The Power of International Lawfare

By: Hassan Aslam Shad*

We live in a world that continues to change at a rapid pace. In today’s globalized world, countries are interconnected with one another through a complex web of laws, commonly known as international law.

International law exists in various forms. When two countries enter into an agreement with one another it is known as a bilateral agreement. Similarly, when more than two countries enter into an agreement it is known as a multilateral agreement. A prominent example of a multilateral agreement with wide global acceptance is the United Nations Charter. Multilateral agreements can also be regional. For example, Gulf Cooperation Council countries have agreed on several laws that govern their commercial and trade relationships.

The underlying premise in international law is that it is a law between “equals” and that “equals cannot be treated unequally”. The reality however is very different from this. A country’s global stature is determined by factors such as its economic and military might. Most of the development of international law occurred in the post-World War-II era led by the West. Certain Western countries played a important role in the development of international law and they enjoy a disproportionate clout in world affairs.

A principle of international law in the Post World War-II era is to outlaw the use of force by one country against another and limit it to situations of an armed attack. In order words, unless a country is the victim of an armed attack, it does not have the right to use force against the aggressor country.

Given the categoric prohibition on the use of force under international law and the stigma that attaches when a country goes to war, countries now engage in war by “other means” also known as “lawfare”.

In simple terms, lawfare stands for the use of law as a weapon. By engaging in lawfare, countries weaponize rules of international law against an adversary country to achieve a military or non-military objective. While there are no bullets fired when countries engage in lawfare, similar results are nowadays obtained by countries that engage in successful lawfare.

Lawfare has, in many ways, replaced the physical battlefield in the 21^st Century.  Countries are engaged in multiple lawfare battles at international organizations and international courtrooms.  Soldiers have been replaced by lawyers and policy makers who are trained to inflict legal and diplomatic casualties on the adversary country.  Their weapons – the pen and the proverbial ink (strategic planning) – have truly become mightier than the sword with far more devastating consequences.

Lawfare can be seen playing out in several domains which include legal, economic, information etc. By using lawfare, countries endeavour to obtain “strategic space” against the adversary country – something that was previously achieved through war. A prominent example of a successful lawfare is US’s imposition of sanctions on Iran which have seriously impacted Iran’s economy.

Information and disinformation lawfare are also forms of lawfare that can have devastating consequences for the targeted country. Knowledge is a weapon and information is power. Countries wage information lawfare through friendly or aligned media for narrative shaping to damage the credibility of another country and its leaders. Western countries routinely use human rights lawfare through their network of international organizations and NGOs to exert diplomatic pressure on countries. The targeted countries that do not have their own lawfare strategy to defend against such attacks often end up paying a heavy price. As lawfare has become the norm in today’s age, offensive and defensive lawfare should be an indispensable part of a country’s statecraft arsenal.

Countries that have developed indigenous expertise in lawfare also routinely use it to drag adversary countries in expensive and protracted litigation (e.g. arbitration) at international tribunals. International organizations have also become a common battleground for lawfare. A country which has invested in understanding and implementing lawfare can mitigate against the damage caused by campaigns targeting it. Conversely, countries that have not taken lawfare seriously up paying significant costs, both financial and reputational.

Take the case of countries like US, UK, China, and Israel. All these countries have invested in developing lawfare doctrines and in disseminating lawfare knowledge within their military and civilian rank and file. Unbeknownst to many, China is the global leader in lawfare. In China, lawfare has been embedded in the military command and interagency structures. As a result, all of China’s military, political and diplomatic initiatives are supplemented by lawfare for maximum impact.

Since the inception of Vision 2030, the Kingdom of Saudi Arabia has made great strides in economic and social development. The Kingdom is now an envy of the world. It is however inevitable that with such great progress the Kingdom will also be faced with newer lawfare challenges. In my view, it is time that the Kingdom proactively embraces lawfare as an unavoidable reality and takes concrete steps towards devising its own first ever international lawfare strategy.

* Hassan Aslam Shad is an international lawyer who specializes in International Lawfare. 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