U.S. Indo-Pacific Command Charts a Course for Countering China’s Legal Warfare
The threat of violence looms large behind China’s campaign of “legal warfare” and Congress is taking note. Section 1284 of the Senate’s draft Fiscal Year 2025 National Defense Authorization Act (NDAA) directs the U.S. Department of Defense (DoD) to submit a report on “hostile legal operations,” a term synonymous with legal warfare. Most important for policy makers, the report is to include recommendations on “whole-of-government efforts” to counter China’s legal warfare by employing “… legal tools to achieve national security objectives.”
China’s legal warfare or “lawfare” has been widely studied, but the draft NDAA marks the U.S. government’s first foray into potential opposition strategies at the national level. It could not have come at a more critical time. As the need to contest China’s legal warfare grows more urgent, U.S. Indo-Pacific Command’s (INDOPACOM) “counter-lawfare” initiative is proving the viability of law-based deterrence and charting a course for the DoD’s prospective report to Congress. To match the Senate’s vision, however, “whole-of-government efforts” must not only adopt elements of INDOPACOM’s approach, but also harness legal authorities, capacity, and capabilities from across the U.S. interagency, allies, partners, and private sector.
A Primer on Legal Warfare: Taiwan in the Crosshairs
The ubiquity of legal warfare in China’s foreign policy illustrates the urgency of the threat. Legal warfare pervades China’s global propagation of distorted legal narratives, enforcement of overreaching domestic laws, coopting of international institutions, and civil-military fusion that erodes key distinctions in international law to China’s benefit. Like more conventional forms of warfare, legal warfare is waged under the unified command of China’s Central Military Commission (CMC), which controls the People’s Liberation Army (PLA), the People’s Armed Police, militia forces, and various functional sections.
For its part, the PLA characterizes legal warfare as a form of “combat” used to gain “legal principle superiority” as a tool for coercion or pretext for aggression. Legal warfare is central to the PLA’s “three warfares” strategy alongside public opinion warfare and psychological warfare. By pursuing legal principle superiority, the PLA seeks to manipulate the law in ways that delegitimize adversaries and legitimize China’s behaviors.
There are countless examples of legal warfare in action, but most concerning is China’s continuing preparation of the legal environment for a possible future invasion of Taiwan. Empowered domestically by the 2005 anti-secession law and its expanding progeny, China is advancing its “one China principle” as a “universal consensus … supported by history and the law.” Unlike the U.S. one China policy, which “acknowledges,” but does not endorse China’s claim to Taiwan, the one China principle stands for the supposedly “indisputable fact” that Taiwan is part of China. Underpinning this assertion is China’s perversion of UN General Assembly Resolution 2758 and the deliberate conflation of its one China principle with one China policies of other nations, including that of the United States.
At its core, the one China principle is a veiled legal pretext for aggression against Taiwan as “purely an internal matter” beyond the purview of the UN Charter. Tellingly, China’s anti-secession law expressly authorizes non-peaceful means if necessary to uphold its one China principle. This is a stark contrast from the U.S. one China policy, which is predicated on resolution of cross-Strait issues by peaceful means. When nations adopt the one China principle or parrot talking points on the same, China inches closer to the legal principle superiority it covets to legitimize increasing coercion and potential cross-Strait aggression.
For now, most States do not take a position on Taiwan’s ultimate status. As such, China’s portrayal of its one China principle as a universal consensus is demonstrably false. Nevertheless, there has been little pushback by the international community to correct the record. In the absence of effective opposition, China’s campaign of legal misinformation surrounding its one China principle is filling a void to the foreseeable detriment of international peace and security.
Counter-Lawfare: A Case Study in Law-Based Deterrence
Although whole-of-government efforts to counter China’s legal warfare are yet to be realized, INDOPACOM’s counter-lawfare initiative is proving the potential of such efforts at the regional level and establishing a foundation for a broader strategy. The concept of counter-lawfare emerged more than two years ago from the former INDOPACOM Commander’s direction to “think, act, and operate differently.” It remains a vital contributor to INDOPACOM’s mission to deter conflict in the Indo-Pacific region.
Fundamental to INDOPACOM’s approach is the idea that the law is a “domain” for “expanded maneuver,” and that competition within this domain is a necessary element of integrated deterrence. Blocking the PLA’s pursuit of legal principle superiority is the cornerstone of INDOPACOM’s theory of law-based deterrence. That is, China will be less likely to employ coercion or aggression if denied the veneer of legitimacy intrinsic to legal principle superiority. As opposed to the revisionist attacks on legal principles that typify China’s legal warfare, INDOPACOM’s counter-lawfare model of deterrence by denial is focused on upholding the current legal order and reinforcing extant legal norms.
In practice, counter-lawfare involves: “legal vigilance” (monitoring and assessing developments in the legal domain); legal support to operations in the information environment; institutional capacity building; and partnership with interagency, private sector, and foreign counterparts to build legal strength in numbers, forge consensus on key issues, and advance common objectives. Counter-lawfare is managed by the INDOPACOM legal office, but is integral to a range of joint functions, such as public affairs, military information support operations, key leader engagement, and operational planning. In other words, it is not purely a legal function.
