“Lawfare” new form of warfare
By S. M. Hali
The history of law indicates that the legal process has been closely connected to the development of civilizations. Various societies developed legal processes to deal with social issues and bring a balance in relations to avoid chaos and conflict. Islamic jurisprudence, developed in the sixth century had a great influence on the process of legislature in the west. Resultantly, the name of Mohammad (SAW), the Holy Prophet of Islam is inscribed on the North Wall Frieze of the US Supreme Court building as one of the greatest lawgivers formankind.
The judicial systems depict the lifeline of every nation, providing breathing space and concrete foundations for prospects of sustenance for the weak who have suffered abuse. Fairness of Judicial System resuscitates the entire national edifice through distinguished and equitable verdicts while maintaining symmetrical impartiality. The system ensures provision of justice at the door steps of every citizen irrespective of their color, creed, caste, political affiliation, socio-economic status, prestige and degree of influence. The social order gets reinforced by excellence of judicial system and so is the case of moral values.
It is a transgression that the legal system of the Occident based on manipulative finesse and exploitative abilities of the lawyers. The emphasis is more on winning the case rather than ensuring that justice has been done. It is more important to see how smartly the case has been presented and how strong were the support arguments to influence the honorable Judge. Resultantly, a slick lawyer ensures his/her client to walk free even if he or she is guilty of the crime; simultaneously, a smart prosecutor can persecute the innocent and punishment is meted out to those who are not guilty of the crime while glib tongued advocacy can even overturn a guilty verdict.
To make matters worse, at political level, the law is used as a weapon in which Western laws and judicial system is abused to achieve strategic, military, politico-social and economic objectives. This has given rise to a new terminology, ‘’Iawfare’’, which is rapidly becoming an alternate for “warfare”, where the law is used in place of lethal weapons. The arsenal of “lawfare” comprises negative manipulation of international as well as national human rights laws to accomplish purposes other than, or contrary to, those for which they are originally enacted i.e. ensuring humanitarian practices. At the domestic level, the legal system is negatively manipulated by the state or political parties to implement laws inconsistent with general principles of freedom and democratic norms.
In certain cases war crime trials are held against individuals whose conduct was absolutely according to the existing laws. During the historic Nuremberg Trials, an international tribunal was facilitated to conduct trials and punish captured Nazi officials for commissions, which were perfectly legal in Fascist Germany. Extending the same logic, the War Crime Tribunal in Bangladesh is persecuting Jamaat-e-Islami leaders and awarding the death penalty to leaders of the ilk of Molla Abdul Quader, who was hanged to death. Other leaders of the Jamaat-e-Islami are also facing this farcical trial and are likely to be branded as war criminals and executed summarily. The preposterous charge of aiding and abetting the Government of Pakistan is frivolous. These leaders of the Jamaat-e-Islami were bona fide citizens of Pakistan and supported a legitimate government. If the mutiny had failed, the perpetrators of the hate trials would be facing charges of rebellion, revolt and treason.
South Asia has a rich tradition of jurisprudence, based on the laws of Islam and Manusmriti but the influence of western judicial systems with all their negative connotation of manipulation has crept into South Asia including India, Pakistan and Bangladesh, where sometimes, laws are selectively applied, court cases are managed and efforts are made to win the case under all circumstances. When own cronies become liable to be tried under the law, the laws are either amended or court verdicts are obtained to thwart the case for further hearing.
The advent of ‘Lawfare’ appears to be the substitution of warfare which is based on the misuse of national and international laws. Practical manifestation of “Iawfare” becomes obvious as the West and USA continue to misuse law and wield it as a weapon, where own in-groups are exempted from acts of human rights violations, illegal occupation and torturing the prisoners in jails like it was done in Abu Ghraib prison in Iraq and the torture, torment and slaughter of Afghans carried out by the “Kill Teams” of the US troops. Unfortunately, it’s a quirk of fate or misuse of justice that the perpetrators of the hate crimes have been exempted from any war crime trial for their misdeeds in Afghanistan.
“Lawfare” presents the ugly but the real face of Western powers who achieve their politico-military objectives by using law as a weapon. Such practices need to be condemned and input be provided to ‘Lawfare Project’ – an internet based organization raising a humanitarian voice against “Iawfare” and its grave implications for humanity, in its most draconian form hurting the very factor that legal systems were created to protect.
It is abhorrent to learn that international secret agencies have prepared conspiracies and heinous machinations to target Pakistan through this latest devious weapon of “Iawfare”. Bangladesh is using “lawfare” to settle old political scores, knowing full well that the victims simply sided with and supported their own legitimate Federal Government in 1971. In Pakistan too ‘judicial activism’ and the employment of “lawfare” is being used by the judiciary’s suo moto cases and anti army assertions.
We need to take cognizance of the fact that War Crime Trials and castigating the Pakistan Army and ISI is the worst form of “lawfare”. We should take a leaf from Abraham Lincoln’s famous speech after the US Civil War: “With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds…”