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Pakistan’s future facing lawfare strategy

Pakistan faces international challenges that it carefully needs to overcome. Pakistan's position on Kashmir, FATF, war of narratives, international cases, etc., all need a new lawfare strategy.

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At some stage in life, we all come at the fork in the road. We are confronted with the challenge of weighing problems and opportunities and deciding on the course of action to take. Like a snarling ghost staring us in the face, problems tend to make us risk averse and turn a blind eye to opportunities that rear their head alongside problems. The temptation to look inwards and thus miss out on seeing the droplets of opportunities that could erode our ocean of problems is a recurring phenomenon at a group, family and national level.

Weighing problems and opportunities

Like any other country – but in a varying degree – Pakistan also faces the choice between weighing problems and opportunities. The process calls for making difficult choices. At the international level, where Pakistan is a member of the comity of nations, these problems present themselves as the never-ending constellation of issues, threats and hard choices.

Read more: Pakistan in midst of aggressive FATF lawfare

What to do and why? What not to do and avoid at all cost? Which road to take and which ones to avoid? And the ultimate one: when and how to execute what is chosen as the best possible option.

Pakistan’s ‘hard’ choices

From an international perspective, we see Pakistan having been flung (by fate or by choice) in the deep end of the ocean of hard choices. Among others, these choices relate to Kashmir; the end game being played out in Afghanistan; the geo-strategic Hobbesian choice between an emerging power (China) and an entrenched power (US) etc.

Peeling this layer further, we find another set of hard questions and choices: how to extricate Pakistan from the FATF gray list; how to stop it profusely bleeding dollars in international disputes (e.g., Reko Diq); and, perhaps most important of all, how to rewrite a new narrative that makes the world sympathetic to Pakistan’s problems and sacrifices. Equally, each of these problems, dilemmas or hard choices – as one may choose to call them – contain in them seeds of new opportunities.

Read more: The Reko Diq Conundrum and lawfare against Pakistan

At a basic level, each of these hard choices boils down to a challenge. Each challenge, in turn, has its own underlying structure or building blocks. The stark reality that one confronts with an unaddressed or wrongly addressed international issue is that besides resulting in financial loss, it results in a loss of face, global condemnation and erosion of a country’s international standing.

Elements of a good strategy

To its credit, in the last few years, we have seen Pakistan come up with newer strategic goals and newer – hitherto untried – ways of dealing with its international issues.  But ‘strategic goals’ are not the same as ‘strategy’. In his brilliant book on strategy, Richard Rumelt cautions against confusing ‘strategic goals’ with ‘strategy’. He calls good strategy one which has an ‘essential logical structure’ and which contains three elements: ‘a diagnosis, a guiding policy, and coherent action’.

Read more: Misinformation: a threat to Pakistan’s national security

At a basic cellular level, these three elements are the cornerstone of any strategy including a nation’s ‘lawfare’ – the use of law as a weapon of war. Let us examine some of Pakistan’s recent lawfare posturing towards international issues to examine whether it has a sound strategy of dealing with its international issues.

Kashmir:

Kashmir, an existential crisis that has remained the cornerstone of Pakistan’s foreign policy, was once again thrust in the international limelight after India’s abrogation of Article 370 of its constitution. Traditionally, Pakistan has claimed that Kashmir should have become part of Pakistan in pursuance of UNSC resolutions passed over Kashmir. However, this narrative did not

convince the world to side with Pakistan which saw its territorial claims with suspicion, partly due to India successfully convincing the world to view Pakistan as the aggressor. A visible change in Pakistan’s policy could be seen after India’s 5 August 2019, abrogation of the Indian Constitution when echoes of ‘self-determination’ of the people i.e., Kashmiris became more visible.

Read more: Kashmir awaits a peaceful future

In the author’s view, this was a change in Pakistan’s Kashmir strategy wherein it rightly ‘diagnosed’ (to use Rumelt’s term) that Kashmir was an issue of ‘people’ and not of ‘territory’. In other words, Pakistan realized that the challenge was in enabling ‘self-determination’ of the Kashmiris as a ‘people’.

