International Lawfare – II

By: Hassan Aslam Shad

The previous article provided a brief introduction to “lawfare” as an indispensable tool of 21^st century statecraft. This article will elaborate on the evolving nature of international relations and how, within this framework, certain types of offensive and defensive lawfare become indispensable for a country that wishes to stay ahead of the global curve.

To recap, lawfare, as its name suggests, is the use of law as a weapon. Lawfare, on its own, is neither good nor bad. It is “neutral” in nature. Also, it does not matter that countries deny engaging in lawfare when in reality most countries routinely use lawfare – both as an offensive and defensive strategy – across multiple strategic domains. Lawfare is therefore an unavoidable reality that cannot be wished away.

The world that we inhabit is in a constant state of flux with more than one world power now vying for global influence. Take the case of China whose unprecedented rise has been deemed as the first real challenge to the US-led world order. China’s remarkable rise has also prompted countries to re-assess whether it is a wise strategy to solely rely on the US as an ally. At the same time, countries also face another dilemma: how to simultaneously “balance” relations with two powers involved in a tussle for global domination.

What is common however between the US and China is that they prefer an interpretation of international law that favours their position. Legitimacy is needed by both countries to increase their global clout. For example, US-led Western countries routinely invoke international human rights law and democratic ideals to prompt other countries to endorse their position on issues. Not surprisingly, China also routinely invokes language and interpretations of international law that legitimize its own worldview. It is at this intersection of competing “interests” and “claims” between world powers that challenges and opportunities lie for other countries. In other words, the tussle for global domination between world powers has given rise to a “gray area” that is rife with lawfare challenges but – more importantly – opportunities.  A country with a developed forward-looking lawfare posture would be well suited to know how to use the law to its advantage and avoid being caught on the wrong foot.

Moreover, when countries want to emphasize any issue of international law, they can do so by proposing a new treaty or convention. Lawfare on this front can give a great opportunity to a sponsor country to coalesce support of like-minded countries and develop new law or propose changes to existing law. For example, if a country proposes or sponsors a substantive treaty to regulate aspects of Artificial Intelligence (AI), this can shed positive limelight on the county, enable it to become the global ‘trendsetter’ and thus add an arrow in its quiver of ‘soft power’.  Such initiatives, however, need to be taken promptly but only after having done the required homework.

The proliferation of inter-governmental organizations and NGOs and their use of lawfare as a strategic tool is another important development that has largely gone unnoticed. This lawfare by institutions or institutional lawfare (as I like to call it) can trap countries unaware that either do not have the capacity to understand international requirements or lack the willingness to take their obligations seriously. This is where defensive lawfare becomes crucially important for a country.

Take the case of FATF, short for the Financial Action Task Force. FATF’s mandate is to oversee global compliance with curbs on money laundering and terrorist financing. Over the years, FATF has put countries such as Pakistan, and more recently U.A.E., on its “Gray List”. A country that is put on the FATF Gray List is deemed to have “strategic deficiencies” in its regime to counter money laundering and terrorist financing. Landing on the FATF Gray List can cause huge financial losses for the targeted country. For example, after being put on the FATF Gray list, Pakistan’s economy suffered a colossal loss of US$ 38 billion.

The point to note is this: FATF is not just another inter-governmental organization that lacks the teeth to enforce its decisions. Rather, FATF derives its power through landmark United Nations Security Council (UNSC) resolutions passed in the aftermath of 911 that empower it to impose costs on countries that fail to comply with anti-money laundering and terrorist financing measures. Notably, the member countries of FATF include Western countries that have played an important role in the development of FATF’s laws and enjoy influence within FATF.

As mentioned above, over the years FATF has weaponized its rules on money laundering and terrorist financing against other countries. The legal maxim: “ignorance of the law is no excuse” also applies in international relations. Countries therefore have no choice but to be adequately equipped to counter the FATF challenge. In order to do so, a country should undertake a complete reassessment of its anti-money laundering and terrorist financing laws and ensure that they are updated to in line with “international best practices”.

However, FATF is just one example of an inter-governmental organization with broad powers. There are many other international and regional organization with broad mandates, which have the potential to impose penalties and bring targeted countries in their crosshairs with the result being reputational and financial losses for the targeted countries.

The next article on this subject will elaborate on further types of lawfare in use by countries.

* Hassan Aslam Shad is an international lawyer who specializes in International Lawfare and corporate law. He is a graduate of Harvard Law School, USA, and previously worked at the Office of the President of the International Criminal Court, The Hague. Email: veritas@post.harvard.edu