12) WARFARE, LAWFARE, AND LEGAL TROJAN HORSES

By Nino Pagliccia

 

We live in times of dramatic changes, moving from a unipolar to a multipolar geopolitical world, where important new players offer new options that promise a more balanced and peaceful world.


If we notice this, I am sure that the United States is also paying attention. The U.S. knows that it is losing its hegemony to other powers like China and Russia. Many other countries are taking notice. Venezuela is certainly one of them.


The U.S. is reacting by increasing its warmongering threats through NATO, by demonizing and sanctioning nations that challenge its domination, and by supporting questionable “partners” for regime change.


We are seeing the struggling gasps of a dying empire, a death that is imminent when measured in historical time. But unfortunately, the empire will not die in peace.


This image might help us understand what is happening today.

 

Warfare tools

 

There was a time – say, last century - when we called conflictive relationships among nations by their direct descriptive name.


Countries declared or announced wars, and sent soldiers to kill each other. They had, and still do have, “rules of engagement”. But this was no engagement to be married. It was truly an “engagement to be destroyed”.


Then we had invasions where one nation would attack another to kill their people - a kind of war that was not announced.


We even had the so-called Cold War that was nothing else than a permanent threat of war.


Today we have quite a wide range of “conflictive relationships” among countries. It’s interesting to see the corresponding proliferation of terminology used in describing those conflicts.


* Undeclared wars. Here we have to be careful how we use the term “war”. For example, there is no war in Syria. There is a war on Syria. Semantics is important here.

* New Cold War. I don’t know what’s new about it. It’s still a permanent threat of war.

* Infowar. The production of false news with media participation in order to undermine the legitimacy and credibility of a government.

* Economic war, caused through sanctions. I’ll come back to that.

* Incitation to commit political crimes. For example, the attempt to kill President Nicolas Maduro and other high officials last August 4.

* Incitation to mutiny. Repeated calls to the military to overthrow a government.

* Coups. We still have those, with a "soft touch" now.

* Soft Coups have been at play in Latin America in the last few years. They oppress and kill people all the same.

* Terrorism against another nation is being widely used by the U.S., not only in the Middle East but also in Latin America and other regions.


This is quite an arsenal of warfare tools that can be used in any combination with the single goal of imposing a regime change.


I recognize some of these tools were also used in the last century or earlier. But today they have become part of the new narrative about conflicts, achieving an extremely dangerous level of recognition and acceptance.


All of these actions are a form of warfare, and all have embedded an element of illegality because they are not used as legitimate self-defense. They are used to subvert democracy. They extend the notion of weapons to situations where everything can be “weaponized” (notice the new terminology) with total disregard to legality, morality, humanity and ethical considerations.


However, one more tool of war is the most incongruous of all: Lawfare.

 

Lawfare

 

Wikipedia gives the following definition of lawfare:  "a form of war consisting of the use of the legal system against an enemy, such as by damaging or delegitimizing them.


It is believed that a U.S. General by the name of Charles Dunlap used the term for the first time in 2001. He defined “lawfare” as the “use of law as a weapon of war,” which he described as “the newest feature of 21st century combat.”


Another similar definition calls lawfare "the abuse of Western laws and judicial systems to achieve strategic military or political ends".


A law expert said, “lawfare is about more than just delegitimizing a state's right to defend itself; it is about the abuse of the law and our judicial systems to undermine the very principles they stands for: the rule of law, the sanctity of innocent human life, and the right to free speech.”


All these definitions point to a blatant contradiction. Lawfare is not for the pursuit of justice; it is not the application of the law, but the opposite. It is the breaking down of the legal and constitutional order of another state for political gain.


U.S. laws that have come out after 9/11 constitute the new tools to repress any resistance in the name of national security, not only in the U.S., but also in other countries.


But other countries are also misusing their own laws in a cruel copycat fashion to repress internal resistance. Think of the cases against Cristina Kirchner, Dilma Rousseff, Luiz Inácio Lula, Rafael Correa, and others.

 

Legal Trojan horses

 

In international agreements or charters, legislation often introduces "exceptions", which invalidate precisely the main thrust of the agreement or charter. This is what I call a "legal Trojan horse" that facilitates the lawfare. I want to give an example closer to home in Latin America, in relation to the OAS.


Last February the illegitimate Lima Group, with no OAS authority, used Article 19 in Chapter 4 of the 2001 Inter-American Democratic Charter to prevent Venezuela from participating at the OAS Summit in Peru. They quoted the following bit from the article: “…any unconstitutional alteration or interruption of the democratic order in a state of the Hemisphere constitutes an insurmountable obstacle to the participation of that state's government in the Summit of the Americas process.”


|But that quote conveniently omitted the very relevant beginning of Article 19, which says, “Based on the principles of the Charter of the OAS and subject to its norms…”

Therefore the 2001 Inter-American Democratic Charter does not supersede, does not invalidate or cancel out the 1948 OAS Charter. It recognizes it explicitly.

I
f we read the principles of the 1948 OAS Charter, the relevant Article 19 of Chapter 4 (not to be confused by the coincidence of the same article numbers in the two different documents) says: “No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic, and cultural elements.”


In my view the 2001 Inter-American Democratic Charter is the Trojan horse, intentionally planted to weaken the OAS Charter of 1948.


I do not believe that the team of international lawyers in 2001 would have made such a gross error, missing the most relevant article of the OAS Charter that prevents precisely what is at the essence of all U.S. actions: Intervention!

 

What to do?

 

I know what not to do. I don’t think we should all become international lawyers or experts to fight back the incongruous use of the law. But we must be sufficiently aware to have a working knowledge of the implications of those interventions in Latin America under the pretense of legality.


Once we understand that interventions in internal affairs of another country are illegal – by tribunal decision or by people’s majority decision - we may use those arguments in our solidarity work wherever and whenever necessary.


We only have a decaying U.S. empire to take on. We can do it if we stick together.


(This is the edited version of a panel presentation delivered via Skype by the author to an event in Toronto on October 13, 2018.)

 

(The above article is from the November 16-30, 2018, issue of People's Voice, Canada's leading socialist newspaper. Articles can be reprinted free if the source is credited. Subscription rates in Canada: $30/year, or $15 low income rate; for U.S. readers - $45 US per year; other overseas readers - $45 US or $50 CDN per year. Send to People's Voice, c/o PV Business Manager, 706 Clark Drive, Vancouver, BC, V5L 3J1.)