Beyond Lawfare: Juridical Oversight of Western Militaries


  • Christopher Waters



While civilian supremacy over the armed forces is accepted as a matter of faith in Western countries, this supremacy often means little more than supremacy of the executive branch of government over top generals. Indeed, efforts to regulate armed forces through broader domestic or international legal frameworks, including international criminal law, have been resisted in some military quarters (particularly in the United Kingdom and the United States) with the military and its backers raising concerns of “legal encirclement” or “lawfare.” The author argues for broad civilian and democratic oversight of armed forces, including through increased judicial and quasi-judicial scrutiny of overseas military actions at the domestic and international levels. The author concludes that broad democratic oversight not only promotes compliance with international legal norms but supports operational effectiveness as well.

Author Biography

Christopher Waters

Associate Dean, Faculty of Law, University of Windsor. I thank Christina Beninger and Ugo Popavic for their research assistance and the participants in the 2008 “Four Societies” conference for their helpful comments on an earlier draft. I would also be remiss if I did not thank the numerous British (at the Joint Services Command and Staff College) and Canadian (at the Pearson Peacekeeping Centre and RMC Saint-Jean) officers who have openly and intelligently engaged with me on some of the ideas reflected in this article over the last decade. Finally, the financial support of the Law Foundation of Ontario is gratefully acknowledged. This article is current to November 2008.