NATIONAL INSTITUTE OF PUBLIC ADMINISTRATION

NAME: ADILIYA SAKALA

COMPUTER NO.: 28028511

PROGRAM: MASTER OF LAWS IN CRIMINAL LAW

AND CRIMINAL JUSTICE

MODE: BLOCK RELEASE

COURSE: INTERNATIONAL HUMAN RIGHTS AND

CRIMINAL LAW

YEAR: FIRST

SEMESTER: SECOND

LECTURER: MR.MUNDANDA

ASSIGNMENT: TWO

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 INTRODUCTION

Law is a word that means different things at different times. Black’s Law Dictionary says that
law is “a body of rules of action or conduct prescribed by controlling authority, and having
binding legal force. That which must be obeyed and followed by citizens subject to sanctions or
legal consequence is a law.”1

In a nation, the law can serve to keep the peace, maintain the status quo, preserve individual
rights, protect minorities against majorities, promote social justice, and provide for orderly social
change. Some legal systems serve these purposes better than others. Although a nation ruled by
an authoritarian government may keep the peace and maintain the status quo, it may also oppress
minorities or political opponents (e.g., Burma, Zimbabwe, or Iraq under Saddam Hussein).
Under colonialism, European nations often imposed peace in countries whose borders were
somewhat arbitrarily created by those same European nations. Over several centuries prior to the
twentieth century, empires were built by Spain, Portugal, Britain, Holland, France, Germany,
Belgium, and Italy. With regard to the functions of the law, the empire may have kept the peace
—largely with force—but it changed the status quo and seldom promoted the native peoples’
rights or social justice within the colonized nation. In nations that were former colonies of
European nations, various ethnic and tribal factions have frequently made it difficult for a single,
united government to rule effectively. In Rwanda, for example, power struggles between Hutus
and Tutsis resulted in genocide of the Tutsi minority.2

Law fare is frequently referred to as the misuse of international law and the abuse of the
domestic and international courts in order to claim international law violations against the
enemy. These claims become as powerful and fearsome as a weapon of war. During the last
decades, the idea of law fare has evolved fundamentally linked to the international law, and
especially the law of war and the armed operations and the human rights international law.3

It is not in dispute that the Law if applied appropriately, more so, following the Rule of Law and
subsequently the judicial independence, can and does provide justice for both individuals and
states, however, what is in dispute is if the law can be used as an instrument of oppression and as
1
Black’s Law Dictionary, 6th ed., s.v. “law.”
2
Law fare and democracy . Law as a weapon of war José Luis Martí
3
Susan W. Tiefenbrun, Semiotic Definition of Law fare, 43 Case W. Res. J. Int'l L. 29 (2010) Available at:
https://scholarlycommons.law.case.edu/jil/vol43/iss1/3

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an instrument to vindicate individual rights and freedoms, leading to injustice in international
human rights and criminal law, henceforth, leading to the concept of Law fare.

INTERNATIONAL HUMAN RIGHTS AND CRIMINAL LAW IN RELATION TO THE

RULE OF LAW

The idea that we are all “born free and equal in dignity and rights”4is central to human rights, as
is the recognition of the diversity of humankind, and the principle of non-discrimination, which
ensures that individuals are entitled to all human rights without distinction of any kind,
including: “race, color, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status”5 Building on these concepts of equal human dignity and
non-discrimination, the rule of law is predicated on ensuring equality before the law - which
means that all are subject to the law, and all enjoy the equal protection of the law. Human rights-
based approaches to the development and the exercise of legal, institutional and operational
functions are an important means of recognizing and redressing the structural inequalities and
pervasive forms of discrimination that may prevent marginalized groups from accessing justice
and equal protection under the law. Trust in public institutions and official functions is
undermined by inequality and discrimination. This serves as an important reminder of the
importance of promoting human rights and the rule of law as a fundamental part of the
development agenda of every country.

But the most essential role of the rule of law in protecting human rights is in its check on power.
There can be no human rights if the actions of government or corporations or other powerful
actors are left unconstrained by the law. At the heart of the rule of law is the idea that no one is
above the law, and no one is beneath its protection. That the rights of the impoverished, the
minority, the migrant, the prisoner, will be protected against assaults even by the most powerful,
the most wealthy, and by the government itself. In this sense, the rule of law is both sword and
shield in the cause of human rights.

