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Counterinsurgency campaigns were attritional. The insurgents were too weak to inflict a military defeat on the security forces. But they could win if they eroded the political will of the colonial state and its masters in London to continue the struggle. Victory for the British required them to muster both men and money over periods measured in years, not months, and their ability to do that depended on their political will. This chapter shows how, beginning in the second half of the 1950s, changes in domestic British and international politics, made it increasingly difficult for the British to do muster that will.

This chapter gives a general historical explanation and contextualisation of the legal milieu in which aboriginal title emerged. It sees it as arising from a confluence of rights-oriented direction of public law (municipal and international) from the civil rights era of the late 1960s with tribal peoples' mobilisation against the increased tempo of state measures of assimilation intended to remove what special legal status the tribes had retained. Though the tribes successfully repelled these measures, the political branches were still slow to legislate for recognition of the tribes traditional land rights — claims that accompanied and grew more vocal with the spurning of assimilation as a driver of national legal policy. The Canadian, New Zealand, and Australian courts' creative use of the common law to recognise these land rights, drawing upon legal argumentation assembled by a handful of key scholars (in western Canada initially), broke that impasse.

This chapter acknowledges the role of aboriginal title in jolting governments into a new politics of negotiating with tribes and taking stock of the courts' role in monitoring their relations with indigenous peoples. It also notes, however, the conservative effects of rights-design within a proprietary paradigm and the downstream lawfare that has since engulfed tribes' affairs. It attempts a critical assessment of what the doctrine has — and has not — achieved for indigenous peoples.

This chapter analyzes lawfare conceptually. Section I discusses lawfare’s definition, provides an overview of previous lawfare scholarship, and discusses this book’s goals, structure, and methodology. Section II offers a lawfare typology, explaining that lawfare has thus far predominantly taken two interrelated forms: (1) “instrumental lawfare”—the instrumental use of legal tools to achieve the same or similar effects as those traditionally sought from kinetic military action and (2) “compliance-leverage disparity lawfare”—lawfare designed to gain advantage from the greater influence that law and its processes exert over an adversary. Section III outlines the U.S. government’s approach to lawfare thus far. Section IV analyzes why lawfare’s impact and prevalence are increasing, including the increased number and reach of international laws and tribunals, the rise of non-governmental organizations focused on law of armed conflict and related issues, and the advance of globalization and thus economic interdependence.

This chapter describes and analyzes the U.S. government’s aggressive financial lawfare campaign against Iran. Section I discusses this lawfare against Iran in conceptual context. Section II describes and analyzes the key nexus between U.S. financial lawfare and Iran’s nuclear weapons program and state sponsorship of terrorism: Iran’s use of the international financial system to advance those objectives. Section III provides an overview of key innovative elements of U.S. financial lawfare against Iran. Section IV describes and analyzes the impact of U.S. financial lawfare, including persuading most major foreign banks to curtail business with Iran, costing the Iranian economy tens of billions of dollars and imposing billions of dollars in penalties on foreign banks that persisted in trading with Iran. Section V systematically details how the U.S. government has implemented financial lawfare against Iran. Section VI discusses lessons learned and the future of U.S. financial and other economic lawfare.

This chapter diagnoses how humanitarian non-governmental organizations are filling a vacuum created ironically by governments outsourcing their governing functions that marks a transformation of the Westphalian order of states by neoliberalism. The proliferation of non-state actors facilitates the politicization of human rights around how to recognize who or what is a human being endowed with natural rights, and who is a terrorist, outlaw, or posthuman. By tracing the connections between human rights and governmentality, human rights advocates must acknowledge their cozy relationship with powerful militaries, which has resulted in humanitarian interventions using the language of rights to justify neocolonial projects that often intensify human suffering. Humanitarianism may function as a deterritorialized form of governmentality that offers a theatrical illusion of protection and security, while undermining their possibilities structurally. Powerful states not only use human rights and humanitarian legitimations for their particularist geopolitical and economic ends, but also direct humanitarian NGOs strategically by proxy for their own interests. In the process the very idea of securing humans becomes instrumentalized as a form of outsourced governance that can be a model eventually for “expendable people” within nation-states.

