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Indicators of Lawfare: Assessing the Criminalization of Progressive Politics in Latin America
Valeria Vegh Weis*
1. Introduction
In countries such as Argentina, Brazil, Bolivia, Colombia, Ecuador, Peru, and numerous others in Latin America, the term “lawfare” has been widely used in the media, on social media, or in the speeches of political figures. The term originated two decades ago in the Global North (Dunlap 2001) to counter the invocation and use of international human rights law to criticize U.S. interventions in international affairs; however, it has also been used in the United States to describe the opposite: the use of the law to advance U.S. interests in other countries. Meanwhile, in Latin America and the mid-2010s, the term “lawfare” has been widely used in a different but also contradictory framework, leaving two key questions unanswered. On the one hand, it is still unclear what lawfare means from a Southern perspective and how it differs from its Northern conceptualization. On the other hand, and within the Southern analysis, the question remains as to how to identify whether and how a case fits into this possible conceptualization.
This intervention will begin with a brief discussion of the concept of lawfare as it has been assessed in the literature from the North and the South (2), to later propose a set of indicators to assess whether and how a case can be linked to this conceptualization (3). This is an analysis that includes a dogmatic analysis of the applied criminal law (3.1) and the rules of criminal procedure (3.2), as well as a critical discourse analysis of the media and social media (3.3). This contribution will help to open new avenues for evidence-based analysis of this critical regional phenomenon, including raising several lawfare research questions that still deserve attention.
2. “Lawfare” According to the North and the South
At the beginning of the twenty-first century, U.S. Air Force Colonel Charles Dunlap used the term “lawfare”—a contraction of “law” and “warfare”—and described it in negative terms as the “use of law as a weapon of war” or, in other words, “a method of warfare where law is used as a means of accomplishing a military objective” (Dunlap 2001, 2). He argued that lawfare was a by-product of the “hyperlegalism” deployed by countries other than the United States and the international community to discredit U.S. interventions abroad, which put U.S. national security at risk. However, at the same time, lawfare also started to be used by the United States against other countries, with an increasing number of lawyers incorporated into the U.S. armed forces (Vegh Weis 2022).
From the periphery, actors in Latin America have reshaped this concept in different ways. Some use it to describe the manipulation of a country’s criminal justice system to harm progressive leaders based on accusations of corruption and related crimes. The term appeared in the public debate at the peak of the criminal indictment against Inácio Lula da Silva on the basis of corruption accusations in Brazil, when his lawyers described this as a political-legal hunt and named it “lawfare” (Zanin Martins et al. 2019). Under this view, the criminal cases in dispute constitute a negative phenomenon for democracy. Others claim that describing these cases as lawfare is an attempt to undermine the legitimacy of actual valid criminal processes (Gargarella 2020). They also argue that while lawfare exists, it is not new. Instead, according to this view, lawfare and political persecution existed before the accusations against Lula in 2016 and have been applied to both left- and right-wing leaders (Smulowitz 2022). Per this logic, the criminal cases themselves are a positive phenomenon for democracy.
While lawfare is a standard and historical phenomenon under the positive interpretation, the literature engaged with the negative view has tried to conceptualize its novelty. In this vein, the notion of “lawfare” has been defined as legal-media strategies targeting representatives of the so-called progressive governments to weaken, destabilize, and ban them from politics. Rather than a commitment to fight corruption or misgovernment, this political war through legal-media channels is driven by judicial economic, political, and geopolitical interests hidden from public view. The effects of a lawfare case can be as decisive as deterring a political leader from participating in elections or holding office, affecting the foundation of liberal democracy (Vegh Weis 2022; Zaffaroni et al. 2020; Romano et al. 2019).
