Weaponised Lawfare: The Insidious Threat Eroding Western Democracies from Within and Without, By Ian Wilson LL.B
In a provocative piece for the Brownstone Journal, Professor Ramesh Thakur lays bare the perils of "weaponised lawfare" – the strategic misuse of legal processes to wage political or ideological wars. Far from a fringe concern, Thakur argues this phenomenon poses a dual menace: domestically, it hamstrings governments, undermines military readiness, and erodes public trust; internationally, it exposes Western democracies to asymmetric vulnerabilities while illiberal powers operate unchecked. As the liberal international order frays amid shifting global power dynamics, Thakur warns of a descent into a Thucydidean world where might trumps right. Here, I'll outline Thakur's critique and mount a robust defence, drawing on real-world examples and data to show why this isn't alarmism, it's acall for reform.
Outlining the Critique: Lawfare's Domestic Dagger
Thakur kicks off with the US home front, where lawfare corrodes the pillars of democratic governance. In liberal democracies, the rule of law is sacrosanct, but its weaponisation turns it into a tool for obstruction. Governments, responding to public outcries, pile on regulations, expanding the legal battlefield for activists. Judges, invoking "living instrument" doctrines, stretch treaties beyond their original intent, overriding parliamentary will and voter preferences.
A prime exhibit: The UK's military woes. Thakur cites a November 11, 2025, letter from nine four-star ex-chiefs to PM Keir Starmer, decrying how lawfare paralyses troops. Soldiers fear retroactive prosecution for lawful orders, distorting rules of engagement and gutting elite forces like the SAS. Recruitment plummets as warriors weigh medals against potential prison time. Immigration policy fares no better: Home Secretary Shabana Mahmood's bid to curb appeals under the European Convention on Human Rights (ECHR) clashes with judicial expansions of Articles 3 and 8, turning asylum into a lawfare honeypot. A terrorist like Sahayb Abu wins rights claims over segregation, prompting questions: Whose interests does the law serve?
This isn't isolated to Britain. Thakur extends the critique to emerging domains like climate and pandemics. The ICJ's July 23, 2025, Advisory Opinion deems climate obligations enforceable, opening floodgates for restitution claims, bypassing national sovereignty. Future WHO accords could similarly bind democracies while rogue states ignore them.
Defending the Domestic Critique: Evidence of Paralysis
Critics might dismiss this as conservative scaremongering, but the data and anecdotes stack up. The UK generals' letter isn't hyperbole, it's echoed across media. The Telegraph reported the chiefs' call to disapply human rights laws for soldiers, warning of eroded trust as a "direct threat to national security." The Spectator amplified: Lawfare is "killing the SAS," with veterans quitting over fears of decades-old prosecutions. Even LBC highlighted the joint letter's timing on Remembrance Day, underscoring morale erosion.
On immigration, Mahmood's reforms target ECHR overreach, but as Thakur notes, exiting conventions is thorny. Human rights groups push back, but cases like Abu's victory illustrate the absurdity: A convicted terrorist claims compensation for isolation, per The Telegraph. This fuels public disillusionment; polls show migration lacking consent, fracturing cohesion.
Judicial activism? Lord Sumption's critique aligns: "Living instruments" claim boundless legislative power, clashing with democracy. In Australia, UN Rapporteur Astrid Puentes Riaño's intervention in gas project cases exemplifies global overreach, per Thakur.
Defence rests on practicality: Lawfare doesn't just delay, it delegitimises. When governments can't govern, legitimacy wanes, inviting populism or worse. Brookings warns of "dangerous cracks" in U.S. democracy pillars, including corruption and institutional threats, lawfare fits squarely.
Outlining the Critique: Lawfare's International Imbalance
Globally, Thakur argues lawfare amplifies asymmetries. Western democracies honour international law, incorporating it domestically, inviting challenges that hobble policy. Illiberal states? No such shackles; activists can't sue in Beijing or Moscow. Enforcement relies on the UN Security Council, veto-proof for the P5 (U.S., Russia, China, UK, France), granting impunity.
This blowback stems from Western hubris post-Cold War: Designing institutions with liberal assumptions, now subverted as power shifts East. BRICS (now expanded) outpaces G7 in PPP GDP, signalling multipolarity. China drives this, its GDP share rivals the U.S. in PPP terms. The Global South asserts itself, turning the "post-war global order" into a weapon against the West, as Marco Rubio noted.
Thakur invokes Thucydides: Without law, the strong dominate. But weaponised lawfare ensures only the weak (democracies) are bound, risking anarchy.
Defending the International Critique: Power Shifts and Precedents
Sceptics might argue international law levels the field, but Thakur's asymmetry rings true. The ICJ's climate opinion, delivered July 23, 2025, affirms states' obligations to prevent harm, enforceable via restitution. IISD hails it as historic, binding emissions cuts and cooperation. Yet, who enforces against China, the top emitter? None, while democracies face lawsuits, like Australia's Woodside case.
Power data bolsters Thakur: BRICS+ GDP now tops G7 in PPP (34% vs. 28.5%). Visual Capitalist forecasts BRICS growth at 3.8% in 2025, dwarfing G7's 1.2%. Wikipedia notes BRICS' larger share, with renminbi dominating intra-trade. This "hour of the Global South," per Financial Times, flips Western designs.
Counterarguments? Some claim lawfare defends rights, but in multipolarity, it's a one-way street. As Canada's Peace Diplomacy notes, lawfare's ambiguity incrementally erodes democracies while autocracies weaponise it. American Progress outlines defences like institutional strengthening, but Thakur's point holds: Without reform, democracies self-sabotage.
Conclusion: Reclaiming Sovereignty Before It's Too Late
Thakur's critique isn't partisan, it's pragmatic. Weaponised lawfare domestically stifles action; internationally, it binds the West while freeing rivals amid a power tilt to BRICS. Defended by mounting evidence, from UK military morale crashes to ICJ precedents and GDP shifts, this threat demands urgent fixes: Revisit treaties, curb judicial overreach, prioritise sovereignty. Ignore it, and Thucydides' trap snaps shut. Western democracies must adapt or face atrophy.
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