legal blowback

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.

11 thoughts on “legal blowback”

  1. “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.”

    In the UK, all convicted prisoners cannot vote, no matter how serious their crime: it is a “blanket ban”. What does the ECHR and the “International Community” think of this?

    UK prisoners ‘could challenge blanket ban on voting’

    Speaking shortly before the court’s ruling [that a voting ban on a French convicted murderer was “proportionate” to the offence] Mr Cameron – who previously said allowing prisoners to vote made him “physically sick” – told LBC Radio: “I haven’t changed my view at all.

    “Our own law has been tested recently and our Supreme Court opined that our law was right and prisoners shouldn’t have the vote, and that’s my view.”

    A government spokesman said: “The European Court [of Justice] has confirmed French restrictions on prisoner voting are lawful.

    “The UK’s ban on prisoner voting stays in place and remains a matter for the UK Supreme Court and Parliament to determine.”


      1. . The European Court of Human Rights has now ruled on four occasions that the UK is violating prisoners’ rights by banning almost all of them from voting. The UK has not yet changed the law in response to these judgments, which go back over a decade.


  2. Amazing, ain’t it. Utterly Orwellian… I think maybe their (western) strategists want the iron curtain again. Because that’s what they’re constructing. They’ve conquered large swaths of territory, and now they think a new blockade would be the best strategy…


  3. Making a judgment against Iran going back to 1983 is interesting — that’s about when Iraq (then US ally) did naughty things in the Iran-Iraq war, with a good deal moreUS support than the 9/11 attackers allegedly got from Iran.

    There may be a case there, if a US or European court were were willing to hear it. That would be also be a way to quiet down skeptics who wonder whether rule-of-law really exists.


  4. Ah, yes, the useful idiot blog! Pathetic, Paul! How you can write a piece on “lawfare” and not once mention the fact that Russia is the absolute worse offender is beyond me. Russia arrests Nadia Savchenko in her own country, illegally ships her to Russia, lies about the whole thing and prosecutes her on bogus charges and yet no mention of that case nor the dozens of other cases where the accused in Russian courts don’t stand a chance of winning? At least in US and EU courts the accused has an excellent chance of winning and often does. Pathetic, Paul.


  5. Yeah, actually it would make sense to cite the Savchenko case, as another example of western hypocrisy. An odious criminal involved in a murder of Russian journalists, she was lawfully tired and convicted – accompanied by hysterical fits of western politicians. All the while people, not even officially charged with any crimes, are being locked in cages at Gitmo, for over 15 years now,… What a shame…


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