Dale Stephens

Armed with the law

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 finer 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 first 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 conflict, law probably seems about as remote a

thing as there might be from a soldier’s 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 soldier’s 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 officer of the Royal Australian Navy.
Our fanciful notion of ‘battle ready’ is immediately
challenged. Instead of an armour-clad mythological
creature we find 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 conflict to offer any genuine
insight. On the contrary, Captain Stephens’ Naval career
includes – among numerous Staff Officer 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 ramifications. 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 Dale’s
is a special kind of passion, filled
with respect, honour and a personal
experience of what people give of
themselves under incredibly difficult

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 defined as the use of law
as a substitute for traditional military
means to achieve military objectives’,
Dale explains, ‘it’s not inherently good,
or inherently bad, it’s just there, and it’s
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
conflict, 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 conflict. 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, find means to
express a basic premise for a set of
laws which govern conflict. 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 fight, but
there are also boundary conditions in
place between the combatants. We
also might agree that it is, by definition,
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 don’t 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, Dale’s 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 conflict,
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 don’t 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 conflict (after
all that’s where the fighting is), Lawfare
can be used to exploit the fact that these
reactions might just as significantly 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
offers 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 affect 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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