Lawfare

Lawfare in Latin America: How to Identify It and What Legal Protection Exists for Businesspeople and Former Officials?

There are criminal proceedings that arise from an investigation; and there are criminal proceedings that arise from a goal. The term lawfare —instrumentalization of criminal law as a tool of persecution— describes the second category: formally legal proceedings whose real purpose is not to clarify a fact, but to neutralize a person: to remove them from public life, destroy their reputation, immobilize their assets, or force their exile.

This article addresses the phenomenon from a perspective strictly technical. It is not our place—nor in any client's interest—to take political stances on governments or situations. What is appropriate for specialized defense is something more useful: identifying the objective patterns what distinguishes a legitimate investigation from a politically motivated prosecution, and to activate the international legal mechanisms designed precisely for such scenarios.

For entrepreneurs, bankers, former officials, and families with transnational wealth in Latin America, this distinction is not academic: it determines whether a red notice succeeds or is annulled, whether an extradition is granted or denied, and whether wealth endures or succumbs.

What is lawfare from a legal perspective?

There is no universal legal definition, but international instruments already contain its elements. When Article 3 of the INTERPOL Constitution prohibits interventions of a political nature; when extradition treaties order to deny extradition if the request seeks to punish someone «because of their race, sex, religion, social status, nationality, or political opinions»; when Spanish Law 4/1985 prohibits extradition for political crimes or when the person may be claimed for discriminatory motives; and when the European Court of Human Rights —since the case Soering v. United Kingdom—prohibits deliveries that expose to treatment contrary to the Convention, the order, without naming it, is describing lawfare.

Operational definition: misuse of criminal and international cooperation mechanisms, under the guise of legality, for purposes unrelated to the function of criminal proceedings.

Objective patterns: how they are recognized

The evidentiary key to lawfare is not in intentions—which are undemonstrable—but in the Verifiable patterns. In our practice, the most recurrent indicators are:

Procedural indicators

  • Revealing chronology: The criminal case is initiated or reactivated immediately after an event unrelated to the proceedings (a corporate breakup, a business decision contrary to certain interests, a change in public position).
  • Internal forum shopping: manipulation of judge or prosecutor assignments, or concentration of cases in specific bodies.
  • Constant imputation mutation The facts change, the charges change, but the defendant remains.
  • Rescissions and Reinstatements of Custody Orders prison orders annulled by the country's own courts and replaced by less restrictive measures—a pattern that the Spanish Constitutional Court became closely familiar with in STC 147/2020.

Extrajudicial indicators

  • Media synchronization: selective leaks from the file that precede or accompany each procedural milestone.
  • Instrumental use of international cooperation: red notifications or INTERPOL broadcasts requested regarding trade or administrative disputes, in friction with Article 83 of the Data Processing Regulation.
  • Preventive asset asphyxiation: disproportionate asset freezes that precede any conviction, aimed at hindering the defense itself.
  • Environmental pressure Satellite imputations to relatives, partners, or lawyers.

None of these elements, in isolation, prove anything. Their documented and chronologically ordered accumulation is what turns a suspicion into an international defense file.

Legal protection mechanisms

1. Before INTERPOL: Articles 2 and 3 of the Constitution and control of the CCF

The File Control Commission may delete notifications that contravene the prohibition of political interventions (Art. 3) or respect for human rights (Art. 2), and since the reform of its procedures, it is even possible to Preventative requestto confidentially warn INTERPOL of the risk of an abusive alert before it is issued. For exposed profiles, it is the first line of containment.

In the extradition procedure

Treaties and Law 4/1985 contain clauses for refusal based on political offense and discriminatory persecution. Spanish constitutional case law—SSTC 32/2003 and 148/2004—further imposes on the courts a duty to investigate When the claimant alleges, with concrete data, a risk of persecution or violation of rights at the destination, a formal check of the papers is not enough. And ruling STC 147/2020 requires a substantive scrutiny of the extradition title. Each of these pieces is an invocable barrier.

