Lawfare and the instrumentalisation of criminal proceedings against political opponents
By: Jorge Leyva
Criminal proceedings are formally designed as mechanisms for the determination of individual criminal responsibility. Their legitimacy rests on a clear functional premise: punitive power is activated to respond to legally defined conduct through procedures governed by standards of legality, proportionality and judicial control. When that premise is displaced, the criminal process ceases to operate as a neutral instrument of justice and becomes a vehicle for political intervention.
Lawfare does not consist in the mere existence of politically sensitive prosecutions. It operates when criminal law is deliberately used to alter the balance of political competition by translating political conflict into penal categories. In these scenarios, the process itself becomes the sanction. The activation of investigation, indictment or precautionary measures produces immediate effects of delegitimisation, exclusion or paralysis that are independent of any eventual conviction.
This instrumentalisation does not require manifest illegality. On the contrary, it functions more effectively when procedural rules are formally respected and legal categories are plausibly invoked. Broad offences, indeterminate legal concepts and expansive interpretations allow the construction of criminal narratives capable of surviving initial scrutiny while producing sustained pressure on the targeted individual. The appearance of legality becomes a structural component of the strategy.
From a legal perspective, the decisive element is not the political profile of the defendant, but the way in which punitive power is deployed. When criminal proceedings are activated selectively, accelerated or prolonged in a manner that departs from ordinary enforcement patterns, and when their cumulative effects systematically disadvantage specific political actors, the function of the process shifts from adjudication to control. At that point, the process no longer serves primarily to determine guilt, but to manage political outcomes.
Judicial independence and formal guarantees do not, by themselves, neutralise this phenomenon. Lawfare operates precisely by exploiting the inertia of procedural systems, the reputational effects of accusation and the asymmetry between the speed of punitive intervention and the slowness of exculpatory resolution. Even when proceedings ultimately collapse or result in acquittal, the political effects have already been produced and cannot be retroactively undone.
The legal problem lies in the absence of early and effective mechanisms to distinguish between legitimate prosecution and instrumentalised punishment. When systems defer scrutiny until the end of the process, they tolerate a prolonged exercise of punitive power without substantive verification of its necessity or proportionality. This tolerance converts duration, uncertainty and exposure into tools of sanction.
The legal consequence is structural. Where criminal proceedings are used in a manner that predictably produces political neutralisation through procedural means, the system fails to contain punitive power within its constitutional function. Lawfare does not represent an abuse at the margins of legality. It reveals a functional vulnerability of criminal justice systems that allow the process itself to operate as punishment. Containing this phenomenon requires reintroducing substantive control at early procedural stages, before the effects of accusation become irreversible.