Lawfare as a Means of Defining Military Doctrine in the 21st Century, IDF as an example to the CDF in the Wake of the ITFY in the Hague
By dr. Peter Anthony Ercegovac
& Marinko Tomašić
“The military leadership represents the part, while the national political leadership represents the whole, the inclusive vision of the nation’s resources in its striving for survival”
Major General Israel Tal, IDF
It was in the Spring of 2007 whilst working with the Assistant Director of Croatia Caritas Vice Batarelo that a conversation arose that was to provide the inspiration for this essay. Discussing the plight of the Croatian state and national identity in the wake of then seven years of the post-Tuđman era Batarelo mentioned to me that what struck him, after years of preparation for his doctorate, was the strength of desire for return amongst world diasporas and how in many ways they recognized the need for a strong national identity tied to the nation-state at a more deeper fundamental level than those who had never left their homelands. For him it was a hunger for belonging, survival and continuum best summed up by the old Jewish blessing given when families gathered to celebrate the Passover that they would one day return to Jerusalem, or as the family elder would recite “tomorrow Jerusalem”. For me, as a specialist in the field of counter-terrorism with field experience with national and religious movements from Northern Ireland and the Basque Country to Indonesia and the Middle East, the question took a different slant, ie, what to do once one we arrived in Jerusalem? Does this mean that all goals were achieved and now the nation could rest on its laurels? What if others coveted Jerusalem? Who would then ensure the place of the nation once it returned to the international fold through the attainment of statehood.
For us the answer was obvious. If one was to use such an allegory then why not look at the very nation-state at the core of the phrase as an example for our people. Hence, when looking at Israel as an example for Croatia, the whole question of identity in a fledgling state surrounded by political and diplomatic obstruction at best, and enmity at worse becomes one of defence. Like Israel, we are a nation-state forged in war. Like Israel we are a manifestation of the combined desires of the homeland and diaspora alike. Like Israel international recognition has not stopped our enemies from attempting to challenge our sovereignty. But unlike Israel we have failed to formulate a core national identity that would override all superficial ideological, party political and societal divisions. We believe that the reason we have failed to create this core national identity is that we have failed to forge a national identity built on our victory, as those who are apathetic or hostile to the idea of Croatian national identity being the main foundation for our national political continuum have systematically disassembled the national ideology of the one institution that was the moral facilitating factor of our nation-state, the Croatian Army. And this was done in the name of breaking the so-called international isolation through de-Tuđmanisation.
This article will be divided henceforth into two parts. Firstly we will examine the legal aspects of the Croatian Defence Force (CDF) vis-à-vis its responsibilities toward international law, the Hague war crimes tribunal, her allies in NATO and her role as potential guarantor of national security in the post-Tuđman era. The second part will deal with the Israeli scenario, ie, IDF, and how it can provide a contemporary example for the CDF through examining how itself dealt with similar crises throughout its history.
This section of the paper will provide a rudimentary look at the phenomenon of ‘lawfare’ to stress the importance of legal strategy (in addition to military, intelligence and cyber operations) as part of an integrated national security program. The legal aspects are particularly relevant in the context of asymmetric warfare and in light of developments in international law that have taken place at the ‘International Criminal Tribunal for the former Yugoslavia’ (hereafter ICTY) and her sister tribunals, the ‘International Criminal Tribunal for Rwanda’ and the ‘Special Court for Sierra Leone’. For states that border a country with a history of irredentism or contesting territory (the Tadić case provides a good examination of the ‘Greater Serbia’ political and military project), these dimensions assume greater significance as conflict increasingly becomes transposed from the military to the legal, cyber and intelligence space. In recognition of this trend, President Obama has signed executive orders outlining how the US military should respond in cases of cyber-attack. The importance of the legal sphere is also demonstrated by the first instance decision in the Gotovina case.
Joint Security Structures: a Brief Comment
The Croatian state should resist the trend among European nations to downsize military budgets and related legal and cyber capabilities in a mistaken reliance on joint security architectures such as NATO. Outgoing US Secretary of Defence Robert Gate’s warned of NATO’s potential irrelevance and criticised the failure of many European allies to pull their weight in terms of materiel, troop contributions and military spending. Given the experience of the US in Afghanistan, Iraq and Libya, it would be foolhardy for the Croatian state to expect assistance from the same European allies, especially given many are antipathetic to Croat national identity in deference to a regional “Western Balkan” architecture (Bildt, 1999). Further, the intelligence / military agents of some of these nominal allies made up the UNCRO force that according to the Gotovina’s defence counsel colluded with rebel Serb forces during the Homeland War and gave unreliable witness testimony in Gotovina’s trial. Likewise the US cannot be expected to engage seriously with the Croatian state as a reliable national security partner if the focus is on outsourcing.
