The ICC as an Instrument of Lawfare: Sophisticated or Sophistical Insight?

By Anh Nguyen

[Anh Nguyen is a law graduate of the University of Vienna and trainee in international dispute resolution at Knoetzl Haugeneder Netal, currently completing her judicial clerkship in the Vienna Circuit. She tweets at @mikanguyen27Her previous articles on Jus Cogens can be found here and here]

Every so often buzzwords, like “hybrid” or “asymmetric” warfare, from the foreign policy and international security scene enter into the realm of public international law. In recent years the term “lawfare” has been invoked in the discourse on the function and legitimacy of law in armed conflicts. The latest iteration of “lawfare” is ubiquitously invoked by both the Israeli and Palestinian side to frame the other side’s unlawful conduct. Most notably, scholars and pundits have advanced the argument that the Palestinian Authority and Hamas are using the ICC as a tool to undermine and delegitimise Israeli military conduct.

Is “lawfare” a valid critique of the ICC or is it meant as a sophisticated – or rather sophistical – “political slur”? This post will delve into the charge of the ICC being used as an instrument of “lawfare” to launch investigations into the conduct of individuals, whose home state is not a member of the ICC. The post will focus on the investigations in Israel/Palestine, as well as touch upon the Afghanistan investigation. 

The traditional form of “battlefield lawfare”

The concept of “lawfare” was popularized by Charles Dunlap, a former Major General of the US Air Force, and refers to the use or rather misuse of the law, as a substitute for traditional military means to achieve a military objective. For public international lawyers this translates to exploiting jus in bello rules of conduct: Belligerent parties capitalize on their adversary being compelled to respect IHL, which does not depend on reciprocity. Any violation of IHL principles by one party does not release the adversaries from their own legal obligations under IHL (Art 51 (8) AP I Geneva Conventions). This is referred to as “battlefield lawfare” or “compliance leverage lawfare”. One of the classic example is the war crime of using human shields (Art 8 (2)(b)(xxiii) Rome Statute). It is therefore not surprising that the language of lawfare in the Israel-Palestine discourse started with instances of Hamas’ human shielding, i.e. strategically locating military assets near civilian or protected objects (cf UNHRC Report, para 478). We need look no further than the recent bombings of the AP and Al Jareeza building

Palestine joining the ICC as a disputed form of lawfare

The charge that the Palestinian Authority’s (PA) decision to accede to the Rome Statute as a form of lawfare is encountered across the board in formal legal discourse (former OTP Investigations and Prosecutions Coordinator, Alex Whiting’s reserved welcome here, former ICC Chief Prosecutor Luis Moreno Ocampo’s “good faith” take here, which was critiqued by Alan Dershowitz for not recognising the “lawfare” dimension here) academic blogosphere (for instance this Just Security post and rebuttal on Opinio Juris), punditry, and activism. This charge of lawfare is thoroughly discussed in Orde Kittrie’s book Lawfare: Law as a Weapon of War. Kittrie opens the chapter on PA’s lawfare against Israel by discussing a New York Times op-ed by PA President Mahmoud Abbas, who asserted that the UN’s recognition of Palestine as an observer state “would […] pave the way for us to pursue claims against Israel at the UN, human rights treaty bodies and the ICJ.” 

Kittrie, thus, sees the PA’s decision to obtain UN observer status, mobilisation of the GA to request the ICJ’s Wall Advisory Opinion and membership of international organisations, such as UNESCO, as a build-up to its deployment of “the most powerful” lawfare weapon against Israel: joining the ICC (Kittrie, 2016, p. 200 et seq). He highlights that the PA submitted itself to the ICC’s jurisdiction, even at the risk of making its side vulnerable to criminal investigations due to (1) the possibility of a conviction or mere opening of investigations against Israel, which would vindicate the Palestinian narrative, tarnish Israel’s standing and deter its military and settlement actions and (2). the PA’s own belief that it could “retain at least some measure of control over ICC proceedings” (p. 211). 

