Defensive Lawfare as a Shield Against Global Authoritarianism

Spurious claim: President Nicolas Maduro speaks to supporters after a referendum on incorporating the Essequibo region into Venezuela. Image: Associated Press / Alamy

With their creative use of legal instruments against authoritarian states, both Ukraine and Venezuela’s neighbours are demonstrating the importance of protecting the rules-based international order.

A populist strongman leading an illiberal democracy. A fraudulent referendum to legitimise a massive landgrab from a besieged neighbour. A total disregard for the rules-based international order. The script is becoming all too familiar as we move into the middle of what is proving to be a turbulent decade. The stage? If you thought of Russia and its war of aggression against Ukraine in Europe, you guessed correctly. If you thought of Venezuela and its disconcerting recent actions towards Guyana in South America, you are also right.

On 3 December 2023, Nicolás Maduro’s regime held a referendum in Venezuela to ask its citizens whether they wanted to incorporate the oil- and gas-rich Essequibo region to the east as a new Venezuelan territory. It mattered not that the land in question comprises two-thirds of the territory of another sovereign country, Guyana. The proposal received an approval of 95%. Even though the voter turnout was less than enough to legitimise an already spurious claim, Venezuelan authorities promptly instructed state companies to immediately begin exploring and exploiting the natural resources of the neighbouring territory.

The tactic seems to be taken straight from the playbook of Vladimir Putin’s Russia, a notorious international ally of Venezuela that has also held fraudulent referendums in an attempt to legitimise its illegal annexation of the Ukrainian territories of Crimea, Donetsk, Luhansk, Kherson and Zaporizhzhia. Ukraine and its allies have effectively deployed the instruments of national power against Russian aggression, most notably in the military, but also in the informational, diplomatic, financial, intelligence, economic, legal and development dimensions. A lesser-known weapon wielded by Ukraine to shield itself against its neighbour’s aggression is ‘lawfare’, a tool that has also been used by Venezuela’s neighbours, including Guyana. This article will summarise both lawfare approaches as they have unfolded in Europe and the Americas.

Ukraine’s Use of Lawfare Against Russia

The term ‘lawfare’ was popularised by Charles J Dunlap in the context of the Global War on Terror. He defines it as ‘the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective’, namely the use of non-kinetic legal options to reach the same result as military action. An example would be using a country’s domestic legal system to remove maritime insurance from a vessel carrying military materiel to an active warzone, thus preventing the ship from reaching its destination without firing a single shot.

Lawfare is becoming increasingly popular among countries like China, Israel and the US. But one of the most remarkable implementations of this nascent concept has been achieved by Ukraine in its efforts to defend itself against continuous Russian aggression. On a dedicated official website unique in its purpose, Ukrainian authorities provide the rationale undergirding their efforts in this new dimension of conflict:

‘The legal front is inconspicuous, but extremely important. Its key feature is that there is no noticeable disproportion in weight with the enemy. It is not subject to force-sharing agreements. Where there are no weapons, there is international law, sanctions and a tribunal. In the West, “legal war” received a special term – lawfare. And on this front, Ukraine (state bodies and state-owned enterprises) is fighting quite well.’

The website also provides an overview of all the theatres of operations where Ukraine is currently fighting this legal battle, including courts located in Hamburg, Paris, Strasbourg and The Hague. An excellent account of these efforts is provided by US Army Judge Advocate General Eric Chang in works published before and after Russia’s full-scale invasion in 2022. He refers to Ukraine’s strategy as ‘perhaps the most systematic deployment of lawfare in an ongoing international armed conflict’. Some of the most salient legal actions filed by Ukraine against Russia have been lodged at such venues as the International Court of Justice (ICJ), the European Court of Human Rights and the International Criminal Court (ICC).

Among Ukraine’s lesser-known legal manoeuvres, Chang draws attention to the innovative use of the investor-state dispute settlement system (ISDS) under International Investment Law. Pursuant to this legal regime, states have duties towards foreign investors located within their borders. Thus, Ukrainian investors located in the occupied territories under Russian control have claimed economic damages as a result of the invasion. In order to do this, and with the full support of Ukrainian authorities, they have creatively portrayed these regions as a kind of ‘Schrödinger’s territory’ that is both international and not international, insofar as Russia is both in effective control (and therefore has legal obligations towards investors for the purposes of the ISDS) and at the same time is not the sovereign or de jure authority of the land (for all other intents and purposes under international law). Investment courts have awarded damages of billions of dollars that can be claimed by seizing Russian assets located all over the world.

The cases of Ukraine and Venezuela’s neighbours evidence an increasingly sophisticated use of legal tools to achieve operational objectives

With all these legal tactics, Ukraine has positioned itself as one of the world’s leading countries in the effective use of lawfare to support efforts to resist foreign aggression.

Guyana’s and Other American Countries’ Use of Lawfare Against Venezuela

Across the Atlantic, we find a similar display of lawfare to contain another authoritarian regime and its destabilising influence in the region. Although the situation in the Americas is different from Ukraine in that it still remains at a very early stage of what is known in military doctrine as the competition continuum, a similar use of lawfare tactics can be observed in this part of the world, where Venezuela’s neighbours have been prompted to resort to some of the same legal venues as Ukraine to contain the disruptive effects of Maduro’s domestic and international policies.

