First Part. In the previous installment, we analyzed what foreign assistance is and, in particular, economic assistance from the United States to Mexico and its interventionist impact in the country. This article will analyze what it is and what it is not. lawfare.
Since the government of Andrés Manuel López Obrador (AMLO) began, the Judiciary systematically opposed the transformation expressed in constitutional reforms, changes to laws, infrastructure works and the reform of the Judiciary itself. Several experts, media and academics have referred to the possibility that Mexico is experiencing a process of lawfarenow against Claudia Sheinbaum, the country’s first president.
However, given the course of history of soft coups d’état, legislative coups, coups of a new type, among other forms of attacks against democratic States developed in Latin America and the Caribbean, it is pertinent to review what it is and what is understood by lawfarewhat characterizes it and what has happened in Mexico.
What is the lawfare
The term lawfare refers to the legal war through judicial-media means. It has economic, political and geopolitical interests. The concept was initially used by American General Charles Dunlap and he used it to describe a “method of unconventional warfare in which the law is used as a means to achieve a military objective.”[1]
He lawfare It is also defined as a political persecution through judicial means and its objective is the expulsion or annihilation of personalities and projects – including political parties – from formal politics. But it is not limited to personalities and projects, it also advances against militancy, social protest and its goal is to strengthen the neoliberal path.
Another characteristic of lawfare It is the manufacturing of consensus carried out by mass media or not, hegemonic or not. But mainly it is the mass and hegemonic media that carry out the establishment of certain matrices of opinion among the population that operate at certain political moments, they can be an electoral campaign, the beginning of a government or take advantage of a political crisis opened by management problems and corruption scandals, mainly.
The fight against corruption has been one of the ways in which multilateral institutions – such as the Inter-American Development Bank, the Organization of American States – and governments – such as the United States – have influenced public policies to standardize judicial powers in America. Latin America that end up reinforcing the neoliberal path, open and market economies. To this end, judicial reforms have been constantly carried out in Latin America and the Caribbean since the 1990s.[2] A clarification is necessary here, because it is not that we are against the fight against corruption – of course it is necessary that this crime be prosecuted – what happens with the lawfare is that corruption becomes a pretext for the judicial-media war exercised from a fraction of the power of the State of a country and has the support of de facto powers.
This type of war operates through the judicial apparatus that tries to establish or erect itself above the other Powers of the Union: the Executive and Legislative Power, thereby expanding its powers, the balance of powers is lost and the selectivity of court cases. As shown by several experts, there is a broad research agenda around the lawfare.[3]
However, not everything is lawfare. The coup d’état cannot be confused with the judicial-media war, because the latter is not a type of coup in itself and the evidence is in cases such as that of Honduras in 2009, where the Legislative Branch and the Armed Forces were the main institutions. Nor did it happen in the case of Paraguay against Fernando Lugo, which, although judicial cases were opened, it was through the impeachment trial carried out by Congress that he was removed from office. Much less is it related to the classic Latin American coups d’état in which the Armed Forces participated.
Nor is every judicial process opened against politicians lawfare. Accepting the previous premise would invalidate the judging, among other things, of corruption and other types of crimes. Or, put another way, the judicial cases opened against politicians – including corruption cases – do not necessarily presuppose that there is political persecution. Here appears one of the characteristics that are of the lawfare: political persecution. That explains why there is talk of lawfare in the cases of Ecuador against members of Rafael Correa’s government and against himself, or in that of Argentina, against Cristina Fernández, since to date the judicial cases opened against her have violated due process and have even gone so far as to fabricate tests, such as the Cuadernos Cause. On the other hand, justice became selective, since it did not operate against acts of corruption and other crimes in the cases of Mauricio Macri and Guillermo Lasso.[4]
The most paradigmatic case of lawfare It is, without a doubt, that of Luiz Inácio Lula Da Silva. The Brazilian president was prosecuted for fabricated crimes that could not be corroborated and thus violated due judicial process. He was so relevant that, with his imprisonment in 2018, he was prevented from participating in the 2019 elections where Jair Bolsonaro won.
The case of Brazil, furthermore, is an example of what a case of lawfare. The judge who tried him without reliable evidence was Sergio Moro, who was prepared by the United States Department of Justice.[5] After the impeachment trial against President Dilma Rousseff in 2014 (incidentally, within the framework of the World Cup), Brazil’s GDP contracted 3.8 percent in 2015 and 3.6 percent in 2016. After Bolsonaro’s victory in 2019, roads, airports, and ports were privatized, the country’s refining capacity was sold to private parties, and an attempt was made to sell Electrobras, the parastatal electricity company. Furthermore, the selectivity of justice left international companies such as Maersk, Jurong, Kawasaki, KeppelFels, Mitsubishi, Rolls-Royce, Samsung, SBM, Sembcorp Marine, Skanska, Techint, Toyo, Mitsui, Toshiba out of the focus of corruption. , Sargent Marine, Astra Oil, GB Marine, Trafigura, Glencore, OceanRig, Pirelli and Sevan.[6]
Therefore, the lawfare It has an economic and geopolitical aspect. It is applied where there are governments far from US foreign policy, which are those that try to change the neoliberal premises of privatization, economic liberalization, greater labor exploitation with loss of social and economic rights. In short, it is a power strategy, through soft means, to change a regime, or reaffirm neoliberalism; It has the hegemonic media and the judicial power to politically persecute certain sectors of politics located on the spectrum of the left or progressivism.
In this sense, we could summarize the above in a table that allows us to easily visualize some characteristics of the lawfare and how they have happened in several Latin American countries.
Table 1. Elements of lawfare in Latin America
Source: own elaboration
In the next installment, the different avenues of the judicial war in the country, its main characteristics and actors, will be addressed.
[1] p. 4.
[5] y