It is hoped that Pakistan’s Kashmir strategy also has, what Rumelt calls, a ‘guiding policy’ – something that would channel the direction Pakistan plans to take to surmount several challenges identified in its ‘diagnosis’. Moreover, ‘coherent action’ in respect of Kashmir will require the country to marshal its right resources and energies in pursuit of the guiding policy.

Coherent action would necessitate Pakistan deciding on proximate objectives (e.g., making sure Kashmir stays visible on the international radar), medium-term objectives (e.g., taking up Kashmir forcefully at different international fora such as the UN Human Right Council) and long-term objectives (e.g., tabling the Kashmir question at the UNGA for it to refer the Kashmir question to the International Court of Justice (ICJ) for an advisory opinion).

FATF:

Perhaps a classic case of a deficient strategy of dealing with a global issue is Pakistan’s handling of the FATF crisis. Pakistan landed in the FATF gray list in June 2018 where it has remained since then. Pakistan was slow to diagnose the problem or challenge: i.e., combatting anti-money laundering (AML) and financing of terrorism (CFT).

Read more: FATF on Pakistan: Politics of Course – but where do we stand?

FATF is a peculiar international challenge for Pakistan and one that emerged at the very cross-section of ‘law’ and ‘politics’. Extricating itself out of the FATF gray list required Pakistan to devise a ‘guiding policy’ that would set out the direction the country would take to combat the challenge i.e. AML and CFT through legislation, as the shape of its lawfare to educate the world about the progress made by Pakistan and to neutralize Indian ‘behind the scenes’ efforts to tarnish Pakistan’s credentials.

Till date, Pakistan’s FATF lawfare has been gauged differently by its proponents and opponents. For the proponents, Pakistan’s success has been its ability to avoid getting blacklisted. For the opponents, remaining gray listed for two and half years is no cause for celebration.

Read more: Op-ed: Political considerations determine voting behavior at FATF

As time is running out before Pakistan’s next FATF review takes place in early 2021, our policy makers would need to decide on whether victory is extricating Pakistan from the gray list or, rather, avoiding getting blacklisted. The former would be a successful strategic outcome for Pakistan while the latter would be a mere short gap arrangement that could further adversely impact Pakistan’s already fledgling economy.

International cases, arbitrations and disputes

Perhaps no other country has suffered the quantum of financial losses that Pakistan has in its international cases. The Reko Diq case is an example where Pakistan suffered a whopping USD 6 billion penalty. Grand claims masquerading as strategy are most starkly visible in this area where previous governments’ claims to have engaged international law firms for advice and assistance has led to no positive outcome.

Unless a cohesive and systemic strategy is devised, Pakistan will continue to bleed dollars. As a starting point, the state should consider setting up a lawfare ministry – a centrally autonomous authority – that is the pivot for all international law issues where centralized decision-making can undo the weak links in the decisional chain and remove bottlenecks. Unless we understand the moving parts of the international system, we will never come to grips with the challenges we face and, consequently, what is required of us to get the job done.

War of narratives

One area where Pakistan has done surprisingly well in the past few years is in the war of narratives. Partly due to India’s current BJP government’s disastrous policies, and partly because of its own efforts, Pakistan has commendably undone some of the fossilized perceptions casting a pall on its international image.

Read more: BJP generates stories for anti-Muslim sentiments

A recent example of effort and fate coming together at the right time are Pakistan’s dossier against Indian terrorism and the EU DisinfoLab Report exposing India’s s sinister campaign against Pakistan. Whilst the former is the consequence of Pakistan’s own efforts to take the war to India’s own backyard, the latter is due to India’s own blunders and commendable efforts by a European NGO. The net result is a win-win for Pakistan. It remains to be seen how Pakistan will strategize and leverage on this unprecedented opportunity.

Conclusion

Instead of a vacuous strategy that reinforces past mistakes, Pakistan’s policy makers need to ask the ‘what’, the ‘how, and the ‘when’ of their strategic choices. Half the answer may lie in asking the right question. Striking a right balance between problems and opportunities has never been more important. Pakistan has reached a crucial fork in the road of hard choices that require careful deliberation and astute planning to overcome the international challenges it faces.

The author is a practicing international lawyer based in the Middle East. He can be reached at: veritas@post.harvard.edu. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.

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