- Lawfare is ‘best understood as the use of law as a means of accomplishing what might otherwise require the application of traditional military force.
- By engaging in lawfare against Russia, Ukraine is weaponizing international law in the international legal sphere.
- India can approach the ICJ to legally challenge China’s claims to Indian territory in Eastern Ladakh and Arunachal Pradesh and its violations of various agreements signed between the two countries to maintain peace along the India-China border.
- Lawfare as a tool of Indian diplomacy will greatly help to strengthen India’s case of supporting the current rules-based international order against a revisionist power like China which seeks to create an alternative unipolar world order in Asia that would be dominated by China.
Concept of Lawfare
Lawfare has a variety of definitions and there is no single definition which comprehensively covers the concept of lawfare. Charles J Dunlap a modern scholar of lawfare who popularized the term at the beginning of the 21st century, states that lawfare is “best understood as the use of law as a means of accomplishing what might otherwise require the application of traditional military force. Most often, however, it will only be one part of a larger strategy that could likely involve kinetic (lethal) and other traditional military capabilities”.
Some examples where nation-states have engaged in lawfare include legislative measures like the 2022 Chip and Science Act enacted by the United States to protect its strategic industries like semiconductors from Chinese companies on national security considerations although the real reason was its fear of losing ground to geopolitical rivals like China. Another example of lawfare was when in 2016 the Philippines nudged by the United States, initiated legal proceedings against China’s move to claim sovereignty over large parts of the South China Sea, eliciting a favourable arbitral response from the International Tribunal on the Law of the Sea.
China also uses Legal warfare or Lawfare as part of its official three warfare strategy along with Media warfare and Psychological warfare to advance its territorial claims in the South and East China Sea and along the disputed India-China border.
By engaging in lawfare against Russia, Ukraine is weaponizing international law in the international legal sphere. The disaggregation of multiple cases against Russia before multiple international institutions is Ukraine’s response to Russia’s repeated violations of Ukraine’s territorial integrity and sovereignty since the Russian annexation of Crimea in 2014.
Russian and Ukrainian Attitudes on International Law
Legal scholar Lauri Malksoo argues that Russian perceptions of international law are rooted in a unique historical, political and religious identity. In Malksoo’s view, this Russian identity can be traced to the Byzantine civilizational origins that elements of modern Russian political society harken back to in their writings and thesis. Malksoo writes “In particular Moscow is not seen as a guardian of international law but still a derzhava (great power) with imperialist reflexes that is inclined to use international law in a primarily instrumental way. The real foundation of Russia’s current concept of international law has become the idea of the ‘Russian World’, russkyi mir, a civilizational idea”.
Through this lens, the significance of Kyiv and Ukraine as the cradle of Russian civilization and Orthodox Christianity translates into a Russian perception that Ukraine is within the Russkyi Mir, that it is an inextricable component of the Russian identity. As such in Russia’s perception international law is superseded by elements of the Russkyi Mir; international law regarding state sovereignty is flexible and not sacrosanct if states within Russia’s ‘civilizational’ sphere of influence threaten to leave Moscow’s sphere of influence. Georgia’s shift towards NATO in 2008 and Ukraine’s potential shift towards the European Union in 2014 which resulted in the subsequent Russian annexation of Crimea in 2014 were perceived as threats to this perceived Russian sphere of influence by the Russian state.
Ukrainian attitudes towards international law were originally split between Russian and Western approaches. However, the Euromaidan protests and the Russian annexation of Crimea in 2014 along with the Russian-supported separatist insurgency in Eastern Ukraine have pushed the Ukrainian legal community further towards Western interpretations of international law. Upon interviewing members of the Russian, Ukrainian, and Georgian legal circles to determine if post-Soviet states “speak’’ international law differently, legal scholar Cindy Wittke argues that “Pointing to Russian legal exceptionalism, Ukrainian lawyer and non-lawyer communicators of international law see themselves as a vanguard challenging and defending the regional and international legal and political order against Russian violations”.
Ukraine’s use of international law against Russia is connected to the shift in Ukraine’s domestic politics following the ousting of Ukraine’s Pro-Russian president Victor Yanukovych in 2014 and the onset of the Russia- Ukraine conflict following Russia’s annexation of Crimea in 2014 and its subsequent support for pro- Russian separatists in eastern Ukraine. It is this shift that explains Ukraine’s decision to sue Russia in international courts and pursue a lawfare litigation effort.
Ukraine’s Lawfare Against Russia
There are at least five international law forums that Ukraine has simultaneously activated against Russia.