3. The European standard: ECHR

From Soering v. United Kingdom (1989), the ECtHR has consolidated the responsibility of the transferring State when there is a real risk of treatment contrary to Article 3 of the European Convention on Human Rights; and its subsequent jurisprudence—including Othman (Abu Qatada) v. United Kingdom— added the delivery ban due to the risk of a blatant denial of justice in the destination country. This standard extends to all delivery decisions made in Europe.

4. International Protection

Law 12/2009, regulating the right to asylum and subsidiary protection, protects against persecution for political opinions. And, under treaties such as the most recent ones signed by Spain, granted asylum operates as a mandatory cause for the denial of extradition. The decision to seek international protection is strategically delicate—it has migratory, patrimonial, and reputational effects—and must be evaluated case by case.

5. Asset protection and compliance

Faced with economic asphyxiation, the response combines challenging disproportionate precautionary measures, documenting the lawful origin of assets, and a preventive compliance architecture that reduces attack surfaces. The best asset defense against lawfare is built before the process even begins.

Common mistakes of those who know they are at risk

  • Wait for the arrest to act. Lawfare is best combated proactively: exposure diagnosis, preventive Interpol requests, mobility planning.
  • Respond in the media without a legal strategy. Every public statement can become part of the opposing record.
  • Document late. The chronology of the pattern of persecution must be reconstructed with dated documents; memory alone is not enough before the CCF or the National High Court.
  • Fragment defense by country. Hiring isolated lawyers in each jurisdiction, without a single strategic direction, produces contradictions that the prosecuting State will exploit.
  • Confusing the political with the legal. In court, it's not the one who shouts the loudest who wins, but the one who proves the best.

A common scenario in practice

A former executive of a state-owned company resigns from his position after disagreeing with certain decisions. Months later, an investigation is opened against him for alleged disloyal management; the initial arrest warrant is annulled by the country's own courts due to defects, but the international claim remains; simultaneously, the case file is leaked to friendly media outlets and A Red Notice is requested. In scenarios like this, effective defense operates on three fronts simultaneously: challenging the request before the CCF for infringement of Articles 2 and 3 of INTERPOL's Constitution, opposing extradition before the National Court with the enhanced reasoning standard of constitutional doctrine, and asset protection by documenting the origin of assets before precautionary measures are issued. Simultaneous coordination between European and Latin American jurisdictions is often the deciding factor in these cases.

Frequently asked questions

  1. Is claiming "lawfare" enough to stop an extradition? No. The courts demand specific, data-supported allegations. A label without an evidentiary record is useless; the record without the label, however, works.
  2. Can INTERPOL reject a notice for political motivation? Yes. Article 3 of its Constitution mandates it, and the CCF applies it. The difficulty lies in constructing the proof of the predominantly political nature of the case.
  3. Does asylum protect against extradition? The granting of asylum is, in various treaties and in Spanish practice, a major obstacle to extradition. However, it is a path with strict requirements and its own consequences that demands prior analysis.
  4. Can lawfare come from private actors? Yes. Competitors or former partners can instrumentalize criminal complaints and international cooperation. Article 83 of the RTD of INTERPOL —exclusion of matters of private or administrative origin— is therefore the central tool.
  5. I am a businessman active in several countries in the region. What can I do today? Preventive exposure diagnosis: risk jurisdiction map, review of existing alerts, detention protocol, and documentary patrimonial ordering.

Conclusion

Lawfare isn't fought with adjectives, but with technique: documented patterns, precisely invoked norms, and a defense that arrives before prosecution. The international legal order—INTERPOL, extradition treaties, the ECHR, asylum law—offers real tools; their effectiveness depends on anticipation and multi-jurisdictional coordination.

At VENFORT Lawyers, we assist entrepreneurs, executives, and former officials exposed to risks of this nature. Our practice integrates international criminal defense, INTERPOL protection, and asset and reputational shielding, coordinated from Madrid and Caracas with our allied firms in Europe, America, Africa, the Middle East, and Asia. If you wish to assess your risk exposure level, ask for our guide. «Lawfare risk indicators for entrepreneurs» o Request a confidential consultation here.

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