Lawfare and the Integrity of Legal Institutions: When Litigation Becomes a Geopolitical Tool
Law is meant to restrain power, not serve it. Yet across global politics, a different pattern is emerging: states, political movements, and even private actors are increasingly turning to courts not merely to resolve disputes, but to wage geopolitical battles by other means.
Law is meant to restrain power, not serve it. Yet across global politics, a different pattern is emerging: states, political movements, and even private actors are increasingly turning to courts not merely to resolve disputes, but to wage geopolitical battles by other means. The practice is often labelled 'lawfare' - the strategic use of legal systems to achieve political objectives.
The concept itself is not new. But its scale, sophistication, and frequency are. Litigation is being deployed to shape narratives, pressure adversaries, alter diplomatic dynamics, and influence public opinion. While these tactics can appear to advance accountability, they can just as easily distort the legal system they rely on.
For the Legal Integrity Project, the central question is not whether courts should address serious wrongdoing. They should. Rather, it is whether legal processes can maintain their credibility when they become increasingly entangled with political strategy.
The Strategic Logic Behind Lawfare
Lawfare operates on a simple calculation: legal forums confer legitimacy. Court filings are not just legal documents - they are public signals. Allegations become headlines. Investigations become political tools. Even unsuccessful cases can shift diplomatic pressure, shape public narratives, or constrain an adversary's room for manoeuvre.
As Orde Kittrie observed in his seminal work on the subject, lawfare represents 'the use of law as a weapon of war' - a phenomenon that transforms legal institutions into instruments of strategic competition rather than neutral arbiters of justice. This transformation is neither accidental nor inevitable. It reflects three intersecting dynamics that help explain the growth of lawfare:
1. Legal institutions now carry profound political weight
International tribunals, domestic high courts, sanctions bodies, and investigative mechanisms can dramatically influence state behaviour. That makes them attractive arenas for political contestation. Kenneth Anderson notes that the 'judicialization of warfare' has fundamentally altered how states perceive and use legal forums, shifting them from marginal concerns to central battlegrounds in international relations.
2. Modern conflicts unfold in the courtroom as much as on the battlefield
States anticipate legal scrutiny. They litigate pre-emptively or reactively to justify military, diplomatic, or economic decisions. Legal scholar Rosa Brooks argues that this has created a 'paradox of lawfare' where the proliferation of legal norms simultaneously expands accountability mechanisms and provides new avenues for strategic manipulation.
3. Public opinion increasingly valorises legal arguments
In an era of deep political polarisation, accusations framed in legal terms - war crimes, aggression, genocide, corruption - carry a moral force unmatched by traditional political rhetoric. As Jens David Ohlin observes, 'the language of international criminal law has become the dominant vocabulary for expressing moral condemnation in international affairs', creating powerful incentives for strategic deployment of legal terminology.
These incentives create fertile ground for lawfare, both domestically and internationally.
Where Lawfare Is Most Visible
A. Human rights litigation used as diplomatic leverage
Domestic courts are being asked to adjudicate situations with scant connection to the forum state. While some cases address legitimate harms, others appear designed primarily to generate diplomatic pressure or reputational impact. Legal scholar Alex Whiting has documented how 'forum shopping' in human rights cases increasingly reflects strategic calculations about where allegations will generate maximum political impact rather than where justice is most likely to be served..
B. Selective use of universal jurisdiction
Universal jurisdiction statutes - meant to address exceptional crimes - are increasingly invoked in cases where jurisdiction is tenuous or evidence incomplete. The inconsistency can fuel perceptions that prosecutions reflect politics rather than principle. Former prosecutor Carsten Stahn warns that 'the promise of universal justice risks becoming a vehicle for universal politics' when jurisdictional claims outpace genuine capacity to investigate and prosecute fairly.