Immediately after Russia invaded Ukraine in February 2022, Ukraine moved the International Court of Justice (ICJ) again, accusing Russia of violating the United Nations Genocide Convention of 1948. Ukraine has managed to obtain an order from the ICJ that Russia should immediately halt its military actions against Ukraine till the court decides on the issue of the breach of the Genocide Convention. Ukraine managed to obtain an order from the ICJ that Russia should immediately halt its military actions against Ukraine till such time the court decides on the issue of Genocide. However, Russia has refused to comply with this order from the ICJ, which it is bound to comply with as per Article 94 (1) of the UN Charter, and has continued its military offensive.
Ukraine has moved the Strasbourg-based European Court of Human Rights (ECtHR) against Russia filing multiple petitions since 2014. The latest one is Ukraine v. Russia (X) filed after the Russian invasion of Ukraine in February 2022. According to the Ukrainian government, “the Russian Federation has engaged in targeted, indiscriminate and disproportionate attacks against civilians and their property across Ukraine in breach of all applicable norms of international law. The ECtHR in March 2022 indicated to Russia to refrain from military attacks against civilians and civilian objects. Russia has ignored the ECtHR’s ruling and continues its military campaign against Ukraine.
The Hamburg-based International Tribunal of the Law of the Sea is also busy dealing with a case brought by Ukraine against Russia in 2019. This case is based on Russia detaining three Ukrainian naval vessels. Ukraine argues that “At the time of their seizure by the Coast Guard of the Border Service of Russia’s Federal Security Service, the three Ukrainian naval vessels were in the Black Sea travelling away from the coast of the Crimea Peninsula and toward their home port of Odesa”.
Ukraine also argues that “According to Article 290, paragraph 5, of the United Nations Convention on the Law of the Sea, Ukraine requests that the International Tribunal for the Law of the Sea prescribe provisional measures in the dispute between Ukraine and the Russian Federation concerning the immunity of three Ukrainian naval vessels and the twenty-four servicemen on board”.
The Hague-based International Criminal Court (ICC), is also involved in the Russia- Ukraine conflict. Although Ukraine is not a signatory to the Rome Statute that created the ICC, Ukraine has accepted the court’s jurisdiction through a declaration under Article 12 (3) for war crimes taking place on Ukrainian territory from 20th February 2014, without any temporal limitation. As a result, allegations of war crimes in the ongoing Russia- Ukraine conflict are also covered. The ICC issued an international arrest warrant for Russia’s President Vladimir Putin and Mrs Maria Alekseyevna Lvova-Belov, a Russian politician and the Russian Commissioner for Children.
The ICC arrest warrant alleges that both are responsible for war crimes, namely the “deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation”. Such acts qualify as war crimes under articles 8(2) (a) (vii) and 8(2) (b) (viii) of the ICC’s Statute, the Rome Statute of the International Criminal Court.
Ukraine has also been backing its companies to make use of the Investor-State Dispute Settlement (ISD) mechanism under the 1998 Ukraine-Russia bilateral investment treaty (BIT) to challenge Russia’s seizures of Ukrainian companies in Crimea. The ISDS provision in a BIT can be used by a foreign investor against the other state, not its own. The Ukrainian companies in Crimea are in a territory that has been under Russian control since 2014. Thus, they have invoked the BIT against Russia and cleverly used the international law of occupation before ISDS tribunals to expose Russia’s “illegal” occupation of Crimea since 2014.
Thus, Ukraine has been quite successful in this strategy as well as in its overall lawfare strategy as a large number of countries in Europe and the United States are backing Ukraine’s quest to hold Russia legally accountable at multiple judicial forums such as the ICJ, ECtHR, and the ICC.
Lessons for India and the need for India to develop expertise in lawfare
India can learn a lot from Ukraine’s skilful use of lawfare in dealing with security challenges it faces from its neighbours. For instance, India should use international law to hold Pakistan accountable for its support and training to United Nations-designated terrorist groups such as the Lashkar e Taiba and Jaish e Mohammed who have conducted terrorist attacks against Indian military personnel and civilians. Similarly, India should mount an international challenge against China for consistently breaching several bilateral treaties that the two countries have signed for border peace.
The larger strategic and political objective behind India’s use of lawfare against Pakistan and China should be the following:
- First, to show that China and Pakistan are acting in breach of international law and thus their actions are illegitimate
- Second, to put pressure on China and Pakistan to stop their actions that hurt India’s national and security interests
- Third, to force China and Pakistan to respond to allegations of breaching international law and to allow the international community including international courts to hold them accountable for their illegitimate actions.