Just as Carl von Clausewitz proposed the maxim that ‘war is the continuation of policy by other means’ (Hew & Herberg-Rothe, 2007, p.107), lawfare can be similarly constituted as the continuation of war by legal means. Academic prevalence of the term can be attributed to Major General Charles Dunlap who defined lawfare as ‘a strategy of using or misusing law as a substitute for traditional military means to achieve an operational objective’ (Dunlap, 2008, p.146). His definition was intended to be ‘ideologically neutral’ in that it covered both positive and negative connotations of the term.
An example of positive use of lawfare includes sanctions on Iraq that prevented importing of new aircraft and parts and was as effective as an air strike in facilitating air dominance for the US led coalition in the second Gulf war. A regional example includes Croatian diplomacy lobbying for sanctions to be imposed on Milosevic’s Yugoslavia which had a debilitating impact on the economy.
A more negative view of lawfare is espoused by neo-conservatives that see international legal institutions as prone to politicisation and misused by asymmetric forces to hinder states such as Israel and the US in confronting terrorism. Such a pejorative framing of the term resonates with American and like populations’ suspicion of foreign bodies passing judgement over their troops. However such an analysis is not without merit as the statutes of international tribunals have had considerable input from non-state donors such as activist NGO’s. Brooke Goldstein of ‘The Lawfare Project’, cites examples such as libel/hate speech lawsuits to silence authors and politicians and inculcate a culture of fear. Analogous to this, there is the ICTY prosecution of journalists Josip Jovic and Domagoj Margetic that invoked a protest from Reporters without Borders. This is an example of the misapplication of human rights terminology as well as the orchestrated law-of-war violations that is more about procuring civilian casualties to be used for propaganda purposes and also to threaten military personnel with war crimes trials. Dunlap believes such risks are low but even he recognises that such litigiousness exists, at least within international tribunals. More importantly, despite the disparate views on the nature of the risk, Dunlap understands the policy implications for force recruitment for an all volunteer army which has an influence on how the CDF is viewed from its conception. Dunlap also points to the self-imposed lawfare where self-imposed restrictions as quantified by rules of engagement may be self-defeating and perversely lead to greater collateral damage as he argues was the case in NATO operations in Afghanistan.
(Nastavit će se...)
 Prosecutor v Tadic (Transcript) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-94-1 31 May 1996) 1618.
 ‘Pentagon Gets Cyberwar Guidelines’, Fox News (online), 22 June 2011 <http://www.foxnews.com/politics/2011/06/22/pentagon-gets-cyberwar-guidelines/>.
 Prosecutor v Gotovina et al (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-06-90-T 15 April 2011).
 Voice of America, ‘Gates Says NATO Could Face “Irrelevance” in the Future’, In The News <http://www.voanews.com/learningenglish/home/world/Gates-Says-NATO-Could-Face-Irrelevance-in-the-Future-123664044.html>.
 Prosecutor v Gotovina et al (Gotovina Defence Final Trial Brief) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-06-90-T 15 April 2011) , .
 Daniel L. Haulman, ‘Whatever Happened to the Iraqi Air Force’  Air Force Historical Research Agency 1, 6.
 Central and South-Eastern Europe 2004 (Europa Publications, 4th ed, 2003) 535.
 Hans Köchler, ‘Universal Jurisdiction and International Power Politics: Ideal versus Real’  Yeditepe’de Felsefe 1, 5.
 See criticism of prosecutions from ‘Reporters Without Borders’, <http://www.rsf.org/IMG/pdf/rapport_gb.pdf>; Merdijana Sadovic, ‘Margetic Conviction Sparks Media Ethics Debate’ on Institute for War and Peace Reporting, International Justice – ICTY (13 February 2007) <http://iwpr.net/report-news/margetic-conviction-sparks-media-ethics-debate>.
 Brooke Goldstein, ‘The Disproportionate Use of Lawfare’ on Hudson New York (5 April 2010) <http://www.hudson-ny.org/1132/the-disproportionate-use-of-lawfare>.
 Dunlap, above n14, 141.
 Ibid, 135.