In the fast changing characteristics of warfare, many states have already weaponized international and domestic laws. Grey listing of Pakistan in FATF and Reko Diq litigation highlights the lack of international lawfare strategy by the country.
Like the term Hybrid Warfare and 5th Generation Warfare, the term “lawfare” has lately become a buzzword in Pakistan. Whilst a number of articles and opinion pieces have been written on the subject in Pakistan, there remains: (i) a dearth of scholarship in Pakistan on lawfare; (ii) little to no light has been shed on the uses (and misuses) to which lawfare could be applied; and most importantly, (iii) how Pakistan ought to strategize lawfare as a vital tool of statecraft to counter the plethora of challenges – domestic, international, and geopolitical – that it faces today.
Put simply, lawfare is the use of law as a weapon of war. It is the art of weaponizing the legal system (international and domestic) against an adversary with the objective of neutralizing the threat, lessening the fallout or mitigating the losses. Lawfare can be used for strategic, operational, tactical, reputational, financial, diplomatic and military purposes. Think of lawfare as the first cousin of Hybrid or 5th Generation Warfare with one key difference: law is the warhead affixed atop the weapon fired in the lawfare domain.
Lawfare criss-crosses into other domains which include (but are not limited to): economic, information/cyber and international forums. By weaponizing lawfare – specially in these three domains – countries can not only gain vital strategic and tactical advantages over their adversaries, but also outmanoeuvre them in ways that are not possible even through the use of advanced military weapons.
In the economic domain, lawfare can be the weapon of choice to sever the financial lifeline (read: economy) of a country from the international grid, with grave repercussions for the target. Two recent examples of a rather successful economic lawfare are the U.S. Treasury Department’s economic sanctions against Iran and FATF’s Grey Listing of Pakistan in June 2018. The objective of economic lawfare is to browbeat the adversary into submission by entangling it in the complex web of international rules.
Take the case of Pakistan. Despite fulfilling 26 out of 27 FATF conditions, to this day, Pakistan remains on the FATF ‘Grey List’. Although, there is no denying that the main driver behind Pakistan’s Grey Listing is geopolitics, Pakistan could have potentially avoided landing in the Grey List if it had a lawfare strategy in place to foresee and adjust to the shifting terrain in the post-9/11 world when the United Nations Security Council (UNSC) – with the West’s backing – turned its guns towards non-state actors. Ignorance of the law is never an excuse. If Pakistan had institutionalized lawfare (more on this below), it could have countered the FATF lawfare and mitigated its losses.
Information warfare/lawfare is another deadly weapon with ‘nuclear’ consequences for the target. Think of it as an invisible mushroom cloud that hovers on the horizon after razing down everything in its range. It works in several ways. It can be used to: (i) send overt/subliminal messages that percolate down the social fabric of a society and weaken a country’s institutions – and resultingly, dampen resolve and tear apart national unity; and (ii) sow discord and confusion in the minds of the masses. Information warfare is a centuries’ old time-tested weapon with an infinite range and potential to cause catastrophic mayhem.
India’s disinformation campaign against Pakistan is a prime example of the strategic weaponization of information warfare. India has, time and again, targeted Pakistan through: (i) the use of its clout in various international institutions and global media outlets; (ii) directing fake news and disinformation campaigns; and (iii) the use of its proxies that have infiltrated into Pakistan’s institutions. This has grievously harmed Pakistan’s vital national interests. Take a recent example. India’s media outlet, ANI, generated a disinformation/fake news campaign that talks about a ‘rift’ between Pakistan Armed Forces and the government. This news has been picked up by global media outlets such as The New York Times. Let it be said out loud: it isn’t the first time that India has done this, and it most certainly won’t be the last.
An option for Pakistan to consider is to float its own media house or enter into a strategic partnership with a reputed international media house such as Al Jazeera and TRT World.
However, much to its chagrin, Pakistan’s woes run deeper: it faces a double-edged sinister information warfare campaign from two fronts: (i) the architects/handlers of the fake news/disinformation campaign (who are mostly Indian agencies and affiliated media houses); and (ii) from their proxies inside and outside Pakistan (with their tentacles deep within Pakistan’s media and its institutions). Over the years, both Indian architects/handlers and their Pakistani proxies have developed a symbiotic relationship with one another. The net result of this relationship is dire for Pakistan: the intended ‘message’ ends up getting ‘amplified’ internationally as well as within Pakistan.
How does this amplification work and what are its consequences? First, due to the short attention span and the proclivity of the masses to believe the (dis)information without checking the sources, after passing through multiple media domains, it gets ‘legitimized’. It would not be hyperbole to say that social media, specifically WhatsApp, has transformed into a battlefield for churning out fake news targeting Pakistan. We, the people, inadvertently end up becoming the tools of this information warfare. Needless to say, this does not bode well for Pakistan’s national security.
It is simply impossible to control or regulate ‘information’ in today’s time and age. Freedom of speech and expression are constitutionally protected rights. Fighting off information warfare would, therefore, require out of the box thinking. One approach is to granularly assess the Pakistani jurisprudence surrounding the nature of the right to freedom of speech and expression and its limitations. This right is not absolute and is subject to reasonable restrictions imposed by the law. Thus, one possible way to counter disinformation is to kill the source of the information through robust legislation that: (i) effectively curbs its propagation and spread; and (ii) penalizes the perpetrators. But there is a downside to this: Pakistan’s enemies (foreign and local) will weaponize Pakistan’s weak legal system to claim that doing so is a violation of human rights and fundamental freedoms. It is all the more important, therefore, for the state to intelligently explore the grey area between permission and prohibition and craft pieces of legislation that offer a level playing field for information exchange, but are strict insofar as violations are concerned. Let me, however, add: although the aforesaid is ‘necessary’, it in itself is not ‘sufficient’. Let me explain.
