Lawfare, according to Wikipedia, is ‘the illegitimate use of domestic or international law with the intention of damaging an opponent, winning a public relations victory, financially crippling an opponent, or tying up the opponent’s time.’ It is highly questionable what would constitute an ‘illegitimate use of the law’, but what is true is that certain people are turning to the courts as a political tool, and that some courts seem willing to help them by making what seem to be highly politicized judgements.
In March of this year, for instance, a US court ordered Iran to pay $10.5 billion in damages to relatives of victims of the 11 September 2001 terrorist attacks in New York and Washington. And today the US Supreme Court determined that Iran must pay almost $2 billion to relatives of Marines who died in an attack on their base in Beirut in 1983. Yet in an interview this week, US president Barack Obama opposed attempts to sue Saudi Arabia for its alleged role in the 9/11 attacks. Obama declared: ‘If we open up the possibility that individuals in the United States can routinely start suing other governments, then we are also opening up the United States to being continually sued by individuals in other countries.’ Thus it is o.k. for Americans to sue Iran for $10.5 billion for 9/11, even though Iran was not responsible, but not o.k. to sue Saudi Arabia, even though a link is much more likely.
This arbitrariness has not passed Russians by. Russian officials were particularly riled by the 2014 decision of a Dutch court to award $50 billion in damages to former shareholders of the oil firm Yukos for the allegedly illegal seizure of their assets, despite the fact that the Russian Federation had not ratified the treaty which was being used to pass judgement against it. In a much discussed article this week, Aleksandr Bastrykin, head of the Investigative Committee of the Russian Federation, expressed his frustration, declaring:
Clear examples are the decisions on the Yukos affair, the decision on the murder of former FSB officer Aleksandr Litvinenko, the report of the Dutch security council on the results of the research into the shooting down of Malaysian Boeing MH17, the inquiry by the American FBI into the legitimacy of the award of the right to hold the World Cup to Russia and Qatar in 2018 and 2022, the kidnapping and forcible rendition to the USA and sentencing to a long term of imprisonment of our citizens Viktor Bout and Konstantin Iaroshenko, etc.
Bastrykin is not alone in his frustration. In a 2014 article in the Review of Central and East European Law, Russian legal scholar Mikhail Antonov notes that disenchantment with the application of international humanitarian law has driven Russian jurists to become increasingly conservative and determined to defend Russian sovereignty. This trend culminated this week in a decision by the Russian Constitutional Court to ignore a demand by the European Court of Human Rights (ECHR) that prisoners should be allowed to vote in elections. According to RT, this ‘was the first implementation of a law introduced in December 2015. This act allows the Constitutional Court to overrule the decisions of international courts if such decisions contradict the principle of supremacy of the Russian Constitution.’
To date Russia has had an excellent record in implementing ECHR decisions – far better in fact than many Western European countries. This reflected the importance given to the rule of law by the Russian authorities. I believe that the December 2015 law mentioned above and the Constitutional Court’s decision are therefore steps in the wrong direction. But they are perhaps inevitable consequences of what is seen as the biased implementation of international law – legal ‘blowback’, if you like.
Fortunately, a sign that things might be changing came this week with another court decision – this time by another Dutch court, overturning the outcome of the 2014 Yukos case. The US Supreme Court’s judgement against Iran suggests that the Americans are losing none of their appetite for ‘lawfare’, but the Yukos case suggests that perhaps the Europeans are.