Chapter 10 concentrates on the ways the people’s movement was contained and crushed by ‘political (re)actions from above’. Subaltern communities and their allies against the Kudankulam Nuclear Power Plant were subjected to ‘death conditions’ by way of three overlapping modalities—silent and encroaching, quick and punitive, and dismissive, deflective and demonizing. Victims, suspects, and/or targets were somatically, socially, and politically created as a consequence. The modalities of death conditions demonstrate varying syncretic subjugations to do with ‘let die’ and ‘make die’ These modalities include ecological toxicity entrenched in social hierarchies that are compounded by the neglect of low caste-class casual labourers working for the nuclear industries; more punitive and direct intentions to suppress and extinguish dissent though the actions of particular agents or agencies; and more covert, demonizing and snowballing strategies to outcaste victims of political abuse as anti-national or seditious suspects so that they can become socially tabooed and targets of further intimidation.

This chapter argues that lawfare has provided a valuable check on the some of the worse abuses of the US’s War on Terror, such as its use of torture, extraordinary rendition, and enhanced interrogation techniques. While lawfare was originally understood as akin to warfare by legal maneuvers, more recently advocates have employed it as one of the few ways available to oppose and document abuses by states such as the US. “Lawriors” have successfully sued to extend habeas corpus rights for prisoners at Guantanamo Bay military prison, as well as to suppress confessions extracted from US detainees under torture. While defenders of the Bush administration have criticized the use of lawfare, and lawriors have often failed in their legal maneuvers, this chapter argues that lawfare has improved conditions for some of those the US has tortured or otherwise detained without just cause. It also argues that, in the long run, such judicial battles are valuable for supporting constitutional norms and commitments the US has made to uphold international law, such as its prohibition on torture.

This chapter examines the role played by lawfare in prompting once compliant states' overreactions and in creating the appearance of violations of international humanitarian law. Combining legal and security analyses, the chapter brings the traditional law of war balance between humanitarian and security values back into new paradigms of warfare. It first shows how new challenges of regulating nonstate armed groups in armed conflicts has eroded the original balance at the core of humanitarian law between states' national security interests and humanitarian priorities to reduce unnecessary suffering for all victims of conflict. It then demonstrates how nonstate armed groups, by adopting an asymmetric strategy calculus that treats compliance with the law as a tactical vulnerability, have succeeded in leveraging compliance in their favor and, in turn, co-opted conventional incentives for increasing compliance. The chapter concludes by proposing a policy approach for enlisting disparate and often recalcitrant armed groups into engagement with the law that targets their asymmetric calculus and maximizes the sources of resilience internal to humanitarian law.

This chapter explores how the rule of law confers immunity to government officials who violate the law. It considers the ways in which Bush administration lawbreakers have been using, and will continue to use, resources furnished by the law itself to reduce their criminal and civil liability. It argues that the rule of law is not an effective constraint on official misconduct such as torture and that pursuing a criminal prosecution would have the perverse effect of allowing Bush administration officials to claim that they have been legally exonerated. It also discusses the misuse of law by inveterate lawbreakers as a domestic version of “lawfare” and concludes with an analysis of the role of organizing complicity or “risk spreading” in obstructing criminal prosecution of former Bush officials.

In recent years there has been a huge amount of interest in drone warfare and targeted killing. Unsurprisingly, the focus has been on the ever-expanding US targeted killing program. In this chapter I argue that contemporary US targeted killing is rooted in important ways in a juridical form of assassination invented and developed by Israel in the early 2000s. I draw on ideas of mobile and travelling law to demonstrate how a ‘legal right to kill’ asserted by Israeli war lawyers was subsequently adopted, and later expanded, by the US military. Israeli and US targeted killing does not simply ignore law; it takes place through it and international law especially has become a key means through which violence is legitimated and extended. The result is a juridical violence that that is rewriting the very boundaries and meaning of war.

