1 Benjamin Wittes, About Lawfare: A Brief History of the Term and the Site, Lawfare (Sept. 1, 2010), at https://www.lawfareblog.com/about-lawfare-brief-history-term-and-site.

2 Id.

3 Charles J. Dunlap Jr., Address at the Humanitarian Challenges in Military Intervention Conference, Harvard Carr Center: Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts (Nov. 29, 2001), available at http://people.duke.edu/~pfeaver/dunlap.pdf.

4 Id.; Charles J. Dunlap Jr., Lawfare: A Decisive Element of 21st-Century Conflicts?, 54 Joint Forces Q. 34, 35 (2009), available at http://www.dtic.mil/dtic/tr/fulltext/u2/a515192.pdf.

5 Dunlap, Charles J. Jr., Lawfare Today: A Perspective, 3 Yale J. Int’l Aff. 146, 146 (2008)Google Scholar; Dunlap, Charles J. Jr., Does Lawfare Need an Apologia?, 43 Case W. Res. J. Int’l L. 121, 122 (2010)Google Scholar. Dunlap later slightly changed this iteration to read, “the strategy of using—or misusing—law as a substitute for traditional military means to achieve a warfighting objective.” Dunlap, Charles J. Jr., Lawfare Today … and Tomorrow, 87 Int’l L. Stud. 315, 315 (2011)Google Scholar. Dunlap replaced “warfighting” for “operational” to “preclude an interpretation that [the lawfare concept] was linked to a particular level of war.” Id. at 322 n.3.

6 As Dunlap notes, the theoretical basis of lawfare is rooted in nineteenth-century political theorist Carl von Clausewitz's insights that law is a continuation of politics, carried on by other means. See Dunlap, Lawfare: A Decisive Element of 21st-Century Conflicts?, supra note 4, at 35.

7 Dunlap, Lawfare Today: A Perspective, supra note 5, at 147.

8 Id. at 149.

9 C. Lopez, SEALs Case Shows How Terrorists Use ‘Lawfare’ to Undermine U.S., Human Events (Mar. 8, 2010), at http://humanevents.com/2010/03/08/seals-case-shows-how-terrorists-use-lawfare-to-undermine-us.

10 Mission, Lawfare Project (2016), at http://thelawfareproject.org/mission-2.

11 David B. Rivkin Jr. & Lee A. Casey, The Rocky Shoals of International Law, Nat’l Interest, Winter 2000–2001, at 35, 35, available at http://nationalinterest.org/article/the-rocky-shoals-of-international-law-523. This piece was published prior to Dunlap's essay and has been reported as a major impetus for Dunlap to comment on lawfare.

12 Andrew C. McCarthy, Lawfare Strikes Again: The Fourth Circuit's Combatant Case Heralds the Return of September 10th, Nat’l Rev., June 12, 2007, at http://www.nationalreview.com/article/221258/lawfare-strikes-again-andrew-c-mccarthy.

13 U.S. Dep't Of Defense, National Defense Strategy of the United States of America 6 (Mar. 2005), available at http://www.au.af.mil/au/awc/awcgate/nds/nds2005.pdf.

14 David Scheffer, Whose Lawfare Is It, Anyway?, 43 Case W. Res. J. Int’l L. 215, 216 (2010).

15 Id.

16 Luban, David, Carl Schmitt and the Critique of Lawfare, 43 Case W. Res. J. Int’l L. 457, 462 (2010)Google Scholar.

17 Williams, Paul R., Lawfare: A War Worth Fighting, 43 Case W. Res. J. Int’l L. 145, 145 (2010)Google Scholar; id. at 147 (“They may switch their guns for their pens, but they are still engaged in a very aggressive action to accomplish those same political objectives that led them to the battlefield. Most often, when agreeing to a peace process, the parties have not changed their positions but have simply changed the venue of the battle.”).

18 E.g., Mark Martins, Reflections on “Lawfare” and Related Terms, Lawfare (Nov. 24, 2010), at https://www.lawfareblog.com/reflections-lawfare-and-related-terms (quoting W. B. Gallie).

19 Council on Foreign Relations, Lawfare, the Latest in Asymmetries—Part Two (May 22, 2003), at http://www.cfr.org/defense-and-security/lawfare-latest-asymmetries---part-two/p6191.

20 Kittrie further suggests: “It is important to note that all three of these definitions of lawfare are valueneutral. Defined as such, lawfare is intrinsically neither good nor bad but can, as with most other weapons, be ‘wielded by either side in a belligerency’ and used ‘for good or bad purposes, depending on the mindset of those who wield it’” (p. 6).

