Performing Legality in the Theatre of Hostilities: Asymmetric Conflict, Lawfare and the Rise of Vicarious Litigation

This Article explores the extent of the change by looking at the ways in which asymmetric conflict and legalization have reshaped the theatre of hostilities and the implications for the institution of war itself. The shift from one literal battlefield to multiple and disaggregated battlespaces has led to a reconfigured theatre of hostilities, which now involves a complex mix of local and global spaces as well as kinetic and narrative forms of combat. This re-making of armed hostilities in geographical, material, and social terms has increased access to the drama, stage, and audience of military theatres. Further, the more globalized and publicized character of hostilities has allowed a higher number of actors, and actors of higher quality, to participate in and observe hostilities, whether kinetic, narrative, or both. This has given a powerful platform for law to mediate the conduct of warfare, and it is thus unsurprising that the notion of legality regularly occupies center stage in a reconstructed theatre of hostilities. Accordingly, military actors, whether state or non-state, are producing performances of legality in combat to influence not only their adversaries but also, crucially, formal and informal judgments across the theatre’s more expansive and global audience. The term “performances” does not imply cynical theatrics, but rather concerted actions to display legality or illegality as an integral part of warfare. In this way, such performances of legality have become a crucial strategic asset for interacting kinetic and narrative confrontations. This has led to a distinctive struggle between adversaries over appearances of legality and illegality, which has produced an institutional and narrative battlespace of growing importance that this Article conceptualizes as vicarious litigation. The Article is organized in five sections. Section I introduces and elaborates on the related notions of legal performances and vicarious litigation by bridging sociological theorizing on social performances with noted developments in asymmetric warfare. This conceptual effort draws insight from Performative Sociology and the so-called “practice turn” in international relations theory. Section II describes the origin of vicarious litigation as flowing from the asymmetric warfare’s disruption of the institutional bargain behind modern war and, consequently, International Humanitarian Law (IHL). To understand that institutional disruption, Section II discusses Andrew Mack’s under-examined inquiry into and conceptualization of “asymmetric conflict.” Sections III and IV look at how international lawyers, and specifically IHL scholars, have struggled to grasp the rise of asymmetric conflict and how the dominant “lawfare” literature has suffered from conceptual straining and the incapacity to theorize institutional change precipitated by the prevalence of asymmetric conflict. Section V focuses on the novel notions of legal performances and vicarious litigation and examines how these novel notions provide alternatives to the hobbled semantics of lawfare by offering greater insight into institutional mutations that now define the legalization of contemporary warfare