Ultimately, international human rights law aims to “protect the interests of individuals”, while
international criminal law “gives legal expression to the fight against impunity.” As the
International Law Commission observes, these distinct branches of law emerge out of the
4
Universal Declaration of Human Rights, article 1
5
International Covenant on Civil and Political Rights (ICCPR), para 26

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practice needs of specialization, rather the intentional creation of distinct regimes. These two
fields are deeply linked in substance. For example, serious human rights violations may
constitute crimes against humanity under international criminal law. As such, it is logical that
interactions between these two fields of law occur.6

On the other hand, the basic premise of international criminal law is the idea that crimes of a
certain magnitude affect humanity as a whole which is therefore obliged to prevent such crimes
and punish offenders, particularly if these crimes are not being adequately addressed in the
countries in which they were planned and carried out. In international criminal law, the main
criminal offences are known as the core international crimes and are set out in the statutes of
various international tribunals. The core crimes are: war crimes , crimes against humanity and
genocide (which, according to the traditional and highly disputed definition, includes a range of
violent acts, if committed against a national, ethnic, racial or religious group with the intention to
destroy that group).

However, most prominent flaws in the fundamental handling of the above crimes lead to
arguments in the distinction between law and politics. This distinction, however, largely
influences legal enforcement making it starkly different from the workings of domestic legal
structures. Law, especially international law is not divorced from politics because it is
fundamentally instituted to protect and promote interests of states, groups or individuals. Rights
and duties are outlined in respect to these varying interests in order to provide a platform
for common cooperation.

LAWFARE

“Law fare” was coined at the turn of this century to describe the expanding role of law in relation
to warfare. Examples of this expansion include the establishment of United Nations ad hoc
tribunals to prosecute perpetrators of war crimes, genocide, and crimes against humanity in the
former Yugoslavia (1993) and Rwanda (1994); the passage of a treaty to establish an
International Criminal Court (1998); and the “Pinochet precedent” (1999) which signaled a new
shelf-life for the doctrine of universal jurisdiction to prosecute people accused of core crimes
under international law in foreign national courts

6
International Law Commission’s (ILC) Report on Fragmentation

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International law fare undoubtedly refers to the abuse of international legal instruments, to a
twisting or betrayal of their principles, but also, paradoxically, to lawsuits between countries in
the context of conflicts that might otherwise have been resolved by armed form. Seen this way,
law fare could even have a positive side, as long as it is a real alternative to war or armed

confrontation, the negative narrative of it being the oppression of the law. The issue at stake is
not so much that some people take advantage of the law for their own benefit, which may be
legitimate. But rather that there are people who use it for purposes other than those provided for
by the legal system itself, and which may even be contrary to it, thus perverting existing
institutions, or creating new ones that may conflict with the general principles of the system.

For instance, On September 11, 2001, terrorists under the orders of Bin Laden crashed their
planes in which they were flying crashed into the Twin Towers of New York and the Pentagon,
killing more than 2,000 people. Some consider that day a turning point in the history of modern
liberal, democratic and guarantee law, which until then had always followed a path of progress in
the guaranteeing of rights. The reaction to the attacks by the United States, led by George W.
Bush, was not long in coming. In just one month, Congress passed the Patriot Act by a very large
majority, initiating the use of the so-called law fare or “legal war” against terrorism and giving
“legal” coverage to actions that few internationalists would hesitate to call contrary to
international law.

Subsequently, the Bush administration’s own attempt to justify certain forms of torture, such as
waterboarding, as is illegal. Not to mention specific acts of torture such as those that were
uncovered in Abu Ghraib prison in Iraq. However and somewhat paradoxically, the Bush
Administration itself accused human rights activists of protesting against these forms of culture
and of filing allegations of human rights violations of illegally using the right to interfere in what
Bush considered an armed conflict in which national security was at stake. Who exactly was
using the law as a weapon, the Bush administration or human rights organizations?7

Similarly, the People's Republic of China has explicitly recognized law fare ("falu zhan" or
"legal warfare") as an essential component of its strategic doctrine.8 The activities of the People's

7
Lawfare and democracy. Law as a weapon of war, José Luis Martí

8
Kittrie, Orde (2016). Lawfare: Law as a Weapon of War. New York, NY: Oxford University Press.

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Republic of China in relation to the territorial disputes in the South China Sea are a frequently
cited example of law fare by the Chinese government.9 In particular, China has asserted
sovereign control over several areas in the South China Sea, and has restricted access to areas
within its alleged sovereign territory or exclusive economic zone.10 In support of its claims,
China has issued official state declarations and enacted domestic laws that assert its sovereignty
or effective control of portions of the sea.

