The U.S. Is Losing The Legal War Against China

The U.S. legal system is the envy of the world. U.S. courts are known worldwide for their fairness and efficiency, and tens of thousands of international students flock to U.S. law schools every year to learn the American way of law. Yet U.S. adversaries—especially China—have long understood something the U.S. national security community is only starting to learn: how to use “lawfare,” or law as a weapon of war. The U.S. military must develop a more comprehensive lawfare strategy to be able to combat its adversaries. By doing so, the United States can win on the battlefield and carry the moral narrative of war.

What is Lawfare?

State and non-state actors have long been using lawfare against the United States. Lawfare can be used to achieve traditional military objectives or to shape the conditions to enable traditional military actions to succeed.  Perhaps the best-known example of lawfare is the use of human shields by violent non-state actors like Hamas and Al-Qaeda. Both groups forced their Western state adversaries into a Hobson’s choice: violate the law of war by killing innocent civilians, or give the enemy a huge military advantage by failing to destroy a critical target. 

China, Russia, and other U.S. adversaries have employed a more sophisticated version of lawfare against the United States. Lawfare is one of China’s “Three Warfares” that underpin its military strategy, along with media or public opinion warfare, and psychological warfare. China has used lawfare in its quest to dominate the South China Sea. For example, China is increasingly using a “maritime militia” as part of its military operations. These militia are comprised of commercial fishermen who work for the Chinese military in their off time. When in militia status, the fishermen catch no fish and carry no nets. Instead, they bring intelligence and surveillance equipment and weapons. China uses the militia to occupy and swarm contested islands and reefs in the South China Sea. For example, 95 of these “fishing boats” swarmed the Philippines’ Pag-Asa Island in a single day in April 2019. These boats have also collided with commercial and military vessels. They present a massive obstacle for U.S. freedom of navigation operations in the region. Under the Law of the Sea, U.S. Navy vessels are responsible for the harrowing task of avoiding collision, and any contact would mean millions of dollars in damage.

China’s use of the maritime militia also presents an issue for the United States under the law of war. The fishermen manning these boats are civilians. The United States would risk civilian casualties in any confrontation with the maritime militia. Any conflict between a U.S. warship and China would also be a David and Goliath scenario, granting China the upper hand in any ensuing media battle.

China uses other forms of lawfare designed to strengthen its legitimacy and undermine U.S power. It interprets the U.N. Convention on the Law of the Sea in unsound ways to further its interests. It builds international institutions designed to compete with U.S.-backed institutions, such as creating the Asian Infrastructure Investment Bank to counter the World Bank. China also backs corporations in filing lawsuits against the United States that seek to undermine American laws and policies. These include a lawsuit by Huawei to protest a ban on the U.S. government buying its products, over which China engaged two PR firms to fight a concurrent media battle.

How to Fight Lawfare

As use of lawfare is growing worldwide, the United States has largely ceded the legal battlefield to its adversaries. Unlike China, the United States has no military doctrine related to lawfare. The U.K. and NATO have recognized lawfare as part of their military doctrine, and Israel employs personnel devoted to lawfare in its Ministry of Justice. Malaysia, Vietnam, and Indonesia, are actively using lawfare against China. But the United States does little to fight lawfare or train its personnel to do so. To combat its adversaries—and work with its allies and partners—the U.S. needs a lawfare strategy.

The United States must prepare to fight lawfare offensively and defensively, at the strategic, operational, and tactical levels. It should designate permanent personnel devoted to lawfare, or create an interagency lawfare office, to share lawfare expertise throughout the government and military. The United States must proactively identify and monitor situations in which its adversaries are using lawfare, or that are vulnerable for use of lawfare, and work with our partners and allies to develop a legal strategy to fight them. It must develop opportunities for the United States to use lawfare to its own advantage, before, during, and after armed conflict. The United States should commence legal actions against corporations or other proxies of its adversaries. The United States should also evaluate the potential strategic importance of ratifying treaties, developing new international legal instruments, or promoting U.S. interpretations of international law. Additionally, the United States must train civilian and military lawyers and military commanders to recognize and employ lawfare.

The United States can also use law to shape the narrative of war. Following the law, and emphasizing the importance of doing so, can help shape the global narrative of conflict in the United States’ favor, influence legal strategies by other states, and delegitimize its adversaries’ positions. U.S. lawfare experts can identify opportunities for our adversaries to spin U.S. actions as illegal, and work to counter this. The U.S. can also shape the narrative surrounding future conflict by publicizing adversary violations of international law and emphasizing the morality of its own military response. By doing so, the United States can attack its adversary’s will to fight and bolster its own. The power of the will to fight cannot be underestimated as an element of victory.

The United States has the world’s best legal arsenal. It is far behind in deploying lawfare to serve its military and strategic interests. Law is increasingly becoming a battleground. The United States must prepare to fight.

Dr. Goldenziel’s views are her own and do not necessarily represent those of her University, the U.S. Department of Defense, or any other arm of the U.S. Government.