In 2018, Guyana filed a claim against Venezuela at the ICJ concerning the legal validity of an arbitral award from 1899 defining the land boundary between the two countries. As part of the same proceedings, Guyana recently asked the ICJ to issue provisional measures to prevent Venezuela from holding its illegal referendum concerning the Essequibo region. A couple of days before the referendum, on 1 December, the ICJ ordered Venezuela to ‘refrain from taking any action which would modify the situation that currently prevails in the territory in dispute, whereby the Co-operative Republic of Guyana administers and exercises control over that area’. The Court also reminded the parties that its provisional measures are binding, for which it interestingly cited the precedent of the provisional measures ordered by the same tribunal in the case of Ukraine against Russia concerning the Genocide Convention. The dispute remains pending at the ICJ, whose jurisdiction over this case Venezuela does not recognise.

Another venue where both Ukraine and Venezuela’s neighbours are deploying their lawfare efforts is the International Criminal Court. In 2018, six American countries parties to the Rome Statute – Argentina, Canada, Colombia, Chile, Paraguay and Peru – referred the situation in Venezuela (also a state party) to the ICC’s Office of the Prosecutor due to alleged crimes against humanity committed by the Maduro regime which have resulted in massive human rights violations and an unprecedented migratory crisis spanning the length of the Americas. The Office of the Prosecutor is currently investigating the allegations.

Similarly, in 2019, a group of American countries – including Argentina, Brazil, Colombia, Guatemala, Haiti, Honduras, El Salvador, the US, Paraguay, the Dominican Republic and Venezuela as represented by Juan Guaido’s regime, recognised at the time by the Organization of American States (OAS) – activated the 1947 Rio Treaty, a collective self-defence agreement that is the regional equivalent of the NATO treaty in the Americas. According to these states, the massive human rights violations and migratory crisis as a result of Maduro’s authoritarian policies constitute a situation that endangers the peace in the Americas. As a result, the executive organ of the OAS in charge of applying the treaty approved targeted financial sanctions against individuals belonging to the Maduro administration due to their engagement in criminal activities (corruption, money laundering, drug trafficking, terrorism and human rights violations). The states parties to the Rio Treaty also ‘took note’ of the existence of a provision therein (article 8) authorising progressive coercive measures up to and including the use of force, similarly to the UN Charter (articles 41–42). The financial sanctions are to be implemented by each state party to the Rio Treaty within their own legal systems.

Therefore, whether it is by resorting to international judicial bodies, or by invoking a collective security agreement providing for sanctions and other legal coercive measures, several countries in the Americas are making use of lawfare tactics to put pressure on Venezuela’s authoritarian regime in an attempt to achieve the overall strategic goal of stabilising the region in the wake of massive human rights violations and unprecedented migratory flows.

Analysis: Lawfare and the Rules-Based International Order

The cases of Ukraine and Venezuela’s neighbours evidence an increasingly sophisticated use of legal tools to achieve operational objectives, either before or after the threshold of all-out war has been reached.

With its strategic communications messaging as found on its dedicated official website – which admittedly is mainly targeted at foreign audiences – the Ukrainian government is currently spearheading international lawfare efforts to fend off global authoritarianism wherever it may be found.

It is crucial that the rules-based international order continues to be preserved, protected and defended by all countries who believe in the values such an order enshrines

American states, on their part, have taken a more disjointed, ad-hoc approach to lawfare to contain Venezuela, a difference that can be explained by the many voices and interests that have to be coordinated in such a massive region, combined with the lack of pressure emanating from an active armed conflict such as the one Ukraine is facing.

Lawfare can only do so much to contain the advances of malign actors across the world, particularly considering the perennial issue of enforcement of international law. To be sure, damages may be awarded by courts to compensate investors, and judges may issue provisional measures as well as rulings reminding states of their binding nature. However, authoritarian regimes may sometimes avail themselves of the same legal venues that are used against them, as exemplified by Venezuela’s own referral to the ICC accusing the US of committing crimes against humanity as a result of economic sanctions, or Russia’s active involvement in the genocide case at the ICJ despite claiming there is no dispute and that the court has no jurisdiction.

Yet, they may very well choose not to appear before said international courts or simply ignore their decisions in the absence of an international law-enforcement agency capable of making them respect the rule of international law.

Thus, lawfare alone is not enough. As Chang argues, it is high time that lawfare is included among the instruments of national power that make up the toolkit for statecraft in the 21st century. But as Jeremy S Weber also suggests, these instruments of national power, whether conspicuous or inconspicuous, need to work in concert in order to achieve maximum efficacy. This means that lawfare has to be complemented by other measures, including in the informational, diplomatic, financial, intelligence, economic, development and – ultimately – military dimensions as appropriate.

In conclusion, it is crucial that the rules-based international order that is so precious to Ukraine and its international allies continues to be preserved, protected and defended by all countries who believe in the values such an order enshrines. In this sense, if the West is to fully commit to Ukraine’s multifaceted effort to fend off Russian aggression, sanctioning Russia and providing financial and military assistance to Ukraine might not be enough.

Supporting the institutions and frameworks making up the rules-based international order and currently being relied on by Ukraine and Venezuela’s neighbours, including the UN Charter and the Rome Statute of the ICC, would strengthen international lawfare strategies overall by showing authoritarian regimes that there are consequences for their actions, both at home and abroad.

The views expressed in this Commentary are the author’s, and do not represent those of RUSI or any other institution.

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Francisco Lobo

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