Weaponised lawfare as domestic and international threat to Western democracies

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.