How can Pakistan counter the threat of lawfare?

In Blog
July 8, 2021
Mahnoor Islam
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The term ‘lawfare’ as first introduced by Colonel Charles Dunlap is the use of international law as an instrument to advance a state’s own interests. Orde Kittrie defines lawfare as the use of law as a weapon. It is interesting to note that lawfare doesn’t have a universal definition. Thus, lawfare is a clever play

The term ‘lawfare’ as first introduced by Colonel Charles Dunlap is the use of international law as an instrument to advance a state’s own interests. Orde Kittrie defines lawfare as the use of law as a weapon. It is interesting to note that lawfare doesn’t have a universal definition. Thus, lawfare is a clever play on words that needs to be deconstructed in order to understand its linguistics and political power. Lawfare is what Chinese strategist Sun Tzu would say is the ‘supreme excellence’ of war that aims to subdue ‘the enemy’s resistance without fighting’.

As the significance of international law rises, so does the use of law as a way for states to achieve their objectives. Lawfare plays an important role when it comes to Pakistan’s strategic interests as it has been established several times that lawfare has been used against Pakistan by foreign powers especially India on different issues such as human rights, targeted killings, cyber security and non-proliferation. It has been predicted that in the future, pressure shall be put on Pakistan regarding climate change. However, while Pakistan is recognizing the threat lawfare poses to its interests, Pakistan’s response is not enviable.

In 2019, India was able to build upon the narrative that Pakistan was sponsoring terrorism through the Pulwama attacks. By doing so, India was successful in putting diplomatic pressure on Pakistan and secured the votes in its favour before the United Nations Security Council. This was a severe blow to Pakistan’s image especially in front of FATF. Pakistan missed an opportunity to highlight India as an aggressor that violated the UN Charter during the Balakot Strike.

Furthermore, when Pakistan captured Kulbhushan Jadhav, Pakistan further missed an opportunity to shift the narrative and portray India as a state sponsor to terrorism. India cleverly portrayed Jadhav as a civilian who was denied human rights in Pakistan such as consular access. India was able to effectively maneuver the perspective into its own favour. Thus, the lesson learnt from this incident should be that Pakistan needs to develop a very strong narrative that can counter that of India’s. It needs to think of ways India has been using lawfare as a tool and can do so in the future and thus plan accordingly. Pakistan can use the abrogation of Article 35-A as a lawfare move against India by highlighting the UN Resolutions India has violated, the human rights atrotricies it has committed and even draw comparisons with the Israel and Palestine crisis in order to make the international community better understand its position.

Pakistan reacts when proceedings have initiated against it on international forums thus Pakistan needs to change its approach to international law mechanisms. Pakistan has failed to understand the importance of international law and how it can be used to push one’s own propaganda. Pakistan needs to build its own narrative that has been backed by a legal foundation. Once that narrative has been established, Pakistan needs to wait for events that reinforce that narrative and use it accordingly.

Judgements by the Supreme Court and the Peshawar High Court regarding detentions and missing persons can also be used by India as a strategic lawfare move. Thus, Pakistan needs to seek a review of all its laws and identify provisions which can be used against Pakistan as a lawfare tactic. It is also very important that all institutions in Pakistan be on the same page thus avoiding any action that may cause harm later on.

Pakistan also needs to adopt measures that build its image in a positive manner in front of international communities since India can influence investigations in Pakistan regarding FATF recommendations. Pakistan has faced the threat of being black-listed by FATF due to the constant lobbying by India who is the co-chair of the group which heads the assessment process. Attention needs to be given to governance, legislation and national security aspects. Pakistan needs to recognize India’s lobbying and its use of lawfare and be able to effectively detonate it. For this to occur, it is important that Pakistan invests in research and international lawyers who are able to understand international law and different aspects of lawfare and advise accordingly. Pakistan also needs to show its presence at international forums in order to strengthen itself and its image.

The South Asian region continues to change and revolve and this is something that Pakistan needs to focus on. Prime Minister Modi has recognized that India had a role to play in Bangladesh’s independence in 1971. Furthermore, changes in Indian Constitution, especially the repeal of Articles 370 and 35-A need to be given due attention. Scholars and policy makers need to focus on what India plans to do next that may have an impact on Pakistan’s own national security and create a strategic defense accordingly.

It is very important that Pakistan start working on countering the threat of lawfare which has already created trouble for Pakistan. In order to counter lawfare effectively, Pakistan needs to recognize the significance of international law and what an important tool it can be. Pakistan needs to start thinking from the point of view of the enemy in order to recognize what lawfare moves its enemies can make. Effectively capacity building and coordination at national level is going to be successful in countering lawfare tactics against Pakistan.