ICC And Human Rights Violation

TheICCandthelawfareofjudicialintervention

ICC And Human Rights Violation

International Relations
2016, Vol. 30(4) 409 –431

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DOI: 10.1177/0047117815601201

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The International Criminal
Court and the lawfare of
judicial intervention

Alana Tiemessen
Endicott College

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.

Keywords
conflict resolution, International Criminal Court, international criminal law, judicial intervention,
lawfare, prosecutions

Corresponding author:
Alana Tiemessen, Endicott College, 376 Hale St., Beverly, MA 01915, USA.
Email: alanatiemessen@gmail.com

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410 International Relations 30(4)

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. Lawfare hap-
pens when legal institutions become coercive and strategic tools for states and nonstate
actors to pursue a variety of political and operational objectives. The concept seems
particularly apt to the International Criminal Court’s (ICC) judicial interventions.1 The
ICC’s interventions have occurred in eight African states so far and resulted in 22 cases
against notorious perpetrators of atrocity crimes, including warlords, rebel leaders, polit-
ical officials, and sitting and former heads of state. While some praise the ICC’s ambi-
tious goals of accountability for elite perpetrators and its expectation that justice can be
a means to peace, others condemn the ICC for not only being ineffective but also ‘politi-
cized’. The concept of lawfare makes for a useful analytical lens through which we can
provide some theoretical precision and empirical evidence for these criticisms that have
obscured the ICC’s many achievements.

In the context of the ICC, lawfare manifests as a strategic use of judicial intervention
by states and the United Nations Security Council (UNSC) to achieve political ends. It is
notable that the ICC’s judicial mandate of accountability for atrocity crimes, by means of
trial and punishment, is rarely contested. But whether the ICC’s judicial intervention can
and should be used for political ends is very much contested. I argue that there are two
types of political ends pursued by states and the UNSC, who use judicial intervention as
a tool of lawfare: conflict resolution and the removal of political rivals through politi-
cized prosecutions. Therefore, the agency for lawfare lies with external actors and not
with the ICC itself. Beyond identifying what constitutes lawfare in this context, I also
seek to distinguish between efficacy and credibility challenges that result from this law-
fare. While the intentions of using justice as a means to peace have been perceived as
legitimate, there is little evidence of successful conflict resolution and deterrence so far.
Ruling elites in states that have referred their conflicts to the ICC have effectively limited
prosecutions to their rivals and protected their own impunity but at a cost for the ICC’s
credibility as an impartial institution.

This article proceeds in the following manner. First, I outline the scope of the ICC’s
judicial interventions and a brief overview of its successes and criticisms. Second, I sur-
vey commonalities and differences in lawfare’s usage and then derive from this a con-
ception of lawfare that is applicable to international judicial interventions. This represents
the first empirical application of lawfare to this field. Finally, the bulk of the analysis
provides theoretical explanations and empirical evidence of the two dimensions of law-
fare in the context of the ICC across most, but not all, of the conflict situations subject to
judicial intervention.

ICC’s judicial interventions: progress and politicization

The ICC, established by the Rome Statute in 1998, has a mandate to hold accountable
those most responsible for committing atrocity crimes, that is, war crimes, genocide, and
crimes against humanity. To date, the ICC has intervened in nine conflict ‘situations’:2
Uganda, the Democratic Republic of Congo (DRC), Central African Republic (CAR) I
and II, Darfur, Kenya, Côte d’Ivoire, Libya, and Mali. These judicial interventions vary in
terms of how the conflict situations were referred to the ICC and the range of individuals

Tiemessen 411

that the Office of the Prosecutor (OTP) has targeted.3 For all but three situations – Sudan,
Kenya, and Libya – the ICC was invited by States Parties to the Rome Statute to investi-
gate atrocities and prosecute those most responsible. The OTP’s prosecutorial strategy has
targeted perpetrators that include sitting and former heads of state, senior political and
military officials, warlords, and leaders of nonstate armed groups. The ICC has been
lauded for many achievements across these situations and cases, such as advancing inter-
national criminal law by setting important legal precedents, institutionalizing a norm of
accountability, boldly pursuing notorious and elite perpetrators of atrocities irrespective
of their positions of power, successfully completing its first trials and convictions, and
complementing retributive prosecutions with restorative justice processes of reparations
and outreach to victim communities. Human rights and justice advocates even contend
that the ICC has had positive impact on conflict prevention and resolution, by altering the
behavior of perpetrators and affecting ‘positive complementarity’ by encouraging rule of
law reform.

Despite these successes and precedents, the ICC is perceived to be in a near constant
state of crisis with respect to its capacity, efficacy, and credibility. The ICC has been
plagued by institutional shortcomings. Programs to help witnesses and victims, through
protection and reparation assistance, are in their early stages of planning and implemen-
tation. Investigations and trials have been slow and costly. The OTP is responsible for
numerous blunders with respect to handling evidence, protecting witnesses, and follow-
ing trial procedure. A relatively small budget and staff limit the ICC’s capacity to con-
duct investigations and outreach, yet its caseload continues to increase following requests
from States Parties and the UNSC to open new investigations. At best, the OTP can only
manage six ongoing investigations and two cases a year.4 The ICC also has no indige-
nous capacity to make arrests and transfer the accused for trial and is entirely dependent
on states and international organizations to do so. The ICC is, therefore, hampered by the
realities of a state-centric international system, although perhaps no more than any other
international institution. These institutional problems can likely be rectified over time if
the ICC learns from past mistakes and if it receives the necessary financial and political
support from the international community.

Beyond capacity problems, ICC is increasingly perceived as a ‘politicized’ institution.
But those who accuse the ICC of being ‘political’ often do so in a superficial and careless
manner by failing to acknowledge the different dimensions and mechanisms of politici-
zation. Accusations of politicization imply a normative assumption that the ICC should
be apolitical and guided only by judicial criteria when choosing where to intervene and
whom to prosecute. The empirical reality is that the ICC can neither entirely insulate
itself from domestic and international political opportunities and constraints nor afford
to dismiss the political implications of its judicial interventions.

One potential type of politicization is reflected in the argument that the ICC is biased
against Africa – unfairly intervening only in African states and not in other cases of
atrocities deserving of justice, such as Syria, Iraq, North Korea, and the Middle East.
Those who support this view argue that the ICC is a neo-colonial institution and violates
states sovereignty. But the jurisdiction and mandate of the ICC explain and justify the
focus on Africa, so far. The atrocities committed in many of these conflict situations are
grave enough to warrant the ICC’s attention. The ICC also has a strong jurisdiction in

412 International Relations 30(4)

Africa, whereas its jurisdiction is weaker in Asia and the Middle East.5 Indeed, most of
the interventions have been at the invitation of these states, and so, it makes little sense
to suggest that the ICC is deliberately targeting Africa alone. The ‘Africa bias’ argument
largely stems from the strategic political rhetoric of some African heads of states and
political officials and cannot be assumed to represent the views of the general popula-
tion, let alone victim communities. The OTP is also conducting preliminary examina-
tions in nine other countries, seven of which are outside of Africa. It is also quite likely
that the OTP will begin full investigations and possibly indictments in non-African situ-
ations in the next year or so.6

A more significant type of politicization, and the focus of this article, points to the fact
that external actors use the ICC’s judicial intervention as a tool to seek political ends
through judicial means. I argue that this phenomenon is best characterized as lawfare.
Given lawfare is often a misunderstood and contested concept, it is worth elaborating on its
origins and usage prior to a theoretical and empirical application to international justice.

Lawfare: a contested concept

The conceptual proliferation of lawfare has paralleled the increasing legalization of
international politics and warfare.7 While lawfare remains a contested concept, most of
those who invoke it acknowledge that law and judicial institutions can be used strategi-
cally to both enable and constrain conflict.8 For many, ‘lawfare’ was popularized with
Charles J. Dunlap’s definition: ‘the use of law as a weapon of war’.9 He subsequently
revised the definition to be ‘the strategy of using – or misusing – law as a substitute for
traditional military means to achieve an operational objective’.10 Dunlap intended the
concept to be ‘ideologically neutral’,11 but its contemporary use is often pejorative and
ideological. For example, lawfare has been rhetorically employed to question the legality
of US policies and tactics in the ‘War on Terror’, to discredit claims of Israeli war crimes
in Gaza12 and related agendas of non-governmental organizations (NGOs), to describe a
‘weapon of the weak’ for insurgents engaged in asymmetric warfare,13 and to question to
the credibility of international criminal justice.