In the last two decades we have witnessed an expansion of the use of law fare as a tool of
internal political struggle, that is, as a weapon that some political actors use to achieve, often
illegitimately, goals they have not been able to reach politically, by the force of the ballot box.
This includes false allegations, unjustified police or prejudicial actions, fake news with legal
content or outcomes, parties’ outlaws and invalidation of political lists. This use of political law
fare has been especially intense in the Latin America. As is often the case, it is difficult to
discern here which uses of law would be legitimate and which would be illegitimate. Cases such
as the legal prosecution of Lula or Dilma Rousseff in Brazil, Fernando Lugo in Paraguay, Rafael
Correa in Ecuador, Evo Morales in Bolivia, or Cristina Fernández de Kirchner in Argentina,
have been considered as examples of law fare.

POLITICIZATION OF JUSTICE IN RELATION TO LAWFARE

This brings us to the analysis that of the judicialisation of politics and the politicization of
justice. That justice is politicized is nothing new, However, what is clear is that judges’ decisions
are not politically neutral. If they were, we would not be able to predict what the majority of
judges of the highest courts will vote on in many of the rulings, especially those with a more
clearly political and ideological component. Judges are human beings, and as such, they cannot
fully transcend their own ideology or their subjective personal bias. Moreover, it is even more
difficult if the method of appointment has an eminent political nature, as is precisely the case of
these high courts in many countries of the world. In addition to that, this problem, which has
existed since the very beginnings of modern legal and judicial systems, seems to some jurists and
observers to have worsened over time. We all know of examples of deteriorating conditions of
judicial independence in Europe and the United States, not to mention Latin America. This is
9
HSIAO, ANNE HSIU-AN (16 December 2016). "China and the South China Sea "Lawfare"". Issues & Studies. 52 (2):
1650008.
10
Kittrie, Orde (2016). Lawfare: Law as a Weapon of War. New York, NY: Oxford University Press.

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why the phenomenon described, that of political law fare, is aggravated by the politicization of
justice.

Moreover, to the politicization of justice we must add another new dimension: the judicialisation
of politics, no longer understood as the illegitimate use of law fare against a candidate or an
opponent, but as the judicialization of major political decisions. In the last three decades, we
have witnessed an increase in the tendency for major issues of political discussion to be finally
decided by the highest courts, or at least for them to be able to exercise a certain veto power. The
U.S. Supreme Court deciding the President of the United States in the case of Bush v. Gore,11 in
the year 2000. The German Constitutional Court deciding last year on whether the 2006 Lisbon
Treaty or the Eurobond policy were acceptable. All the high courts of our democracies that have
had the last word on basic issues of territorial balance, monetary, financial and fiscal policy,
redistribution of wealth, cultural and language policy.

A rather surprising and astonishing ruling was taken on 8 June ,2018 at The Hague by the
Appeals Chamber of the International Criminal Court (ICC) in the case of The Prosecutor v.
Jean-Pierre Bemba Gombo.12 The Appeals Chamber reversed the decision of the Trial Chamber
III of 21 March 2016, entitled “Judgment pursuant to Article 74 of the Statute”13. The Trial
Chamber had in its decision found Bemba of the Democratic Republic of the Congo (DRC), as a
person effectively acting as a military commander, guilty of war crimes and crimes against
humanity. These crimes were proved beyond reasonable doubt to have been committed in the
Central African Republic (CAR) from on or about 26 October 2002 to 15 March 2003 when
Bemba as president of the Mouvement de libération du Congo (MLC).

The Appeals Chamber reversed this decision on two grounds and acquitted Bemba. This decision
was quite surprising as the grounds for acquittal seemed to be inconsistent from an international
criminal law perspective. Furthermore, with regard to the political context in the DRC, one could
have perceived it as a political decision aimed at threatening the then acting DRC President,
Joseph Désiré Kabila, who was not in a hurry to organize free and fair elections and leave power,
and was shielding him using article 70 of the Congolese Constitution.

11
Why Bush v. Gore Still Matters in 2020, Ian MacDougall Nov. 1, 2020
12
Case No. ICC-01/05-01/08 A.
13
The Rome statute

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Once this precedent was distinguished, it appeared that the Appeals Chamber has acted ultra
vires in creating a norm that could dangerously be used as a binding precedent before the
International Criminal Court. It is evident that if this exonerating factor was to constitute a
precedent, it would permit a great number of people who bear the highest responsibility in the
commission of crimes under the jurisdiction of the ICC to escape from justice. It does seem that
this exonerating factor does not serve the interests of justice as it frustrates the hopes of the
victims to see justice served. In addition, such a precedent may completely challenge article 28
of the Rome Statute which provides for the criminal responsibility of commanders and other
superiors. The Appeals Chamber in the Bemba case noted that the Trial Chamber “ignored
significant testimonial evidence indicating that Mr. Bemba’s power to investigate crimes
committed in the CAR was limited and that he faced logistical difficulties in conducting
investigations”.14 The real question here is whether a reasonable person can believe such
reasoning with regards to the real circumstances of the case and the great power that Bemba
commanded. Accepting this exonerating factor means that article 28 applies only to military
commanders who are present in the theater of war since all those who were absent from the
actual war zone can just prove that they had “logistical difficulties”.