From the negative perspective, lawfare involves media corporations, journalists and opinion leaders, the police, embassies, and secret services, with the judiciary as the main protagonist of arguably rule of law-based processes. Notably, the judiciary is the only branch of the government that has not experienced the post-dictatorial transformation that reshaped the executive and legislative powers in the region and, as a result, remains exempt from civil control (Bielsa and Peretti, 2019). Meanwhile, the media—which was also an ally of the military during Operation Condor 1, the network of military dictatorships that ruled in Latin America in the 1970s and 1980s with the military support of the United States (Lessa 2022)—and social media help set up the narrative of “corruption” as a seemingly “intrinsic” characteristic of politics and politicians, disseminating statements such as “they are all the same,” “they all steal,” “we are corrupt countries.” These phrases contain a deeply neoliberal common sense: the state is inefficient, and politicians and militancy are unnecessary. The state should be run by technicians taking politics out of the picture: “more management, less politics” (Romano and Díaz Parra 2018). Paradoxically, one of the effects of lawfare prevents the state from being managed or functioning efficiently, as every lawsuit against public officials makes it difficult for public offices to operate, for infrastructure to be developed, for budgets to be allocated, and, most importantly, for leaders to participate in government within the rule of law without the risk of being criminalized for political reasons.
According to the negative conceptualization, lawfare does not take into account situations where the criminal justice system is biased against non-governmental leaders or grassroots activists, as this represents a broader phenomenon known as the “criminalization of dissent” or “criminalization of activism,” a punitive approach aimed at silencing dissenting voices that has been a core feature of the criminal justice system since its inception (Vegh Weis 2021b). Lawfare, according to the negative strand, is a more recent phenomenon, at least in its broader regional manifestation, specifically targeting leftist political leaders, usually in government. Also relevant, we deploy the notion with a focus on criminal charges, although further discussions should take place to problematize the inclusion of administrative sanctioning processes as part of the phenomenon of lawfare.
In sum, lawfare in Latin America, as conceived through the negative prism, can be described as a new phenomenon that seeks to use the courts as an arena for resolving conflicting political interests and needs. More specifically, it consists of legal actions against representatives of so-called progressive governments, widely covered by the media and social media, and presented as non-partisan interventions against corruption and misgovernance. Even if the targets are portrayed as political enemies without the right of access to due process because they might use it to escape the punishment they deserve, these interventions need not end in a conviction; their aim instead is to cause the political and legal death of the opponents, i.e., to delegitimize or ban them from politics. Rather than being driven by a commitment to fight corruption and misgovernance, these legal-media interventions are driven by judicial economic, political, and geopolitical interests in line with the neoliberal agenda.
To avoid the Anglicism, a relevant concept here is the notion of “dripping” (Zaffaroni 2011). A “dripping coup” (golpe por goteo in Spanish) does not require well-supported charges of serious crimes but is based on the trickle of smaller allegations, which may even consist of frivolous claims without evidence that are presented in the courts or the media, despite the legal impossibility of these accusations advancing to prosecution. The aim is not to convict, but to shape democratic politics through the misuse of criminal law, criminal procedure, media, and social media, undermining the already limited basis of liberal democracy (Vegh Weis 2022).
Let us now consider how lawfare can be assessed in concrete cases.
3. Indicators of Lawfare
3.1. Criminal Law
When acting to the detriment of the principle of legality and in one of the following three situations, criminal law can function as an indicator of lawfare. This involves, first, the use of open-ended offense definitions (e.g., conspiracy, treason, abuse of power). For instance, the offense of “unlawful association” is defined in art. 210 of the Argentine Criminal Code as “tak[ing] part in an association or band of three or more persons to commit crimes for the mere fact of being a member of the association.” To trigger criminal liability under this provision, the mere agreement to commit a crime suffices; criminal liability for unlawful association attaches as soon as three persons agree to commit a crime, even if they change their minds a few minutes later (Zaffaroni et al. 2023).
Second, criminal law can be considered an indicator of lawfare in the face of broad interpretations of offense definitions. In Ecuador, Virgilio Hernández and Paola Pabón were imprisoned for the crime of “rebellion,” which refers to violent actions aimed at rejecting the Constitution and overthrowing the government (García Rivas 1990). However, the accused’s actions were limited to calling for peaceful anti-neoliberal protests (Hernández 2023).
Third, criminal law can serve as an indicator of lawfare through the adoption of an expansive conception of liability as a principal and the distribution of responsibility in the governmental hierarchical chain. For instance, the Argentine judge Claudio Bonadio indicted Cristina Kirchner based on a theory put forth by the German jurist Claus Roxin, which allows persons who occupy the highest echelons of an organized power structure to be charged with crimes as principals even if they did not directly engage in the proscribed conduct. This legal tool must be handled with care because it extends criminal liability by detaching the ascription of liability as a principal from the commission of the act. For this reason, Roxin cautioned that this theory should be used only in cases of crimes against humanity or organized crime such as those that occurred in Nazi Germany (Zaffaroni et al. 2023).