Lawfare has also been more broadly applied to explain the role of law in the context
of warfare. David Kennedy’s analysis is most instructive in this regard when he explains
lawfare as the ‘waging of war by law’, meant to ‘invoke violence … that stands behind
legal authority’.14 Therefore, Kennedy contrasts what most see as the restraining effects
of law on war with the ‘war-generative functions of law’.15 This understanding is most
relevant to lawfare controversies as they relate to US national security policies. One
influential source of analysis in this context is the Lawfare blog.16 The blog’s founders
argue that the original conception of lawfare as a ‘weapon of war’ does not require a
negative connotation: ‘all of the combatants in this “war” believe they are fighting on
behalf the international rule of law, properly understand, and all use legal argument stra-
tegically to achieve this end’.17 Nevertheless, many ‘thought of the term as a kind of
“political slur” that equated legal challenges to government policies as tools of America’s
enemies’.18 In the context of US national security, the United States is portrayed as both
a perpetrator and a victim of lawfare. On one hand, American officials use the law to
legalize and legitimize waging war and also various military tactics used win war. On the

Tiemessen 413

other hand, lawfare is allegedly used against the United States as ‘weapon of the weak’
by small states and nonstate actors to discredit legal strategies that justify abuses in war
or to use the law to constrain US actions in war. For example, accusations of lawfare
have been leveled at critical responses to the war on terrorism, specifically to discredit
the legality of US policies on torture, Guantanamo, targeted killings, and other counter-
terrorism tactics. Particularly because of its association with the War on Terror, it is often
mistakenly assumed that lawfare was born and bred from the ideology of the Bush
administration at the time. Nevertheless, this context demonstrates that there is little
consensus on whether lawfare is an enabling or constraining force on power.19 Lawfare
is also, of course, relevant to American foreign policies on international justice. The rise
of universal jurisdiction and the ‘legalization’ of international politics have been per-
ceived as threats to US sovereignty and interests,20 but at the same time, the US was an
‘architect’21 of several international tribunals and has increasingly come to see the stra-
tegic benefits of cooperating with the ICC.22

Lawfare in international justice

International justice scholars and practitioners have been reluctant to associate interna-
tional courts with lawfare. This reluctance is partly because the pejorative understanding
of lawfare undercuts the normative assumptions that the rule of law should remain neu-
tral, technocratic, and on a moral high ground to political strategy. Nevertheless, several
prominent international justice scholars and practitioners have weighed in on the rele-
vance of lawfare to their field.23 For example, contributors to a symposium and special
journal issue, titled Lawfare!,24 offered varied interpretations, including lawfare as the
‘antithesis of warfare’,25 political interference in international criminal law,26 and
using international tribunals to ‘bring down’ rebels and state leaders responsible for
atrocities.27 David Scheffer (former US Ambassador for War Crimes and lead US nego-
tiator at the Rome Treaty negotiations) does not accept that the ICC’s mandate or inter-
ventions constitute lawfare in the pejorative sense. Yet Scheffer also concedes that
lawfare was a complement or substitute for militarized conflict resolution:

I plead guilty to being a major perpetrator of lawfare, on behalf of the US Government, during
the 1990s. My mission … was to use the power of the United States to build international and
hybrid criminal tribunals that would subject the leaders of other nations and rebel movements
engaged in warfare, including internal armed conflicts, to international criminal justice. I used
the law aggressively and continuously and sometimes such actions served as at least a partial
rationale for avoiding the use of American armed might or more political negotiations.28

Similarly, Louise Arbour (former Chief Prosecutor of the International Criminal
Tribunals for the Former Yugoslavia and Rwanda) argues that there are two manifesta-
tions of lawfare:

… through threatening the prosecution of senior figures allegedly involved in violations … or
by highlighting abuses in the court of public opinion. In that sense it is akin to propaganda as a
military tool, or as others might put it, a form of ‘hearts and minds’ initiative.29

414 International Relations 30(4)

Finally, David Kennedy also extends lawfare to the domain of international justice by
suggesting that the ‘victor’s justice’ dilemma, which is common when re-establishing the
rule of law in states transiting from violence to peace, is akin to lawfare:

When special courts are established by victors to adjudicate the criminality of opponents, it can
be dressed up as a ‘return’ of law and peace – but it is hard to avoid thinking that law is also the
continuation of war by other means … The situation is similar when a hegemonic ‘international
community’ sets up a court of general instance to try those who have, in their eyes, lost their
‘legitimacy’ as sovereigns.30

Across these various interpretations of lawfare, there is consensus that lawfare is a
positive use of international criminal law for just ends. It remains, though, a coercive
strategy particularly because it is meant to deter or remove, by arrest and punishment,
perpetrators in powerful positions. Therefore, if lawfare is the means, the varied ends are
commonly defined by the user’s desire to restrict an adversary’s ability to threaten its
power and cause conflict.

In this context of the ICC, I define lawfare as the coercive and strategic element of inter-
national criminal justice in which the ICC’s judicial interventions are used as a tool of lawfare
for States Parties and the UNSC to pursue political ends.31 I argue that there are two types of
political ends being pursued with this lawfare: conflict resolution and politicized prosecu-
tions. While these two types are conceptually distinct, they do interact empirically. Several of
the cases discussed illustrate this interaction, such as Uganda, DRC, and Côte d’Ivoire. The
analysis below will not only show how and why the ICC’s judicial interventions constitute
lawfare with respect to the two types of political ends but also how this development has
impeded the ICC’s efficacy and credibility. Consequently, the ICC is suffering from lawfare.

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 repre-
sents 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 dam-
aged the ICC’s credibility as an impartial institution and raises questions about the desir-
ability of state referrals. This was not an expected outcome during the Rome Treaty
negotiations that established the ICC, when supporting states expected State Party and
UNSC referrals to empower and legitimize the ICC. In the end, they have intertwined the
domains of politics and law.

Lawfare: a ‘new model to control violence’

As international criminal justice has evolved since the early 1990s, the international human
rights regime has entrenched the expectation that conflict resolution and accountability are

Tiemessen 415

mutually reinforcing. The ICC has become the pinnacle institutional example of this, as its
judicial interventions are expected to be a means to prevent the commission of atrocities by
removing and deterring perpetrators. The causal narrative that links justice to peace has
become more prominent in the public statements of the ICC’s most public figures. The cur-
rent ICC Chief Prosecutor, Fatou Bensouda, argued:

… Justice can have a positive impact on peace and security: this is what the UN secretary
general, Ban Ki-moon, calls the ‘shadow of the Court’ – its preventative role, and its capacity
to diffuse potentially tense situations that could lead to violence by setting a clear line of
accountability.32

Similarly, Luis Moreno-Ocampo, first and former ICC Chief Prosecutor, argued that
‘the Statute ensures that the law will guarantee lasting peace, and that impunity for the
worst perpetrators is no longer an option … a new model to control violence is being
tested’.33 Prevention and deterrence can be achieved, in theory, by threatening, isolating,
marginalizing, and arresting perpetrators. Moreover, judicial intervention can be done in
conjunction with or as a substitute for military force but can be a more efficient and less
costly means of conflict resolution compared to military force if it is backed with politi-
cal support. This type of lawfare is meant to prevent and end conflict, not provoke it,
entrench it, or restrain legitimate uses of military force to protect civilians. It is clearly a
political end to the means of the lawfare but one that is rarely contested as legitimate in
its intentions. The problem for the ICC is really one of efficacy.

The intention of this lawfare, to use justice as a means to peace, is evident in two
respects. First, all of the situations referred to the ICC were ones of ongoing conflicts.34
As Mark Kersten argues, the ‘ICC was made – and is predisposed – to intervene in active
and ongoing conflicts and has been directed to by individual states and the UN Security
Council’.35 The ICC has also recently shown a penchant for intervening early and quickly
as conflict escalates, as it did in Côte d’Ivoire, Libya, and Mali, in order to deter further
atrocities. Judicial intervention in ongoing conflicts is a notable departure from the
norms and past practice of international and transitional justice.36 Similarly, as part of a
more recent deterrence strategy, Chief Prosecutor Bensouda issued public warnings
about escalating violence in countries that are not yet, but could be, under investigation,
such as Nigeria and Burundi. Second, the UNSC and the International Criminal Court
are linked in several respects that demonstrate the interrelated nature of peace and jus-
tice. The UNSC can refer conflict situations to the ICC for investigation, as it did with
Darfur and Libya, if such situations represent a threat to international peace and security.
Human rights advocates and the UN Human Rights Council continue to press the UNSC
to use the ICC as a peacemaking tool in other contexts, calling for referrals of the Syria,
North Korea, and other conflicts. These conflict situations have strengthened a norma-
tive consensus that judicial intervention should complement military and/or humanitar-
ian intervention.37

I argue that this lawfare poses a challenge for the ICC because it has been ineffective
in its consequences, not illegitimate in its intention. The efficacy of this lawfare has been
hampered in numerous respects. First, the relationship between the ICC and the UNSC
has not been productive in terms of turning referrals and investigations into arrests and
trials. UNSC referrals to the ICC theoretically have more ‘teeth’ for enforcement of arrests

416 International Relations 30(4)

because, as they are mandated by Chapter VII resolutions, states are required to cooperate
them. But the UNSC has not backed up its referrals to the ICC with any other kind of
logistical, political, or financial support. In their yearly reports to the UNSC on the status
of its cases, the former and current Chief Prosecutors have pleaded for the UNSC to more
effectively coerce states into cooperating and supporting the ICC.38

Second, the ‘peace versus justice’ debate frames these two ideals as alternatives and
not complementary objectives of the ICC when it intervenes in ongoing conflict.39 On
the one hand, justice advocates and ICC officials caution against using justice as a bar-
gaining chip. A statement by the OTP to the 2010 Review Conference of the Rome
Statute illustrates this sentiment:

