{From Cynthia Alkon who can’t post at the moment!}
During the conference on hybrid warfare and Negotiation at Vlerick Business school in Ghent, in a session titled, “The Impact of the Threat of Lawfare on Disputes, Conflict and Negotiations and their Information Bases” Noam Ebner and I discussed the notion of lawfare and its impact on parties, lawyers and the legal profession.
Lawfare is basically the weaponization of our legal systems and in the context of hybrid warfareit is a wide-open concept. In in our discussion, we broadly referred to the use of legal action by a state against private individuals or government officials of a rival state, or against the rival state itself, in order to improve its position in a broader conflict. The state waging lawfare might do so overtly and publicly, or it may remain hidden, pulling the strings as third parties such as individuals, corporations, or other countries actually initiate the legal action. The primary form of lawfare we discussed was a state acting through corporations and lawyers to file injunctions and lawsuits against investigative reporters, researchers, and security consultants warning against various forms of contentious action covertly taken by that state against others. Another form is different types of SLAPP suits (strategic lawsuits against public participation). Of a somewhat different nature, lawfare might include a country issuing arrest warrants against officials of other countries to impact the conflict between them, or covertly pressure third-party countries to issue such warrants. We also touched on the possible use of lawfare in criminal legal systems.
Cynthia started out by discussing some specific areas for concern for lawyers and how our current legal systems, practices, and laws, are inadequate to these possible situations. For example, currently our laws of discovery can help a party to get information, easily, that they might not easily be otherwise be able to get. If a party is actually a state actor with deep pockets, they could potentially use the discovery process for information about how businesses operate, or other information that could be useful to a state actor with destructive motives. Another possible issue is how our current evidentiary laws work. Imagine a hacker implanting a deep fake video (or document) into an existing system (such as a Ring doorbell) allowing a party to establish the foundation needed to introduce the item into evidence. Lawyers aren’t necessarily thinking aboutthis possibility and may not be looking for possible deep fakes, much less have the technological knowledge to investigate if the item is a product of hacking. Our current evidentiary laws do not demand this kind of investigation. In addition, our ethical rules and current understandings of conflict of interest do not consider if the potential clients are states that have goals that might be in conflict with basic values of the lawyers involved such as to stymie freedom of speech, undermine security, or other nefarious goals.
Noam offered some conflict frames we could translate different aspects of lawfare into.
Why might this be valuable? Your intuition is as good as ours. As Noam reflected, we know so little about hybrid warfare that every hook we can use to connect between this form of conflict and traditional conflict theory will be helpful for understanding hybrid warfare (and, perhaps, for uncovering shortcomings of traditional conflict theory). It’s easy to see legal disputes as a conflict type/zone of their own, distinct from broader conflicts or from other types of conflicts, as if their framing as pursuit of justice elevates them into being something else. However, legal actions are so often simply manifestation of ‘familiar’ conflict behavior in a particular arena with rules of its own. And, they are sometimes simply side shows or small rings in the 10–ring circus of a broader conflict. They can certainly be used to clarify or decide a corner of a conflict… but they are often used as conflict tools rather than conflict resolution zones.
These conflict hooks are particularly tricky to uncover, as initial review of lawfare situations lends itself to a very different world of association and analogy. The stories shared in the session about lawsuits against individuals and publishers aiming to silence investigation and reporting on a country’s activities serve conflict purposes that are more analogous to traditional kinetic warfare (second front, targeted strikes, suppressive fire) than to some of our typical conflict frames, such as searching for how we can split the orange.
In some senses, this line of thinking continues the articles written by Cynthia Alkon and SandaKaufman (A Theory Of Interests In The Context Of Hybrid Warfare: It’s Complex), and by Nancy Welsh, Sharon Press and Andrea Schneider (Negotiation Theories Engage Hybrid Warfare) for the Cardozo Law School symposium on hybrid warfare (links coming soon on Indisputably!). Rather than discussing the negotiation frames of hybrid warfare in general, Noam zoomed in onlawfare-as-hybrid-warfare specifically, in an attempt to apply conflict and negotiation frames.
Parties: Lawfare activities sometimes bring one’s counterpart (so often unknown invisible, in hybrid warfare) out of the shadows. This might be helpful… or it might be misleading.
Conflict narrative: The importance of this element was discussed at a previous session at this conference. When one party takes legal action against the other, it changes the narrative from “good against evil” to “there are two sides to every story” or perhaps to “there are bad people on all sides”
Frames of Competition/Contention: Many lawsuits are not searches for truth; they are flat-out attacks on a counterparty’s resources, networks, reputation, time, attention. Consider: most people in North America cannot afford to retain a lawyer for any purpose; this is likely to be even more oppressive burden when on the defense front. Filing a lawsuit against someone is not only a second front, it encourages new fronts to emerge and other people/institutions to join in negatively (e.g., your dean suggesting you not pursue this topic if you want tenure, your employer/publisher telling you to change topics if you want your next contract; your bank telling you to change your line of activities if you don’t want them to call in your loan).
Frames of Escalation: Thinking about Rubin, Pruit & Kim’s models of conflict transformation during escalation, the types of legal action we discussed each covers several forms of escalation (light>heavy, small>large, specific>general, goal-shift [doing well>winning>harming other], few participants>many)
Groups, allies, coalitions: Legal action can be taken against an institution (one’s publisher, university, employer, etc.) or against the individual. It can bring one closer together in joint defense with their allies, or drive a wedge between them. It can make the individual feel alone with no one to turn to. Moreover, it might involve “your” side’s resources (your country’s legal system) against you. As discussed above, it might cause perceived allies (employer, bank, family) to respond negatively, withdrawing support or more actively opening a separate front.
Interests: Once your counterpart takes legal action against you, your interests shift. If before you were motivated by “uncovering the truth” or “doing your job” you now must consider your interests in protecting your family, your reputation, your job, your finances.
Subjective experience: Having legal action taken against you makes things highly personal. The conflict is no longer your job, it is the reality of your life. It distracts, disrupts plans in the present, and can have chilling effects looking ahead.
Perceptions: Once you are sued and are defending yourself, in a sense you are perceptually in the wrong, rather than the other way around. This might be in the eyes of other people… and through a gaslighting effect, perhaps to some extent in your own.
Frames of Negotiation Ethics: Obviously, lawfare as a form of hybrid warfare often involved different ethical no-nos, such as inappropriate information gathering, attacking a counterpart’s network, and more. It also germinates justifications for unethical negotiation behavior under the “but they started!” doctrine, as well as conditions for ethical fading. Of course, the ethics of negotiation and those of warfare are different, so these frames might be entirely irrelevant even though they might seem to be so given the legal couching of the situation.
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The whole idea here was to spark some thoughts by throwing a bunch of stuff at the wall and wondering what will stick. Use the comments to throw stuff of your own ideas and/or reflections!
