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 or misuses to which it could be put, this concept risks getting hijacked by the so-called “experts”, of whom we have plenty in our ranks. 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 grave financial consequences.
Lawfare can be seen playing out across the legal, social and political spectrums. Countries fight legal battles in courtrooms (the most obvious form of lawfare); use legal instruments to coerce or cajole their opponents, both domestic and foreign (a lawfare theme that is becoming more common); and create “strategic space” through legal tools to plan and execute military and non-military campaigns (an objective oriented lawfare with multiple uses). At the international level, coalitions of like-minded states systematically use lawfare to ensnare their adversaries or to arm twist them 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. This can be seen in the U.S. leveraging its clout at the United Nations (U.N.) against Iran and using its Treasury Department to target Iranian nationals and financial institutions 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 shaped by shifting geopolitical alignments in South Asia, if its policy makers had been educated about what lawfare challenges were headed Pakistan’s way, guardrails could have been erected to save Pakistan or, to at least minimise its financial and reputational losses. Delay, in this case, has left Pakistan with the FATF albatross tightly 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 that knows how to weaponise 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 case of how a country ought not to approach its international obligations. Pakistan blundered at many levels. Among others, it failed to (i) understand the implications of entering into bilateral investment treaties; (ii) undertake a methodical 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 given Pakistan a 360 degree overview of the legal implications of the underlying international commitments.
The multiplier effect of these blunders (FATF and international disputes, among others) 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. In financial terms, this is the equivalent of Pakistan perpetually paying compound interest on the principal amount of a fully outstanding loan that ought not to have been obtained in the first place!
What needs to be done – right away, without losing any further time – is for Pakistan’s policy makers to be told that lawfare isn’t going away. It is here to stay. Pakistan has the to option of keeping its eyes closed like a pigeon that hopes that the cat will disappear. But, we know how that story ends.
Put another way, the state has no choice but to institutionalise lawfare across all domains and verticals. Military officials, government, and public sector officials would need to be educated in the particular lawfare discipline that applies in their area. This must have been done yesterday. But, it’s still not too late.
Pakistan would also need to identify the lawfare challenges being faced or those on the horizon as well as the capabilities of its adversaries. In my view, 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 – e.g. U.N. resolutions, international treaties, FATF, IMF – whilst the domestic challenges are the ones that it faces from domestic actors who use laws to destabilise society, cause harm to national security and pile on reputational costs for the state.
A classic example is the Tehreek-e-Labbaik Pakistan (TLP) – an extremist outfit that has become Pakistan’s Achilles heel. Besides deconstructing TLP’s support base through education and outreach campaigns to target its supporters, the state needs a constructive lawfare against TLP to deprive it of the legality and legitimacy on which it thrives. This could be done by amending the Pakistan Penal Code, promulgating legislation that counters hate speech and disinformation, and by strengthening existing libel and slander laws.
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. Anyone believing otherwise is living in la-la land. Today, Pakistan finds itself in the midst of a FATF and IMF lawfare. Tomorrow, it may face another intractable challenge thrown its way. In order to meaningfully respond to future challenges, Pakistan will first need to understand what challenges it is up against. It is only through a properly institutionalized lawfare that Pakistan can see through the fog, prepare for the challenges and zero-in on solutions.
Hassan Aslam Shad is an international law specialist 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]