21 For example, Kittrie discusses how the Palestinian Authority used its UNESCO membership to request that the Palestinian Authority-administered Church of the Nativity be designated a World Heritage site and a World Heritage site “in danger” (p. 233). The Palestinian Authority depicted this designation as a UNESCO acknowledgment that Israel's settlement policies threatened one of Christianity's holiest sites as a means to undermine relations between Israel and its Christian allies.

22 Compliance-leverage disparity lawfare may be used to describe Hamas’ tactics of hiding among civilian populations to either restrict Israel's military operations or force Israel to target such areas and incur international condemnation. Kittrie also uses this term to describe the People's Republic of China's tactics of entering into binding nonproliferation treaties to restrict its adversaries’ nuclear advancement while nevertheless using proxies to provide its allies with nuclear technology.

23 President Barack Obama, Remarks by the President on the Iran Nuclear Deal, American University (Aug. 5, 2015), available at https://www.whitehouse.gov/the-press-office/2015/08/05/remarks-president-iran-nuclear-deal (“In fact, it was our very willingness to negotiate that helped America rally the world to our cause, and secured international participation in an unprecedented framework of commercial and financial sanctions. Keep in mind unilateral U.S. sanctions against Iran had been in place for decades, but had failed to pressure Iran to the negotiating table.”).

24 Anti-Terrorism Act of 1987, 22 U.S.C. §§5201–5203 [hereinafter ATA].

25 Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 690 (7th Cir. 2008) (en banc).

26 In July 2016, the Permanent Court of Arbitration in The Hague examined these practices. In a case brought by the Philippines, the Court rejected that China could use these actions to assert sovereignty over the South China Sea, further noting that China had violated international law, particularly the UN Convention on the Law of the Sea, in constructing artificial islands in these waters. In addition to China and the Philippines, the case impacted five additional nations—Brunei, Indonesia, Malaysia, Taiwan, and Vietnam—that all have strategic interests in and claim sovereignty over parts of the resource-rich South China Sea. Though the Court's decision is binding, the Court lacks an enforcement mechanism, and Beijing has rejected the tribunal's jurisdiction over Chinese actions. South China Sea Arbitration (Republic of the Phil. v. People's Republic of China), PCA Case No. 2013-19, Award (UNCLOS Annex VII Arb. Trib. July 12, 2016), available at http://www.pca-cpa.org; see also Jane Perlez, Tribunal Rejects Beijing's Claim in South China Sea, N.Y. Times, July 12, 2016, at http://www.nytimes.com/2016/07/13/world/asia/south-china-sea-hague-ruling-philippines.html?_r=0.

27 At https://bdsmovement.net.

28 In July 2016, on behalf of five American and Israeli families of victims of Palestinian attacks, Shurat HaDin filed a lawsuit against Facebook, alleging that the platform serves as a vehicle for Hamas and other militant groups to incite hatred and violence. Similar to the previously referenced Boim litigation, where the ATA was used to confer liability to anyone who donated to an organization known to be engaged in terrorism, this litigation argues that Facebook violates antiterrorism laws by facilitating militants in “recruiting, radicalizing, and instructing terrorists, raising funds, creating fear and carrying out attacks.” Tia Goldenberg, Israel Group: Families Sue Facebook over Palestinian Attacks, Associated Press, July 11, 2016, at http://bigstory.ap.org/article/549b4ca259f7496b9e04d391d4bd50a4/israeli-group-sues-facebook-over-palestinian-violence.

