The Paradox of Lawfare

The International Criminal Court (ICC) precariously sits at the intersection of law, conflict, and politics. As such, the Court’s judicial intervention in ongoing conflicts and targeting of elite perpetrators of atrocities render it both an agent and a tool of what has been called “lawfare.” On the one hand, lawfare can refer to judicial interventions to curb atrocities through means that are coercive but morally preferable to military force. This form of lawfare is an ideal expression of liberal internationalism. On the other hand, the Court and global rule of law can be abused by states and political elites that seek to eliminate rivals and protect their own impunity. This is the paradox of the ICC – that it has so far been implicated in both legitimate and illegitimate uses of lawfare.

The Domain of Lawfare

The concept of lawfare was popularized by Charles Dunlap, who defined it, in 2001, as “the use of law as a weapon of war.” He subsequently expanded the definition to “the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.” In a similar manner, David Kennedy explains lawfare as the “waging of war by law,” in contrast with what most see as law’s restraining effects on war. Dunlap intended the concept to be “ideologically neutral,” but its contemporary use is often pejorative, invoked as an accusation to undermine the legitimacy of a legal strategy. Empirically and rhetorically, the concept of lawfare has been employed to question the legitimacy of detaining “enemy combatants” in Guantanamo, the intentions of the Goldstone Report, the agendas of NGOs in the Middle East, and the tactics used in the War on Terror. It has also been used to assess the legitimacy of international criminal tribunals.

The International Criminal Court: Lawfare Realized

Suggesting that international criminal tribunals like the ICC engage in lawfare, or are tools of lawfare, invites skepticism and indignation, in part because of disagreements over whether there are both legitimate and illegitimate forms of lawfare. Among those who have addressed lawfare in the context of international justice, there are a range of perspectives on what lawfare actually means: Some say it refers to political interference in criminal tribunals, others suggest it is the noble goal of pursuing peace through justice, and still others claim it is an outright rejection of the notion of judicial warfare. I contend, however, that lawfare is a useful concept to assess the expanding and contested domain of the International Criminal Court’s role in conflict resolution.

Judicial intervention by the ICC constitutes lawfare in that it is both a strategic and coercive use of the global rule of law to achieve military ends of conflict resolution and a political means for removing war criminals from positions of power. In the first instance, the ICC’s intention to end and deter conflict suggests that it is an agent of lawfare. In the second instance, the ICC is a tool of lawfare for states and political elites who instrumentalize the Court.

Peace via Justice

The chief prosecutor and many of the Court’s advocates believe that judicial interventions can quell violence in ongoing conflicts, and can also prevent and deter future conflict by stigmatizing and removing war criminals and building the global rule of law. Judicial interventions to halt and avert atrocities are now frequently used alongside other tools available to the international community, such as sanctions and humanitarian intervention. To date, the ICC has intervened in ongoing conflicts in Uganda, the Democratic Republic of Congo, Sudan, Côte d’Ivoire, and Libya. There is also a clear pattern of the ICC intervening at earlier stages in the escalation of conflict with the hope that its scrutiny will halt further human-rights abuses.

Whether judicial intervention in ongoing conflicts is effective or legitimate is a matter of debate. Judicial interventions are still seemingly ad hoc, and there is good reason to be skeptical of its capacity for deterrence given that mass human rights violations continue in many areas where the ICC is active. Nonetheless, the ICC and its chief prosecutor have established important precedents for the notion that accountability need not wait for stability, and have put forward a narrative suggesting that justice causes peace. For many, the lawfare strategy of twinning accountability with conflict resolution carries a degree of legitimacy that the use of military force alone often lacks, and marks a new turn for the use of the global rule of law as a coercive and strategic instrument.

The Politics of Judicial Intervention

There is, however, a dark side to the lawfare of the ICC. Actors external to the Court use and abuse it as a tool to stigmatize and remove political and military rivals, and to ensure their own impunity. For many of the conflict “situations”^₁ under the Court’s jurisdiction, their referrals from States Parties to the Rome Statute and the United Nations Security Council (UNSC) have come with political limitations that have jeopardized the ICC’s independence, neutrality, and impartiality. This is one means by which the ICC’s judicial interventions constitute lawfare, as it is an abuse, or at least misuse, of the global rule of law.

For example, the governments of Uganda and the Democratic Republic of Congo have invited the Court to investigate and prosecute crimes in their own territories. One of the apparent goals of both governments was to delegitimize and remove their rivals or troublesome insurgents that could not be defeated militarily. In both cases, the Court’s attention has been directed at rebel groups and warlords who, while bona fide war criminals, are also political rivals of the governments that initiated the ICC’s inquests. By extension, these states and their governing elites enhance their own legitimacy by signalling a commitment to human rights and international justice. Meanwhile, they have secured their impunity by threatening non-co-operation with the ICC if their own crimes are investigated. The ongoing impunity enjoyed by military forces in Uganda, and the arrest of Lubanga but not Ntaganda in the Democratic Republic of Congo, demonstrates this problematic trend. In Côte d’Ivoire, too, the ICC’s intervention has thus far served to reinforce the international credibility of President Alassane Ouattara and the impunity of his forces, while only his rival, former president Laurent Gbagbo, sits in The Hague.

UNSC referrals² present a second scenario in which the ICC is a tool of lawfare. The UNSC’s referral of Sudan to the ICC, and the resulting arrest warrants for President Omar al-Bashir and several of his closest advisors, prompted accusations that the ICC is an instrument of regime change on behalf of the Security Council. Libya was also referred to the ICC by the UNSC, resulting in the indictment of former Libyan leader Moammar Gadhafi, his son, and his chief of intelligence. As with Bashir, there is little doubt that these charges were warranted. The wording of the UNSC referral did, however, restrict the scope of the ICC’s investigation to a very limited time frame, and to Libyan nationals. This effectively precluded the ICC from investigating crimes committed by foreign actors or anyone not associated with the Gadhafi regime. Whether the ICC and the Security Council can enhance each other’s legitimacy and effectiveness in these contexts remains to be seen.

The Lawfare Paradox

The two types of ICC lawfare that I have identified here carry very different implications for the legitimacy and effectiveness of the Court. If States Parties and the UN Security Council instrumentalize and impose limits on judicial intervention for their own political interests, the Court will be perceived as an illegitimate political tool and its claims to neutrality, impartiality and independence will be undermined. State co-operation with the Court may wane even further as a result. In contrast, the ICC’s penchant for intervening in areas of ongoing conflict may bolster its legitimacy if it proves to be a successful means to end violence and deter atrocities. Lawfare can be legitimate, but only if the ICC can segregate the international justice and political agendas, as Louise Arbour argued in her April 19 talk at the University of British Columbia. The global rule of law expresses power as much as it restricts power, and the ICC exemplifies this paradox.

¹Referrals to the ICC and investigations by its chief Prosecutor are referred to as “situations” under the Rome Statute, as opposed to individual cases of indictments or arrest warrants.

² The United Nations Security Council is empowered by the Rome Statute to refer situations to the ICC and with a Chapter VII resolution, indicating the situations represents a threat to international peace and security.

Photo courtesy of Reuters