Academic journal article Washington International Law Journal

Jus Pro Bello: The Impact of International Prosecutions on War Continuation

Academic journal article Washington International Law Journal

Jus Pro Bello: The Impact of International Prosecutions on War Continuation

Article excerpt

Introduction

States use international norms and laws in the pursuit of extralegal ends. Far from a provocation, the foregoing statement is regarded today as true by diplomats, foreign policy pundits, and academics alike.1 Political scientists, for instance, have explored how, and to what ends, both state and non-state actors manipulate norms and legal provisions.2 In brief, as international politics become increasingly entangled in treaties and other legal instruments, both state and non-state actors have regarded international law ("IL") as instrumental in the pursuit of foreign policy goals, and thus integral to the logic behind conducting international affairs.3 Similarly, legal experts and scholars have acknowledged the systematic use of international law for extralegal ends. A new term-"lawfare"-was coined to conceptualize the new logic at play.4 This term has proven useful in that it defines instances whereby state and non-state actors resort to IL provisions and institutions for their military or political byproducts, rather than their intended legal effects. The International Criminal Court ("ICC)" has played an increasingly central role within this ongoing global trend, referred to as the "legalization" of international politics.5 The ICC's prominence in "waging lawfare" is a function of its potentially unlimited temporal and territorial jurisdiction, as well as the shift from state to individual criminal accountability that its establishment enabled.6

This Article explores the political and military conditions under which national governments invite judicial scrutiny from the ICC. The academic payoff of undertaking such a study, as well as its intended contribution to the field of international law and politics, is threefold. First, it sheds new light on the systematic exploitation and subversion of the ICC-hereby conceived of as both a legal regime and international organization-for extralegal purposes. More specifically, this Article reveals that government decisions to "outsource" criminal jurisdiction to independent third parties do not happen randomly. Rather, national governments conceive of this possibility as an alternative course of action to conflict-resolution efforts. Second, a better understanding of why governments invite external judicial scrutiny must start with the identification of the political and military conditions in which said decisions occur. Third, a cross-case analysis of seven countries shows there is more to these decisions than state leaders' self-interest. Establishing whether or not to invite external judicial scrutiny is a complex decision for state leaders, but adopting an individual level of analysis unduly narrows our understanding of the underlying decision-making processes. Hence, shifting the level of analysis from individual to state offers a more fine-grained picture of what is at stake when governments ask for ICC involvement in internal affairs. To be clear, this is not tantamount to underestimating-let alone ignoring-the salience of state leaders' self-interest and preferences. On this point, there is a wealth of evidence supporting the claim that sitting heads of state, from Ugandan President Museveni to Congolese President Kabila, thought they would personally benefit from involving the ICC in domestic affairs.7 Yet, as this Article demonstrates, a state leader's interest in retaining power is but one of several factors contributing to the decision to invite ICC scrutiny.

In all, the logic of inviting external judicial scrutiny must be analyzed, and its efficacy assessed, in light of the broader military and political strategies states adopt. These strategies reflect state preferences when coping with internal threats within an ever-tightening normative and institutional global governance structure. Given this legalistic structure, the invitation of external judicial scrutiny amounts to a wartime tactic to which governments resort in the pursuit of their strategic goals. …

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