3.2. Criminal Procedure
3.2.a Lack of Impartiality of Judges and Prosecutors
Even though the impartiality of the judge and the prosecutor is a basic right of the accused in a liberal democracy, this is rarely present in cases framed as lawfare. A first sub-indicator of a lack of impartiality is the existence of hidden personal and economic relations between judges or prosecutors and domestic or international opponents of the targets of their investigations. In the prosecution of Cristina Kirchner in Argentina, the judges secretly visited her political opponent and then-president of the country, Mauricio Macri, in the official residency and the governmental palace and even played paddles with him (Hauser 2023).
A second sub-indicator is unauthorized or unlawful changes in the institutional bodies in charge of the appointment and removal of magistrates. This was the path chosen by then-president Lenín Moreno in Ecuador, who ordered the replacement of the members of the Council for Citizen Participation and Social Control, which appoints the Attorney General’s Office and judges, with a group of people opposed to his predecessor, Rafael Correa (Calderón Castillo et al. 2021).
A third sub-indicator of lack of impartiality is the existence of forum shopping, i.e., the alteration of the rules of jurisdiction and the guarantees of due process. In the Lava Jato case in Brazil, the complaint against Lula was assigned to a court in Curitiba, even though the alleged events were in São Paulo (Esteves Meirelles 2018).
Finally, a fourth sign of lack of impartiality consists of the transfer of judges and prosecutors and their replacement by persons aligned with the investigation’s goals, in violation of the constitutional guarantee to be judged by judges established by law (art. 18 of the Argentine Constitution states that no inhabitant of the Nation shall be judged by special commissions, or removed from the jurisdiction of the judges designated by law before the perpetration of the crimes).
Judges and prosecutors might accept the transfer, perhaps because they are promised a promotion or other benefits, or, conversely, fear impeachment or the loss of an expected promotion. Examples in Argentina include the transfer of Leopoldo Bruglia and Pablo Bertuzzi to the Federal High Court by President Macri in violation of existing legal procedures (García Sayán 2019).
3.2.b Political Timing of the Decision
In contrast to the executive and legislative branches, the judiciary often does not operate under external deadlines, allowing it to act whenever it is politically convenient. In this vein, a sub-indicator of political timing is the use of a “fast track” procedure, i.e., to render decisions at an extraordinarily accelerated pace. For instance, in Brazil, Lula was convicted in fewer than 12 months, even though at least seven cases that had been presented before his, had not been resolved by the time of the judgment in his case.
To ensure that at least one case will move forward when needed, another sub-indicator of political timing is the presentation of multiple complaints. Targets of lawfare often have been accused in an exorbitant number of cases: 650 complaints were filed against Kirchner in Argentina, 52 against Correa in Ecuador, 25 against Lula in Brazil and former President Pedro Castillo in Peru (Romano and Maisonnave 2023). Notably, even when these multiple accusations are often very weak and likely to be rejected by the higher courts, well-timed lawfare remains a possibility, provided it is waged during key political moments (e.g., during an election campaign or before a key parliamentary decision).
3.2.c Unconstitutional or Otherwise Illegal Invasive Measures
Lawfare cases often include the use of unconstitutional or otherwise illegal invasive measures, particularly wiretapping and pre-trial detention. In the case of Amado Boudou, Kirchner’s vice-president during her second term, conversations with his lawyer while he was in prison were illegally recorded (CDNA 2021).
3.2.d Legally Problematic Evidence
A sub-indicator of legally problematic evidence that appears in most of the cases under consideration is the use of crown witnesses, a legal instrument that allows those accused of a crime to provide evidence against others in exchange for a reduced punishment. This procedural tool was used to pressure high-ranking officials at Odebrecht to testify against members of the Correa government in Ecuador (Fiscalía General del Estado de Ecuador 2017).
3.3. Media and Influencer Criminology
The third and final indicator of lawfare points to the problematic or illegal dissemination of information on criminal cases in the media and on social media. In this way, voluntarily or involuntarily, journalists (and not legal experts) impact public opinion about crime and punishment in general and in particular cases, thereby acting as “media criminologists” (Zaffaroni 2011) or “influencer criminologists” (Vegh Weis 2022).