Justice contributes to peace and prevention when it is not conceived as an instrument of either
and on condition that it is pursued for its own sake. If the ICC is contemplated simply as a lever,
it will be undermined as some will expect it to be turned on and off as political circumstances
dictate …40

One the other hand, the ICC cannot avoid operating in a political environment where
there are pressures to sacrifice or delay justice so that warring parties have an incentive
to negotiate. In cases of ongoing conflict, treating perpetrators as ‘spoilers’ of peace may
require sacrificing justice in favor of offering amnesties, exile, and political inclusion of
perpetrators.41

Finally, despite the ICC’s claims that it can deter perpetrators of atrocities, there is
scant evidence that it can do so.42 It is unlikely that the ICC can provide for specific
deterrence, and is more likely to provide general deterrence. That is to say, for specific
deterrence, individuals already committing atrocities or likely to in the near future will
not be deterred by the threat of an ICC prosecution. General deterrence may work by
changing a culture of impunity in the long term. Deterrence effects also depend on the
types of perpetrators targeted. As Kate Cronin-Furman argues, only ‘commanders who
permit or fail to punish their subordinates’ for committing atrocities are likely to be
deterred by an ‘adequately high risk of prosecution’ and not commanders who explicitly
order atrocity crimes.43 The nature of the perpetrators, specifically their rationality, also
affects deterrence. Committing atrocities is often part of a military and political strategy
in civil wars, but in some cases, it is difficult to determine whether the cost–benefit cal-
culus of perpetrators, such as Joseph Kony of the Lord’s Resistance Army (LRA), is
indeed entirely rational or whether the possibility of arrest and trial by the ICC poses a
sufficiently high enough risk relative to the benefits of war-making.

Evidence from the Uganda, DRC, Sudan, Libya, and Côte d’Ivoire situations is used
below to show how the ICC is used as a means to the political end of conflict resolution
and also an analysis of whether this lawfare strategy has been effective.

Intentions and efficacy of justice as a means to peace

As the ICC’s first intervention in a conflict situation, the Uganda case set an important
precedent and inflated expectations about how judicial intervention could accomplish what
would otherwise be a military and political objective – defeating the LRA. After several

Tiemessen 417

unsuccessful military operations against the LRA and stalled peace negotiations, Uganda’s
President Museveni referred the conflict situation to the ICC in late 2003. In 2005, follow-
ing its investigations to establish who was most responsible for some of the most notorious
massacres in the conflict, the ICC issued arrest warrants for five individuals representing
the leadership of the LRA. The Ugandan government ‘perceived the referral of the LRA to
the ICC as a new means to defeat the relentless Ugandan rebel movement’.44

Following the arrest warrants, an international and local ‘peace versus justice’ debate
shaped both praise and criticism of the ICC’s intervention. Those opposed to the inter-
vention argued that the ICC was a ‘spoiler’ in the peace process by pointing out that the
LRA refused to participate in peace negotiations unless the ICC arrest warrants were
dropped. Opponents also warned of escalation of the conflict if the military were to step
up its operations in order to make arrests and/or if the LRA retaliated with more violence
against civilians and child abductions.45 Those in favor of judicial intervention argued
that justice could not wait nor be sacrificed for political and military objectives and that
any amnesty for senior LRA would set a dangerous precedent of impunity. A compro-
mise position also emerged, positing that the ICC’s timing was ill-advised and, as a mat-
ter of sequencing, justice should wait until violence had ceased.

There has not been any resolution of the ‘peace versus justice’ debate based on the
Uganda situation. There is some evidence that judicial intervention pushed the LRA to
the negotiating table and became part of the LRA leadership’s decision-making
calculus.46 But the arrest warrants had no apparent deterrence effects on the LRA as the
conflict did not abate until 2006, and the LRA continued to be active and commit atroci-
ties in neighboring countries after 2006. In the end, quelling the LRA threat to northern
Uganda and central Africa owes more to joint military efforts in the region than it does
to the coercive effects of judicial intervention.47

Similar to the Uganda circumstances, the DRC government self-referred its situation
to the ICC in 2004, and the ICC continues to pursue investigations and trials while con-
flict in the eastern region routinely re-escalates. This is a region where the central gov-
ernment has little effective control over ‘ungoverned’ space and neither the military nor
a UN peacekeeping force has been able to sufficiently protect civilians. While deterrence
remains elusive, it was hoped that the arrest of rebel leaders would halt ongoing abuses
in the short term. But there is also an explicit assumption that the scope of ICC’s indict-
ments, arrests, and trials would counter a history and culture of impunity in the region
and contribute to the long-term goals of building the peace and rule of law.48 The ICC has
not been considered an impediment to peace in the DRC in part because its intervention
has had little effect on conflict resolution at all. Nevertheless, conflict continued after the
ICC’s intervention when more rebel groups emerged and splintered to compete for
resources, land, and power, resulting in persistent violence against civilians and displace-
ment. Given the high number of perpetrators in this conflict situation combined with the
ICC’s limited capacity for investigations and trials, there is an insufficiently high risk of
prosecutions for deterrence to work. The only scant evidence of deterrence effects is with
respect to the use of child soldiers; Thomas Lubanga, the accused in the ICC’s first suc-
cessfully completed trial and conviction, was charged with this crime. In doing so, some
suggest that the Lubanga case made rebels aware of the possibility of prosecution if they
use children in combat and altered their behavior.49

418 International Relations 30(4)

The Darfur and Libya cases are similar in that they were both referred to the ICC by
a Chapter VII UNSC resolution. Three out of five permanent members of the UNSC
(China, Russia, and the US) are not States Parties to the Rome Statute, but they still
either voted for or did not obstruct the referrals.50 As these cases demonstrate, the UNSC
perceives the ICC as a complement, if not means, to conflict resolution as other coercive
measure of sanctions and the use of force were also approved for Sudan and Libya.

The Darfur conflict in Sudan is widely recognized as constituting war crimes, crimes
against humanity and possibly genocide; the mass violence against civilians has been
met with weak and ineffective responses from the international community, including
sanctions and a small UN-sanctioned African Union peacekeeping force. Given Sudan is
not a State Party to the Rome Statute, the UNSC referral in 2005 and the ICC’s subse-
quent issuing of arrest warrants for regime and Janjaweed leaders, including President
Bashir, underscore that judicial intervention can be a coercive instrument. Proponents of
the UNSC’s referral of the Darfur situation argued that such an intervention would mar-
ginalize and deter perpetrators from committing further atrocities. Now 10 years after the
referral, the ICC has had no discernible impact on conflict resolution in Darfur.

It is also possible that the ICC’s intervention has exacerbated the conflict in some
respects, by reducing the chances of a political settlement and inciting tension between
the ICC and the Sudanese regime and African leaders. In 2009, President Bashir tempo-
rarily expelled aid agencies from Darfur in response to ICC arrest warrant against him
and won the support of the African Union and other political elites on the continent who
see the ICC as a neo-colonial means of regime change.51 Now, in the absence of deter-
rence and arrests of the perpetrators, the civil war and violence against civilians are
resurgent. In the first half of 2013, violence escalated again in Darfur, producing 300,000
newly displaced persons, and a high-profile ICC indictee (Kushayb) was allegedly at the
scene of recent atrocities.52 Violence increased again in 2015, producing 150,000 newly
displaced persons.

The ICC’s ability to affect peace through justice has largely failed in Darfur because
it has not been bolstered by any further coercive action or diplomacy from the UNSC. As
Kenneth A. Rodman argues, ‘international criminal justice cannot end impunity in an
ongoing war as long as states and intergovernmental organizations are unwilling to take
enforcement actions’.53 Since the 2005 referral, the Chief Prosecutors have expressed
their frustration with the UNSC’s seeming abandonment of the Darfur cases in their
yearly reports. This came to a head in December 2014, when Chief Prosecutor Bensouda
reported to the UNSC her decision to ‘hibernate’ the Darfur cases and faulting the
Council’s failure to enforce arrests. In her words, ‘we find ourselves in a stalemate that
can only embolden perpetrators continue their brutality … What is needed is a dramatic
shift in the Council’s approach to arresting Darfur suspects’.54 Therefore, the ICC’s coer-
cive power to make arrests and put perpetrators on trial, and therefore its deterrent power,
cannot be realized if states and the UNSC do not cooperate in enforcement or provide
further political support.

Libya is the only other instance of a UNSC referral to the ICC and, as in the other
cases discussed above, it was done for a situation of ongoing conflict. In response to
escalating violence against civilian protestors, UNSC Resolution 1970 imposed sanc-
tions on Libya and referred the situation to the ICC to investigate possible war crimes

Tiemessen 419

and crimes against humanity that had been committed in Libya since 15 February
2011.55 The international community reacted quickly to the situation as the resolution
was passed a mere 10 days after the protests and crackdown occurred. A North Atlantic
Treaty Organization (NATO) military intervention followed the request for judicial
intervention.

