This phenomenon has been of interest to the Latin Americans for some time now. Our current political situation and everyday lives have been constantly affected by its out-turns. Only recently has it been brought to public attention, or used colloquially – even Pope Francis has spoken about it. All in all, and by now, most Latin Americans know what it is even if they don’t know what’s it called.
Besides any everyday knowledge I may have acquired as a Latin American, and in order to write this piece, I had to conduct a little research. I wanted to know what lawfare was like in other regions, and what purposes it did serve. In the end, I chose two very different works for comparative purposes. The first one is called “Lawfare 101” and was written by a retired member of the military, Major Charles Dunlap Jr. The second one is a paper produced by the CELAG (Latin American Strategical Center for Geopolitics), quoted by former Ecuadorian president Rafael Correa in a conference I had the pleasure to attend last December.
A little history.
The term first emerges from military literature, and refers to non conventional war methods in which law is used as a means to attain a military goal. Over time, lawfare lost most of its military implications.
The current usage is rather different. Today we are talking about the wrongful use of legal actions and instruments, in order to prosecute, disable and publicly destroy the image of a political adversary. By combining actions that are legal only in appearance with an overwhelming media coverage, the accused and his or her close ones are pressured constantly. The accused becomes more vulnerable to the unsubstantiated allegations, and eventually he or she loses public support – which is the main goal. The players involved are the judiciary, corporate media and legislators.
Lawfare has become every progressive government’s declared enemy. During decades, progressivism was kept at bay with the aid of puppet authoritarian governments. This experience was very costly, both in lives and money. Furthermore, the military have become somewhat “dysfunctional” in the eyes of public opinion.
In the early 2000s Latin America had retaken the path of progressivism, with very concrete actions. Disadvantageous free trade treaties were repelled. Regional institutions such as UNASUR were created. In this new scenario, the revival of pregressivism, lawfare comes to play.
The greatest achievement of lawfare has to be the establishment of an automatic equivalence: populism and corruption. Since the early 2000s, almost every progressive chief of state has been wrongly indicted or imprisoned in Latin America. The list is long and infamous: Honduran president Zelaya was brought down when he started leaning towards left; Paraguayan president F. Lugo was impeached in 2012; Brazilian President D. Rousseff was impeached in 2016 and disqualified from holding public office for life; former Ecuadorian President R. Correa had to take political asylum in Belgium in 2017; Ecuadorian Vice President J. Glas was imprisoned in 2017, because he refused to lean towards a neoliberal program; former Brazilian President Lula Da Silva was imprisoned for 19 months, during the presidential campaign that polls said he was going to win; former Argentine two-term President and current Vice President Cristina Fernández has endured a judicial persecution that has destroyed her daughter’s health, and many of her former cabinet members remain imprisoned without proof to this day. The list goes on and on.
¿MISMO GUIÓN EN TODA AM. LATINA?
Última presidenta de Brasil: destituída
Anteúltimo presidente de Brasil: judicializado
Vicepresidente electo de Ecuador: preso
Última presidenta de Argentina: judicializada, con pedido de desafuero
Último candidato a vicepresidente K en Arg: preso
— Juan Manuel Karg (@jmkarg) December 11, 2017
“Where have I heard this word before”.
American political scientist first spoke about it in 1973, when he described the theory of “soft coup d’états”. As mentioned before, downright violence has become somewhat unpopular in this, our “civilized” times. However, just when we were convinced that the age of military coups in Latin America was over, the situation in Bolivia proves us partially wrong. President Evo Morales was overthrown last November, with the aid of the military and the political elites. Amidst death threats, Morales and former VP Alvaro Garcia Linera had to take political asylum here in Argentina. From Buenos Aires, the Bolivian leaders regrouped and conducted several meetings with the purpose of choosing a presidential ticket for 2020. Luis Arce and David Choquehuanca were the chosen candidates for president and vice president, respectively. Hours after being nominated, the pair returned to Bolivia and were greeted by a friendly crowd. While Arce was still at the airport, the State Attorney General’s office gave him a notification stating that he had to appear on Wednesday to provide information for an ongoing investigation...less than 24 hours after being nominated.
Recently, the very Pope Francis addressed lawfare in a public speech. Here’s what he said:
“A new form of external intervention in the political scenarios of countries through the improper use of legal procedures and judicial formulations. (…) This ‘lawfare,’ besides endangering democracies, is generally used to undermine emerging political processes and tends to systematically violate social rights. (…) In order to guarantee the institutional quality of states, it is essential to identify and neutralize these types of practices – which derive from wrongful judicial activity combined with parallel multimedia operations.”
Lawfare around the world.
Apparently, the wrongful uses of law we have just described are mostly applied in countries that defy global hegemony. In the United States, the use of lawfare is very foreign to politics and seems to be constricted to the military agenda instead. As major Dunlap would point, “there are many examples of how law can be used to peacefully substitute for other military methodologies.” The most political example I could find there is the use of sanctions, such as the ones the United States issues against Venezuela or Cuba. Those can lead to another type of war, an economic one. In any case, anything is better than an armed conflict. Right? Right?
At a glance, we gather that lawfare and democracy seem to be incompatible. We grew up thinking that separation of powers and the universal right to vote were all we needed to defend democracy: this knowledge is put into question today. Who is to protect us against the unlawful uses of law? That, my friends, is the challenge developing countries are facing today.