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

Abstract

This Article investigates the political and military conditions under which national governments decided to invite judicial scrutiny from the International Criminal Court (ICC). The cross-case analysis of seven country situations either examined or investigated by the ICC Prosecutor's Office (OTP) lends support to the conclusion that government decisions to solicit external judicial scrutiny are a function of two main independent variables, namely their military inability to defeat the rebellion and short-term preference for continuing war over negotiating its conclusion. I hereby argue that specific values on these variables combined to persuade national governments in conflict-ridden countries that, against predictions to the contrary, inviting ICC scrutiny was in fact in their interest. This Article's contribution to the lasting debate on 'Peace v. Justice' is two-fold. First, it emphasizes state agency in 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. 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 may be used to undermine the latter.