The state would also require a robust supplemental information warfare strategy which posits intelligent, well-structured arguments and counterfactuals. In this respect, one domain with tremendous positive potential for Pakistan – to which Pakistan has little to no access and which remains unexplored– is access to global media outlets and international media ‘movers and shakers’. The benefit of having direct access to, and a ‘say’ in, global information domains is that it helps in a top-down trickling of information instead of fighting endless losing battles and stopping the global ‘amplification’ of the message. In other words, Pakistan must shift the battlefield and take the fight with the enemy to the global turf.
Another benefit for Pakistan of having global media access is that would enable Pakistan to tell the world its side of the story. Admittedly, whilst it is important for the state to convert the already converted (read: citizens) to protect them from becoming victims of disinformation campaigns, it is equally, if not more important, in today’s rapidly digitized world for Pakistan to have an aggressive counter lawfare strategy in the global media domain. An option for Pakistan to consider is to float its own media house or enter into a strategic partnership with a reputed international media house such as Al Jazeera and TRT World. In today’s world, failure to act in a timely fashion to counter distortions will be seen as acceptance of guilt by silence/omission. Pakistan cannot afford this.
International Forums Lawfare
Gone are the days when wars were waged solely through conventional means. We live in an era where the pen has truly become mightier than the sword. Like a cuttlefish that befuddles its enemy by releasing ink, the pen can also be weaponized through intelligent and creative legal arguments to scuttle the enemy’s plans. An example of international forums lawfare are courtroom battles that are fought out by countries on various International Law issues. A recent example is the Kulbhushan Jadhav case that was fought between India and Pakistan at the International Court of Justice (ICJ).
In the Reko Diq case lie some important lessons for Pakistan. This was a costly arbitration running into millions of dollars in legal fees which eventually resulted in a whopping $5.9 billion award against Pakistan by the World Bank’s ICSID.
But worryingly, the international legal system can become a messy business for a country that is at the receiving end of a lawfare waged by a shrewd adversary, who knows how to weaponize international law to its advantage. A country that knows how to game the system – with speed – will end up denying situational awareness to the adversary. In war (kinetic and non-kinetic), situational awareness and knowing when to strike and where, determines the war’s final outcome.
Take the example of Reko Diq which, to Pakistan’s good fortune, has finally reached an amicable settlement. In the Reko Diq case lie some important lessons for Pakistan. This was a costly arbitration running into millions of dollars in legal fees which eventually resulted in a whopping $5.9 billion award against Pakistan by the World Bank’s ICSID. Reko Diq is a textbook example of how a country ought not to approach its international obligations.
So, what went wrong in Reko Diq? A few things stand out: Pakistan failed to: (i) understand the implications of agreeing to bilateral investment treaties and understanding their requirements; (ii) undertake a comprehensive legal due diligence on the counterparties (a basic legal requirement); (iii) grasp the implications of accepting foreign governing law and arbitration clauses in an international contract; (iv) ringfence its legal interests by having in place requisite domestic laws; and (v) engage skilled international legal counsel who could have advised Pakistan at the very outset on the underlying international commitments as well as the international legal ecosystem.
The multiplier effect of monstrous blunders like Reko Diq and Broadsheet Cases for Pakistan is that its financial coffers have been drained – and will continue to be drained – in satisfaction of international liabilities incurred in the past.
For the future, Pakistan requires a ‘forward looking’ lawfare strategy on this front. Ideally, as is the case in many other countries, Pakistan should have a panel of eminent International Law jurists and experts with a proven track record of successfully defending Pakistan in international arbitrations and international legal matters. These jurists and experts should be Pakistan’s strategic advisors on the entire gamut of International Law issues (in both public and private International Law).
The Way Forward: Some Food for Thought
It is important for Pakistan’s policymakers to know that Pakistan’s lawfare challenges aren’t going away. They are here to stay. In fact, it is highly likely that these challenges will only multiply in the near future.
Put another way, Pakistan must institutionalize lawfare across the Armed Forces and the civilian government, set-up on a war footing. The government and public sector officials, and military officials would need to be well-versed in the particular lawfare discipline that applies to their domain so that they are trained and equipped to handle day-to-day lawfare related tasks and challenges.
As aptly put by Joel P. Trachtman in his seminal paper titled, Integrating Lawfare and Warfare: “Given the ambivalence of lawfare, we do not always want international law to be more effective, but we would like to know how to make it more effective where it is desirable.”
This important point, i.e., ‘desirability’ of particular outcomes should be the starting point of Pakistan’s search for an international lawfare strategy.
This important point, i.e., ‘desirability’ of particular outcomes should be the starting point of Pakistan’s search for an international lawfare strategy. Listed below are some (but not all) points that Pakistan would need to think through in its quest for a robust lawfare architecture:
To conclude, wars and military campaigns in the 21st century are waged, not just in the physical, but in multiple domains. By strategically weaponizing the international legal system (a much cheaper option than purchasing expensive military weapons) and by using international lawfare to supplement its kinetic/military prowess, Pakistan can gain hitherto unthinkable strategic, operational, and tactical advantages across multiple domains. To do so, Pakistan must move forward fast and devise its first international lawfare strategy. Time is of the essence.
Hassan Aslam Shad is an international lawyer with specific expertise in Lawfare. He is a graduate of Harvard Law School, U.S.A. with a focus on international law. He is a twice Gold Medallist for his undergraduate studies in law and the first person from Pakistan to intern for six months with the President of the International Criminal Court, The Hague.
Email: [email protected]
Read 779 times