Weaponised Lawfare as Domestic and International Threat to Western Democracies
Weaponised Lawfare as Domestic and International Threat to Western Democracies
by Ramesh Thakur at Brownstone Institute
Lawfare, when weaponised, can pose a double threat to democracies. Domestically, the rule of law is an integral component of the theory of liberal democracy, and it underpins the institutions and practices of democratic governance. The expansion of the role of the state in regulating an increasing range of individuals’ and private entities’ behaviour has led to a proliferation of lawfare that can frustrate the ability of governments to govern and, in turn, lessen their legitimacy.
In its international dimension, the rule of law should tame the exercise of power by states and mediate relations between the strong and the weak and the rich and the poor. However, illiberal states have no scope for activists using law to rein in their excesses, and no effective checks can be exercised on the strong behaving badly. The danger is that absent international law completely, we risk a descent into the world of Thucydides, where the strong do what they can and the weak suffer as they must.
Lawfare as a Threat to National Decision-Making
On 11 November (Remembrance Day), no fewer than nine former British military chiefs, all of four-star rank, penned an open letter to Prime Minister Keir Starmer and Attorney General Lord Hermer in the Times, warning that ‘lawfare’ was destroying the effectiveness of the military forces. Consequently lawfare – ‘the use of legal processes to fight political or ideological battles’ – has become a ‘direct threat to national security.’ They wrote:
Today every deployed member of the British armed forces must consider not only the enemy in front but the lawyer behind.
The soldiers’ fear that orders they faithfully carried out in the belief that it was lawful could subsequently be judged to be unlawful and criminal, ‘will paralyse decision-making’ and ‘distort rules of engagement,’ and is already affecting recruitment and retention, especially in the elite special forces, the former chiefs cautioned. General Sir Peter Wall, a former chief of the general staff, subsequently added that elite special forces soldiers were quitting the army amidst fears that they could be hauled into courts decades down the line for missions executed under the orders of the lawful government of the day.
The same caution was the theme of an article in the Spectator UK by Mary Wakefield, also on the same day. Her thesis, based on interviews with former special forces soldiers, was that ‘lawfare is killing the SAS’ (the famed Special Air Services formed during the Second World War). ‘Who’d sign up, knowing that simply following orders’ and carrying out ‘actions that once won them medals for bravery,’ she asked, might some day ‘land them in prison?’
Meanwhile the Home Secretary, Shabana Mahmood, says she will introduce new statutory rules that will direct judges to prioritise public interest and safety over migrants’ human rights when assessing asylum claims. She intends to tighten immigration controls because the existing scale of migrants, asylum seekers, and illegal migrants no longer has the people’s consent and any policy that lacks consent of the governed is not just unsustainable, it will also fracture social cohesion.
As part of the tightening-up process, additional limitations will be placed on lawfare by restricting the grounds for and number of appeals. Articles 3 and 8 of the European Convention on Human Rights (ECHR), which deal with degrading and inhumane treatment and the right to family life, have been broadened by continual judicial interpretation well beyond the limits of torture and immediate family that they originally covered.
Consider the case of one Sahayb Abu, who was convicted of a terrorism-related offence in 2021. Based on reports that he was sharing his extremist ideology with other inmates, he was placed in isolation in a separation unit. His lawyers launched action against the Ministry of Justice under ECHR Articles 3 and 8. On 18 November, a court ruled that segregation was a violation of Abu’s human rights under the ECHR and he could be entitled to compensation for mental health damage.
Michael Deacon, assistant editor at the Telegraph, commented: ‘When an Islamist plotter can take legal action over being isolated in prison – and win – we must ask whose interests the law is defending.’ The paper’s European correspondents wrote recently that liberal Europe overall is also turning its back on the ECHR. It’s not clear that Mahmood will succeed in her goal while remaining within the ECHR.
What’s more, the scope for lawfare keeps expanding because, in response to crises du jour with demands from the public to do something, panicked politicians keep adding more criminal offences to the statutes whose perverse consequences and enforcement efforts prove to be an irresistible honeypot to lawsuit-chasing activist lawyers.
The World Court’s 23 July Advisory Opinion concluded that climate obligations to prevent significant environmental harm and cooperate internationally to uphold fundamental human rights in the face of escalating climate risks, are legal, substantive, and enforceable. Failure to do so leaves a country exposed to claims for restitution from those who have been harmed.
Thus, an international judicial panel has taken the place of states in effectively developing a new legal framework or treaty with which it considers states must comply. Who exactly will enforce the court’s opinion on the geopolitical heavyweights like China, Russia, and America? Furthermore, the judges’ reasoning sets a precedent for the same argument to be repeated in a future pandemic contingency, even for states that may have opted out of the WHO pandemic accords.
The scope for this will be virtually unlimited because of the related pattern of judicial behaviour whereby judges have been flagrantly ignoring both the text of the relevant laws and the democratic will of parliaments giving effect to the democratic preference of voters, all in the name of conventions and treaties being ‘living instruments.’ Lord Jonathan Sumption, a former justice of the UK Supreme Court, holds that ‘The living instrument doctrine is nothing less than a claim to legislative powers without boundaries.’ This is a departure from international law, which binds states only to the specific language of the treaties that they have signed. They are also ‘impossible to reconcile with basic principles of democratic government,’ with courts effectively arguing that their decisions prevail over choices made by voters, he says.
On 14 November, possibly emboldened by the ICJ opinion on climate liability, the UN Special Rapporteur on the Human Right to a Clean, Healthy and Sustainable Environment, Astrid Puentes Riaño, applied to join three Australian Federal Court cases in an amicus curiae capacity. The cases challenge a government decision to authorise Woodside Energy to continue operating its North West Shelf liquefied natural gas project.
