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The intentions and methods employed by the Spanish state against the independence movement in Catalonia represent a clear case of what is known as lawfare. In other words, ‘legal war’, a term coined in America to refer to the use of the legal system as a political weapon. It is a form of asymmetric warfare, since it is employed by the side which has control over the legal system, even when it means bending, twisting and even breaking the law. In the words of the Spanish Deputy Prime Minister, Soraya Sáez de Santamaría, ‘Who made sure that ERC and JxCat were left leaderless by decapitating both parties? Mariano Rajoy and the PP’. A state-led operation with a sole purpose: the disqualification of a political adversary, the judicial persecution of the enemy, and a justification —by means of the law— for the violation of fundamental rights. ‘The law prevailed over peaceful coexistence’, declared Diego Pérez de los Cobos, head of the police operation on 1 October. A clear case of lawfare, of judicial war.
The origin of the term is uncertain, although there are instances of its use in the 1970s in the US. However, it is thought that the first to elaborate the theory was US Air Force Colonel Charles Dunlap Jr. in his essay ‘Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts‘ (pdf). Dunlap defines lawfare as: ‘The use of law as a weapon of war’. Later, an initiative by the Lawfare Project, led by human rights lawyer and film director Brooke Goldstein, broadened the definition. This helped to popularize it, by examining the various instances around the world in which a legal system or specific legislation is used to justify the elimination of political opponents. According to Goldstein in a speech he made in 2010, “It is about the abuse of the law and our judicial systems to undermine the very principles they stand for: the rule of law, the sanctity of innocent human life, and the right to free speech.”
— NoLawfare (@nolawfare) 29 de desembre de 2017
This video, which is part of the No Lawfare initiative, is revealing. One could apply it to the situation of political and judicial repression implemented by the Spanish state in Catalonia: it defines the following actions as being characteristic of lawfare: ‘Political persecution, the destruction of the public image or disqualification of a political opponent; a combination of actions that appear legal with an intensive media campaign that exerts pressure on the opponent and their supporters, levelling unfounded accusations, in order that they lose support and fail to have the ability to respond.’
‘The party’s over’
In recent years, the Spanish Constitutional Court (CC) has been the main, most forceful instrument of political repression in Spain. The practice of appointing judges in response to the prevailing political majority of the time was the spark that ignited the conflict in Catalonia. It began with the CC’s ruling of July 2010 that tore to shreds Catalonia’s Statute of Autonomy. A document which had previously been approved by the Catalan parliament, subsequently watered down by Spain’s lawmakers and ultimately approved by the Catalan people in a referendum.
Following the rapid growth of the independence process, the PP’s absolute majority allowed them to reform the law governing the Constitutional Court. The move was deliberately designed to defeat the independence process and its leaders, for the first time giving the court powers to take disciplinary measures. ‘The party’s over’, threatened the leader of the Catalan PP Xavier Garcia Albiol when the amendment was rolled out. The years immediately after the ruling on the statute were the boom years for independence support, with roadmaps that were endorsed by a parliamentary majority, a time in which Francisco Pérez de los Cobos, a former member of the PP, with past ties to the Spanish far right and a well-known anti-Catalanist, presided over the institution. Pérez de los Cobos is the brother of the police chief who declared that the law must prevail over peaceful coexistence.
Recent events clearly show the political interference in the court which is responsible for the crackdown on Catalonia’s independence movement. For example, the phone calls between the Spanish government and the president and the members of the court in order to make them aware of the importance of accepting the case challenging the election of Carles Puigdemont as president of the Catalan government. The court eventually postponed its decision over the appeal, though it agreed to please the Spanish government by imposing precautionary measures in order for the investiture to go ahead, which were impossible for Puigdemont to comply with.
The Constitutional Court did so while taking into account that neither the judge nor the lawyers nor the Spanish Council of State had advised to allow an appeal that, in practice, was a preventive challenge against investiture of a candidate who had lawfully stood in the December election. An unprecedented decision.
These goings-on were accompanied by an orchestrated campaign by virtually the entire Spanish media, which caricatured and demonized the Catalan opponents, raising them to the status of public enemy number one. This ensured that the audience and the electorate gradually came to see that the punishment meted out is fair, and that any questions as to its doubtful legality or downright illegality are secondary. Ultimately, the political objective (namely, the preservation of the unity of Spain) is worth the price paid.
Violence is the victims’ fault
The enemy is not only Puigdemont; It is the independence movement as a whole. This explains why a general cause was set in motion, involving secret inquiries and constructed with police reports which deliberately falsified the facts, allowing the justice system to pitilessly swing into action against those responsible for events that are conveniently presented as violent or ‘riotous’. This led to the charges of sedition against Jordi Sànchez and Jordi Cuixart, of the ‘riotous’, violent uprising, mentioned in the Spanish criminal code. The demonstration on 20 September outside the HQ of the Ministry of Economy was both multitudinous and peaceful, and the leaders of Òmnium and the ANC acted so that it would remain that way. Nevertheless, they are to be tried for sedition, and thanks to these charges they have been held on remand for over one hundred days. On 20 September there were protests; By midday on the 22nd, the Spanish government’s spokesman, Íñigo Méndez de Vigo, was already speaking of ‘riotous’ actions; and before the press conference had even finished, the state prosecutor’s office had already filed charges for sedition against Sánchez and Cuixart. Later, Judge Lamela, and subsequently Judge Llarena, accepted the Guardia Civil’s version of events, which coincided with the Spanish government’s version, which in turn coincided with the prosecution’s version, which was the same as hers. And that of Judge Pablo Llarena. A classic case of lawfare.
Something similar occurred with the charges of rebellion filed against the members of the Catalan government and the Parliamentary Bureau, including the Speaker of the House. What about the fact that no violence took place, something necessary in a crime of rebellion? The Guardia Civil, the public prosecutor’s office, Judge Lamela and Judge Llarena invented it in both their statements and rulings. And if evidence of violence by the demonstrators was scarce, responsibility for violence committed by the Spanish police during the 1 October referendum (a highly visible, brutal violence) fell on those who had called the referendum: in other words, on the victims of said violence.
This was all accompanied by the appropriate social, political and media support. The PSOE, the other major Spanish political party, sided with the PP, Ciudadanos and King Felipe. On 3 October, when the King appeared on TV calling for the defeat of the Catalan independence movement, the socialists withdrew their petition for Sáenz de Santamaría to be formally reprimanded over the violence on 1 October. Only the foreign media were surprised at Felipe VI’s speech, criticizing it for its severity. All the powers of the state joined forces in a combined effort against a common enemy that had to be destroyed. This is one of the principles of the definition of lawfare, of asymmetric warfare between a powerful combatant, the maker of the laws, and another who is at the receiving end.
In this battle, free speech has also been a victim, while an improper use has been made of the concept of a hate crime, using it to bring charges against all those who have dared to criticize the violence unleashed by the Spanish police and Guardia Civil during the 1 October referendum. Likewise with the multiple charges being brought in Reus.
Ultimately, appealing to any of the internal mechanisms available to the Spanish judicial system becomes futile, since every judicial body holds the same point of view and an identical approach to dealing with the conflict; which are the same as those dictated by the political majority in Spain. The option of making an appeal to an international court remains a possibility. However, politically, the EU has so far been of no use in appeals for protection against the repression. In fact, the European Commission has finally become the final cog in the lawfare mechanism directed against Catalan independence. The most recent episode: a request for the EU to investigate the violence on 1 October. The reply: ‘Member States have the responsibility to guarantee fundamental rights in accordance with international treaties and their own constitution.’ In other words, the same states that can also violate them.