The International Criminal Court and the lawfare of judicial intervention

Abstract

The contentious concept of 'lawfare' has proliferated to various foreign policy areas and permeated a discourse on the function and legitimacy of law in conflict. The concept seems particularly apt to the International Criminal Court's (ICC) judicial interventions. In this context, I define lawfare as the coercive and strategic element of international criminal justice in which the ICC's judicial interventions are used as a tool of lawfare for States Parties and the United Nations Security Council to pursue political ends. I argue that there are two types of political ends being pursued with this lawfare: conflict resolution and politicized prosecutions. First, the ICC's spokespersons, advocates, and supporting states have cultivated a discourse that justice is a means to peace. As a result, the ICC has been used as a means of intervention in ongoing conflicts with the expectation that the indictments, arrests, and trials of elite perpetrators have deterrence and preventive effects for atrocity crimes. Despite these legitimate intentions and great expectations, there is little evidence of the efficacy of justice as a means to peace. Second, the other manifestation of lawfare represents an abuse or manipulation of the ICC for political gain. Specifically, States Parties have strategically referred their conflict situations to the ICC with the expectation that the referral will result in the removal of their rivals and sanction the impunity of ruling elites. This politicization of international justice has been successful in that most of the ICC's prosecutions are unjustly one sided. Evidence of politicized prosecutions has damaged the ICC's credibility as an impartial institution and raises questions about the desirability of state referrals. Consequently, the ICC's efficacy and credibility are suffering from lawfare.

Africa's role in the progression of international criminal justice: a moral and political argument

“…And Uganda's President Museveni, who criticises the Court for ‘being used to push “the hegemonic post-colonial agenda targeting African leaders”’, is a good example of an early African supporter of the ICC who referred his own state for his own political purpose and then turned on the Court (Wanambwa 2014). Museveni's motivation for the self-referral was to discredit the government's opponent in its conflict with the Lord's Resistance Army, ‘to delegitimize and remove … troublesome insurgents that could not be defeated militarily’ (Tiemessen 2012). Uganda's subsequent relationship with the Court has been troubled and troubling.…”

The Bête Noire and the Noble Lie: The International Criminal Court and (the Disavowal of) Politics

“…One of these weaknesses is that these scholars often present a rather limited view of "politics" or "the political." What they routinely refer to is that the ICC is a "politicized Court" that cannot elude the political influence of internal or external actors (Köchler 2003;Roach 2006;Ainley 2011;Dana 2014;Tiemessen 2014Tiemessen , 2016. This, to be sure, is a vital aspect of the Court's political nature; but there is another dimension of "politics" at play here, one that is even more controversial and less frequently discussed than "politicization": this is the notion of the ICC as a "political actor."…”