Lawfare versus warfare

Published October 25, 2014
The writer is an advocate of the Supreme Court and served as the federal law minister during the last caretaker set-up.
The writer is an advocate of the Supreme Court and served as the federal law minister during the last caretaker set-up.

INDIA’S recent suggestions regarding an aggressive or punitive response towards Pakistan, as well as raising the level of tension at the Line of Control is sur­prising. This unfortunate regression takes us back to a position where the threat or use of force as a means of dealing with the Kashmir issue is increasingly becoming acceptable in Indian politics and media.

The contemporary international norm is to avoid using force against another state and in recent times states have moved away from a ‘warfare’ approach and have instead adopted ‘lawfare’ as an alternative means of achieving their political objectives.

‘Lawfare’ is essentially the use of law (both international and domestic) by a state as a tactical ally, as a strategic asset and even as an instrument of war, and has since gained doctrinal status. Prof David Kennedy of the Harvard Law School stated that lawfare “can often accomplish what might once have been done with bombs and missiles.…” It is clear, therefore, that as the international community matures it leaves behind its earlier preoccupation with displays of force and focuses instead on leveraging international and domestic law in order to effect its political and strategic global goals.

The global norm is to avoid using force against another state and to move away from a ‘warfare’ approach.

In this context, it is surprising for the international community that India would revert to such aggressive posturing. This is particularly unexpected given the fact that, in recent history, India has itself preferred to employ lawfare over warfare as its primary strategic and political tool against Pakistan.

For example, following the 2008 terrorist attacks in Mumbai, India had initially contemplated adopting a warfare approach through the use of surgical strikes. Had they followed through on this the situation would have certainly escalated. Instead, India opted for a lawfare approach, successfully lobbying before the UN and in the US to proscribe the offenders and also insisting that Pakistan fulfil its obligations under UN Security Council Resolution 1373 and bring to justice the Mumbai attack suspects.

Leveraging the existing international legal framework in this way not only allowed India to put considerable international pressure on Pakistan (a ‘tactical’ goal so to speak), it also resulted in a marked drop in the infiltration of non-state actors into India across the Line of Control (a broader, strategic goal).

Again, another lawfare move by India is an attempt to link the Kashmiri mujahideen to terrorist organisations. In doing so, India is trying to draw upon the international zeitgeist of the global, ‘war on terror’ and making efforts to ensure that the Kashmiri self-determination movement loses some of its shine on the international stage.

This was followed up by another lawfare offensive on the part of India, when it neutralised Kashmir’s most effective lobbyist in the US — namely Dr Ghulam Nabi Fai — by invoking US domestic law relating to the registration of agents of foreign states. All these moves resulted in the Kashmiri cause losing some of its lustre internationally until Prime Minister Nawaz Sharif’s recent speech in the UN revived it.

Pakistan, in turn, has faced initial difficulty in responding to these legal offensives from India, and while Pakistan has fought back on similar grounds it nevertheless has become clear that the recent state practice by India and Pakistan has been to rely on lawfare as a means of contesting positions — whether before the International Court of Justice in the Atlantique case, involving the shooting down of a Pakistan naval plane, or before arbitral fora for water issues under the Indus Waters Treaty framework.

Though the two countries have been to war more than once, these military engagements have done little to resolve the Kashmir issue.

Lawfare should be the preferred option over Kashmir, more so because all aspects of the Kashmir issue are essentially legal propositions. It is a territorial dispute. It involves the interpretation of UN law and bilateral treaties, the Indian and Pakistani constitutions, and holds many other legal elements such as the implications of the exercise of continuing sovereignty by Pakistan over Azad Jammu and Kashmir, not to mention the Modi government’s attempt to amend Article 370 of the Indian constitution.

Thus, no single option to resolve the Kashmir issue can be coerced through the threat or the use of force; instead, they need to be addressed legally and politically. Whether the two states opt for the ‘Musharraf formula’ or the UN resolutions framework, or adopt another bilateral option, this needs to be discussed and resolved through legal means. Any effort or attempt to forcefully upstage the status quo on either side of the LoC would, needless to say, be disastrous and neither India nor Pakistan should make any. After all, the military presence on LoC is an executive expression on behalf of both states: to maintain the sanctity of the LoC until such time as the Kashmir issue as a whole is properly resolved.

As it stands, no one side can ‘evict’ the other, no one side can overpower the other, and any attempt to take over any part of territory on either side of LoC would be viewed as a de facto attack on the territory of the other state.

This time Pakistan has responded with a lawfare approach to the Indian attempted warfare approach, by writing a letter to the secretary general of the UN.

This letter is very significant. It invokes the jurisdiction of the secretary general under the UN Charter since he is directly connected with the Kashmir issue, inter alia, on account of two specific reasons; firstly under the mandate conferred on him under UN Security Council Resolution 1172/98 and secondly because the UN Observer Mission and its budget is routed to the UNSC through the UNSG office.

If Pakistan shows restraint and presses this course further, it will gain more advantage simply because it has been proven that the well-thought-out lawfare move eventually outclasses the short-term warfare move.

If both the states have to contest they should do so through lawfare mechanisms as opposed to the warfare approach.

The writer is an advocate of the Supreme Court and served as the federal law minister during the last caretaker set-up.

Published in Dawn, October 25th, 2014



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