Disagreement over the sequencing of peace and justice was revived with the Libya
case. Some critics argued that such interventions would embolden the Libyan regime and
ensure that Gaddafi would ‘fight to the death’ or, at least, eschew any political settlement
that could not credibly assure his impunity.56 But there is little evidence to suggest that
the Libyan leader changed his behavior in response to military and judicial intervention.
As Mark Kersten explains:

it can neither be said that the ICC’s intervention gave Gaddafi an incentive to negotiate a
peaceful resolution to the conflict nor that the ICC prevented negotiations from taking place. It
is, furthermore, not possible to suggest that the arrest warrant against Gaddafi led to the failure
of the peace negotiations.57

Moreover, Gaddafi did not entertain the idea of exile, despite speculation, and thus his
ICC arrest warrant cannot be blamed for taking this option off the table. One possible
effect of the intervention, however, is that it may have further marginalized the Libyan
leader by affecting the calculus of central officials in his regime, several of whom
defected. In the long run, however, central governance and stability continue to deterio-
rate in Libya, and the ICC, as in the case of Sudan, has received no coercive backing
from the international community to make either justice or peace possible.

Finally, Côte d’Ivoire makes for an interesting case to assess whether justice could be
a means to peace, given the ICC has twice intervened there. In 2004, the ICC warned
ruling elites of potential investigations and prosecutions when the government, under
former President Gbagbo, was battling his rivals by inciting ethnic hate speech. Tensions
and violence de-escalated shortly thereafter. Payam Akhavan claims, ‘the ICC’s impact
on the civil war in Côte d’Ivoire is a compelling demonstration of how international tri-
bunals can help prevent human rights abuses from escalating into mass murder merely
by threats of prosecutions’.58 But even if the ICC can be credited with deterring the com-
mission atrocities in the short term, this initial intervention did not have long-term deter-
rence effects. After disputed election results in 2010, defeated President Laurent Gbagbo
refused to step down and concede to his long-time rival, Alassane Ouattara. Côte d’Ivoire
then descended into violence between pro-Gbagbo and pro-Ouattara forces. Civilians on
both sides of the political and ethnic divide were targeted, resulting in approximately
1000 civilian deaths. In December 2010 and while the conflict was ongoing, the ICC
Prosecutor announced the OTP would begin investigating those who were criminally
responsible for atrocities. Judicial and military interventions were not explicitly coordi-
nated in this instance, yet UN and French forces aided Ouattara’s rebel forces in ousting
Gbagbo who was later captured and taken into custody and transferred to the ICC. As in
the cases of Sudan and Libya, there is insufficient evidence to suggest that that judicial
intervention caused the cessation of violence or factored into the decision-making calcu-
lus of perpetrators, such as Presidents Gbagbo or Ouattara and their supporting forces.

420 International Relations 30(4)

The ICC’s intervention did remove Gbagbo and also his second in command, but the
stability the country is presently enjoying owes more to Ouattara’s victory and his inter-
national support.

A relatively new strategy by the Chief Prosecutor lends further credence to judicial
intervention as lawfare: issuing public warnings to those most responsible for escalating
cases of violence and reminding perpetrators of the criminal consequences of their
actions. This happened for Mali, Kenya, Nigeria, Central African Republic, and Burundi.
It also demonstrates that the ICC, but specifically the Chief Prosecutor, may have some
agency in lawfare but only in instances where the ICC can act on its own and without
referral from a state or the UNSC.

In sum, referrals of conflict situations to the ICC, by both states and the UNSC,
reflect the intentions of these actors to use the ICC as tool of lawfare, which in these
instances is to use judicial interventions as a means to remove and deter of perpetra-
tors in ongoing conflicts. As the analysis above has outlined, there is little evidence to
suggest that this strategy has been effective. Another form of lawfare, with less legiti-
mate intentions but greater efficacy, has emerged from the ICC’s judicial interven-
tions. This form of lawfare pertains specifically to the ICC’s prosecutions and shows
that referring states and their ruling elites exercise a great deal of strategic agency in
judicial interventions.

Lawfare: politicized prosecutions

Within a pejorative understanding of lawfare, one can point to the politicization of the
ICC’s prosecutions as evidence of how law and legal institutions can be manipulated
as political tools. There is now sufficient evidence to suggest that the ICC has been
instrumentalized and politicized in that its prosecutorial strategy reflects the interests
of ruling elites in states who can use judicial intervention to eliminate their political
and military rivals. The type of lawfare occurs when States Parties to the Rome Statute
self-refer their conflict situations to the ICC and subsequently place limits on the
prosecutorial strategy by ensuring that arrests and trials are dependent on their coop-
eration. For these ruling elites, inviting the ICC’s judicial intervention has become an
opportunity to not only stigmatize and remove rivals but also ensure their own impu-
nity by strategically directing the ICC’s attention only to the opposing side in a con-
flict. These referring states rhetorically support justice and human rights norms and
pledge to cooperate with the ICC but implicitly only as long as their own crimes are
ignored. This is lawfare – it is a strategic use of law and a legal institution for political
objectives.

It is not the intention nor in the interests of the ICC to serve as a tool of lawfare in this
manner. The ICC’s spokespersons contribute to a problematic discourse that it is an
impartial institution that is guided by judicial priorities and criteria. The Rome Statute
does not allow for a state, via their referrals, to restrict the ICC’s investigations and
indictments to only one party of a conflict – the OTP is technically free to investigate any
and all those responsible for atrocity crimes within its jurisdiction.59 And the ICC’s Chief
Prosecutors have adamantly defended that the ICC is impartial and acts independently of
the external actors’ interests. For example, Moreno-Ocampo, stated:

Tiemessen 421

The prosecutor’s duty is to apply the law without bowing to political considerations, and I will
not adjust my practices to political considerations. It is time for political actors to adjust to the
law … we have no police and no army but we have legitimacy.60

Many legal and political science scholars are skeptical, however, that an apolitical
court is possible, even if it is the ideal.61 As Sarah Nouwen and Wouter Werner have
noted, ‘the more successfully (the ICC) portrays itself as neutral, universal, and above
politics, the more attractive it will become as an instrument for the labeling and neutrali-
zation of enemies of a particular political group’.62 ICC officials themselves often pri-
vately acknowledge that the OTP must consider how international and domestic political
dynamics will affect investigations and trials.63 Even advocates of the ICC increasingly
express concern that the ICC has become politicized. In a recent statement, Human
Rights Watch (HRW) argued that ‘the Court’s successes have led some countries to seek
to use it for political ends rather than to support its independent judicial mandate’.64

If it is the intention of States Parties to use their ability (under the Rome Statute) to
refer their own conflict to eliminate rivals and sanction their own crimes, then these are
clearly political ends being pursued through judicial means.

Strategic benefits of partial justice

To date, four States Parties have referred their conflict situations to the ICC: Uganda,
DRC, Central African Republic, and Mali. Also, the conflict situation in Côte d’Ivoire
was technically initiated by the Chief Prosecutor but is considered a de facto state
referral.65 The remainder of this section will discuss the ICC’s interventions and indict-
ments for Uganda, the DRC, and Côte d’Ivoire, in order to determine the extent to which
the strategic interests of ruling elites have biased the ICC’s intervention.66

As previously mentioned, Uganda’s referral of its conflict situation was largely an
effort to end the conflict by arresting the LRA leadership and/or pressuring them to nego-
tiate. While there is no doubt that the LRA leaders accused by the ICC should be held
accountable for their war crimes and crimes against humanity, there is sound criticism that
President Museveni instrumentalized the ICC by self-referring the conflict situation; with
the OTP’s encouragement of the referral, Museveni was rightly assured that the ICC
would target only LRA crimes.67 What is more, Uganda’s referral was announced at a joint
press conference with President Museveni and former Chief Prosecutor Moreno-Ocampo;
this diplomatic maneuver raised ‘the possibility that the ICC was being enlisted on one
side of the internal conflict’.68 The OTP only indicted five LRA leaders on charges of
crimes against humanity and war crimes, which include killings, rape, and use of child
soldiers, among other atrocities. At the time of writing, only Joseph Kony remains at
large; Dominic Ongwen – the child soldier turned rebel leader – turned himself in, and the
remaining indictees are confirmed deceased. However, the ICC has not indicted any sen-
ior officials in the Ugandan government and military (Uganda People’s Defence Force
(UPDF)) who are considered responsible for attacks against civilians, use of child sol-
diers, and forcible population displacement of 90% of Acholi communities. The ICC’s
subsequent assurances that the crimes of all parties will be investigated has been chal-
lenged by the prevalent view among Acholis and other critics that ‘the Office of the

422 International Relations 30(4)

Prosecutor is acting on behalf of President Museveni, and will not attempt to punish the
UPDF as well as the LRA’.69 The result has been a prosecutorial strategy that is imbal-
anced and partial, empowering the Ugandan government’s fight against the LRA, remov-
ing challenges to its rule, and sanctioning its crimes.

