legitimate Legal Action
The critique of the lawfare frame is that it can delegitimize ordinary uses of law. South Africa pursuing a Genocide Convention case at the ICJ is using a treaty mechanism for exactly its intended purpose; calling that 'lawfare' implies bad faith that may not be present. Legal scholars debate when 'strategic legal action' shades into something that should be called something else.
The defenders of the term respond that calling strategic legal action by its true name doesn't delegitimize it — it just acknowledges that law is one of the instruments by which states pursue power. Treating law as outside politics is the naive position.
Common Misconceptions
Lawfare is not necessarily illegitimate. Some lawfare actions — a country suing another for treaty breach, an NGO filing universal-jurisdiction cases against alleged war criminals — may be entirely valid uses of legal mechanisms. The lawfare frame describes strategic intent, not legal validity.
Another misconception is that lawfare is a recent invention. States have used courts and treaties strategically for centuries. What's new is the dense network of international tribunals (ICJ, ICC, ITLOS, WTO Appellate Body, ECHR, ECtHR, IUSCT, BIT tribunals) that create more venues for lawfare, and the global financial plumbing (dollar clearing, , OFAC enforcement) that makes extraterritorial sanctions effective.
Real-World Examples
South Africa v. Israel at the ICJ (2023–present) — South Africa's application alleging Israeli violations of the Genocide Convention is a paradigm case of state-level lawfare. The application's structure, the choice of treaty hook, the requested all show careful strategic design.
OFAC on Iran — The web of US secondary sanctions reaches non-US firms doing business with sanctioned Iranian entities, effectively dragooning global financial institutions into US . This is lawfare in the financial-regulatory mode.
Universal-jurisdiction cases in Europe — German and Dutch courts have prosecuted alleged Syrian war criminals under universal-jurisdiction statutes. Russia and Israel have similarly faced threats of universal-jurisdiction prosecution. These cases are a substantial lawfare tool against state officials.
WTO Appellate Body paralysis — The US blocking of WTO Appellate Body appointments since 2019 is a defensive-lawfare action: degrading a forum the US no longer wants to be subject to.
Example
South Africa's December 2023 application to the ICJ alleging Israeli violations of the Genocide Convention is a paradigm case of state-level lawfare.