This chapter describes how human rights activism in Israel began to be conceived as dangerous and examines the institutional response to this threat. The authors show how conservative NGOs working together with well-funded think tanks, government officials, and academics introduced the term lawfare in order to portray liberal human rights NGOs and their donors as carrying out an assault against the state of Israel. The chapter then describes the crusade carried out against these liberal actors, including a “naming and shaming” campaign and the introduction of laws aimed at curtailing their work. It then shows how B’Tselem, a prominent liberal human rights NGO, and the New Israel Fund, a leading progressive donor, began to internalize the accusations made against them. Finally, it claims that through a process of self-censorship these liberal organizations prevented themselves from mobilizing human rights so as to threaten the state’s colonial order.

This closing chapter argues that what is ultimately at stake is a struggle between the post–World War II system of Kantian global governance versus an Orwellian vision of spheres of influence supported by President Donald Trump and other global authoritarians. Thus far, history shows that various techniques of resistance can be marshaled to good effect. The foreign policy tally thus far shows that Trump has not been winning and that the rope-a-dope is working. The book closes by arguing that Trump does not own transnational legal process; we all do. But our understanding of transnational legal process carries with it a normative edge. It confers on all of us a continuing obligation to keep pushing the arc of history in the right direction.

This chapter describes and analyzes the waging of lawfare by various U.S. private sector and other non-governmental attorneys. Section I focuses on case studies of litigation by private sector attorneys in U.S. courts against terrorist groups, their material supporters, and their state sponsors. Section I is organized around the two key U.S. statutes currently facilitating such litigation: (1) the Anti-Terrorism Act and (2) the state sponsor of terrorism exception to the Foreign Sovereign Immunities Act. Section II focuses on describing and analyzing other ways, outside the litigation arena, in which U.S. non-governmental attorneys have waged offensive lawfare against America’s adversaries. This includes developing and advocating changes to international, U.S. federal, state, and local laws; encouraging actions by executive branch policymakers; and collecting and disseminating evidence of adversary violations of laws. Finally, Section III assesses the potential future role of U.S. non-governmental attorneys in offensive lawfare against U.S. adversaries.

This chapter describes and analyzes the waging of lawfare by the People’s Republic of China (PRC). Section I places PRC lawfare in its historical and ideological context, including the Sun Tzu maxim that “defeating the enemy without fighting is the pinnacle of excellence,” the highly instrumental role of law in Maoist doctrine, and the current role of law in Chinese society. It also discusses the PRC’s explicit adoption of lawfare as a major component of its strategic doctrine. Section II deals with the PRC’s systematic waging of instrumental lawfare in the maritime, aviation, space, and cyber arenas. Section III addresses PRC lawfare tactics designed to gain advantage from the greater compliance leverage that international law and its processes exert over the United States and other PRC adversaries, using as an example nonproliferation law. Section IV addresses the future of PRC lawfare and potential U.S. and allied responses to it.

The Israeli-Palestinian conflict is the closest thing the world has to a lawfare laboratory. Hamas, Israel, the Palestinian Authority (PA), and their allies are each vigorously waging lawfare, albeit in different ways. This chapter focuses on the PA’s use of law as a weapon against Israel and Israel’s and Israel’s allies responses to that lawfare. One major element is the campaign to gain recognition of Palestine, as a full sovereign member state of the international community, outside the negotiations process with Israel and any concessions that might require. A second major element is the PA’s decision to join the ICC. A third major element is the PA’s efforts to use the processes of international organizations and treaties, including those to which it is not a party, to advance its claims against Israel. The chapter analyzes the PA lawfare campaign’s remarkable impact and potential future.

This chapter addresses lawfare against Israel by Palestinian NGOs and their allies. Section I analyzes the Boycott, Divestment, and Sanctions movement (BDS), including EU guidelines restricting grants to Israel; BDS citing Israeli “war crimes” as justification for damaging Israeli-affiliated businesses; and lawfare by Israel supporters combating BDS. Section II describes attempts to generate “universal jurisdiction” prosecutions of Israelis in third countries for alleged war crimes. Section III analyzes efforts to instigate legal action against non-Israeli companies in third-country courts for allegedly “aiding and abetting” Israeli “war crimes.” Section IV discusses Israeli responses. Section V compares the Palestinians’ sophisticated waging of lawfare with the PA’s and Hamas’s poor compliance with international law and the rule of law. Section VI assesses lessons learned and the future of lawfare by the PA and Palestinian NGOs and their allies, as well as future Israeli responses.