The most visible outputs of counter-lawfare are the products posted on INDOPACOM’s public webpage. These include newsletters, information papers, and Tactical Aids (“TACAIDs”) on contemporary hot-button issues, from simmering tensions in the South China Sea to the latest developments in the Taiwan Strait. TACAIDs are purpose-built to expose and oppose China’s misuse of the law contrasted with law-abiding behavior by U.S. forces and their allies and partners. INDOPACOM’s counter-lawfare efforts have been shared widely on social media, featured in a Washington Times piece, and circulated among defense officials across the Indo-Pacific and beyond.
Similar initiatives are taking shape outside of INDOPACOM. A March 2024 workshop on counter-lawfare co-sponsored by INDOPACOM and the National Defense University saw wide participation from across the interagency and a strong appetite for increased collaboration. INDOPACOM’s counter-lawfare work is closely aligned with “legal diplomacy” efforts by the Department of State’s Bureau of East Asian and Pacific Affairs. Other Combatant Commands are following suit with their own counter-lawfare programs, and foreign counterparts in the Australian Defense Force and Japan Joint Staff are partnering with INDOPACOM on combined efforts.
Despite the momentum behind counter-lawfare, there are skeptics who contend that it denotes stooping to China’s tactics or that the rule of law is undercut when instrumentalized in statecraft. Some simply do not like the term “lawfare” in any formulation because of its long association with misuse of the law and its more recent incarnation in U.S. political discourse. To be sure, “lawfare” tends to evoke controversy, which is perhaps why the Senate referred only to “legal operations” in the draft NDAA. NATO’s Office of Legal Affairs coined “legal operations” and runs an innovative legal operations program resembling INDOPACOM’s counter-lawfare initiative. Ultimately, whether characterized as legal operations, counter-lawfare, or something else, it is the approach developed at INDOPACOM that matters for policy makers more so than the naming convention.
A Way Forward: Building on INDOPACOM’s Approach
Counter-lawfare at INDOPACOM is an important first step, but it is not nearly enough. Policy changes must bring to bear legal power from across the whole-of-government. That starts with incorporating the function of law in deterrence strategy at the national level as both a “carrot” to incentivize compliance and a “stick” to exact consequences for non-compliance. INDOPACOM’s approach shows that the law can be wielded in support of deterrence by denial, but the law can also enable deterrence by punishment, particularly in the form of sanctions and litigation. Updating the National Security Strategy to prioritize and empower law-based deterrence would provide a foundation for executive agencies to mature their legal capabilities and pursue resourcing.
Even with a shift in strategy, there remains the challenge of integrating legal tools to achieve desired effects. To that end, establishing an interagency legal task force is a worthy pursuit. In addition to monitoring trends and identifying opportunities, an interagency legal task force could synchronize legal messaging across agencies, coordinate a global legal campaign on a specific issue, or determine an appropriate legal tool to employ in a given situation. It might also support foreign State or private party litigation related to China’s illegal fishing, environmental damage, excessive maritime claims, or any number of other potential legal claims with national security implications.
Countering China’s legal warfare need not be led by the DoD. From the Department of State’s legal diplomacy to the Department of Commerce’s Commercial Law Development Program and the Department of the Treasury’s Committee on Foreign Investment in the United States, there are a range of non-military legal options available to policy makers. Nevertheless, the DoD has an important role to play, especially given the militarization of legal warfare by the CMC and PLA.
As such, consistent with INDOPACOM’s approach, the DoD should revise joint doctrine to characterize the law as a domain linked to the joint warfighting principle of legitimacy and the concept of expanded maneuver. Execute orders and instructions related to operations in the information environment and security cooperation should correspondingly empower DoD components to counter legal warfare. Moreover, the joint force should orient capability and capacity to compete for advantage in the legal domain, much like in other emerging domains, such as information and the electromagnetic spectrum.
In support of the joint force, the military services should modernize training for judge advocates to build institutional knowledge on China’s legal positions, strengths, vulnerabilities, and centers of gravity. The joint force would also benefit from cadres of counter-lawfare specialists in the Judge Advocate Generals’ Corps with diverse skills, including language and cultural experience, as well as expertise on legal support to operations in the information environment and techniques for building the institutional capacity of allies and partners to counter China’s legal warfare. Prospective commanders, public affairs officers, information warfare professionals, intelligence officers, foreign area officers, and operational planners should likewise receive instruction on countering China’s legal warfare as part of their service training pipelines and joint professional military education.
Although national-level action is required, it should not come at the expense of continued grassroots progress and innovation. INDOPACOM’s counter-lawfare initiative is effective because it moves at the speed of relevance in concert with other military staff functions at the operational level. NATO’s legal operations program and the Department of State’s legal diplomacy efforts are also forward-leaning. Similar approaches could be replicated across agencies and defense components as national policy is developed. Doing so requires an investment of limited resources and a reimagined role for some lawyers who must not only advise clients on the law, but also help outcompete potential adversaries in the legal domain.
As China continues to actively undermine the current legal order, the draft NDAA presages an opportunity for the DoD to build on INDOPACOM’s approach by mobilizing legal power across the whole-of-government. This opportunity must be seized. The United States can no longer afford to cede legal terrain for China to exploit under the guise of legal principle superiority. In the interest of upholding the rule of law and preserving international peace and security, the time is now to fight back.
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Commander Timothy Boyle is a post-graduate student at the U.S. Naval War College and formerly the Chief of National Security Law at U.S. Indo-Pacific Command.
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