Hassan Aslam Shad
LIKE “5th Generation Warfare”, the term “Lawfare” has lately become a buzzword in Pakistan. In addition to the lack of a basic understanding in Pakistan about what lawfare stands for, and what are the potential uses to which it could be put, this concept risks getting hijacked by the so-called “experts”. This can divert Pakistan’s policy makers’ attention away from the real lawfare challenges staring Pakistan in the face that merit immediate attention.
Put simply, lawfare is the use of law as a weapon of war. It is a vital tool of statecraft in the 21st Century. It is a doctrine that needs to be embedded in the national security and foreign policy framework of Pakistan. Time is of the essence. The sooner the better. Lawfare is unavoidable. Countries that do not weave lawfare within the fabric of their statecraft risk losing battles – kinetic, non-kinetic and reputational – and, importantly, suffering financial consequences.
Lawfare can be seen playing out in different domains. Countries fight legal battles in courtrooms; use legal instruments to coerce their opponents; and create “strategic space” through legal tools to execute military and non-military campaigns. At the international level, coalitions of like-minded states systematically use lawfare to arm twist adversaries for specific purposes.
Take the case of Iran. Ostensibly, Iran is under U.S. sanctions. But, this isn’t all. The U.S. has, in effect, set in motion the wheel of the international system against Iran to curtail Iran’s access to the international financial system. These lawfare measures required the U.S. to weave international laws around Iran’s neck. And, it worked.
Another example is Pakistan. In June 2018, Pakistan landed in the FATF Grey List. However, unbeknownst to our policy makers, the genesis of the FATF lawfare against Pakistan did not lie in 2018. Rather, it lay in two U.N. Security Council Resolutions – 1267 and 1373 – passed in 1999 and 2001, respectively, with a focus towards anti-terrorism. Till date, Pakistan has been unsuccessful in extricating itself out of the FATF Grey List. The reasons are both political and legal. Although Pakistan can’t change the political equation, if its policy makers knew what lawfare challenges were headed Pakistan’s way, guardrails could have been erected to defend Pakistan’s interests. Delay, in this case, has left Pakistan with the FATF albatross tied around its neck.
Another lawfare that has left Pakistan with a bloody nose – more than once – are the disputes at international courts and tribunals in which Pakistan has been embroiled over the years. Law can become a messy business for a country that is at the receiving end of a lawfare waged by a shrewd adversary who knows how to weaponize legal rules to its advantage. Think of a cuttlefish that befuddles its enemy by releasing ink. A country that knows how to game the system – with speed – will end up seizing the adversary’s situational awareness. These factors determine the outcome of war – both kinetic and non-kinetic.
Take the example of Reko Diq. This costly arbitration resulted in a whopping $ 5.9 billion award against Pakistan by the World Bank’s ICSID. Reko Diq is a classic example of a monstrous blunder. Among other things, Pakistan failed to (i) understand the implications of agreeing to bilateral investment treaties; (ii) undertake a due diligence on the counterparties; (iii) grasp the implications of accepting foreign governing law and arbitration clauses in an international contract; (iv) ring fence its legal interests by crafting the required domestic laws; (v) and engage skilled international legal counsel at the right time who could have advised Pakistan on underlying international commitments.
The multiplier effect of these blunders for Pakistan is that its coffers have been drained – and will continue to be drained – in satisfaction of international liabilities incurred in the past due to nonchalance, incompetence and corruption.
What needs to be done – right away – is for Pakistan’s policy makers to be told that lawfare isn’t going away. It is here to stay. Pakistan has the option of keeping its eyes closed like a pigeon that hopes the cat will disappear. But, we know how that story ends. Put another way, the state has no choice but to institutionalize lawfare across all domains and verticals. Military officials, the government, and public sector officials would need to be educated in the particular lawfare discipline that applies in their area.
Pakistan would also need to identify the lawfare challenges being faced as well as the capabilities of its adversaries. Pakistan’s lawfare challenges are both international and domestic in nature. The international challenges are those that come under the umbrella of supra national rules and commitments – U.N. resolutions, international treaties, FATF etc. – whilst the domestic challenges are the ones faced from domestic actors who use laws to destabilize society and pile on reputational costs for the state. A classic example of this is the Tehreek-e-Labbaik Pakistan (TLP). Besides deconstructing TLP’s support base through education and outreach campaigns, the state needs a constructive lawfare against TLP to deprive it of the legality on which it thrives. This could be done by amending the Pakistan Penal Code and by promulgating legislation that counters hate speech and disinformation.
Over the years, lawfare has transformed from a mere concept into a meta-discipline that cuts across other disciplines such as cyber, aviation, maritime, economics, psychology and information warfare. Pakistan’s external and internal challenges are only going to increase with time. Today, Pakistan finds itself in the midst of a FATF lawfare. Tomorrow, it may face another intractable challenge thrown its way. In order to meaningfully respond to future challenges, Pakistan will need a well thought out and institutionalized lawfare strategy that enables it to see through the fog, prepare for the challenges and zero-in on solutions.
Hassan Aslam Shad is an international law practitioner based in the Middle East. He is a graduate of Harvard Law School, U.S.A. and the first Pakistani to intern with the President of the International Criminal Court, The Hague. Email: [email protected]
