Crispin Smith*
[This essay is available in PDF at this link]
Abstract
The United States military and intelligence communities are sounding the alarm about the escalating risk of interstate conflict with the People’s Republic of China. China is already a premier practitioner of “lawfare” in the context of interstate competition, but the impact of Chinese lawfare in potential active conflict scenarios could be even more profound. Indeed, Chinese lawfare could set the conditions for U.S. or allied forces’ defeat before a single shot is fired.
This paper introduces the concept of “operational lawfare” as the application of lawfare during interstate armed conflict. This application contrasts with how China already deploys its lawfare in the context of great power competition. The paper explains how, in a conflict scenario, Chinese operational lawfare will likely pose a significant, real-world threat to U.S. and allied military operations, vastly different from the lawfare U.S. warfighters have experienced previously. The paper also addresses an urgent need for appropriate planning and specialist personnel capable of meeting the operational lawfare threat, as well as a need for a formal defensive strategy to prepare for and contest hostile lawfare. This strategy must balance the need to defend against operational lawfare without playing into the hands of Chinese propagandists who seek to discredit legitimate U.S. efforts to enforce and encourage commitment to the rule of law.
* Crispin Smith is an attorney based in Washington DC. In private practice he focuses on national security law and works on a range of issues relating to global lawfare and economic warfare. He has also served overseas as a military officer supporting operations in the Indo-Pacific, Middle East, and Europe. The author is deeply grateful to the many scholars and practitioners who advised and commented on drafts of this paper. Thanks also go to the team at Harvard National Security Journal for their excellent editorial work.