However, the successful use of lawfare requires two essential requirements. First, enormous state capacity in the area of international law, which India lacks because generalist diplomats and International relations experts set the narrative on foreign policy. Second, a clear and long-term vision to deal firmly with adversaries like China by bolding resorting to lawfare at international forums. This requires a paradigm shift in the way India conducts its diplomacy and foreign policy, particularly its strict emphasis on bilateral negotiations in resolving territorial disputes with China and Pakistan. Such a stance has limited India’s ability to use lawfare as a tool of diplomacy.
The rise of China presents India with the urgency to increase its repertoire of foreign policy instruments. Between the soft strategy of shaming and protest that it has followed on China’s Belt and Road Initiative (BRI), and the hard but politically costly military standoffs in Doklam (2017) and Eastern Ladakh (2020-2024), India can find a useful tool in lawfare.
India is opposed to the involvement of external parties in mediating to help improve its relations with Pakistan citing the 1972 India- Pakistan Shimla agreement. This has not stopped the Indian government from approaching the International Court of Justice (ICJ) in 2017 to stop the execution of Indian citizen Kulbhushan Jadhav who was convicted by a Pakistani army court of being an Indian spy. The ICJ ruled in July 2019 that Pakistan must undertake an “effective review and reconsideration of the conviction and sentence of Mr Jadhav and also grant consular access to India without further delay”.
The ICJ ruling in 2019 was a successful case of lawfare by India as it was able to convince the ICJ that Jadhav was illegally detained and tortured by Pakistani authorities and that he was tried and convicted by the Pakistan army court without proper legal aid being provided to Jadhav to defend himself. Similarly, India can approach the ICJ to legally challenge China’s claims to Indian territory in Eastern Ladakh and Arunachal Pradesh and its violations of various agreements signed between the two countries to maintain peace along the India-China border.
India can also use lawfare to challenge the legality of the China–Pakistan Economic Corridor (CPEC) which passes through Pakistan-occupied Kashmir which India considers a violation of its territorial integrity and sovereignty. While lawfare will not change Pakistan and China’s stance towards India on territorial issues it will help India in terms of its public diplomacy by promoting the narrative that it largely abides by established international norms regarding state sovereignty and territorial integrity.
Thus, the use of international law or lawfare to advance national interests must be institutionalized as a tool of Indian diplomacy. Lawfare as a tool of Indian diplomacy will greatly help to strengthen India’s case of supporting the current rules-based international order against a revisionist power like China which seeks to create an alternative unipolar world order in Asia that would be dominated by China. However, India cannot integrate international law into its foreign policy overnight- the Indian diplomatic establishment needs the support and counsel of Indian academia, which has some way to go to further international law research.
References:
- Dunlap Jr, Charles (2017 ) : Lawfare 101 : A Primer . Army University Press. Retrieved from https://www.armyupress.army.mil/Journals/Military-Review/English-Edition-Archives/May-June-2017/Dunlap-Lawfare-101/
- International Criminal Court ( 2023 ) : “Situation in Ukraine: ICC Judges Issue Arrest Warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova ” . International Criminal Court. Retrieved from https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and
- Malksoo, Lauri (2015): Russian Approaches to International Law, Oxford: Oxford University Press.
- Miska, Eduard J (2021). Frozen Lawfare: Examining Ukraine v. Russian Federation and the Role of International Law in Frozen Conflicts. The Pardee Atlas Journal of Global Affairs. Retrieved from https://sites.bu.edu/pardeeatlas/advancing-human-progress-initiative/back2school/frozen-lawfare/.
- Ranjan, Prabhash ( 2022 ) . Ukraine’s Lawfare against Russia. Observer Research Foundation. Retrieved from https://www.orfonline.org/expert-speak/ukraines-lawfare-against-russia.
- Russian Federation- Ukraine BIT (1998). Investment Policy Hub. Retrieved from https://investmentpolicy.unctad.org/international-investment-agreements/treaties/bit/2859/russian-federation—ukraine-bit-1998-
- Sukumar, A. (2018). How India lost its way in the study and use of international law. Retrieved from https://thewire.in/diplomacy/india-is-lagging-behind-in-the-study-and-use-of-international-law
- Wittke, Cindy ( 2020 ) . The Politics of International Law in the Post-Soviet Space: Do Georgia, Ukraine and Russia Speak International Law in International Politics Differently? Europe-Asia Studies, Vol 72 ( 2 ), pp 180-208
Dhruv Ashok is a PhD research scholar from Christ (Deemed to be University), Bangalore. He writes on current affairs and international politics. His areas of interest include conflict resolution and historical narratives. Views expressed are the author’s own.
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