Sea Control - Sea Control 178 - Lawfare at Sea with Dr. Jill Goldenziel

Episode Date: May 26, 2020

Links:1. Law as a Battlefield2. http://www.jillgoldenziel.com3. The U.S. Navy's Shifting View of China's Coast Guard and Maritime Militia4. Permanent Court of Arbitration Republic of The Philippines vs. People's Republic of China

Hey folks, it's Jared. Thanks for tuning in. Today we're going to be joined by Marine Corps University's own Dr. Jill Goldenseal to talk lawfare, her paper Law as a Battlefield, and the application of lawfare at sea, all of which fits neatly with the next subject of CIMSEC's Project Trident. If you don't follow CIMSEC on Twitter, go do so now or visit the website at cimsec.org. If you're interested in shaping the future of international maritime security, this is your opportunity. We've just announced our second collaboration for Project Trident. We'll be working with Stable Seas on ocean governance. More information on questions and content can be found on our website at simsec.org. Submissions can be emailed to

content at simsec.org. With that, I'll turn it over to Kimber's men. You're listening to Sea Control, hosted by the Center for International Maritime Security. Hello shipmates and welcome aboard Sea Control. Today I'm joined by Dr. Jill Goldenseal from Marine Corps University to discuss a recent paper, Law is a Battlefield. As a reminder, our opinions are our own and not representative of any institution with which we may be otherwise associated. Jill, thank you so much for joining us. Thank you for having me. So you are new to our listeners. Would you mind telling us a little bit about your education and background? Sure. I'm an associate professor at Marine Corps University Command and Staff College,

where I've taught for the past four years in the security studies department and also teaching the law of war and international law. Before that, I got a PhD from Harvard and a JD from NYU Law School and a bachelor's degree from Princeton. Thank you so much. Now, we did manage to squeeze this podcast in this evening between two different sets of children's bedtimes. You had alluded to your playlist or your sing-along i think you are posting along right now and i am pre-sing-along here what is uh what is on your playlist oh goodness well i think the edina menzel disney sing-along is going on oh no it's going on for mother's day that's right i thought it was going on tonight but it's going on for mother's day so we're going to be singing that pretty soon in my

house a lot of frozen a lot of frozen a little too much yeah i can understand my daughter's uh bedtime immediate pre-bedtime playlist we have her three special songs and she goes catatonic as soon as she hears them and the first is the lion sleeps tonight the second is frozen uh let it let it go and then the last one is galway girl by ed sheeran at that point she like climbs onto my back like a koala and gets carried carried off to bed it works perfectly we've also been doing a lot of 80s ladies which i know you're a huge pat benatar fan so i think you'd respect like the playlist we put together belinda carlisle laura branigan a lot of classics uh but that's yeah you're you're you know somehow you know what i went running to yes those are those are not

bedtime though those are dance party like she does this little wiggle you have this you have those two yes she does she asked for it by doing like a little shoulder wiggle that she does and like the listeners can't see me doing the shoulder wiggle but she asked for it very specifically and then i put on youtube and we do dance party but we have those instead of recess to go back to uh the paper uh your paper subject is lawfare we'll include a link to it in the show notes but specifically lawfare between the u.s and china and if i recall correctly it's a relatively new term so where did the term come from the term was popularized in the american academic literature around 2001 by then, well, now Major General Retired Charlie Dunlap, then Colonel Charlie

Dunlap, who is now a professor at Duke Law School. And he defined it as the use of law as a weapon of war. And since then, the term has evolved. In the United States, it is perhaps most closely identified with the Lawfare blog, which has been very popular in recent years due to certain political events that I'm not going to get into on the podcast. But that's how it's become really, I think, a household name for a lot of people. And when I tell people I'm writing about lawfare, they say, oh, great, you're writing on the blog. I said, no, I'm actually working on that. But what I'm doing is writing an article about lawfare, the concept. And part of the reason I'm writing about it is because Major General Dunlap's definition is, to me, a little bit