As in the case of Uganda, the DRC government strategically self-referred its conflict
situation to the ICC, and what has followed is a similar pattern of partiality and imbal-
ance in the ICC’s prosecutorial strategy. To date, the ICC has targeted many warlords and
rebel leaders of various nonstate armed groups that have ordered and committed atroci-
ties against civilians. Following its investigations into atrocities in the Ituri and Kivu
regions, only one of six indictees remain at large and two have been convicted. The
multiple arrests and surrenders of rebel leaders are important milestones for the ICC.
Nevertheless, human rights groups and victims communities have criticized the prosecu-
torial strategy for the DRC as selective and partial in deference to the interests of ruling
elites in the government and military. Such critics also warn of the consequences of such
partial justice for renewing a cycle of impunity and violence.70All of those indicted and
arrested by the ICC are rivals of President Kabila who contest, politically and with armed
force, his governance and territorial control of the eastern regions of the DRC. The array
of rebel groups and their notorious leaders have undoubtedly committed atrocities and
are justifiably the targets of international prosecutions. But atrocities committed by the
DRC military, one notorious for its human rights abuses, and the command responsibility
of the government and other regional actors has not been subject to indictments.
Investigative reports from the United Nations71 and human rights groups concur that
‘key political and military figures in Kinshasa, as well as Uganda and Rwanda, played a
prominent role in creating, supporting and arming the militias associated with (ICC
indictees) Lubanga, Ntaganda, Katanga, and Ngudjolo, among others’.72 Even though
the crimes of ruling elites in the DRC and other governments are well known, the ICC
continues to pursue a prosecutorial strategy that is partial and imbalanced with strategic
benefits for president’s rule.

There are both political and legal reasons why the OTP has pursued perpetrators on
only one side of the conflict, leaving the crimes of those in power unaccounted for. As a
legal justification, the OTP contends that the alleged crimes of the Ugandan and DRC
governments and militaries do not meet the gravity threshold – relative to the crimes of
the LRA and Congolese warlords – to justify indictments.73 In Uganda, the crimes of the
LRA undoubtedly warrant justice, but scholars, human rights advocates, and victim com-
munities assert that this was a two-sided conflict in which the government and military
also committed atrocities, even if such atrocities were less grave than those of the LRA.74
The gravity threshold has failed to justify these imbalances in the prosecutorial strategy
for the DRC and Uganda and is most problematic given the ICC’s mandate is to prose-
cute those ‘most responsible’ for atrocities, irrespective of what is political possible and
desirable.

The ICC’s necessary dependence on state cooperation provides some explanation
for this imbalance and partiality in prosecutions. State cooperation affects the OTP’s
ability to access witnesses and evidence, conduct outreach activities and, most impor-
tantly, ensure arrests and transfers of the accused to The Hague. Since the ICC opened
investigations into Uganda, the government has repeatedly threatened to withdraw

Tiemessen 423

cooperation if anyone in the government was to be indicted, and President Museveni
has become increasingly hostile to the ICC.75 The DRC government has selectively
supported and cooperated with the ICC only when it has been in its interest to do so.
This is most clearly illustrated with respect to the ICC’s indictment and arrest of Bosco
Ntaganda – a notorious warlord whose position of leadership, ability to rival the
Congolese government and military, and commission of mass atrocities made him a
high-profile target for the Chief Prosecutor. The ICC issued an arrest warrant for
Ntaganda in 2006, but he remained at large while the government falsely claimed it
was unable to arrest him.76 In 2009, he allied with the government and was given a
prestigious position as a commander in the DRC military. Ironically, Ntaganda was
then protected by the government and from the reaches of the ICC until his defection
in 2012. President Kabila finally ordered Ntaganda’s arrest in April 2012 but – shun-
ning the ICC – insisted that the warlord be tried in the DRC. Ntaganda’s unexpected
surrender and transfer to the ICC (at his own request) in March 2013 was likely, in part,
a result of his broken ties with both the DRC and Rwandan governments.77 Past and
pending arrests of those indicted in this conflict situation are dependent on the coop-
eration and strategic interests of the DRC and other governments in the region. As is
the challenge with Uganda, the government is cooperative with the ICC so long as the
ICC targets rebels and not government or military officials.

There is also evidence to suggest that ruling elites in Côte d’Ivoire have used the
ICC’s judicial intervention as a tool of lawfare. The current and internationally sanc-
tioned Ivorian President, Alassane Ouattara, invited and supported the ICC’s interven-
tion and the subsequent arrest and transfer of his long-time rival, former President
Gbagbo, to stand trial at The Hague. In tandem with the international community’s sanc-
tioning of his ascent to power, Ouattara’s request came alongside his publicly rhetorical
commitment to justice, reconciliation, and respect for human rights.78 Both he and the
ICC have pledged to pursue whoever is most responsible for the post-election violence
on both sides of the political and ethnic divides.

Investigative reports from international human rights groups, a UN Commission of
Inquiry, and even Côte d’Ivoire’s own Commission of Inquiry documented that massive
human rights violations were committed by both sides and potentially with the instruc-
tion and sanction of Gbagbo and Ouattara themselves. To date, the ICC has only indicted
Gbagbo, his wife, and the leader of his youth militia, and there has been no little domes-
tic accountability for crimes committed by forces loyal to Ouattara. By August 2012, all
of the nearly 150 individuals charged by domestic prosecutors for crimes during the
post-election violence are allied with Gbagbo.79 The government refused to transfer
Simone Gbagbo to the ICC and recently tried and convicted her in a domestic court. One
individual loyal to Ouattara – a warlord known to have committed massacres – was
arrested in May 2013. In July 2015, only two pro-Ouattara fighers were among the 20
individuals charged for the post-election violence—the remainder were pro-Gbagbo
fighters. In contrast, members of the new security forces suspected of human rights
abuses have been promoted in Ouattara’s government and enjoy de facto impunity. HRW
has been at the forefront of pressuring both the international community and Ouattara for
fair and impartial justice, lest Gbagbo’s supporters have cause for vengeful violence.
According to HRW’s report:

424 International Relations 30(4)

In stark contrast to the prosecution of those from Gbagbo’s side, no member of (Ouattara’s)
Republican Forces has been arrested on charges for crimes committed during the conflict …
While President Ouattara and Justice Minister Kouadio Ahoussou have consistently promised
that all crimes will be punished, the gap between rhetoric and reality risk a reversion to impunity.80

Gbagbo’s supporters have been publicly critical of the ICC, claiming the ICC has
unfairly singled out the former leader and sanctioned the crimes of those in power.
Political and social divisions in post-conflict Côte d’Ivoire have become further
entrenched with the recognition that both international justice and domestic justice are
imbalanced, partial, and politically subservient to ruling elites. The OTP has indicated
that others could be indicted and insists that the Côte d’Ivoire government must cooper-
ate regardless of who is indicted.81 Unlike the situations in Uganda and DRC, the ICC
appears eager to resist its use as a tool of lawfare for ruling elites in states under its
jurisdiction.

The above examples are only instances of state referrals to the ICC. Some of the
ICC’s most vociferous critics have suggested that when the UNSC referred the Darfur
and Libya conflicts to the ICC and placed restrictions on the OTP’s prosecutorial strat-
egy, it was doing so with the intention of regime change by marginalizing Bashir and
Gaddafi. If this were the case, it would also constitute lawfare in the way that the above
state referral cases have. But this concern is largely without cause. Both Bashir’s and
Gaddafi’s regimes were already marginalized and considered pariahs in the international
community – Gaddafi more than Bashir in the his regime’s latter years. The UNSC did
not need the ICC for that. Moreover, unlike in the above cases, UNSC powers were not
major parties to the conflicts they referred, nor were they responsible for committing
mass atrocities in them and also deserving of justice. The accusations of regime change
have gained traction mostly because of Russia and China, who have used these examples
to ward off ICC intervention in Syria.

In sum, this type of lawfare has emerged in instances of state referrals where ruling
elites in these states have derived strategic benefits from partial prosecutions. These
elites are, therefore, the primary agents of lawfare, and judicial intervention becomes a
tool to ensure their own impunity and the punishment and removal of their rivals.

Conclusion

The concept of lawfare has empirical relevance to a variety of issue areas where law,
conflict, and politics intersect. In an attempt to rescue the concept of lawfare from its
association with the ideology and strategies in the War on Terror, I have briefly surveyed
its origins and usage to come to a consensus on what constitutes lawfare in theory and in
practice. In so doing, I have argued that aspects of the ICC’s judicial interventions con-
stitute lawfare: it is a coercive and strategic element of international criminal justice in
which the ICC’s judicial interventions are a means to political ends. Therefore, this anal-
ysis represents the first empirical application of the concept of lawfare to the ICC, with
the goal of identifying what constitutes ‘politicization’ of judicial intervention.

To date, the political ends pursued by states and the UNSC are conflict resolution and
politicized prosecutions. Despite the legitimate intention of pairing justice with conflict

Tiemessen 425

resolution, the ICC has had little success in deterring and removing elite perpetrators of
atrocities with its judicial interventions in Uganda, the DRC, Sudan, Libya, and Côte
d’Ivoire – given that waning state cooperation has hampered arrests and most conflicts
are ongoing despite the ICC. With respect to politicized prosecutions, the intentions of
referring states to remove their rivals and protect their own impunity have been realized.
The second type of lawfare identified here is the instrumentalization of the ICC’s pros-
ecutions by ruling elites in referring states; this pattern of politicization has been consist-
ent across the cases of Uganda, the DRC, and Côte d’Ivoire. This is immensely damaging
to the ICC’s credibility, which hinges on its ability to remain impartial even when the
necessary trade-off is cooperation with ruling elites.

