This Article investigates the political and military conditions under which national governments decide to invite judicial scrutiny from the International Crim-inal Court (“ICC”). The cross-case analysis of seven countries either examined or officially investigated by the ICC Prosecutor’s Office (“OTP”) lends support to the conclusion that governments solicit external judicial scrutiny due to two main independent variables: namely, a military’s inability to defeat a rebellion and a short-term preference for continuing war over negotiating its conclusion. This Article contends that the values placed on these variables combine to persuade national governments in conflict-ridden countries that, against predictions to the contrary, inviting ICC scrutiny is in fact in their best interest. This Article also makes a threefold contribution to the lasting debate on peace versus justice. First, it emphasizes state agency in the processes of norm exploitation and subversion. Second, it sheds new light on the tactical use of international laws in the pursuit of broader state strategies. Third, it identifies political and military conditions for the optimal tactical use of international laws. In all, this Article highlights the instrumentality of international laws in prolonging, rather than bringing to an end, internal conflict. In so doing, it urges scholars and practitioners to rethink the relationship between the concepts of “justice” and “peace,” for the former can be used to undercut the latter.
Jus Pro Bello: The Impact of International Prosecutions on War Continuation,
27 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wilj/vol27/iss3/4