Information as a Tool of Lawfare

Law is increasingly deployed as an alternative to military force, although its use dates back as far as international law itself. Even private sector and other non-governmental attorneys play a leading role in lawfare. In its literal sense, the term lawfare is a neologism of two words: law and warfare. Generally, it is understood to

Law is increasingly deployed as an alternative to military force, although its use dates back as far as international law itself. Even private sector and other non-governmental attorneys play a leading role in lawfare.

In its literal sense, the term lawfare is a neologism of two words: law and warfare. Generally, it is understood to mean the use of law, or exploitation of aspects of a legal system, to achieve tactical or strategic advantages in the context of conflict. Therefore, it can either be defensive or offensive in nature, depending upon the legitimate or exploitative use of law by a state or non-state actor against its adversaries. Major General Charles J. Dunlap’s modified definition of lawfare expresses that “the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.”

This definition of lawfare, however, does not capture the sophisticated ways in which states employ lawfare today. Law as an instrument of national power has been woefully understudied. Traditional academic frameworks for studying the instruments of national power do not consider the full potential of law to be used as a weapon of war between states, a concept known as “Law-fare.” Meanwhile, Pakistan’s adversaries understand that law can be a potent weapon, both to achieve concrete military objectives and to win battles in the information domain and have wielded it against Pakistan.

As war escalates in the information domain, information law-fare will be a critical piece of any party’s strategy. Information lawfare is an important concept for military planners, but its use will involve decision dilemmas that affect not only the military but society and policy as well. Information Lawfare is seen as a form of combat in itself.

Unfortunately, there is no shortage of examples. Some prominent instances for the use or misuse of law as a weapon of warfare are, the colonization of Palestine by Israel with the aid of information lawfare by misleading the public via self-victimization and restricting media coverage, Russia’s misuse of law through disrespecting the Budapest Memorandum in the Ukrainian Conflict, financial lawfare in the shape of sanctions imposed by the U.S. against its adversaries Russia and Iran, and the abuse of International Humanitarian law by non-state actors.

China has defined lawfare as a major part of its military strategy, as early as 1999. Lawfare is one of China’s “Three warfares”, along with Media warfare or public opinion warfare and psychological warfare, to win the narrative of competition in peacetime and wartime, to weaken the enemy’s will to fight while bolstering one’s own, and to win hearts and minds, and are used to garner international sympathy and support, a powerful pillar to support the whole operational activity.

The Anglo-American and Israeli perspective, however, seems to go considerably further, advocating for the “offensive” practice of lawfare. That is, to operationalize law in the pursuit of policy objectives within ongoing hybrid conflicts with both state and non-state actors. Others went further, calling for the “weaponization” of law, and suggesting that lawyers need to think of themselves as part of the operational team waging war with our adversaries.

Based on the laws, values and traditions common to democratic societies, information and the people who deliver it are not only free, they are also protected by their governments. In Pakistan, for instance, extremely narrow categories of information are prohibited, and the limited class of information subject to content or dissemination regulation is still easily accessible. In the struggle to protect Pakistani citizens from foreign information operations designed to influence Pakistanis, the laws designed to protect free speech for Pakistanis also protect and empower Pakistan’s adversaries. Protection from adversaries is not the only aspect of information operations in which democracies find themselves disadvantaged by their laws, values and traditions. They face additional challenges if they attempt to employ information deliberately to advance their goals.

Freedom of speech is a democratic freedom, protected by our constitution, of which information manipulators may take advantage. Now, with influencers of all kinds making use of widely available capabilities to create and distribute content, anyone with an internet connection can easily access almost any news source from any place in the world.

Cyber operations anywhere can influence events everywhere. States’ capacity for using modern information and communication technology to inflict grave harm on enemies has been amply demonstrated in recent years, with many countries reporting large-scale cyberattacks against their military defense systems, water supply, and other critical infrastructure. Currently, no agreed-upon international rules or norms exist to govern international conflict in cyberspace. Many governments prefer to keep it that way. They argue that difficulties of verifiability and challenges posed by rapid technological change rule out agreement on an international cyber convention. Instead, they prefer to rely on informal cooperation and strategic deterrence to limit direct conflict.

On 09 December 202 an extensive report was published by EU DisInfo Lab, a Brussels based non-governmental organization. The findings of the damning report show how India used 10 defunct yet UN-accredited NGOs were revived in order to influence the EU and UN Human Rights Council, and uncovered over 750 fake local media outlets and 550 domains across 119 used to spread disinformation against Pakistan. This network apparently served interests in India in two ways. First, it amplified New Delhi’s foreign policy ambitions and influenced decision-making at international level. Second, it cast Pakistan in a negative light. The 10 yearlong operation was a carefully devised operation that was successful in undermining the international community’s trust in Pakistan.

Lawfare needs to be guided by some internal and international limits. It must be noted that a state cannot ignore its international and domestic legal obligations as it would chip way the very law from which states benefits and which creates international order in the world. Accordingly, a successful counter-lawfare approach to cyber operations would be to devise creative strategies using combinations of both international and domestic law and organizations to raise the cost of illegal practices by perpetrators of the cyber operations. This includes triggering intrusive investigations by international organisations, or summoning votes in United Nations General Assembly, or seeking advisory opinions from the International Court of Justice. Another option can be to enable NGOs and individuals to litigate against the perpetrators of the cyber operations.

The “new endless war” has already begun in the cyber domain. As it escalates, Pakistan must position itself to fight using its entire arsenal. To do so, Pakistan must develop its offensive and defensive lawfare capabilities.