India Lawfare continues with Kulbhushan Jadhav

In Blog
March 10, 2021
Mahnoor Islam
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The term ‘lawfare’ was first introduced by Major General Charles J.Dunlap, Jr who defined it as a method of warfare where law is used as a way of realising military objectives. In the present day, lawfare is defined as ‘a strategy of using or misusing the law as a substitute for traditional military means to

The term ‘lawfare’ was first introduced by Major General Charles J.Dunlap, Jr who defined it as a method of warfare where law is used as a way of realising military objectives. In the present day, lawfare is defined as ‘a strategy of using or misusing the law as a substitute for traditional military means to achieve an operational objective.’

Over the years, Pakistan has been subjected to successful lawfare strategies especially by India. One of such examples can be illustrated by the case of Kulbhushan Jadhav. Jadhav is an Indian national who was sentenced to death on charges of carrying out espionage and sabotage activities against Pakistan.

With Jadhav, a spy and terrorist being caught red handed, India’s decade long lawfare strategy was bound to face major setbacks the Modi government faced serious criticism, India was left no choice but to create a counter lawfare approach by changing the narrative by claiming that Jadhav was an Indian national who was deprived of his right to consular access and was therefore not given a free trial.

India portrayed Pakistan as an offender and violator of International law. India has played the victim card by portraying itself as a target of Pakistan’s terrorism. Pakistan was shown as a ‘kidnapped indian’ who was put on trial and sentenced to death through a military trial.

Pakistan was unable to properly analyze the jurisdictional avenues available to India as a counter lawfare move and thus relied on the 2008 bilateral Consular Access Agreement in order to block consular access requests. Since the Vienna Convention on Consular Relations took precedence over the 2008 Agreement, Pakistan’s denial of consular access was declared as a wrongful act.

While Pakistan’s act was considered wrong, India’s relief requests were also denied by the ICJ. While India sought to prove Pakistan’s moves as a violation of international law, the ICJ did not agree.

During Jadhav’s hearing, Pakistan failed to fully highlight the narrative of India sponsoring terrorism in Pakistan therefore missing the oppurtunity to highlight Indian sponsored terrorism through Jadhav. Pakistan also failed to emphasize India’s obstruction of the UN Charter VII Resolutions which discusses the principle of non-intervention into domestic affairs.

While the issue in Jadhav’s case was of consular access, the focus should have been on the sanctity of domestic law, Pakistan’s sovereignty and national security. In Medellin v Texas (2008), The United States was able to do just that. In the case, USA denied consular access to Medellin, a Mexican national, the US Supreme Court made sure the narrative was on the independence of domestic law aswell national interests of the country.

India was unable to answer the two most significant questions such as Jadhav’s passport and his abduction from Iran as claimed by India. Pakistan had evidence which proved Jadhav’s passport was indeed genuine and also argued that Jadhav was a serving Commander of the Indian Navy.

Pakistan needs to recognize the gaps that may be present in its multilateral and bilateral treaty obligations which may be exploited against the state. Pakistan should also conduct a risk assessment of hostile moves that could be used against them and accordingly prepare legal arguments which can be used whenever it is necessary to do so.

Pakistan should also ensure that all security and economic engagements are reviewed by legal experts so that missteps are avoided. In order to do that, It is a must for Pakistan to recruit a team of legal academics and lawyers. Operational personnel aswell as decision makers should be given legal training so that acquisitions of non-compliance are limited.

Pakistan needs to learn from its mistakes. Pakistan needs to change and modify its lawfare strategy. It needs to be well-prepared towards any challenges that may come its way. Pakistan needs to develop the capacity to identify possible threats and be able to effectively neutralize them. There is a need to counter the perception that has been falsely created by other countries through lawfare. This is now more important than ever before.