Between the 2 of November of 2017 and the 6 of March of 2018, the Argentine president Cristina Fernández de Kirchner received three judicial prosecutions, two for alleged crimes of corruption and one for allegedly interfering in the investigation of the AMIA bombing, which occurred in Buenos Aires in 1994.
On January 24, 2018, the Supreme Court of Brazil ratified the sentence against the former president of the country and current best placed candidate in the polls for the upcoming presidential elections, Lula da Silva , sentenced to 12 years in prison for corruption. He ends up in prison in April 2018 and is disqualified for presidential re-election.
On April 9, 2018, the Colombian Prosecutor’s Office executes an arrest warrant for the extradition of the US against Jesús Santrich, the elected deputy of the FARC party responsible for the implementation of the Peace Agreement, for an alleged conspiracy to export cocaine to the USA. Since then he remains in prison, without being able to take possession of his seat in the Legislative Chamber despite there being no accusation against him in Colombia.
On July 3, 2018, an Ecuadorian court ordered an arrest and international arrest warrant against former President Rafael Correa . Previously, on December 14, 2017, Vice President Jorge Glas, accused of corruption, was sentenced to six years in prison. And on June 17, 2018 Pablo Romerowho was part of the government team of Rafael Correa was captured in Madrid, at the request of Ecuador.
The legitimacy granted to the process of judicialization of politics emanates from the consensus on ‘corruption’ as a fundamental problem in Latin America. This premise, laden with formal reason, was manifested by international financial institutions and agencies of the US government that promoted the Structural Adjustment of the State in the 1990s. It has been used to attack governments, political forces and leftwing leaders in Latin America that oppose to the neoliberal adjustments dictated by the IMF, affirming that the “left populisms” present a problem of structural corruption, omitting that corruption is intrinsic to neoliberalism and to the policies of adjustment and austerity.
Lawfare, asymmetric legal warfare, which replaced the doctrine of National Security -war against insurgent- that was taught from the Schools of the Americas, has been used against all those who have successfully implemented alternatives to neoliberal policies. The North expands its strategy to put an end to the governments of the left by politically disabling the leaders who seek to rescue the national sovereignty of their peoples through judicial means.
Legal warfare or ‘lawfare’ is an English word corresponding to a grammatical contraction of the words “law” and “warfare”, which describes a form of asymmetric warfare. A “legal war” that is deployed through the illegitimate use of internal or international law with the intention of damaging the opponent, thus achieving victory in a battlefield of public political relations, paralyzing opponents politically and financially, or immobilizing them judicially so that they can not pursue their objectives or present as candidacies for public office. The”Report of the meeting of experts in Cleveland on September 11 and its consequences”, 2010, describes this application of ‘lawfare’ .
‘Lawfare’ proceeds with intensity . Its planning began years ago while the left in Latin America set in motion more participatory and egalitarian democratic systems. While this was happening, the neoliberal forces led by the US designed the new strategy of fighting and discrediting those political movements that reaped success for the left.
Let’s go back to October 16, 1998. The former Chilean dictator Augusto Pinochet was arrested in London accused of crimes against humanity by an order issued by Judge Garzón at the request of groups of victims’ defenders. The end of the “cold war” caused the strategic disorientation of its victor, the USA. It was essential to define a new enemy that would allow to maintain the military-industrial conglomerate base of the capitalist system that subdued the socialist countries. This period of disorientation allowed the exercise of criminal actions from third countries, the ‘universal jurisdiction’ contemplated in national legislation for years, but impossible to apply during the ‘cold war’, became a powerful tool against authoritarian regimes responsible for crimes against humanity, illicit behavior carried out to suppress people’s longings for change.
They were years of expansion of the ‘universal jurisdiction’. The arrest of Pinochet was followed by judicial proceedings initiated by groups of victims against Argentine, Uruguayan, Colombian, Congolese, American and Israeli military men and politicians responsible for massive violations of human rights.
