The Ethics of International Criminal ‘Lawfare’

Despite the expansive employment of the term to refer to appeals to law in ongoing conflict as a tool of war, this article demonstrates how ‘lawfare’ has taken on negative meaning without ethical justification. We argue that the co-opting of the term as a means of condemnation is unfair and potentially detrimental, and a more exacting definition and narrower use of the term are needed to avoid obfuscating potentially purposeful recourses to international law. In looking at how international criminal lawfare has manifested with referrals to the International Criminal Court (ICC), it becomes clear that problems of negative perceptions lie not with lawfare itself, but with the intentional perverting or obstructing of law by parties interested in the outcome of a conflict. Tackling these negative perceptions also lays the groundwork for a necessary future argument for the international community’s moral responsibility to promote safeguards to ensure that the international criminal legal system is itself just.