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The Pegasus Scandal: Pakistan’s Potential Lawfare

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By Hassan Aslam Shad, an international lawyer based in the Middle East, and a graduate of Harvard Law School U.S.A. with a focus on international law.   
27 July 2021                       

The news of the Pegasus scandal which involves snooping on journalists and heads of state through a malware developed by an Israeli company called the NSO Group has rocked global corridors.  Let’s admit it: we had been warned all along about the sinister uses to which technology could be put. But hardly a few had anticipated that the sharp edges of technology could be used so fastidiously to pierce through the cloak of privacy and, scarily enough, state sovereignty.

Fittingly, Amnesty International – whose Security Labs exposed the breadth and scope of the Pegasus scandal – has called it a “global human rights crisis”.

The United Nations human rights chief also called the spying on journalists and politicians as extremely alarming which confirmed “some of the worst fears surrounding the potential misuse of such technology.

The global umbrage and trepidation surrounding Pegasus is possibly because intrusion into personal cell phones in today’s time and age is deemed a flagrant violation of the right of individual privacy.

The Pegasus scandal is yet to completely unfold.  Predictably, the NSO Group has covered its tracks by claiming that insofar as sinister uses of technology are concerned, avoiding the same is the responsibility of the user.  However, as the malware has had a constellation of buyers – sovereign states, no less – the global fire alarm has already sounded.

Although not the sole government found using the Pegasus software for spying purposes, India is, unsurprisingly, at the forefront – yet again.

Media reports indicate that the Pegasus software was used by India to spy on Prime Minister Imran Khan’s cell phone. An uproar within India by the opposition and journalists who were snooped on through Pegasus by the BJP government means that the domestic furor within India won’t subside anytime soon. This is good news for Pakistan.

Another point for Pakistan to ponder is that unlike the EU Disinfo Lab report that had unearthed a protracted and relentless disinformation campaign sponsored by India to target Pakistan, but which did not resonate globally due to the involvement of a lone NGO, the Pegasus scandal is a humdinger straight out of a crime thriller. It already has many global takers for the very simple reason that the world has an interest in getting to the bottom of it and holding the perpetrators to account – not because of some altruistic reasons, but because it impacts the entire world.

Unlike the past, this therefore provides Pakistan with a head start. Instead of proving its bona fides to the world before proceeding against India – something that Pakistan has struggled with because of India’s clout and Pakistan’s own limitations – this time around, Pakistan can ride the wave provided it can pull back in the ‘will to act’ which has been edited out of it due to circumstance and choice.

In so many words during his interview with Karan Thapar on 24 July, Pakistan’s NSA Dr. Moeed Yusuf pointedly said that Pakistan does not consider India under the BJP government to be a rational actor. This isn’t only Pakistan’s stated position but a cold hard fact. If global irrationality had a crowning glory moment, India would be anointed king.

What, then, are Pakistan’s lawfare options?

First, Pakistan should anchor its initiative strictly within the confines of a global initiative to act against the perpetrators of a grave international crime that threatens the very foundation of state sovereignty and constitutes a threat to international human rights.  Pakistan must ideally propel this under Chapter VII of the UN Charter as a “threat to international peace and security”. If made to sound as an initiative targeting India, we would end up getting bedeviled with the “us” (Pakistan) versus “them” (India) binary – something that will, in all likelihood, be a non-starter.

Second, with the support of its close allies and by reaching out to countries who aren’t Pakistan’s allies but are affected by this global malevolent campaign, Pakistan should call for convening a United Nations Security Council or General Assembly session to take up the Pegasus scandal.  Pakistan should be at the forefront of this initiative without wasting any further time because public memory is short lived, and this issue can (and perhaps will) die down soon unless it resonates further internationally.

Third, parallelly (or separately if the above option doesn’t work), through its close allies, Pakistan should seek from the relevant UN agencies to commence a global investigation to hold to account all state and non-state actors involved in the crime. That this has the involvement of NSO – an Israeli company – does not directly implicate Israeli government; but it is inconceivable that state patronage isn’t involved in the sale of such technology to India. An investigation that pierces the corporate veil to find out the actors, perpetrators and enablers involved will burnish Pakistan’s global credentials and pile further pressure on India which is already in the crosshairs of global and domestic criticism.

Fourth, Pakistan, should be at the forefront of calls for a new international convention for the prohibition, prevention and misuse of disruptive technologies. With artificial intelligence being a technological blessing as well as an intractable curse, Pakistan should be the bellwether of global initiatives for positive change.

It is time for Pakistan to expand its presence into dimensions that it does not normally occupy.  No doubt, Pakistan’s ultimate objective is to hold India to account for this implacably sinister targeting of its prime minister.  However, even if the desired results aren’t directly achieved or at all, our policy makers must take into account that good strategy is the one that incorporates a variety of actions and interests. Without India losing, Pakistan’s lawfare can still succeed – more than it has in the past – if we are willing to make small adjustments in the right places that can unleash greater positive results for the country.

Disclaimer: The views expressed in the article are of the author and do not necessarily represent the institute’s policy.

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