Indian Defence Review

“¦ 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 Indias deterrent can be leveraged, there is not guarantee against Pakistani nuclear first use.

The 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.

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.