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Captain Dale Stephens is an Associate Professor at the Adelaide Law School and a decorated officer of the Royal Australian Navy. This article gives an overview of Dale's research into military law and explores the idea of ‘Lawfare’. For more information about Dale Stephens’ research, publications and the Adelaide Law School, please visit The University of Adelaide.
Captain Dale Stephens is an Associate Professor at the Adelaide Law School and a decorated officer of the Royal Australian Navy. This article gives an overview of Dale's research into military law and explores the idea of ‘Lawfare’. For more information about Dale Stephens’ research, publications and the Adelaide Law School, please visit The University of Adelaide.
Captain Dale Stephens is an Associate Professor at the Adelaide Law School and a decorated officer of the Royal Australian Navy. This article gives an overview of Dale's research into military law and explores the idea of ‘Lawfare’. For more information about Dale Stephens’ research, publications and the Adelaide Law School, please visit The University of Adelaide.
A F A C U LT Y O F T H E P R O F E S S I O N S RESEARCH PROFILE
For many people, a phrase like battle ready is
likely to evoke images of stern-faced, armour-clad men and women armed to the hilt, and ready for anything. It is a picture which is probably not so very far from the truth. The modern Australian soldier is, after all, a well prepared and impressively equipped individual, bristling with the gear of war, and highly attuned to the task at hand. But, as with many of our ready-made images, a more nuanced portrait might begin to emerge given a softer light, some ner brushstrokes, and perhaps a step back or two. Underneath all of the armour, these are of course real men and women, operating often in extreme conditions, but nonetheless possessed of all the usual human traits and reactions to what they see and hear and do. Then there is this: whatever the task at hand however remote, or dangerous, or secret our soldiers operate within an invisible boundary which both empowers and restricts their every action the resolute compass of Law.
Law is perhaps not the rst thing which springs to
mind when we are prompted by the subject of warfare. It is somehow counterintuitive for us to think about law and war at the same time there is a seemingly natural paradox involved. For those of us outside the theatre of armed conict, law probably seems about as remote a
thing as there might be from a soldiers mind in the heat
of battle. It is not an automatic part of our picture. But there it is, ever-present, and in itself a force to be reckoned with. The law is as much a part of the Australian soldiers armoury as any clothing or weapon or technology. For Australian service personnel, the law goes with them into every battle quite literally.
At this juncture we meet Associate Professor
Dale Stephens. Today he is not in uniform, so there is no clue that he is a soldier or, to be more precise, a decorated ocer of the Royal Australian Navy. Our fanciful notion of battle ready is immediately challenged. Instead of an armour-clad mythological creature we nd a sanguine and eminently approachable man, with a ready wit and an abundance of enthusiasm. Nor should we let the Associate Professor part mislead us, with images of someone perhaps too remote from the realities of armed conict to oer any genuine insight. On the contrary, Captain Stephens Naval career includes among numerous Sta Ocer appointments, secondments and honours several deployments of active service in East Timor and Iraq, an Australian Conspicuous Service Medal, and a US Bronze Star. Dale is an engaging and enthusiastic man, passionate about his work, and its ramications. His enthusiasm is a challenging thing to convey without giving the wrong
impression, because war itself is a
dreadful thing, and hardly something to be enthusiastic about. But Dales is a special kind of passion, lled with respect, honour and a personal experience of what people give of themselves under incredibly dicult circumstances.
course, a factor which remains deserving
of research and debate, however it has probably been overshadowed since by more immediate and dramatic weaponisations of legal protocols, and the use of the law itself to confuse, disrupt or seemingly be used to take sides in military action.
Dale introduces us to one of
the main themes of his research the concept of Lawfare. This is a term which having been coined only around the turn of this century is not yet itself old enough to enlist. However, in what could be interpreted as a kind of uncanny, semantic self-awareness, it is a concept which has already taken sides, both in heated debate, and in very real life-and-death ways.
