Thursday, 31 May 2012

Legal warfare: The neglected dimension

IssueNet Edition| Date : 27 Jan , 2012
The legal dimension is usually taken as an after thought, coming to fore post conflict. This is no longer the case. The legal arena is now very much where the conflict plays out, even as the contest continues across the spectrum, in diplomacy, cyber space, and space and through information war. Legal arguments have so far buttressed political positions and information war campaign and will continue to do so. It is time therefore to see the legal sphere as a purposive arena to further conflict strategy.
India presented a plausible case for humanitarian intervention in the 1971 War, even though it deployed the self-defence argument at the UN for its offensive action in East Pakistan.
India has not been wanting in this. It has made a sustainable legal case prior to and during all its wars. That the adversary has also resorted to the same means, not only making its case and under-cutting India’s, indicates that the legal sphere cannot be neglected. For instance, Pakistan had Alastair Lamb write up its narrative of the 1947 War. In the 1962 War, the legal dimension was based on cartography and diverging historical narratives. India presented a plausible case for humanitarian intervention in the 1971 War, even though it deployed the self-defence argument at the UN for its offensive action in East Pakistan. The legal case in the Kargil conflict was so clear that it was sufficient to gain the political and moral high ground for India that India’s restraint in not crossing the LC resoundingly reinforced. The legal dimension is of significance in internal conflict too; witness the legal arguments for and against AFSPA.
Elsewhere, furthering conflict aims in the legal sphere is now critical to engaging in conflict. In Libya, the screws were turned on a beleaguered Gaddafi with the International Criminal Court calling for his arrest. This had precedent in the ICC taking on Sudan’s Bashir earlier in Sudan’s actions in Darfur. This eventually has led up to pressure on Sudan not only to accept a hybrid peacekeeping mission there, but also in its agreeing to allow South Sudan to break away. The legal dimension has been in evidence in the Iraq Wars, particularly the second one in which the case for the war was made in terms of assertive non-proliferation. Currently, the same score perhaps better deserved is witnessed in pressures mounting on Iran. These illustrations suggest that the legal sphere is consequential and is therefore deserving of closer strategic attention here on.
The legal dimension has been in evidence in the Iraq Wars, particularly the second one in which the case for the war was made in terms of assertive non-proliferation.
Currently, the legal sphere is handled by the Ministry of External Affairs as an adjunct to diplomacy. Diplomatic arguments are greatly strengthened by the legal case provided by the legal and treaties division. These feed the information dimension in conflict and in peace time are disseminated by the external publicity division. The military’s input is useful. For instance, copies of the mosaic of maps signed by the Pakistani representative, Hameed Khan, to the 1972 confabulations with Lt Gen Bhagat at Suchetgarh and Wagah were provided timely by the custodians, the Military Operations branch, to bust the Pakistani cover for the Kargil intrusion. However, in light of the legal dimension having acquired greater salience as seen over the past decade, it must now no longer be seen in incidental and opportunistic terms, but as strategic dimension of conflict and in peace time for purposive action.
Appreciating this is the first step to more substantial steps. The other measure would include redirecting the energies of the Judge Advocate General’s branch. Currently, the branch is under routine pressures from a work load comprising administration of the army act and sundry litigations. There is also a deficit of officers with the branch, with representatives only being till the corps level and selectively with RR CIF HQs. The qualifications of the officers are also for shouldering the current work load and less on mastery of international law, law of armed conflict and international humanitarian and human rights law. These are the more significant ones from conflict point of view. The recommendation is for further recruitment from these specialisations. This would enable thinking on ramifications and in-house creation of proficiency. Since the legal dimension has both a defensive and an offensive component, just as for instance does electronic warfare etc, creating specialists in the same would be required. The resources created can then be deployed at operational level headquarters, in media briefing room and deputed to the ministry of external affairs for crosThe dimension needs to figure in training exercises staff course upwards. Its complexities can be worked into the opening narrative and the exercise requirements for information war, media handling etc. At the higher command and National Defence College levels, exercise commanders and public relations staff need to be able to articulate the legal position as also under cut that of Nark and Redland. Familiarity with law would be furthered by introduction to law of armed conflict at levels lower than the senior command course, where it makes its first appearance currently. In fact, the incipient thrust towards specialisation, witnessed from the additional management courses being introduced at the College of Defence Management, should be made use of for ballast for creating and fielding legal specialists. These need not necessarily be from the JAG branch. Officers could specialise by co-opting leading legal faculties in the country and posted thereafter on ‘A’ staff.
It can be anticipated that dimension will be of added significance in India’s future conflicts. Take for instance a hypothetical case of Indian military action brought on by Pakistani terror provocation. Firstly, this would require being justified internationally through proactive diplomacy. The legal supplement to diplomacy would ensure India’s case emerges far stronger than Pakistan’s. Secondly, to drive a wedge between the military and the people in Pakistan the case would require dissemination through information war. In case of temporary occupation of territory across by action of integrated battle groups, the ‘CNN effect’ would come into play. Abiding by the legal requirements on occupation forces as per Geneva Convention IV, to transparently being seen to be doing so and projecting this intent through the media, would help with stabilisation operations.
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But more importantly, legal warfare would help with deterrence. This does not require the outbreak of war, but can be explicated in peace. The Pakistani intent is for nuclear first use. This is a sovereign decision so, while India’s deterrent can be leveraged, there is not guarantee against Pakistani nuclear first use. In effect, every effort must be on to ensure that Pakistan does not break the nuclear taboo. The legal argument against doing will help strengthen self-deterrence in its leadership. Reinforcing the illegality of nuclear weapons short of last resort use, as postulated by the International Court of Justice, should be done. Even though India is not a signatory, the International Criminal Court is available for pressing of a case against the leadership by the international community. This will ensure that there are persona considerations, in addition to the strategic, that will exercise the military decision maker’s mind. Alongside, legal warfare would be to buttress the Indian case for retaliation, in the event, legitimising the manner of its execution.
Potentially, the legal dimension will help further the political aim as much as military victory does, in future. Given the scope of its practice today and its potential for tomorrow, it’s time for legal warfare to seize the attention it deserves.

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