The New Age of Warfare: India’s lawfare policy against Pakistan

In Blog
March 12, 2021
Abdul Aziz
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The Indian state is using lawfare as a state policy to advance its strategic interest against Pakistan and in the last decade or so, lawfare has become the sole focus of its foreign policy with the end goal of isolating Pakistan diplomatically and economically. It is essential that Pakistan devise a strategy and a policy

The Indian state is using lawfare as a state policy to advance its strategic interest against Pakistan and in the last decade or so, lawfare has become the sole focus of its foreign policy with the end goal of isolating Pakistan diplomatically and economically. It is essential that Pakistan devise a strategy and a policy for lawfare to counter these new threats emanating from the other side of the border. Lawfare is an instrument used by states against its adversaries to gain an asymmetrical advantage by weaponizing international law. India uses lawfare to manufactures false narratives and misuses the existing legal mechanism under international law against Pakistan.

While lawfare has always been an inter-state policy of India, the awareness of its use as an instrument of statecraft has increased within Pakistan in the last few years. Multiple incidents have taken place recently that bear testament to how India has been aggressively pursuing lawfare as a new strategy in the region. Starting with the Kulbushan Jadhav case, where India used the International Court of Justice to distract the international community from its act of sponsoring state terrorism in Pakistan.

On 3^rd March 2016, Pakistan arrested Kulbushan Jadhav in Balochistan who admitted to helping carry out terrorist activities Balochistan. Pakistan has long claimed that India conducts terrorism in Pakistan, however, when this issue arose in the international community, India managed to indulge Pakistan in lawfare by claiming that Pakistan had refused to comply with its international obligation by not following the Vienna Convention of Consular Relations. A small foresight on Pakistan’s end allowed India to hijack the narrative and make it about Pakistan not following its international obligation rather than the Indian state’s act of supporting terrorism.

Another example of India conducting lawfare against Pakistan is in the case of Financial Action Task Force (FATF). India strongly lobbied against Pakistan by directing international actors to scrutinize Pakistan’s anti financing terrorism laws. Admittedly, Pakistan did not address the structural deficiencies that FATF had recommended it to address after removing Pakistan from its grey-list in 2015. India took advantage of Pakistan’s lack of capacity and lobbied for it to get black-listed. In response, the Pakistan Government started diligently addressing systemic deficiencies in its financial system and has now completed 24 out of the 27-action plan that FATF had devised for Pakistan.

The last 3 points of the action plan are partially complete and in the recent plenary session FATF announced that Pakistan will remain on the grey-list till June pending the completion of the last 3 points. While Pakistan’s response to India’s lobbying in FATF helped the state to address FATF’s concerns by improving its financing system, Pakistan could have benefitted far more by pursing a proactive state policy on complying with its international obligations. The events of FATF, however do sum up the essence of what lawfare is and how it can be used by states to achieve political and defensive targets without military operations.

India also uses its lawfare measures tactically, when the incident of Pulwama occurred, India without a shred of evidence quickly blamed the incident on Pakistan, which did two things in turn, first it gave India the time to manufacture a narrative against Pakistan, and second, it allowed India the time to prepare for another lawfare attack, which came when the Indian State claimed that it violated Pakistani airspace in self-defense and killed more than 300 terrorists in Balakot.

While Pakistan denied any involvement in the attack, it failed to highlight that even if India made such an attack, they violated international law as pre-emptive attacks in international law are illegal. Article 2(4) of the UN charter prohibits the use of force. And the only time use of force is allowed is if the Caroline Test under customary international law is satisfied. The Caroline test in the case of India was not satisfied, as there was no imminent and overwhelming attack against it.

India has also used lawfare to change the status of Indian-occupied Kashmir by removing articles 370 and 35-A. India is now slowly changing the demography of Kashmir as it has introduced a new domicile rule that allows Indian State officials and military personals who are residing in Kashmir to obtain a Kashmiri domicile. There have been more than 22,000 domicile certificates that have already been given to Indian nationals. India has managed to achieve all this through lawfare and without firing a single bullet.

If Pakistan wants to compete and respond to India back in the lawfare domain, it is incredibly important that Pakistan has an active and thriving lawfare policy that is capable of counting India’s constant attacks on Pakistan. Numerous international law experts like Ahmer Bilal Soofi have suggested that Pakistan must develop capacity and invest in developing departments within government bodies that analyze Pakistan’s international commitment to stay one step ahead.

Pakistan must ensure that all its international commitments including treaties that are ratified are being complied with in line with international law. Pakistan also needs to ensure that it keeps an eye out for any blind spots, all matters of strategic and national interest such as CPEC, Kashmir, and Gilgit Baltistan must be thoroughly analyzed to possibly predict any future lawfare move by India.

The only way Pakistan can find a strong mechanism to deal with lawfare is if Pakistan plays a proactive role in predicting the possible lawfare threats that may emanate in the future. It’s important to play out these scenarios, develop legal arguments for them with international law experts, and most importantly have a legal team dedicated that ensures Pakistan is fulfilling all its international law obligations. Pakistan needs to enhance its capacity by educating all state officials on this new form of warfare. While the traditional methods of warfare still do exist and there may be some threats that require direct and swift military responses. The future of warfare is diplomatic and legal, it is lawfare, and Pakistan must be prepared for it.