outdated based on what we see from states now in the international arena, particularly China, but also Russia as well. So what is the debate around the definition and how would you define lawfare then? Sure. So around the time that Major General Dunlap defined lawfare, the U.S. was experiencing lawfare primarily because it was being used by violent non-state actors against them. So for example, Al Qaeda was making use of human shields in Iraq, Afghanistan, fully well knowing that the U.S. was going to follow the law of war, and therefore it would put the U.S. in difficult circumstances and often not make them shoot if they were going to attack an objective that had a human shield on it. Oversimplifying here, but bear with me. So in my article,

and as I was thinking about my article, I started to think about, well, states are using this in a more sophisticated way now. States are using law as a weapon of war in a more sophisticated way. We see China doing it, we see Russia doing it, and the U.S. could really be doing it as well. So what is a more holistic definition of how law can be used as a weapon of war? So I came up with the definition of lawfare as the purposeful use of law toward a particular adversary with the goal of achieving a particular strategic, operational, or tactical objective. Or, on the other hand, it can be using law to bolster the legitimacy of one's own strategic, operational, or tactical objectives toward a particular adversary, or to weaken the legitimacy of that adversary's strategic, operational, or tactical objectives. And you made an observation early on that the U.S. prides itself on its advanced legal system and adherence to the rule of law, and then point out that the U.S. lawfare strategy is really underdeveloped.

And I think that you include that in your last point as well. I just want to make it clear, I'm not advocating for anything other than adherence to the rule of law, but is the legal system and adherence to the rule of law a critical vulnerability for the U.S. in this arena? No. I'm going to paraphrase the famous long-term Israeli Supreme Court Justice Aharon Barak here when I say that democracies always fight with one hand behind their back, but democracy is also the greatest source of their strength.

and we use law to bolster our own legitimacy in the u.s government in the u.s military all the time the first way we do it is by taking an oath to the u.s constitution and it is from that and our belief in the ideals in that document and of course you see that it is right up here behind me that we draw our own strength and our own legitimacy and our own will to fight and so no i would not say it's a critical vulnerability at all what makes us vulnerable is that we're not using it as well as we should. So on that note, then what are the Chinese three warfares? So China has three pillars on which its military strategy is said to be based, roughly speaking.

And these are known as its three warfares. They date back at least to 1999, possibly as far back as the 1960s. And these are public opinion or media warfare, psychological warfare, roughly similar to what we would call psyops, and then lawfare, or falajan, which is also translated as legal warfare. And these are seen as integral to kinetic operations. In fact, they are seen, at least I've seen sources explain this, as indistinct from kinetic operations. So they underpin all types of warfare. War is about a whole-of-society approach, not just about a military approach. Thank you. And I know your paper is focused on the South China Sea, and we'll

come back to that in just a second. Are we seeing the three warfares right now being applied to the Chinese response to COVID-19 or in the way that the Chinese are attempting to exploit the response to COVID-19? I think we're definitely seeing media warfare. It's more difficult for me to speak from where I sit to psychological warfare and lawfare, but we're certainly seeing media warfare in the way that China has allegedly been controlling information about the flow of COVID-19 among its own population, the way that information coming out of China, statistics coming out of China are very unclear to the rest of the world, the way certainly that China is using its shipments of aid and PPE abroad to other countries in order to bolster its own image in the

international community. Those are definitely examples to me of public opinion and media warfare. It's really difficult for me to comment on this in general, I would say, because we don't know how much of what is coming out of China right now is true as far as the news. And I think fear is so high right now in our own country due to COVID-19 that it makes it really difficult to form an educated academic opinion this time about what's coming out of there. Yeah, I think we're probably, is it safe to say, decades away from having answers on what's actually happened? Decades at least. I'm sorry. I was going to say, if it takes 30 years to get classified information out of our own government archives, just imagine how long it's going to

take to reconstruct what happened in China. Yes. So what are the types of lawfare? I define five types of lawfare in my article. Battlefield exploitation lawfare, which is more of the traditional type of lawfare that I've talked about, tactic of non-state groups. Exploitation of an adversary's law-abidingness or compliance with international humanitarian law, or other types of law, but usually the law of war. So ISIS putting large numbers of civilians within legitimate military targets or hiding armed fighters in large crowds of civilians, that would be battlefield exploitation lawfare. Instrumental lawfare, defined by Ord Kittrey, who wrote probably the most famous book on lawfare, as effectively the use of legal tools