29 The lawfare discourse is expansive. In addition to the above-cited commentaries, contemporary lawfare discussion includes Charles J. Dunlap Jr., What ‘Lawfare’ Means in the Palestinian-Israeli Conflict, U.S. News & World Report, July 31, 2014, at http://www.usnews.com/news/articles/2014/07/31/what-lawfare-means-in-the-palestinian-israeli-conflict; Nicola Perugini & Neve Gordon, Lawfare and the Threat of Human Rights, Worldpost, July 21, 2015, at http://www.huffingtonpost.com/nicola-perugini/lawfare-and-the-threat-of_b_7819282.html; Schabas, William A., Gaza, Goldstone, and Lawfare, 43 Case W. Res. J. Int’l L. 307 (2010)Google Scholar; Sadat, Leila Nadya & Geng, Jing, On Legal Subterfuge and the So-Called “Lawfare” Debate, 43 Case W. Res. J. Int’l L. 153 (2010)Google Scholar; Luban, David, Lawfare and Legal Ethics in Guantánamo, 60 Stan. L. Rev. 1981 (2008)Google Scholar; David B. Rivkin Jr. & Lee A. Casey, Lawfare, Wall ST. J., Feb. 23, 2007, at http://www.wsj.com/news/articles/SB117220137149816987; Ogoola, Justice James, Lawfare: Where Justice Meets Peace, 43 Case W. Res. J. Int’l L. 181 (2010)Google Scholar; Holzer, Mark W., Offensive Lawfare and the Current Conflict, Harv. Nat’l Sec. J., Apr. 10, 2012 Google Scholar, at http://harvardnsj.org/2012/04/offensive-lawfare-and-the-current-conflict; Ansah, Tawia, Lawfare: A Rhetorical Analysis, 43 Case W. Res. J. Int’l L. 87 (2010)Google Scholar; Laurie R. Blank, , Finding Facts but Missing the Law: The Goldstone Report, Gaza and Lawfare, 43 Casew. Res. J. Int’l L. 279 (2010)Google Scholar; Kelly D. Wheaton & Mike Hoadley, Strategic Lawyering: Realizing the Potential of Military Lawyers at the Strategic Level (USAWC Strategy Research Project, Mar. 15, 2006), available at http://www.dtic.mil/cgi-bin/GetTRDoc?AD_ADA449201; Mary L. Dudziak, The Meanings of “Lawfare, ” Balkinization (July 11, 2011), at http://balkin.blogspot.com/2011/07/meanings-of-lawfare.html; Martins, supra note 18.

30 Commentators and legal practitioners frequently use the term object and purpose throughout international law, particularly when undertaking treaty interpretation. Though the specific meaning of the term remains the subject of extensive academic debate, it has generally been defined to refer to a treaty's or statute's essential or otherwise principal goals. David S. Jonas & Thomas N. Saunders, The Object and Purpose of a Treaty: Three Interpretive Methods, 43 Vand. J. Transnat’L L. 565, 578 (2010).

31 The object and purpose of international law includes structuring norms, rules, and processes that promote the rule of law, drive economic prosperity, and prevent human suffering.

32 Luban, supra note 16, at 462.

33 Id.

34 Following the Kosovo conflict, the International Criminal Tribunal for the Former Yugoslavia (ICTY) inquired into the targeting decisions by the North American Treaty Organization (NATO) during its bombing campaign. The inquiry came amid widespread inquiry that NATO had indiscriminately bombed Serbian forces. Together, the Clinton administration and NATO headquarters responded to every question that the ICTY prosecutor posed, preparing detailed reasoning for each targeting decision. Ultimately, the ICTY prosecutor found no basis for investigating war crimes violations. ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, paras. 28–56 (undated), available at http://www.icty.org/x/file/Press/nato061300.pdf; Scheffer, supra note 14, at 223.

35 The Islamic State has taken to headquartering its military operations in or near civilian-dense areas, with the intention of either forcing the United States to inflict civilian casualties or necessarily curbing U.S. military efforts. As the New York Times highlighted, “American officials say they are not striking significant, and obvious, Islamic State targets out of fear that the attacks will accidentally kill civilians. Killing such innocents could hand the militants a major propaganda coup and alienate” the local Sunni tribesmen and Sunni Arab countries who are providing crucial support to the campaign. Eric Schmitt, U.S. Caution in Strikes Gives ISIS an Edge, Many Iraqis Say, N.Y. Times, May 26, 2015, at http://www.nytimes.com/2015/05/27/world/middleeast/with-isis-in-crosshairs-us-holds-back-to-protect-civilians.html?_r=0.

36 Dunlap, supra note 3, at 4, 19.

37 James D. Fearon, Governance and Civil War Onset, World Development Report 2011 (Aug.31, 2010), available at http://web.worldbank.org/archive/website01306/web/pdf/wdr%20background%20paper_fearon_0.pdf; Sarah Hearn, Peacebuilding and Institution-Building (United Nations University Centre for Policy Research, Feb. 2015), available at http://collections.unu.edu/eserv/UNU:3221/unu_cpr_peacebuilding_and_institution.pdf.

38 Martins, supra note 18; U.S. Dep't of the Army, Insurgencies and Countering Insurgencies, Doc. No. FM 3-24 MCWP 3-33.5 (May 2014), available at http://fas.org/irp/doddir/army/fm3-24.pdf.

39 Williams, Paul R. & Pecci, Francesca Jannotti, Earned Sovereignty: Bridging the Gap Between Sovereignty and Self-Determination, 40 Stan. J. Int’l L. 347, 363–66 (2004)Google Scholar.