The response of Western democracies was not to expand universal jurisdiction, but to combat the open opportunity to enforce international law and end impunity for international crimes. The legal counter-reforms of the ‘universal jurisdiction’ in Belgium in 2003 and Spain in the years 2009 (PSOE) and 2014 (PP), are examples of this regression, thus justified:
“(…) Universal jurisdiction may be used for political reasons or for humiliating purposes, and may adversely affect the world order by causing unnecessary friction between States, potential abuses of legal procedures and deprivation of individual human rights” (IBC Revue internationale de droit Penal, 2008/1, Vol. 79).
Those who maintain the current world order learned lessons about the potential of ‘universal jurisdiction’ – easy accessibility, low cost and high efficiency – to use it in their interests. They began to design of new strategies that would allow them to maintain their power and ability to intervene when necessary. Due to the counterproductive political effects that the doctrine of National Security had -torts, enforced disappearances, dictatorships, social protests – since the end of the cold war, the United States has not used as a first option the establishment of authoritarian regimes if it is to them possible to maintain control over any country by means of more democratic appearance.
Legal intervention becomes an effective option whenever there is a plan to achieve the desired goal. The plan requires a tactic – legal-political intervention to co-opt the judiciary and legal operators – resources – schools and training programs for judges and jurists – and objectives: to overthrow the governments that seek to rescue the national sovereignty of their people . The strategy is to discredit the political forces that direct them and electorally disqualify and politically destroy the leaders who lead them.
The precedents of this legal-political strategy are found in the so-called “war against terrorism” launched after 9/11 in 2001. The US tried to create a new interpretation of the law applicable to armed conflicts, trying to make the abysmal difference between domestic criminal law and international humanitarian law disappear. They have tried to impose new legal categories not provided for in domestic or international laws, such as the “illegal enemy combatant” or their unilateral right to “monitor and execute” with which they justify the use of killer drones.
Another step has been the massive judicialization of politics based on the consensus on “corruption”, applied in a generalized way to the leaders of the Latin American alternative left who have tried to guarantee national sovereignty against interference.
Since the beginning of the 21st century, they have begun investing resources in cooptation programs of the judicial institutions of many countries, especially those of Latin America. The “School of the Americas” for the military have been replaced by judicial schools and legal training programs, both in the United States, where judges and legal operators come to receive doctrine, and in the countries of South America, where through of generous funding from the US Agency for Development, USAID, judicial training schools have been created and controlled politically.
In Colombia, since the creation of the training school of the judicial branch “Rodrigo Lara Bonilla”, funded by USAID, the legal system of a ‘continental’ nature – an empire of the written law – provided for in the Constitution has been transitioned to a system of judicial precedent -‘common law ‘American- lacking constitutional support. Now it is the judges of the Constitutional Court who draft the laws through the constitutional review process. In case of ruling that a law does not conform to the Constitution, proceed to give a new wording acting as a second and final legislative chamber.
In Latin America we are witnessing the gradual substitution of inquisitive or mixed criminal systems for the accusatory criminal system in the image of the United States, causing an excessive empowerment of national prosecutors, who in practice operate on instructions, information and ‘indictments’ remitted by the US justice system.
The plan designed for the expansion of ‘lawfare’ has begun to reach its objectives . Dilma Rousseff, Fernando Lugo, Cristina Kirchner, Lula, Jesus Santrich, Rafael Correa … all of them have been the object of this political-legal strategy. The objective is to discredit them and their political forces by equating them with common criminals and disqualifying them electorally.
The judicial branch that allowed Latin America to be one of the continents with the most institutional corruption -in many cases benefiting from it-, which was never able to combat it, has now become a weapon of direct intervention in internal political affairs, at the service of the interests of the oligarchies and conservative foreign and local forces.
The legal war implies a great setback in the processes of institutional strengthening of the countries of Latin America . The Judicial Power should stay out of the political confrontation to avoid repeating institutional failures of other times that caused serious crises of legitimacy and popular disaffection. This interference in political affairs supposes the annulment of judicial independence due to its conscious politicization, and irremediably causes the disappearance of the division of powers that sustains the Rule of Law. Lawfare has become one of the greatest dangers to democracy throughout the world and especially in Latin America.
]]>