to achieve the same or similar effects as those sought by traditional military action. So Khitri talks about the sanctions against Iran as a prime example here. The U.S. could have launched a military strike against Iranian nuclear facilities to cause Iran to abandon its nuclear program. But instead, sanctions achieved approximately a similar effect, at least, but in a much less bloody way. Proxy lawfare involves taking legal actions using adversary proxies. So, lawfare between the U.S. and the Chinese company Huawei that's going on right now is a prime example of this type of lawfare. Information lawfare is the use of law to control the narrative of conflict. One party to a conflict can get an advantage by portraying its

actions as legal or the other side's as illegal. And this is especially important in the battle for hearts and minds. Okay, and then I think the last one was institutional. Yeah, institutional lawfare is purposely creating new international institutions or new domestic and international laws in order to achieve military or strategic efforts. The U.S. has practiced this kind of lawfare really since the beginning of the creation of the UN by serving as its primary funder and as its headquarters. Now China is beginning to build its own international institutions in order to compete. Yeah, I was going to ask about that. So is this the Chinese version where they're proposing alternatives to the World Bank? And I'm trying to think of the other institutions

in this instance. But the World Bank is the first one that comes to mind. Proposing a secondary lending institution would be a form of institutional lawfare. Is there, and I realize this isn't on the list, is there indication that the Chinese are coordinating all five of these at the same time that this is part of a coordinated strategy? So yes, in answer to your question, I would say that there is indication that China is employing all of these as some form of coordinated strategy. But I think it's important to step back for a minute and think about the way that China looks at war is very different than the way that the U.S. looks at war. So China thinks about war very much as a whole of society approach. It doesn't have separation of powers in its government branches.

It doesn't think of the military as a separate branch from the executive branch in some way, as a separate organ. It doesn't think of it as part of the Department of Defense and then the Department of State as something else. It doesn't have a robust First Amendment to its constitution. So it just thinks of all of these things as part of weapons that China can employ as warfare or to advance its own superiority against the rest of the world. So, yes, it's part of a coordinated strategy, but not the way that you and I, Jared, would think of sitting in the Pentagon somewhere or sitting in some sort of interagency room in Washington, D.C., and coordinating a strategy. Because China doesn't need to work through the same sorts of bureaucratic processes and go through the same legal – I don't want to say loopholes, but go through the same legal processes that we would because its government operates in a completely different authoritarian way. So as I listened to all the types of lawfare, as well as the examples that you gave, and then you talked about the coordination process, I can't help but think back to all the different interagency meetings I had to sit on when I was working at the Pentagon. And you'd spend all your time arguing over two to three lines of text where some agency is non-concerned with what you want to do. And I'm not sure if I should be impressed at the level of coordination or terrified at the level of coordination that sort of this signifies.

Yes. This definitely, writing this paper definitely made me be very grateful for the rule of law in this country and very afraid for the lawyers that are going to have to sort out some of the loopholes that China will not have to go through. So the other major Chinese advantage that you've identified is the control that China is able to exert over its own information environment and its citizenry. Are we right to see nations like China or like Russia who are willing to put more controls on the internet, which was previously a Wild West, as a form of informational lawfare? So I think of this more as about weaponizing information than about weaponizing law. And here's why. Because authoritarian regimes have traditionally always tried to control the media. We see state-run media all over the world, and we see how it's been undermined all over the world by the creation of private broadcasting networks and also the creation of, in particular, the Internet. Bill Clinton very famously said during the 1990s, well, for those of you countries out there trying to suppress freedom, now that we have the Internet, good luck, basically. And he's been right in many ways, except with China, North Korea and a few other places, because China has put up a great firewall that has been has been much more functional than Bill Clinton ever expected and more functional than many of us expected in terms of being able to control what information gets in and out of China. we've seen this how harmful this can be really i think in spades in in recent months with with

