Law is one of the most momentous cornerstones of humankind. It is crucial in humanity’s long march towards progress and prosperity. Adherence to certain standards and values is inevitable for survival, and law is the instrument that settles these norms in society. Law is a set of rules which regulates behavior and respects the ideas and preoccupations of the society within which it functions. As a discipline, law punishes vice and protects virtue; however, it may also be used to better humanity and interpreted to serve the narrow interests of a particular group, regardless of its wider implications that run counter to broader principles. Therefore, this double-edged sword of law can be invoked as a means of peace or war, and from this bipolarity originates a concept of ‘Lawfare’. No one can ignore the fact that in the twenty‑first century, wars are no longer fought only with guns and bombs; they are fought with treaties, tribunals, and the language of law.
Idea and meaning of Lawfare
Colonel Charles J. Dunlap Jr. coined the term ‘Lawfare’. He defines Lawfare as “a method of warfare where law is used as a means of realizing a military objective”; however, in the two decades since the introduction of the term, the concept of lawfare has expanded into all domains of state power beyond just military operations and encompasses all state actions that employ domestic or international law to achieve a state’s objectives. In practice, however, the use of law aims either to legitimize one’s own actions or to delegitimize opponents’ actions, embroiling an opponent’s resources and time in every possible sphere without limiting it to military action.
In the contemporary world, this has achieved monumental importance as the thin line between civilian and military means and resources is almost disappearing, and these are interchangeably given a color of civilian or military purpose as per the convenience of the parties engaged. The law can therefore be used or misused for narrow interests.
Even war is not limited to kinetic fights but has evolved into a comprehensive contest on the fronts of politics, economy, diplomacy & law and therefore, nations are catalyzing the use of legal instruments in institutions and politics to achieve strategic goals through a hybrid warfare approach, and here lawfare becomes a vital force to bolster legitimacy.
Practical Usage of Lawfare
There are multiple examples of practical usage of lawfare by various nations, but a limited number of instances are worth noting.
A significant aspect of lawfare came forth after the 9/11 attack on the U.S. Twin Towers. This was a time when the US faced an unprecedented loss at the hands of non-state actors and it was therefore a day when war against terrorism was declared by U.S. Every possible attempt was made by the most powerful country in the world to tackle terrorism inimical to its interests with an iron fist and the U.S launched war against Taliban in Afghanistan, Saddam Husain in Iraq, notorious detention and interrogation programmes such as Guantanamo Bay under the pretext of national security. However, as a significant pillar in the development and protection of international law, the U.S could not ignore the fetters it was under, which subjected it to various lawfare challenges.
There is a concept called ‘universal jurisdiction’ in international law, which is defined by the European Center for Constitutional and Human Rights as follows;
“The principle of universal jurisdiction provides for a state’s jurisdiction over crimes against international law even when the crimes did not occur on that state’s territory, and neither the victim nor perpetrator is a national of that state. The principle allows national courts in third countries to address international crimes occurring abroad, to hold perpetrators criminally liable, and to prevent impunity.”
Because of this concept of universal jurisdiction, U.S President George W. Bush was forced to cancel a trip to Switzerland in 2011 amid talks of legal action against him in Switzerland and during his official visit for alleged maltreatment of suspected militants at the U.S extra-territorial prison / detention camp at Guantanamo Bay in Cuba.
Faced with these vulnerabilities, the U.S started signing Article 98 agreements with many foreign governments. These agreements stipulate that a court in the partner country cannot force the requested state to surrender a person or provide assistance if doing so would breach the requested state’s international obligations; rather, the court must secure consent or cooperation from the requested state before issuing any such orders. This adroit use of Rome Statute principles provides U.S. officials immunity from legal action, and partner states entering into this treaty with the U.S. are not obligated to surrender U.S. persons to the jurisdiction of the International Criminal Court (ICC). The U.S. has entered into an Article 98 treaty with almost 100 countries worldwide. This is how smart lawfare is being played.