This clearly indicates that an error in a case that does not have any impact on the fairness of the
procedure or on the fundamental rights of the accused still resulted in a whole case being
reversed. This is quite surprising with regards to the precedents in international criminal law. It is
thus understandable that two judges dissented from such a decision. The dissenting judges on
their own considered that it is not sufficient that there are “serious doubts” about a factual
finding entered by the Trial Chamber. In fact, in case of doubt, the Appeals Chamber has two
choices as per the Rome Statute, either “to review the evidence supporting the factual findings in
question to itself determine the issue or to remand the matter to a trial chamber for that
purpose”15. Therefore, it is very difficult to understand why the Appeals Chamber decided to
reverse the whole case against Bemba. If the future proves this reasoning to be true, one could
conclude, as done by President Yoweri Museveni of Uganda, that the International Criminal

14
Case No. ICC-01/05-01/08 A, Summary of the Appeal Judgment, para. 36.
15
The Rome Statute,Article 83(2)

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Court is influenced by western powers to put in place African leaders of their choice and to
challenge those that they do not like or deem fit.16

LAW AS AN INSTRUMENT OF OPPRESSION AND VINDICATION

This, however, merely shows that judges can make mistakes of more than one kind, including
failure to sustain the integrity of judicial proceedings by actual or apparent bias or prejudice. It
also shows that a formally proper structure of argument can coexist with material impropriety in
the conduct of the case, or indeed some error of argumentation in establishing one or more of the
premises .Consequently, what we change in changing the law of a state, or of a federal or
nonfederal union, are the possible grounds of legal arguments and the legal claims and decisions
that these arguments can support.

Notwithstanding, that recourse to justice is as an alternative to other more aggressive and even
violent forms of political confrontation. After all, in a legal system effectively governed by
minimum principles of rule of law and judicial independence, some basic rules must be observed
(such as the presumption of innocence or the right to defense) to enable the victim of law fare to
defend himself better. It is clear that this alleged advantage vanishes in those cases where these
basic principles are not met, when law is twisted by the police, prosecutors and judges
themselves, with the aim of serving a particular political cause. After all, as Thomas Jefferson
warned in a famous statement, “law can become a mere thing of wax in the hands of the
judiciary, which they may twist and shape into any form they please”.

Politicking of the Law by conforming to what these leaders deem fit to suit their personal
vendettas suffice to say harbors on the disregard of the victims’ rights and freedoms. The value
of freedom from harm starts with protecting life itself, and physical security from bodily injury
or bodily confinement, and from harms to reputation, emotional security, and environmental
quality. Criminal law dealing with offences against the person looks to these values, with
particular concentration on killing, battering and assaulting, violent abduction, and the like. The
civil law in modern times acknowledges a general duty of care to avoid damaging people in body
or in respect of their possessions, and in various more restricted ways protects economic,
emotional, and reputational goods. That all persons have ,as their due certain basic elements of
16
Foka Taffo, Frédéric (2018) Le Pouvoir Discrétionnaire du Procureur de la Cour Pénale Internationale, Baden-
Baden (Germany): Law and Constitution in Africa, N° 36, Nomos, 2018, p. 93.

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respect is now particularly, but by no means only, the subject matter of human rights law. This
can be tracked through instruments like the United Nations Universal Declaration on Human
Rights, the European Convention for the Protection of Human Rights and Fundamental
Freedoms, and also the African Charter on Human and Peoples’ Rights. The Charter covers,
through various particular concretizations of each of them, the values of individual dignity,
personal liberty, interpersonal equality, social solidarity, political citizenship, and proper
administration of justice under law. Any such listing contains overlaps and possible repetitions.
Not harming people is no doubt a part of what respect for persons requires, and honesty includes
respect for people’s property rights, but so does abstaining from harm and acting with due
respect. In contemporary understanding, many of the requirements of respect require systems of
state-administered social security—‫ ־‬solidarity rights, in the parlance of the Charter. Citizenship
rights and rights to fair administration of justice or rather ‘natural justice’, require institutions of
democratic political participation, and well-organized and properly staffed tribunals, courts, and
legal professions. We can contend that the most basic legal right of human beings is to be treated
with equal concern and respect by the agencies of the state. We can certainly agree that concern
(or care’) and respect are fundamental to law, as is honesty, and that equality matters most in
relation to the fundamentals of care and respect.

