The court as a battlefield

Orde F. Kittrie’s book Lawfare is an exhaustive study of innovative financial and legal actions that can influence a change in the behavior of rogue regimes (think Iran’s ayatollahs and Hamas, to name but two). For Israeli readers – and those on the front lines of combating terrorism – the book is required reading.

The term “lawfare” was coined by Charles Dunlap Jr. in a 2001 essay: “The use of law as a weapon of war is the newest feature of 21st century combat.” His corollary lawfare definition is “Lawfare describes a method of warfare where law is used as a means of realizing a military objective.”

Kittrie, a law professor at the Sandra Day O’Connor College of Law at Arizona State University, contributes to – and advances – Dunlap’s framework to include the growing might of economic and bank-based pressure-point strategies. In his chapter on “Israeli Offensive Lawfare,” Kittrie vividly dissects the successful one-two punch of Shurat HaDin to stop a second Gaza flotilla on its way to challenge Israel’s naval blockade of the Gaza Strip in 2011.

Shurat HaDin notified maritime insurance companies about their legal exposure in permitting the vessels to depart Greece for purposes of smuggling. As a result of the insurance warning and other legal actions, Kittrie writes, “some 14 flotillas were prevented from leaving Greece.”

In contrast to the violence that occurred when IDF commandos boarded the Turkish flotilla ship Mavi Marmara in 2010 – killing 10 radical Turkish Islamists, “Act 2” of the pro-Hamas flotilla movement reached a different conclusion.

“Through the activities of Shurat HaDin, the Israeli military objective of stopping the flotilla from breaching the Gaza blockade was accomplished without bloodshed, at relatively little cost, and largely without putting the government of Israel’s own assets and reputation at risk,” wrote Kittrie.

Kittrie, who served as US State Department attorney with a specialization in nuclear proliferation, offers a solution-style handbook to stop terrorism.

The chapter titled “Hamas Battlefield Lawfare against Israel” provides a detailed analysis of the decisions Israel is forced to make to stop missile attacks targeting its population emanating from civilian areas in Gaza while protecting non-terrorists in Hamas-controlled enclaves.

“When the law of armed conflict has as much leverage over genocidal terrorist groups as it does over the democracies they target, the terrorist groups will stop violating the law of armed conflict in a manner designed to elicit alleged violations of the law of armed conflict by the targeted democracies,” writes Kittrie. “As a result, casualties on both sides will drop dramatically.”

The many NGOs, UN organizations and human rights groups operating in Israel and the disputed territories could greatly benefit from reading Kittrie’s chapter on how Hamas exploits Palestinian civilians as a means to secure cheap public relations victories, even though destruction results.

Perhaps the most fascinating chapter is the one detailing the US’s “financial lawfare against Iran.” Kittrie nimbly explains the financial sanctions that moved Iran’s recalcitrant Supreme Leader Ali Khamenei to negotiate a deal to curb his country’s illicit nuclear weapons program.

Kittrie seesaws between the various schools of thought on the efficacy of those sanctions. On one hand, he points out, “As of the summer 2015, US financial lawfare had clearly failed to coerce Iran into halting its state sponsorship of terrorism.” On the other hand, he notes that politicians like Sen. Charles Schumer (D-New York) sought expanded sanctions to secure deeper concessions from Iran’s regime.

The US sought a very narrow use of its economic sanctions, namely, the rolling back of some key elements of Iran’s nuclear ambitions. Sanctions, more sanctions, and even more sanctions might have filled the regime with a sufficient amount of existential anxiety to compel Khamenei to rope in many of his nefarious activities and abandon his entire nuclear enterprise.

Given that Iran’s regime was bleeding from many of its pores, it is an entertaining thought to consider where a full financial embargo (including a ban of all oil and gas sales) of Iran’s wobbly economy would have led. Sanctions as a possibility for a democratic reorganization of Iran’s society? It’s a guessing game.

The sanctions campaign caused severe damage to Iran’s economy. Kittrie cites no shortage of statistics showing that Iran’s economy suffered, including how the regime had to forgo $160 billion in oil revenue since 2012.

For any reader interested in the business of blunting terrorism and inflicting pain on the growing list of rogue regimes with a tool kit of empirically tested lawfare and economic warfare methods, this book should be on the syllabus.

Orde F. Kittrie examines how to take on terrorist groups without bloodshed