A further point of contention is Palestine’s acceptance of the ICC’s jurisdiction from 13th June 2014. Kittrie and many commentators have observed that this date appeared to have been selected because on the day before (12th June) alleged Hamas-affiliated Palestinians kidnapped and murdered three Israeli teenagers. Kittrie notes that the PA seems to have arranged for ICC jurisdiction to apply to Israel’s response to the kidnapping, but not to the kidnapping itself. The response in question was Operation Brother’s Keeper (the military operation to find the teenagers, resulting in the arrest of 350 Palestinians and Hamas’ West Bank members), which was met by Hamas firing of rockets and responded with Operation Protective Edge, i.e. the start of the 2014 Gaza War (see this timeline). 

In the above-mentioned Opinio Juris rebuttal Kevin John Heller, however, notes that 13th June 2014 was not “plucked out of thin air”, explaining it was the same date that the Human Rights Committee selected for the beginning of the Schabas Commission’s mandate. Heller takes issue with the premise of taking a dispute to an international criminal tribunal as “lawfare”, referring to term as short-hand for “I disagree with X’s legal actions”. This observation is also made in a paper by Alana Tiemessen. She observes that the contemporary use of Dunlap’s intended “ideologically neutral” concept is often pejorative and ideological. In relation to Israel Tiemessen notes lawfare as aimed at discrediting claims of its war crimes and questioning the credibility of international criminal justice (Tiemessen, 2015, p. 413). She elaborates that the concept is used to describe “weapon of the weak” for insurgents engaged in asymmetric warfare, which is heavily implied by Kittrie regarding the PA and Hamas’ consorting to use of lawfare: “The PA cannot seem to win from Israel through the negotiations process, or militarily, it is thus trying to win through “internationalisation of the conflict as a legal matter.””(Kittrie, 2016, p. 297). 

The ICC’s jurisdiction clause as a gift to lawfare practitioners?

When the Appeals Chamber held that there was a sufficient nexus between the US armed forces and the CIA’s operations of black site” detention facilities in Romania, Lithuania and Poland and the armed conflict in Afghanistan to establish the Court’s jurisdiction over US nationals (para 76, 78) former Secretary of State Mike Pompeo deemed the Court to be a “political institution masquerading as a legal body”. This stance is often echoed in commentators’ protests against the ICC being instrumentalized by “the enemy” to go after alleged criminal conduct of nationals of even non-member states. 

As Monique Cormier discusses in her recent article this, however, is due to the jurisdiction conferred by member states to the ICC. Since Art 12 Rome Statute enables the ICC to prosecute individuals accused of committing Statute crimes, if they either are nationals of the state or if their conduct is in the territory of the state, which have consented to the jurisdiction of the Court, it may exercise jurisdiction over nationals from a state not party to the Rome Statute, even if they have committed crimes on the territory of a state party. The ICC’s seemingly expansive jurisdiction, as Cormier argues, is within the parameters of its jurisdictional framework, which was conceived such that the Court could investigate and prosecute the most serious of crimes “on behalf of the international community” (Prosecutor v Al Bashir (Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa) para 54). 

Despite the ICC’s expansive jurisdictional framework and high-minded international criminal justice ideals, Alex Whiting, in his article mentioned above, notes that in relation to implicated Israeli war crimes in Palestinian (occupied) territories, the OTP would act cautiously because it relies on “sustained support for its work” from either within the country where the cases arose or from the international community at large, which is by a long shot not given in the Israel-Palestine conflict. Whiting highlights a glossed over, but critical aspect within the lawfare discourse: Art 17 Rome Statute, pursuant to which, if Israel and Palestine undertake genuine investigations and prosecutions of alleged crimes on each of their respective sides, the ICC will no longer have jurisdiction. Whiting cites the Georgia investigation as a precedent for the OTP giving parties considerable time to initiate such efforts. Kittrie also concedes that Israel can “avoid” the ICC’s prosecution because of the inadmissibility criteria in Art 17 (p. 223). This, however, is due to how the ICC’s jurisdiction operates on a legal plane – not because of any strategy designed to outmanoeuvre any supposed “lawfare” in the ICC’s or the enemy’s arsenal. 

Concluding remarks

The ICC’s decision to open investigations in jurisdictionally multifaceted situations, such as in Israel-Palestine or Afghanistan, does not inevitably mean it is wielding lawfare powers to commit jurisdictional overreach. However, charges of “lawfare” reveal where the work of  the ICC and international criminal justice strikes a nerve. This forces those of us thinking primarily on a legal plane to critically and deftly cut through rough political currents, which surround the practice of international law.

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