A first sub-indicator of media lawfare is journalists’ and influencers’ presentation of the accused as guilty, despite the absence of a conviction. In Argentina, this includes headlines such as “Cristina Kirchner, guiltier and more cowardly than ever” (Majul 2021).
A second sub-indicator exemplifies the power to escalate the situation, transforming a criminal complaint without a conviction into a “moral panic” (Cohen 2001). Mainstream media groups declare that the alleged prevalence of certain types of deviance amounts to an emergency and distort the alleged perpetrators into modern-day demons. This dynamic relies on exaggeration (“the scandal of corruption“), speculation (“everyone in government is corrupt, and this is inevitable“), and negative symbolization (stereotypes of “dirty” politicians who sell their influence to the highest bidder). From 2013 onwards, one of the most common headlines in Argentina was “Se robaron un GDP,” meaning that they stole the entire national budget (launched by a journalist openly opposed to the Kirchner government, Jorge Lanata), associated with attacks blaming the Kirchnerist government for levels of corruption that damaged the entire national economy.
Another sub-indicator of the tendentious media coverage that characterizes a case as lawfare can consist of unlawfully leaking secret information from the criminal cases to the public. In Brazil, the judge in charge of the case against Lula, Sergio Moro, handed over to the mainstream media a private conversation (illegally obtained) between Lula and Dilma Rousseff, which unleashed a scandal (Ribeiro 2018).
Another sub-indicator of biased media treatment points to the dissemination of fake news. In Ecuador, seven days before the 2021 elections, a Colombian magazine published an article falsely claiming that presidential candidate Andrés Arauz (from Correa’s political faction) had received $80,000 from an ELN guerrilla member who had died in a confrontation with the Armed Forces (Calderón et al. 2021).
Finally, beyond media criminology in newspapers, television, and radio, social media has also become increasingly relevant as a means of continually transmitting information to users and shaping public opinion about crime and punishment. This “influencer criminology” comes about as individuals scroll through social networks and read the posts of individuals without expertise, biased journalists, paid users, or (frequently) bots, all of which affect how the public understands what crime is, who commits it, and how to deal with it.
Thus, the final sub-indicator of media and influencer criminology is the presence of news coverage created or fueled by social media bots or paid individuals purposefully disseminating false information. For example, a study of one of the cases against Kirchner in Argentina showed that 80% of the comments on social networks were posted by trolls (Vegh Weis 2021a).
4. Brief Reflections: Toward a Southern Conceptualization of Lawfare
Military coups, as in Bolivia, and the physical destruction of political dissidents, as in the case of Marielle Franco in Brazil, continue to occur. But these traditional options for the persecution of progressive leaders and politicians have become secondary to the now-dominant mechanism of lawfare: taking a political opponent out of the game with a judicial-media golpe por goteo.
In this intervention, we built on existing literature on lawfare in Latin America to suggest directions for a Southern reconceptualization and to identify a set of indicators that can frame the discussion of existing and future cases. This reconceptualization has the potential to deepen our understanding of lawfare in Latin America, by exploring questions such as “who is the usual target of lawfare?” and “which of the identified characteristics of this process are present in particular cases?” Furthermore, the proposed theorization and empirical evaluation framework can be applied to other regions of the world beyond Latin America, in the Global South (e.g., India) as well as in the Global North (Spain) (Bhatia 2024; Cancio Meliá 2024). This will allow us to assess whether lawfare is exclusively a contemporary Latin American phenomenon, or whether it can be detected earlier and elsewhere, even if its features may vary across time and space.
* Research Fellow, Zukunftskolleg, Universität Konstanz; Professor of Criminology, Universidad de Buenos Aires/Universidad Nacional de Quilmes.
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Suggested Citation: Valeria Vegh Weis, “Indicators of Lawfare: Assessing the Criminalization of Progressive Politics in Latin America,” MCLR+ (crimlrev.net) (Oct. 28, 2024) (https://crimlrev.net/2024/10/28/indicators-of-lawfare-assessing-the-criminalization-of-progressive-politics-in-latin-america-valeria-vegh-weis/) [➡︎ pdf]