In both these respects, I have argued here that the ICC is suffering from lawfare
largely as a result of its ties to States Parties and the UNSC. This is an important conclu-
sion as, during the Rome Treaty negotiations and ICC’s early years, it was assumed that
State Party and UNSC referrals would empower and legitimize the ICC and act as a
check on a potentially ‘politicized’ prosecutor. Paradoxically, the ICC now operates in an
environment whereby overtures from these actors have invited politicization, and the
best hope for an apolitical ICC lies with prosecutorial independence.

An important clarification to this argument is that not every use of international crimi-
nal justice constitutes lawfare. Nor is every ICC judicial intervention lawfare. For exam-
ple, indictments in the Kenya case were relatively impartial, and since intervention was
post-conflict, the intended outcome was primarily trial and punishment, not conflict
resolution. As other investigations and cases arise, there are many indications that the
ICC will take a different approach to its prosecutorial strategy and that the international
community’s expectations for judicial intervention will be tempered by reality. And this
implies room for change and progress. If expectations of the ICC’s impact are limited to
judicial outcomes of trial and punishment, and prosecutorial strategies prioritize impar-
tiality, the ICC will not only be more effective but also be perceived as a credible institu-
tion that seeks justice above and despite politics.

Acknowledgements

My thanks goes to Mark Kersten, Chris Tenove, Elizabeth Stubbins-Bates, Eric Leonard, Henry
(Chip) Carey, Michael Ben-Josef Hirsch, and this journal’s anonymous reviewers for their con-
structive comments on previous drafts. Earlier versions of this article were presented at the 2015
annual convention of the International Studies Association in New Orleans, LA, and the Transitional
Justice Working Group at the Carr Center for Human Rights Policy, Harvard Kennedy School.

Funding

The interview data used in this research was made possible with the support of funding from a
Faculty Development Committee grant at Bowdoin College.

Notes

1. I use the term ‘judicial intervention’ to refer to the International Criminal Court’s (ICC) activ-
ities when intervening in conflict situations, including investigations, indictments, arrests,
and trials but excluding preliminary examinations. Judicial intervention does not necessarily
imply that the affected state does not consent but merely that an outside actor, namely, an

426 International Relations 30(4)

international court, has become involved in a state’s administering of the rule of law and
conflict resolution and has the power to apprehend its nationals.

2. The Rome Statute and ICC use the term ‘situations’ to refer to specific conflict situations, as
opposed to states and as distinct from cases against accused individuals.

3. Without universal jurisdiction, the ICC can only proceed with a case against an individual if
(a) that individual is a citizen of a State Party or (b) if the crimes were committed on the ter-
ritory of a State Party or (c) if the United Nations Security Council (UNSC) refers a conflict
situation in a State or non-State Party to the ICC.

4. Interview with ICC Official.
5. In the Rome Treaty negotiations, the Africa group provided strong support for the creation of

the ICC and was second only to European states in their support and subsequent implement-
ing legislation.

6. Interview with ICC official.
7. There is a vast literature on the legalization of international relations. See, for example, Judith

Goldstein, Miles Kahler, Robert O. Keohane, and Anne-Marie Slaughter, ‘Introduction:
Legalization and World Politics’, International Organization, 54(3), 2000, pp. 385–99.

8. For a similar concept, see Peter Maguire’s definition of ‘strategic legalism’ in Peter Maguire,
Law and War: International Law and American History (New York: Columbia University
Press, 2000), p. 9.

9. Charles J. Dunlap, Law and Military Interventions: Preserving Humanitarian Values in
21st Century Conflicts (Cambridge, MA: Carr Center for Human Rights Policy, Harvard
University, 2001), p. 2.

10. Charles J. Dunlap, ‘Lawfare Today: A Perspective’, Yale Journal of International Affairs,
Winter, 2008, pp. 146–54.

11. Charles J. Dunlap, ‘Does Lawfare Need an Apologia?’, Case Western Reserve Journal of
International Law, 43(1–2), 2011, pp. 121–43.

12. This refers to the ‘Goldstone report’ and the Palestinian Authority’s intention to request an
ICC investigation into war crimes in Gaza.

13. Jeremy Waldron defines lawfare in the context of asymmetric conflict, wherein insurgents
may ‘transfer part of their struggle to courts, either domestic or international courts, to
try to embarrass the power they’re struggling against or secure some advantage’. Jeremy
Waldron, ‘Asymmetric War: Lawfare and Provocation in an Insurgency’, Keynote Address
(Asymmetric Warfare: A Symposium, Mahindra Humanities Center, Harvard University,
Cambridge, MA, 30 March 2015).

14. David Kennedy, Of War and Law (Princeton, NJ: Princeton University Press, 2006),
pp. 12, 22.

15. Kennedy, Of War and Law, p. 32.
16. The Lawfare blog was founded in September 2010 by Benjamin Wittes, Jack Goldsmith and

Robert Chesney and can be found here: http://www.lawfareblog.com
17. ‘About Lawfare – A Brief History of the Term and Site’, Lawfare Blog, available at: http://

www.lawfareblog.com/about/ (accessed 1 June 2015).
18. ‘About Lawfare’, available at: http://www.lawfareblog.com/about/ (accessed 1 June 2015).
19. See Gabrielle Blum and Philip B. Heymann, Laws, Outlaws, and Terrorists: Lessons from the

War on Terrorism (Belfer Center Studies in International Security) (Cambridge, MA: MIT
Press, 2010), pp. 41–2; Eric A. Posner, ‘Dockets of War’, The National Interest, March/April,
2011, p. 26.

20. John R. Bolton, former US Ambassador to the UN, is the public figure most notable for his
vehement distrust and opposition to the ICC. Additionally, many legal scholars align with con-
servative foreign policy-makers who reject the ICC as, paradoxically, too weak to be effective

http://www.lawfareblog.com

http://www.lawfareblog.com/about/

http://www.lawfareblog.com/about/

http://www.lawfareblog.com/about/

Tiemessen 427

or strong enough to threaten US interests. See, John R. Bolton, ‘The Risks and Weaknesses
of the International Criminal Court from America’s Perspective’, Law and Contemporary
Problems, 64(1), 2001, pp. 167–80; Posner, ‘Dockets of War’.

21. As quoted from David Scheffer in Pamela Yates, The Reckoning: The Battle for the
International Criminal Court (USA: Skylight Pictures, 2009).

22. David Bosco argues that major powers’ behavior toward the Court has been characterized
as control, even for the US, who is not a State Party. In return, the Chief Prosecutor has
been strategic and pragmatic in his or her behavior with major powers, resulting in ‘mutual
accommodation’ between the two sides. David Bosco, Rough Justice: The International
Criminal Court in a World of Power Politics (Oxford: Oxford University Press, 2013),
pp. 20–2.

23. Lawfare is not necessarily restricted to the international sphere, as Jens Meierhenrich shows
with the political use and abuse of transitional justice in post-genocide Rwanda. See, Jens
Meierhenrich, Lawfare: The Formation and Deformation of Gacaca Jurisdictions in Rwanda,
1994-2012 (Cambridge: Cambridge University Press, forthcoming).

24. The symposium was held at Case Western University School of Law on 10 September 2010,
and contributors’ articles were subsequently published in The Case Western Reserve Journal
of International Law, vol. 43, no. 1–2, 2011.

25. Justice James Ogoola, ‘Lawfare: Where Justice Meets Peace’, Case Western Reserve Journal
of International Law, 43(1–2), 2011, pp. 181–8.

26. Robert Petit, ‘Lawfare and International Tribunals: A Question of Definition? A Reflection on
the Creation of the “Khmer Rouge Tribunal”’, Case Western Reserve Journal of International
Law, 43(1–2), 2011, pp. 189–99.

27. David Crane, ‘The Take Down: Case Studies Regarding “Lawfare” in International Justice’,
Case Western Reserve Journal of International Law, 43(1–2), 2011, pp. 201–14.

28. David J. Scheffer, ‘Whose Lawfare Is It, Anyway?’, Case Western Reserve Journal of
International Law, 43(1–2), 2011, pp. 215–27.

29. Louise Arbour, ‘The Laws of War: Under Siege or Gaining Ground?’ (Speech on the occasion
of the Kirby lecture at the Australian National University, Canberra, ACT, Australia, 23 June
2011).

30. David Kennedy, ‘Lawfare and Warfare’, in James Crawford and Martti Koskenniemi (eds),
The Cambridge Companion to International Law (Cambridge: Cambridge University Press,
2012), pp. 158–84.

31. The ICC is more of a tool than an agent of lawfare. The ICC and specifically the Chief
Prosecutor do have the ability to initiate investigations through their proprio motu power,
but this has been rare so far. All of the conflict situations discussed in this article were ones
referred by States Parties or the UNSC.