Any one of us might intuitively,
Lawfare is dened as the use of law
as a substitute for traditional military means to achieve military objectives, Dale explains, its not inherently good, or inherently bad, its just there, and its something, I think, which modern military forces need to accommodate. The concept crystalised from an increasing realisation that law, and in particular the laws governing armed conict, can be weaponised, in a manner of speaking, to achieve outcomes which either augment, or are even distinct from military action itself. Originally, this sentiment was levelled primarily as criticism of the control of law by the powerful few. In this context, we must realise that international military law is not one, single thing, but an everevolving collection of rules and standards which are agreed upon and/or adhered to by nation states, to which they are held accountable in times of conict. In the years leading up to the coining of the term Lawfare, there was an increasing degree of scrutiny focussed upon bodies like the UN Security Council, where incumbent, vested interests might seem disproportionately free to write the rules that govern everybody else. In this guise, the concept of Lawfare is perhaps fairly subtle, which might be why it took a while to attract its own terminology. This scrutiny of the machinations of nation states is, of
and quite legitimately, nd means to
express a basic premise for a set of laws which govern conict. We might come up with the idea, for example, of a line which must not be crossed. Even from outside a strict, legal framework, it seems quite easy to grasp concepts like Queensberry Rules, where for whatever reason there is a ght, but there are also boundary conditions in place between the combatants. We also might agree that it is, by denition, perfectly legal to go right up to that line, and the more that is at stake, the more likely we are to approach the very edge. it will be ok, as long as we dont cross over. We might like to think that this makes things clear-cut. That sound, legal strategy then becomes a fairly simple matter of adjudication, to determine whether the actions we take will result in the rules being broken or not. But Dale explains that, in the context of Lawfare, this might not always be the case, or be an approach which necessarily always makes sense.
In fact, Dales Research suggests
that an untempered willingness to exploit the technical limits of law might at times prove a weakness an opportunity for the law to be, in a manner of speaking, weaponised against the very people who endeavour to uphold it the most rigorously. And, perhaps a little counterintuitively, this may especially be the case when the people taking these decisions might deem, by contrast, that their adversaries are clearly not acting within the same legal framework to which they, themselves, are bound to operate. This is partly because the laws which actually govern warfare are not necessarily always in keeping with our everyday moral sensibilities.
If you would like to contact Dale for more information about his research, please email dale.stephens@adelaide.edu.au
They are not necessarily Queensbury
Rules, or Cricket. Under the most extreme conditions of human conict, extreme measures are often taken, with consequences which may spill beyond purely military objectives. The point is that we would probably prefer not to think about what soldiers are legitimately entitled to do under some circumstances. But basically, when confronted by adversaries who are bad actors who dont play by the rules then the rules can adapt, and legitimise actions which might, while remaining strictly legal, cross other boundaries, including those of political reaction, public opinion, or the arousal of fear, anger, rebellion, or indignation. Furthermore, while it might seem somewhat obvious that powerful reactions could surface within the context of the conict (after all thats where the ghting is), Lawfare can be used to exploit the fact that these reactions might just as signicantly be aroused at home, or in other countries, or even manifest within the morale or psychology of the personnel themselves. In the face of these harsh realities, Dale oers some basis for considered action which potentially moderates an up to the limit approach. Dale points us to the annals of recent history for evidence that taking the use or misuse of law into account when taking military decisions, can materially aect outcomes in positive ways for both military and humanitarian objectives. In particular he points us to a turning point around ten years ago, when military leaders started to reconsider the up-to-the-limits approach to tactical decision-making in response to some convincing legal guidance, and an increasing realisation that understanding the mechanisms of Lawfare might help. There can be a great deal of courage involved in acting in such ways, and a heavy price can sometimes be paid to gain longer-term positive outcomes but it may just be worth it. And this is why it is so important to have researchers like Dale standing shoulderto-shoulder with our armed forces as they prepare themselves to be battle-ready.
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