The questions to be asked is whether the judgments in the mentioned cases should be in terms of
whether or not it is acceptable to sacrifice one value to some degree, and, if so, to what degree,
for the sake of a more thorough upholding of the other in the given situation of judgment. The
situation is, by the hypothesis, one in which the sacrifice is in favor of a value that is itself in
some way threatened or endangered. So something has to give. The judgment in question may be
by a legislature or a court or (so far as applicable) by citizens individually or in groups (e.g.
political parties, trade unions, religious associations). Needless to say, such judgments are
difficult and contentious ones, and it seems often to be the case that reasonable persons can find
themselves in irresolvable disagreement while acknowledging that the other side also has a their
own view.

The dilemma is this, either we interpret consequentialist reasoning as coextensive with the
advancing of goal reasons for decisions, in which case the possibility of rightness reasons as
equally fundamental is overlooked. Alternatively, we have to interpret consequentialist reasoning

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as including both appeal-to-goal reasons and appeal-to-rightness reasons, in which case the
category of consequentialist reasoning may appear a confused and ambiguous one. This
conclusion should be resisted. For example, if anything is a rightness reason, the right to liberty
must surely count. Yet taking decisions guided by one’s sense of the need to forestall erosion of
that right in times of heightened tension looks like a goal reason too. Lines of distinction may be
difficult to sustain here. The goals that lawyers should properly set themselves are, perhaps,
goals of ensuring that the right prevails. The rightness they pursue is in terms of the
consequences of some universalistic proposition of law considered as the basis for resolving a
particular problem case and any materially similar others that may occur.

CONCLUSION

Law is an essential instrument of politics and the undeniable foundation of all democracy.
Democracy cannot exist outside the rule of law, just as politics cannot transform the world
without the use of law. The problem, therefore, is not law interfering with democratic politics.
The problem is when law becomes a weapon of war, when used fraudulently or illegitimately,
when abused against both its own general and basic principles and its own essential democratic
values. Democracy requires absolute and scrupulous respect for pluralism and the difference of
opinion, which must be arbitrated in the headquarters and the spaces of political nature designed
for it, like the parliaments. Democracy also requires an active and watchful society, ready to take
to the streets to defend its rights and liberties. The incorporation of human rights into
international law has provided another dimension to international institutionalism that sought to
promote the rights and autonomy of individuals outside the realm of traditional power politics.
The vast majority of the civil, political and social rights we enjoy today were conquered thanks
to political struggle and plural public deliberation that transformed and moved society in a
certain direction. Political law fare and the criminalization of protest, let alone the use of
enemy’s criminal law, are therefore purely anti-democratic phenomena that should make us all
concerned, and for which we need effective and urgent solutions. If necessary, we must take to
the streets to defend democracy as well.

REFERENCES

- Black’s Law Dictionary, 6th ed., s.v. “law.”

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- Law fare and democracy . Law as a weapon of war José Luis Martí

-Susan W. Tiefenbrun, Semiotic Definition of Law fare, 43 Case W. Res. J. Int'l L. 29 (2010)
Available at: https://scholarlycommons.law.case.edu/jil/vol43/iss1/3

-International Law Commission’s (ILC) Report on Fragmentation

-Kittrie, Orde (2016). Lawfare: Law as a Weapon of War. New York, NY: Oxford University
Press.

- HSIAO, ANNE HSIU-AN (16 December 2016). "China and the South China Sea "Lawfare"".
Issues & Studies. 52 (2): 1650008.

-Why Bush v. Gore Still Matters in 2020, Ian MacDougall Nov. 1, 2020

- Foka Taffo, Frédéric (2018) Le Pouvoir Discrétionnaire du Procureur de la Cour Pénale

Internationale, Baden-Baden (Germany): Law and Constitution in Africa, N° 36, Nomos, 2018.

CASES

The Prosecutor v. Jean-Pierre Bemba Gombo Case No. ICC-01/05-01/08 A.

STATUTES

- Rome Statute of the International Criminal Court

- The Universal Declaration of Human Rights

- The International Covenant on Civil and Political Rights (ICCPR)

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