Another example is the Lawfare project, a U.S.-based pro-Israeli NGO focused on upholding the civil rights of the Jewish people through impact litigation. It has formed a legal war room to bring unity and organization to the various lawyers, law firms, and civic organizations willing to fight for justice for the Jewish people. With ties to an army of 600 lawyers and pro-Jewish law firms across the world, it agitates causes of Jewish interests. One important legal matter is its fight for the extradition of Ahlam Tamimi from Jordan to the USA. Tamimi helped plan and coordinate the 2001 suicide bombing at a Sbarro restaurant in Jerusalem that resulted in the deaths of 15 Israelis and injured 130.
Lessons for India
India’s engagement in lawfare is comparatively less. Nevertheless, it rightly invokes Article 51 of the United Nations Charter, which gives the right to self-defense against Pakistan’s military actions; however, there is a dearth of a comprehensive strategic Lawfare framework. In order to strengthen its position, India should focus on the following interconnected areas:
Treaties and Territorial Disputes
When India put the IWT in abeyance, various pro-Pakistan think tanks came forth to take offense at Indian action and relentlessly attacked Indian rationale, and gradually these critical comments found their way into the Western intelligentsia. This is an opportunity for India to contribute positively to the interpretation of the Vienna Convention on the Law of Treaties (VCLT), even though India has not yet ratified it. There is no express provision in the IWT for unilateral suspension or abeyance of a treaty, so India’s argument of fundamental change in the circumstances for confirming its action is drawn from the VCLT. India must provide teeth to its argument that fundamental change in the circumstances is due to constant terrorist activities sponsored by Pakistan, since the treaty’s preamble states that it has been signed in the spirit of goodwill and friendship, which is no longer true. India’s response to Pakistani arguments, however, is scattered and lacks meticulous point-wise rebuttal from the perspective of international law. The government should immediately constitute a panel of international law experts to prepare detailed responses to all the contestations by pro-Pakistani ideologues.
It is equally important to put in place lawfare strategies against China and Pakistan regarding the China-Pakistan Economic Corridor (CPEC), which passes through illegally occupied parts of Kashmir.
China is also using lawfare against India. Recent incidents of cartographic invasion over large areas in Arunachal Pradesh and clashes in Galwan are in flagrant breach of various treaties signed between India and China, including the Panchsheel Agreement; therefore, India needs to wage a lawfare against China in international forums, India must emphasise every time on all international platforms that China is in frequent violation of international law, bilateral treaties, UN charter and customary law.
NGO and Litigation Strategies
India must develop a special lawfare strategy in its foreign policy. Pro-India NGOs worldwide need to be activated to initiate legal battles in respective foreign jurisdictions and international forums wherever threats arise to India’s national interests. For example, Hafiz Saeed, leader of the terrorist organization Lashkar-e-Tayyiba (LeT), and Syed Salahuddin are designated as Specially Designated Global Terrorists by the United States . India, with the help of U.S based NGOs, may file a suit in U.S courts for extradition of these terrorists to the U.S or initiate litigation against all global banks and companies having a link with these organizations.
India now needs to prepare a list of items that can be weaponized and establish a detailed policy, with the help of international law experts, on how to leverage them in treaty negotiations.
A wide network of legal experts and judges in international law and cross-border dispute resolution is essential. The Ministry of Education and the Ministry of Justice should focus on establishing new curricula, research centers, or even special schools within universities to study foreign-related law and train young lawyers to promote India’s interests at international fora and tribunals.
Conclusion
Lawfare is becoming an integral part of foreign policy. The challenge today is not only to invoke international law for benefit but to shape it so that it becomes a precedent, and here India can take a leaf out of the U.S.’s book. India should have a clear agenda to enhance its participation in every stage of international rule-making, from setting, interpreting, and applying those rules, and to ensure that Indian practices influence the evolution of international law.
Lawfare is no longer optional; it is the new battlefield. India must step in boldly, or risk watching others write the rules of its future.