32. Fatou Bensouda, ‘International Justice and Diplomacy’, The New York Times, 19 March 2013,
available at: http://www.nytimes.com/2013/03/20/opinion/global/the-role-of-the-icc-in-inter-
national-justice-and-diplomacy.html

33. Luis Moreno-Ocampo, ‘The International Criminal Court: Seeking Global Justice’, Case
Western Reserve Journal of International Law, 40(1–2), 2008, pp. 215–25.

34. Only the Kenyan situation was post-conflict, and this was not referred but rather initiated by
the Chief Prosecutor.

35. Mark Kersten, ‘Justice in Conflict: The ICC in Libya and Northern Uganda’ (Doctoral
Dissertation, London School of Economics, London, 2015), p. 12.

36. Nicholas Waddell and Phil Clark, ‘Introduction’, in Nicholas Waddell and Phil Clark (eds),
Courting Conflict? Justice, Peace and the ICC in Africa (London: Royal African Society,
2008), pp. 7–12.

http://www.nytimes.com/2013/03/20/opinion/global/the-role-of-the-icc-in-international-justice-and-diplomacy.html

http://www.nytimes.com/2013/03/20/opinion/global/the-role-of-the-icc-in-international-justice-and-diplomacy.html

428 International Relations 30(4)

37. This has been explained well by those who focus on the areas of normative and empirical
convergence between the ICC and the Responsibility to Protect (R2P). Both the ICC and
R2P are meant to address to situations of atrocity crimes, and their interventions are limited
to states that are ‘unwilling’ or ‘unable’ to address such crimes. So far, R2P has been invoked
in three of the conflict situations where the ICC has also intervened (Darfur, Côte d’Ivoire,
and Libya). See Kristen Ainley, ‘The Responsibility to Protect and the International Criminal
Court: Counteracting the Crisis’, International Affairs, 9(1), 2015, pp. 37–54; Frédéric
Mégret, ‘ICC, R2P, and the International Community’s Evolving Interventionist Toolkit’, The
Finnish Yearbook of International Law, 21(1), 2010, pp. 21–51; Kurt Mills, ‘R2P and the
ICC: At Odds or In Sync?’, Criminal Law Forum, 26, 2015, 73–99.

38. ‘Security Council Urged to Take Steps to Ensure Arrest of Sudanese Leaders for War
Crimes’, UN News Centre, 5 June 2012, available at: http://www.un.org/apps/news/story.
asp?NewsID=42154#.VbxPf_Oqqko; ‘Security Council Must Urgently Take Action to End
Impunity in Darfur – ICC Prosecutor’, UN News Centre, 5 June 2013, available at: http://
www.un.org/apps/news/story.asp?NewsID=45090#.VbxPnfOqqko.

39. See Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future
Atrocities?’, The American Journal of International Law, 95(1), 2001, pp. 7–31; Human
Rights Watch (HRW), Selling Justice Short: Why Accountability Matters for Peace (New
York: HRW, 2009); Hun Joon Kim and Kathryn Sikkink, ‘Explaining the Deterrent Effect
of Human Rights Prosecutions for Transitional Countries’, International Studies Quarterly,
54(4), 2010, pp. 939–63; Jack Snyder and Leslie Vinjamuri, ‘Trials and Errors: Principle
and Pragmatism in Strategies of International Justice’, International Security, 28(3), 2003–
2004, pp. 5–44; Leslie Vinjamuri, ‘Deterrence, Democracy, and the Pursuit of International
Justice’, Ethics and International Affairs, 24(2), 2010, pp. 191–211; Nicholas Waddell and
Phil Clark (eds), Courting Conflict? Justice, Peace and the ICC in Africa (London: Royal
African Society, 2008); Chandra Lekha Sriram, Confronting Past Human Rights Violations:
Justice vs. Peace in Times of Transition (New York: Frank Cass, 2004).

40. International Criminal Court, ‘The Importance of Justice in Securing Peace’, Review
Conference of the Rome Statute (Kampala, Uganda: Office of the Prosecutor, International
Criminal Court, 30 May 2010), pp. 6–7.

41. See Snyder and Vinjamuri, ‘Trials and Errors’; Vinjamuri, ‘Deterrence, Democracy, and the
Pursuit of International Justice’.

42. United Nations General Assembly, ‘Report of the International Criminal Court’, United
Nations A/60/177, 1 August 2005, p. 2.

43. Kate Cronin-Furman, ‘Managing Expectations: International Criminal Trials and the
Prospects for Deterrence of Mass Atrocity’, The International Journal of Transitional Justice,
7, 2013, 434–54.

44. Sarah M.H. Nouwen and Wouter G. Werner, ‘Doing Justice to the Political: The International
Criminal Court in Uganda and Sudan’, The European Journal of International Law, 21(4),
2011, pp. 941–65.

45. Tim Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army
(London: Zed Books, 2006), p. 123.

46. Nick Grono and Adam O’Brien, ‘Justice in Conflict? The ICC and Peace Processes’, in
Nicholas Waddell and Phil Clark (eds), Courting Conflict? Justice, Peace and the ICC in
Africa (London: Royal African Society, 2008), pp. 13–20; Kersten, ‘Justice in Conflict’.

47. Joint military efforts were conducted by the Ugandan military and its neighboring states to
track down and defeat the LRA. The US has also provided special forces to assist these efforts
by way of training and intelligence. The LRA has allegedly been reduced to just a few hun-
dred forces and is thought to be based in the Central African Republic.

http://www.un.org/apps/news/story.asp?NewsID=42154#.VbxPf_Oqqko

http://www.un.org/apps/news/story.asp?NewsID=42154#.VbxPf_Oqqko

http://www.un.org/apps/news/story.asp?NewsID=45090#.VbxPnfOqqko

http://www.un.org/apps/news/story.asp?NewsID=45090#.VbxPnfOqqko

Tiemessen 429

48. HRW, Selling Justice Short, pp. 43–53.
49. HRW, Selling Justice Short, pp. 125–6.
50. The UNSC’s referral of the Sudan situation (Resolution 1593 in 2005) passed with P5 absten-

tions from the United States and China, and the referral of the Libya situation (Resolution
1970 in 2011) passed unanimously with no abstentions.

51. ‘Sudan to Expel Foreign Aid Groups’, Al Jazeera, 16 March 2009, available at: http://www.
aljazeera.com/news/africa/2009/03/2009316131925285761.html

52. Ishma’il Kushkush, ‘New Strife in Darfur Leaves Many Seeking Refuge’, The New York
Times, 23 May 2013, available at: http://www.nytimes.com/2013/05/24/world/africa/new-
strife-in-darfur-leaves-many-seeking-refuge.html; HRW (HRW), Sudan: ICC Suspect at
Scene of Fresh Crimes (New York: HRW, 3 June 2013).

53. Kenneth A. Rodman, ‘Darfur and the Limits of Legal Deterrence’, Human Rights Quarterly,
30(3), 2008, pp. 529–60.

54. Fatou Bensouda, Statement to the United Nations Security Council on the Situation in Darfur,
Pursuant to UNSCR 1593 (2005) (New York: Office of the Prosecutor, The International
Criminal Court, 12 December 2014).

55. UNSC, ‘Resolution 1970’, United Nations S/Res/1970 (2011), 26 February 2011.
56. Max Boot, ‘Gaddafi Exile Unlikely’, Commentary Magazine, 23 March 2011, available at:

https://www.commentarymagazine.com/2011/03/23/qaddafi-exile-unlikely/
57. Mark Kersten, ‘The ICC in Libya: Beyond Peace versus Justice’, Justice in Conflict Blog,

20 May 2012, available at: http://justiceinconflict.org/2012/05/10/the-icc-in-libya-beyond-
peace-vs-justice/ (accessed 1 June 2015).

58. Payam Akhavan, ‘Are International Criminal Tribunals a Disincentive to Peace?: Reconciling
Judicial Romanticism with Political Realism’, Human Rights Quarterly, 31, 2009, pp. 624–54.

59. See Antonio Marchesi, ‘Article 14 Referrals of a Situation by a State Party’, in Otto Triffterer
(ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’
Notes, Article by Article (Oxford: Hart Publishing, 2008), pp. 305-13.

60. Moreno-Ocampo, ‘The International Criminal Court’, p. 224.
61. The critical legal studies literature acknowledges that law and politics cannot be entirely

separate domains, and many of these theoretical insights can only be applied to the ICC.
See Christine Schwöbel (ed.), Critical Approaches to International Criminal Law: An
Introduction (New York: Routledge, 2014). Judith Shklar’s seminal work is also, of course,
known for its analysis of legalism and ‘political trials’. See Judith N. Shklar, Legalism: Law,
Morals, and Political Trials (Cambridge, MA: Harvard University Press, 1964).

62. Nouwen and Werner, ‘Doing Justice to the Political’, p. 963. These scholars make a simi-
lar argument about the politicized nature of prosecutions and provide astute evidence with
the Uganda and Sudan cases. My analysis complements and extends theirs by addressing a
broader range of cases and contextualizes its significance within the conceptual framework of
lawfare.