C. Economic pressure through legal claims
Investor-state arbitration, sanctions litigation, and sovereign asset freezes can be strategically deployed to advance geopolitical aims under the guise of economic law. International law scholar Anthea Roberts has examined how economic disputes increasingly serve as 'proxy wars' for broader geopolitical conflicts, with legal tribunals becoming unwitting participants in strategic competition.7
D. Litigation as narrative warfare
Legal filings often serve as primary sources for media narratives. Even if a case fails on evidentiary grounds, the initial allegation may achieve its intended public effect. As David Luban notes, 'in lawfare, the process itself becomes the punishment - or at least the propaganda' regardless of ultimate legal outcomes.8
The Risks: When Legal Systems Become Battlefields
The danger of lawfare is not that legal claims are made - courts exist to hear claims. The danger arises when legal process becomes instrumental rather than principled. This shift carries several risks:
1. Erosion of judicial neutrality
If courts appear to be arenas for political competition, public confidence in their impartiality declines - even when judges remain scrupulously neutral. Political scientist Tom Ginsburg has documented how 'strategic litigation campaigns can undermine judicial legitimacy even when courts rule correctly', as the mere association with geopolitical conflict taints institutional credibility.9
2. Inflation of legal terminology
Accusations escalate quickly: 'war crimes', 'aggression', 'crimes against humanity'. When these terms are used as political weapons without sufficient evidence, their legal meaning becomes diluted. William Schabas, former president of the International Association of Penal Law, cautions that 'promiscuous invocation of the gravest international crimes risks trivialising the very concepts we most need to preserve'.10
3. Distortion of institutional mandates
Bodies created for precise legal purposes become overloaded with political expectations they cannot meet. This undermines both their authority and effectiveness. Former UN legal counsel Larry Johnson has warned that international institutions risk becoming 'victims of their own success' when political actors load them with expectations that exceed their structural capacity and legal mandate.11
4. Retaliatory lawfare
Once one actor deploys strategic litigation, others often respond in kind. Courts become caught in cycles of competing legal offensives, each framed as principled but driven by geopolitical logic. International relations scholar Jack Goldsmith describes this dynamic as creating 'tit-for-tat legalism' that progressively delegitimises the entire framework of international adjudication.12
As former ICJ judge Mohamed Bennouna cautioned, 'The strength of international justice lies not in its reach, but in the discipline of its limits.'13
Why Genuine Accountability Requires Restraint
Critics sometimes argue that focus on 'lawfare' downplays serious allegations. The opposite is true. The Legal Integrity Project's concern is that when legal tools are used strategically, real accountability suffers.
Courts are designed to adjudicate facts, apply law, and deliver reasoned judgement. They cannot - and should not - serve as instruments of political strategy. When they are pulled into geopolitical contests, several consequences follow:
Evidentiary standards weaken under political pressure
States become more reluctant to cooperate with investigations
Judgements risk being dismissed as politically motivated
Legal terms lose precision, and therefore lose force
Accountability must rest on credible, disciplined, evidence-driven process - not on the tactical deployment of legal mechanisms. As Dapo Akande has argued, 'the legitimacy of international criminal justice depends on its resistance to instrumentalisation - the moment courts become perceived tools of politics, they forfeit the very authority that makes them valuable'.14
Re-centring Law on Its Proper Foundations
Lawfare will not disappear. The legal arena is now a central stage for modern geopolitics. But institutions can take steps to protect their integrity:
1. Maintain strict evidentiary discipline
Courts must resist pressure to entertain allegations unsupported by rigorous proof. Former ICC prosecutor Luis Moreno Ocampo emphasised that 'the prosecutor's duty is to pursue justice, not cases' - a reminder that legal proceedings must be grounded in evidence rather than political opportunity.15
2. Clarify jurisdictional limits
Judicial modesty can prevent courts from being drawn into cases better handled through diplomacy or international mechanisms. Legal philosopher Jeremy Waldron argues that 'restraint in jurisdiction is not a retreat from justice but a recognition that legal institutions function best within clearly defined boundaries'.16
3. Increase transparency
Reasoned judgements that clearly distinguish legal findings from political narratives can reduce misinterpretation. Transparency scholar Anne Peters suggests that 'methodological clarity in judicial reasoning serves as the best defence against accusations of bias', allowing observers to distinguish principled adjudication from political calculation.17
4. Safeguard terminology
Legal institutions should protect the meaning of core concepts by using them only where evidence truly supports their application. As Antonio Cassese often reminded his students, 'The legitimacy of international law is not earned through ambition, but through accuracy.'18
Conclusion: Restoring Integrity in an Age of Strategic Litigation
Lawfare reflects a troubling development: legal institutions are being asked to operate far beyond their intended function. The challenge for the international legal system is not simply to adjudicate claims, but to preserve the credibility of the process itself.
For the Legal Integrity Project, the principle is clear: the law must remain a forum for evidence, not a venue for strategy. When courts resist the pressures of political litigation and uphold disciplined legal reasoning, they safeguard not only justice, but the integrity of the entire international legal order.