Wednesday October 05, 2022

The lawfare trap

September 18, 2021

We all know how nations conquer. Yes, though war – which conjures up images of machine gun fire, tanks, fighter jets, exploding bombs and devastated cities.

Would you not be surprised to learn that in today’s global world, with physical conflict becoming less of a possibility, law – which is considered to be the means to achieve justice – can also be employed as one of the most lethal weapons of war? In fact, such is the potential to misuse the power of the law by stronger nations for gaining advantage over adversaries and advancing their own interests that the law is now being called the ‘greatest weapon of mass-destruction in modern times’.

This doctrine is well established in the West as ‘Lawfare’. To many, however, it is still an alien idea. The word was first used in 1975, with the concept gaining popularity after a 2001 speech by USAF Major General Dunlop. He defined it as the “newest feature of 21st century combat”. In simple words, lawfare is a form of warfare in which a state uses a legal system or law (international and domestic) as an instrument of power to achieve its strategic goals as an alternative to military or diplomatic strategy.

The primary use of lawfare, with devastating effect, has been through international laws, conventions, and treaties. The ‘neutral’ platform of the UN was used by influential nations to further their own interests. This was achieved by first identifying an objective and then tasking experts to ‘create’ an environment where the UN would be compelled to fashion international law to benefit the interest of powerful nations. Not understanding the deception, and in good faith, many countries including Pakistan signed treaties, and even entered into bilateral agreements only to discover that some were traps.

A primary example is the FATF. International laws were developed against money laundering after the Western world had already let their economies be used for siphoning corrupt money out of poor countries. Pakistan fully supported this because money laundering had caused great loss to the national exchequer and had to be stopped. The FATF was created by the international legal system apparently to control this. What we did not realise, however, is that such laws can also be used as a political weapon. As seen in the case of Pakistan, despite fulfilling 27 of the 28 requirements, we remain in the grey list. In contrast, countries like India which stand far behind in the requirements face no such threat. Had developing countries been wiser when these systems were being designed, they could have prevented such misuse of international law.

Aside from a small legal presence in the attorney general’s office dealing with international arbitrations, Pakistan has no think-tank of experts advising on international law, conventions, treaties, or bilateral agreements. These are too often signed without an expert understanding of their repercussions, exposing us to lawfare and imposition of sanctions.

Modern-day conflicts need public approval on a global scale to make them legitimate. It is the law which paradoxically gives unjust actions legitimacy. From the US-led ‘war on terror’ to the repression of the Kashmiris, battles are waged, won and lost, all in the minds of the people. A state wanting to engage in conflict or impose sanctions to cripple its enemies must therefore create a legal framework to ensure that these actions are supported by world opinion. No state can be seen as a criminal. Support for otherwise illegitimate actions is therefore achieved by systematically developing international law and agreements in a manner wherein repression is seen as mere enforcement of law.

An example of effective lawfare was when the US wanted to secure exclusive rights of satellite data imagery for use against the Afghan Taliban but did not want to disclose doing so. There were two ways of achieving this – physical force or lawfare. They chose the latter and entered contracts through which they obtained exclusive rights. Thus, strategic interests were achieved without bloodshed or controversy. Similarly, lawfare was used to impose sanctions against Iran.

Pakistan too is no stranger to vicious attacks of lawfare. This is apparent in the annexation of Occupied Jammu & Kashmir, India’s violation of the Indus Waters Treaty, and the Kalbushan Jadhav case. Pakistan signed the Vienna Convention without understanding its implications in the event of foreign spies conducting terrorist activities. This convention was thus used effectively by India in obtaining a judgement from the ICJ.

Lawfare can also be potentially used through the domestic legal system for creating unrest. One such example in which we came close to inadvertently inflicting lawfare upon ourselves was a proposed amendment to the Muslim Family Law Ordinance. Had this been allowed, it would have fueled sectarianism and furthered the interests of Pakistan’s enemies. Thankfully, it was rejected by the Senate Committee.

Another example of how domestic laws can conflict with the country’s interest is the case of Reko Diq, where the Supreme Court set aside the contract with the foreign company based on various illegalities. The foreign company, as expected, took the matter to arbitration, and won an award of billions of rupees against Pakistan. Whether or not we can salvage something out of this, the damage to Pakistan’s investment climate (that arbitration clauses are not respected in this country) was done, the effects of which are still being felt. Such legal decisions too are used by our adversaries at every forum as another form of legal strike.

While countries have long realised the potential of lawfare, and are constantly devising laws to further their interests, in countries like Pakistan we still believe that law-making, treaties and conventions, even decisions of courts, are simply a matter of drafting of commas and full stops or language – with no regard to the possibility that these have the potential to be used as modern warfare.

Fortunately, Pakistan need not be apprehensive that we are too late. While in technology and manufacture of sophisticated weapons we may be behind, but lawfare is about intellectual power – brains – which, we in Pakistan, have aplenty. The first step is therefore realising that more damage can be inflicted with the stroke of a pen than the pull of a trigger and that for this such a device as ‘lawfare’ exists.

Secondly, a permanent legal cell within the government, possibly in the Foreign Office, must be constituted whose job will be to be proactive, constantly analyse international treaties and agreements, propose legal changes to advance our interest, and through this advisory and legal role, protect Pakistan from falling victim of lawfare. I am sure that being thus well-equipped, we can meet this latest challenge head on. After all, ‘a trap is only a trap if you don’t know about it’.

The writer is a practising advocate of the Supreme Court, a current senator and chairman of the Senate Standing Committee on Law and Justice.

Email: ali@mandviwallaand

Twitter: syedalizafar1