covid19 so what we're seeing when authoritarian regimes try to exert more control over the internet is then revert back to old tactics of using information as a means of maintaining their own power and to the extent that that means that they're going to weaponize them against the rest of the world yes that could be part of information warfare or used as part of information lawfare as well but mostly it's about maintaining their own control over their population yeah and i might add the great firewall is just an incredible piece of branding on the part of the chinese communist party so you know kudos to them was it was it the chinese communist party that branded it or was it us that branded it. That sounds like a very American snarky... It does. It probably came

from an American. You're right. Still good branding. It's like the Great Firewall is... Yeah. That's very good. So let's talk South China Sea then. Are the Chinese picking and choosing different lawfare tactics to use against different countries around the South China Sea? Are they approaching the Vietnamese differently than they are the Filipinos differently than they are the indonesians that's an interesting question to my knowledge no they seem to be trying to their strategy seems to be consistent with just claiming the whole of the south china sea so they're trying to intimidate the vietnamese from filing lawsuits they're trying to intimidate the indonesians from referring to the terms of the philippines china arbitration in the

in their filings in the united nations so they what they seem to be doing is just very consistent the only question is what's going on exactly with the philippines and i think that will remain a question so long as the u.s's relationship with the philippines remains It's complicated. And as long as the Chinese relationship with the Philippines remains complicated as well. Lawfare, ways and means that we've seen the Chinese employ thus far in the South China Sea. The one that stands out to me just because they're all over the news, they're probably the most visible form of lawfare in the South China Sea is the Chinese maritime militia. How are the Chinese attempting to use that militia as a form of lawfare? So China has something known as the People's Maritime Militia, which is a fleet of fishing boats that are paid part-time by China and part-time by private companies.

So in their off time, sailors sail these fishing boats at China's behest. And in doing so, they are not fishing. They don't have any nets. And instead, what they're doing is not behaving according to international laws and effectively causing trouble for anyone else sailing in the South China Sea or for features or islands that are claimed by China's neighbors in surrounding countries. So, for example, there's a small Filipino island that these fishing boats swarmed on 200,000 of them in one day last spring. And so if you just have a few fishing boats, that's not very menacing. But if you have 200,000 of them at once, that can be extremely menacing if you're on a small island populated by only a few hundred or a few thousand people. And then if in back of them is a row of Chinese postcard cutters, and then backing them up is a Chinese Navy ship, this can be very intimidating for people living on that island, or feature if it's not an island, but it would have to be an island to be habitable, for people living on that island who believe that they are part of another suffering country, in this case, the Philippines. Yeah. So there are two things that are intimidating there. One is the question of the scale, 200,000 fishing boats. I mean, I used to spend entire days just visiting fishermen in the Arabian Gulf and we would see a swarm of 60 fishing boats. 60 fishing boats is a lot of fishing boats. I cannot even fathom what 200,000 fishing boats looks like coming over the horizon at you. The second is there's a deliberate choice by the Chinese government of the use of a fishing vessel.

So if you look at the regulations for the avoidance of collision at sea or the coal rigs, there is a rule inside the coal rigs called the hierarchy of vessels. Fishing vessels are head of power driven vessels. Every warship is a power driven vessel. So if I am approaching on my warship and I see a fishing vessel that if I am uncertain whether or not that fisherman has gear in the water, I am supposed to give way to that fisherman. I am the giveaway vessel. I am supposed to avoid him. And second, it's just smart to avoid him because if he has gear in the water and I follow my screws, that is now a million-dollar casualty as well as a hugely embarrassing event for the United States or whichever country I happen to be there representing. So the maritime militia presents a lot of problems. I do think Admiral Richardson actually came out the chief of naval operations in 2018,

and I think he had told his Chinese counterpart that the U.S. Navy was going to begin treating the maritime militia the same way that we treat the Chinese Coast Guard and Chinese Navy. But I'm going to have to go back and see if I can actually find that and put a link to it in the notes. What are the Chinese attempting to accomplish with their dredging and land reclamation in the South China Sea? It appears that China is attempting to build islands, artificial islands. So the South China Sea has a number of features that would not be considered islands under the UN Convention on the Law of the Sea because they could not sustain human life and habitation on their own. So what China has done is effectively make these islands sustainable, in their argument anyway, for human life and habitation through massive dredging and land reclamation projects.