63. Interviews with ICC officials.
64. HRW, ICC: New Prosecutor Takes Reins (New York: HRW, 14 June 2012).
65. The Chief Prosecutor technically initiated investigations into the Côte d’Ivoire situation with

his proprio motu power because Côte d’Ivoire was not a State Party to the Rome Statute at
the time. But this instance can be considered a de facto, but not de jure, case of state referral
because Ouattara publicly invited and supported and ICC intervention and subsequently reaf-
firmed a 2003 government declaration that gave the ICC jurisdiction over crimes committed
after September 19, 2002.

66. The Central African Republic and Mali situations were also instances of state referrals but
will not be discussed here because there are too few cases from which to assess the degree of

http://www.aljazeera.com/news/africa/2009/03/2009316131925285761.html

http://www.aljazeera.com/news/africa/2009/03/2009316131925285761.html

http://www.nytimes.com/2013/05/24/world/africa/new-strife-in-darfur-leaves-many-seeking-refuge.html

http://www.nytimes.com/2013/05/24/world/africa/new-strife-in-darfur-leaves-many-seeking-refuge.html

https://www.commentarymagazine.com/2011/03/23/qaddafi-exile-unlikely/

The ICC in Libya: Beyond Peace vs. Justice

The ICC in Libya: Beyond Peace vs. Justice

430 International Relations 30(4)

impartiality and independence in the prosecutorial strategy. The ICC has only indicted one
individual for the conflict in the CAR, and there are no indictments for the conflict in Mali
yet.

67. Adam Branch presents a thorough and convincing argument for this politicization. Adam
Branch, ‘Uganda’s Civil War and the Politics of ICC Intervention’, Ethics and International
Affairs, 21(2), 2007, pp. 179–98.

68. Benjamin N. Schiff, Building the International Criminal Court (Cambridge: Cambridge
University Press, 2008), p. 200.

69. Allen, Trial Justice, p. 97.
70. HRW, Unfinished Business: Closing Gaps in the Selection of ICC Cases (New York: HRW,

2011), pp. 9–22.
71. See Office of the United Nations High Commissioner for Human Rights (OHCHR), ‘Democratic

Republic of the Congo, 1993-2003: Report of the Mapping Exercise Documenting the Most
Serious Violations of Human Rights and International Humanitarian Law Committed within
the Territory of the Democratic Republic of the Congo between March 1993 and June 2003’
(United Nations, 2010), available at: http://www.genocidewatch.org/images/DRC10_06_xx_
Report_Draft_Democratic_Republic_of_the_Congo_1993-2003

72. HRW, Unfinished Business, p. 12.
73. The ICC’s judges and Chief Prosecutor use a gravity threshold for crimes as one criterion

to select both conflict situations and cases against individuals, which is meant to guide the
ICC toward the most serious cases of atrocities. It is, however, a vague and inconsistently
applied criterion that is more prominent in the Prosecutor’s public discourse to justify case
selection than it is a robust legal criterion. See Susana SaCouto and Katherine A. Cleary, ‘The
Gravity Threshold of the International Criminal Court’, American Journal of International
Law Review, 23(5), 2008, pp. 807–54; William A. Schabas, ‘Prosecutorial Discretion and
Gravity’, in Carsten Stahn and Goran Sluiter (eds), The Emerging Practice of the International
Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009), pp. 229–46.

74. Amnesty International, ‘Uganda: First Steps to Investigate Crimes Must be Part of a
Comprehensive Plan to End Impunity’, in Public Statement (London: Amnesty International,
30 January 2004), available at: https://www.amnesty.org/en/documents/AFR59/001/2004/
en/; Branch, ‘Uganda’s Civil War and the Politics of ICC Intervention’; Phil Clark, ‘Law,
Politics and Pragmatism: The ICC and Case Selection in the Democratic Republic of Congo
and Uganda’, in Nicholas Waddell and Phil Clark (eds), Courting Conflict? Justice, Peace and
the ICC in Africa (London: Royal African Society, 2008), pp. 37–46; HRW, ICC: Investigate
All Sides in Uganda (New York: HRW, 4 February 2004).

75. For example, President Museveni accused the ICC of ‘blackmail’ with respect to its indictment
of recently elected Kenyan leaders. AFP, ‘Uganda’s Museveni Praises Kenya for Rejecting ICC
“Blackmail”’, The Daily Nation, 9 April 2013, available at: http://www.nation.co.ke/News/
politics/Ugandas-Museveni-praises-Kenya-for-rejecting-ICC-blackmail/-/1064/1743650/-/
envd36/-/index.html

76. Mac McClelland, ‘I Can Find an Indicted Warlord. So Why Isn’t He in The Hague?’, Mother
Jones, September/October, 2011, available at: http://www.motherjones.com/politics/2011/09/
bosco-ntaganda-congo-warlord

77. Ntaganda’s ties to Rwanda are well known. He is a former member of the Rwandan Patriotic
Army and former leader of several Rwanda-backed rebel groups in the DRC. When he
defected from the DRC military in 2012, he became a leader of the M23 rebel group that is
known to be militarily and financially supported by Rwanda. When Ntaganda turned himself
in, he did so by going to the US Embassy in Kigali, and Rwandan authorities ensured his
transfer to The Hague.

http://www.genocidewatch.org/images/DRC10_06_xx_Report_Draft_Democratic_Republic_of_the_Congo_1993-2003

http://www.genocidewatch.org/images/DRC10_06_xx_Report_Draft_Democratic_Republic_of_the_Congo_1993-2003

https://www.amnesty.org/en/documents/AFR59/001/2004/en/

https://www.amnesty.org/en/documents/AFR59/001/2004/en/

http://www.nation.co.ke/News/politics/Ugandas-Museveni-praises-Kenya-for-rejecting-ICC-blackmail/-/1064/1743650/-/envd36/-/index.html

http://www.nation.co.ke/News/politics/Ugandas-Museveni-praises-Kenya-for-rejecting-ICC-blackmail/-/1064/1743650/-/envd36/-/index.html

http://www.nation.co.ke/News/politics/Ugandas-Museveni-praises-Kenya-for-rejecting-ICC-blackmail/-/1064/1743650/-/envd36/-/index.html

I Can Find an Indicted Warlord. So Why Isn’t He in The Hague?

I Can Find an Indicted Warlord. So Why Isn’t He in The Hague?

Tiemessen 431

78. Barbara Plett, ‘Ouattara Vows to Temper Justice with Reconciliation’, BBC News, 23 May
2011, available at: http://www.bbc.co.uk/news/world-africa-13508356; ‘Ivorian President
Vows Reconciliation’, France 24, 28 January 2012, available at: http://www.france24.com/
en/20120127-ivory-coast-ouattara-heal-rifts-reconciliation-gbagbo-sarkozy/

79. James Bouverie, ‘The Ivory Coast: In Search of Impartial Justice’, Think Africa Press, 15
August 2012, available at: http://www.ocnus.net/artman2/publish/Africa_8/The-Ivory-Coast-
In-Search-of-Impartial-Justice.shtml

80. HRW, ‘They Killed Them Like It Was Nothing’: The Need for Justice for Côte d’Ivoire’s Post-
Election Crimes (New York: HRW, 2011). See also Nico Colombant, ‘Ivory Coast Struggles
with Reconciliation Deepen’, VOA News, June 15, 2012, available at: http://www.voanews.
com/content/ivory-coast-struggles-with-reconciliation-deepen/1211798.html

81. ‘ICC Prosecutor to Probe Six in Ivory Coast’, Radio Netherlands Worldwide, 16 October 2011,
available at: http://allafrica.com/stories/201110171795.html; Fatou Bensouda, ‘Statement to
the Press by the Prosecutor of the International Criminal Court’, International Criminal Court
(Abidjan, Côte d’Ivoire, 20 July 2013).

Author biography

Alana Tiemessen is presently an Assistant Professor of Security Studies at Endicott College. She
was previously a Visiting Assistant Professor at Bowdoin College and a post-doctoral fellow at
The University of Chicago. Her research interests are in the field of international and transitional
justice, the International Criminal Court, conflict resolution, human rights, and failed states. Her
publications include ‘The International Criminal Court and the politics of prosecutions’ in The
International Journal of Human Rights (May 2014).

http://www.bbc.co.uk/news/world-africa-13508356

http://www.france24.com/en/20120127-ivory-coast-ouattara-heal-rifts-reconciliation-gbagbo-sarkozy/

http://www.france24.com/en/20120127-ivory-coast-ouattara-heal-rifts-reconciliation-gbagbo-sarkozy/

http://www.ocnus.net/artman2/publish/Africa_8/The-Ivory-Coast-In-Search-of-Impartial-Justice.shtml

http://www.ocnus.net/artman2/publish/Africa_8/The-Ivory-Coast-In-Search-of-Impartial-Justice.shtml

http://www.voanews.com/content/ivory-coast-struggles-with-reconciliation-deepen/1211798.html

http://www.voanews.com/content/ivory-coast-struggles-with-reconciliation-deepen/1211798.html

http://allafrica.com/stories/201110171795.html