I first began to wonder about the relationship between national and international law after the 1971 Bangladesh war, in which Pakistan suffered a heavy military defeat by India. India’s treatment of 90,000 Pakistani prisoners of war was governed by the Geneva Convention, meaning they enjoyed superior international standards of treatment compared to ordinary prisoners in Indian jails. Today, the scale of illegal immigrants and asylum seekers entering the UK threatens to overwhelm the public finances as the UK has the responsibility to ensure their welfare and security under justiciable European and international conventions.
Conventions once signed are notoriously difficult to ‘unsign’ and exit. This has several damaging consequences for Western countries in particular that generally honour international commitments. If so required, they incorporate international legal obligations into domestic law which provides the entry point for lawfare activists to challenge, at considerable public cost and lengthy appeals procedures, efforts to impose government controls on flows of people at scale, or make policy trade-offs between emission reductions, energy security, and affordability, or even foreign policy trade-offs between the obligations of the International Criminal Court and bilateral relations with important partners and allies. In future, the pandemic accords could easily frustrate the efforts of governments to govern. But there are any number of countries where international legal obligations have exactly zero prospect of being enforced in domestic courts.
International enforcement has to rely on the UN Security Council, and only on that body. But five countries were granted permanent membership of the Council and given the power to veto any enforcement action they disliked, either against themselves or against anyone else that enjoys their patronage. This gives virtual blanket immunity to the five and all those they choose to protect.
They also get away with bullying behaviour towards weaker countries, allies (Soviet invasions of Hungary and Czechoslovakia in 1956 and 1968), as well as adversaries (Ukraine in 2022, NATO bombing of Serbia in 1999, US invasion of Iraq in 2003). To punish Russia for invading Ukraine, the US and Europe imposed sanctions. As Russian oil flooded the world market at heavily discounted prices to those prepared to buy, India’s purchase of Russian crude oil skyrocketed to meet the energy needs of desperately poor people. Re-exporting the oil after refining it also helped to stabilise the world oil market. This year Trump imposed punitive tariffs on India of 50 percent, even though there is no international law that India has violated.
The liberal international order, which was established by the US-led West that dominated the world’s geopolitical, legal, financial, trade, and technological architecture, is crumbling. The West embedded the norms and institutions that came to define legitimate state behaviour. The hubris that afflicted the West with victory in the Cold War and belief in the end of history encouraged the empowerment of institutions of global governance across a broad suite of policy domains with liberal assumptions and ambitions. The result was a dense structure of institutions that substituted global technocratic authority for national democratic accountability.
However, as wealth and power shifted from the West to the East, the rising powers asserted the right to a commensurate share in the design and control of global governance institutions. For the first time in centuries, it seems, the dominant global hegemon could come from outside the circle of the Anglosphere countries, not be a liberal democracy nor a market economy, and not be English-speaking. This has generated unease and discomfort in most Western countries worried about an axis of autocracies.
The BRICS grouping of emerging market economies (Brazil, Russia, India, China, South Africa) accounts for a larger share of the world’s economic output in purchasing power parity (PPP) dollars than the G7 group of industrialised countries (Canada, France, Germany, Italy, Japan, UK, USA). BRICS has now grown with the addition of Egypt, Ethiopia, Indonesia, and the UAE in 2025. As an article in the Financial Times put it: ‘This is the hour of the Global South.’
Figures 1 and 2 map the rise of the rest in a visual presentation. There are four important features to note. First, the dominance of the US in the decades after the Second World War was exceptional. In this period, the US accounted for between 35-40 percent of global economic output.
The second feature is perhaps a surprise and counterintuitive. In the 50 years from 1974 to 2024, the US share has more or less held steady between 25 and 30 percent of the world’s GDP. But this is not true of the rest of the major Western economies. The decline in the G7 dominance of the world economy is due not so much to the US as to the other six (G6 in the two figures). On market exchange rates, the G7 were still wealthier than the BRICS with 44.3 and 24.6 percent of world GDP in 2024, respectively (Figure 1). But the five-member BRICS have a larger share (24.6 percent) of global output than the G6 (18.1 percent) even in market exchange rates.
Third, the rise of the rest is even more dramatic when we switch from market exchange rates to purchasing power parity (PPP) dollars for 2024 (Figure 2). On this measure the BRICS-5 are significantly ahead of the G7 (34:28.5 percent) and 2.5 times that of the G6. Furthermore, if we take away China from the BRICS group, then the BRIS-4 have a higher combined share than the G6 (14.6:13.7 percent).
Fourth, as anticipated in the preceding paragraph, the major driver of the rest is the phenomenal economic performance of China. On market exchange rates, it has climbed from between 1.6 and 3.5 percent of world GDP in 1961–90 to 17 percent in the 2020s as the world’s second biggest economy (Figure 1). The rise is even more startling in PPP dollars. On this measure, China’s share of world GDP is nearly five percent more than that of the US (Figure 2).
The Western democracies are suffering blowback from their liberal conceit during the decades in which their dominance enabled them to design and operate the control knobs of the global governance institutions. When illiberal states that were brought inside the international institutional fold grew powerful, instead of experiencing an efflorescence of liberalisation in their own domestic domains they effectively sabotaged the international liberal enterprise.
The West’s discomfort level has risen with the Global South’s ‘geopolitical and geohistorical’ voice being raised with increasing assertiveness in world affairs at a time of multipolar multilateralism. As US Secretary of State-designate Marco Rubio put it during his Senate confirmation hearing on 15 January 2025: ‘The post-war global order is not just obsolete, it is now a weapon being used against us.’
Weaponised Lawfare as Domestic and International Threat to Western Democracies
by Ramesh Thakur at Brownstone Institute – Daily Economics, Policy, Public Health, Society