And you can see on a number of places, a number of websites and journalism sites on the Internet, what these so-called islands in the South China Sea looked like before and after these dredging and land reclamation projects took place. And it is astounding. You can just barely see the outline of a little bit of coral in the water on some of them. And then the next day, you see a facility where there are hangars and ray domes and runways. And even though China claims that it's not militarizing these islands, it's very clear that these islands could be used by its military on any given day. So China seems to be really staking out its claim to the land here by creating land, first of all, and then secondly, by putting facilities on it that it can then use to project power from various places in the South China Sea, not that far off of the coastlines of where most of its neighbors live. So we ask, which of the types of lawfare would you say that the dredging land reclamation falls under? Is that battlefield exploitation? I would call that battlefield exploitation lawfare in some ways, certainly in terms of China's use of its maritime militia in conjunction with these areas, but also instrumental lawfare. So China is creating facts on the ground by saying, look, well, the UN Convention on the Law of the Sea, to which China is a statutory, says that an island is that a feature cannot be an island unless it is habitable and sustain human life. well fine we'll make it so we will build an island by dredging land and going through these reclamation processes in order to create an island and create the facts on the ground

that will then allow us to claim that we have a larger exclusive economic zone or a larger territorial sea or whatever it is that China is trying to claim in terms of its own sovereign land or maritime rights. But what it's also doing is creating another asset for it to project power. So final question, as far as what the Chinese are actually doing in the South China Sea, where does the Nine-Dash Line fit within the lawfare hierarchy? I would say China's use of the Nine-Dash Line primarily plays an information lawfare function. China's using the Nine-Dash Line to control the narrative. And this may not have been the original reason that the Nine-Dash Line was put on maps, but certainly now in lawsuits like the Philippines-China arbitration that I talk about in my article and in its messaging to the world,

China is using the Nine-Dash Line to say, we control everything, effectively, if not almost everything, within the South China Sea. So they're using that to argue, therefore, they have maritime rights, they have exclusive economic rights, they have fishing rights, they have sovereign rights to the features within the South China Sea, so much so that they can build islands on them. They're using that what was once a line put on a map for whatever reason for a legal purpose now. So I wanted to ask you about the Philippines-China arbitration. As I understand it, the court ruled in favor of the Philippines and the Chinese just disregarded the verdict. So I feel like we're watching this big, slow boxer, the U.S. in this case, lumber around the ring while a much more agile adversary jabs us to death. Can the U.S. compete in this arena if their opponent is just unwilling to engage with verdicts?

Yes, the U.S. can compete in this arena by engaging more. And this is what I argue in my article when I talk about how the U.S. can be fighting lawfare better. We have the best judicial system in the world. We have the best constitution in the world. I certainly believe the most robust protections for freedom of speech. and we base our own legitimacy and our own narrative on our belief in these freedoms that the constitution guarantees civil servants service members we all swear an oath to support

and defend that constitution and yet we're not going out there and fighting lawfare as well as we could be we can be fighting in international courts we can be fighting in international institutions. We could be using the best lawyers in the world, some of whom I helped train, to use law more creatively than our adversaries are doing. And we can use our belief in legitimacy of our laws and our freedoms in order to win the narrative and win hearts and minds in ways that our adversaries never will be able to do. Thank you very much. Unfortunately, that's all the time that we have for today. I'd like to thank my guest, Dr. Jill Goldenseal, for joining us. So besides your website, jillgoldenseal.com, where can we find you online and what are you

working on next? I'm available on Twitter at Jill Goldenseal and also on LinkedIn and Instagram at Jill Goldenseal. And I'm working next on a book on how politicization of refugee and migration crises harms U.S. foreign policy and national security. Excellent. Thank you very much, and thanks again for coming on. To our listeners, thank you for listening. We'll see you next week. Thank you.

We'll be right back.