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International Criminal Law
 INTERNATIONAL AND
COMPARATIVE CRIMINAL JUSTICE
Series Editors:

Mark Findlay, Institute of Criminology, University of Sydney, Australia

Ralph Henham, Nottingham Law School, Nottingham Trent University, UK

This series explores the new and rapidly developing field of international and
comparative criminal justice and engages with its most important emerging themes
and debates. It focuses on three interrelated aspects of scholarship which go to the
root of understanding the nature and significance of international criminal justice
in the broader context of globalization and global governance. These include:
the theoretical and methodological problems posed by the development of
international and comparative criminal justice; comparative contextual analysis;
the reciprocal relationship between comparative and international criminal justice
and contributions which endeavor to build understandings of global justice on
foundations of comparative contextual analysis.

Other titles in the series:

The Dual State

Edited by Eric Wilson
ISBN 978 1 4094 31077

Policing in Hong Kong

Kam C. Wong
ISBN 978 1 4094 1060 7

Criminal Law Reform and Transitional Justice

Human Rights Perspectives for Sudan
Edited by Lutz Oette
ISBN 978 1 4094 3100 8

Codification, Macaulay and the Indian Penal Code

The Legacies and Modern Challenges of Criminal Law Reform
Edited by Wing-Cheong Chan, Barry Wright and Stanley Yeo
ISBN 978 1 4094 2442 0

Exploring the Boundaries of International Criminal Justice

Edited by Ralph Henham and Mark Findlay
ISBN 978 0 7546 4979 3
International Criminal Law
Using or Abusing Legality?

Edwin Bikundo
Griffith University, Australia
© Edwin Bikundo 2014

All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise without the prior permission of the publisher.

Edwin Bikundo has asserted his right under the Copyright, Designs and Patents Act, 1988,
to be identified as the author of this work.

Published by
Ashgate Publishing Limited Ashgate Publishing Company
Wey Court East 110 Cherry Street
Union Road Suite 3-1
Farnham Burlington, VT 05401-3818
Surrey, GU9 7PT USA
England

www.ashgate.com

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

The Library of Congress has cataloged the printed edition as follows:

Bikundo, Edwin, author.
International criminal law : using or abusing legality? / by Edwin Bikundo.
pages cm. -- (International and comparative criminal justice)
Based on the author’s thesis (doctoral--University of Sydney, 2010).
Includes bibliographical references and index.
ISBN 978-1-4094-3867-0 (hardback) -- ISBN 978-1-4094-3868-7 (ebook) -- ISBN 978-
1-4094-8469-1 (epub) 1. International criminal law. I. Title.
KZ7000.B55 2013
345--dc23
2013031080
ISBN 9781409438670 (hbk)
ISBN 9781409438687 (ebk – PDF)
ISBN 9781409484691 (ebk – ePUB)

V
To Janice and Hector.

Thank you
This page has been left blank intentionally
 Contents

Table of Cases   ix
Table of Legal Instruments   xiii
Preface   xv

1 The Responsibility to Protect Civilians from Political Violence:

Locating Necessity between the Rule and its Exception   1

2 International Criminal Law: From Hostis to

Hostia Humani Generis   15

3 Between Necessity and Contingency: Representing

Legality as a Faustian Pact   33

4 Global Law: From Force and Law to Aggression and Legality   47

5 The Deficiencies of Law before Overwhelming Violence   69

6 A Possible Methodology of Judicial Discourse in Marshalling,

Interpreting, and Construing Aggression Clauses   89

7 Exclusion and Inclusion: From Biopolitics to Biolegality   113

8 Abuse of Legality: The Illegal Use of the Legal   131

9 Reframing Criminal Aggression from Outside to Inside Law   147

10 Legality and Resolving Ambiguity   159

References   167
Index   191
This page has been left blank intentionally
 Table of Cases

A v Secretary of State for the Home Department, 8 December 2005, [2005] UKHL
71, [2005] 3WLR 1249, [2006] 1 All ER 575, [2006] HRLR 6, para 9
Akdivar v Turkey Application Eur. Ct.H.R No: 21893/93 Judgment of 1 April 1998
Atlee v Laird 339 F. Supp. 689 (E. D. Pa. 1972)
Barton v The Queen (1980) 147 CLR 57
Bowman v Secular Society Ltd. [1917] AC, 406
C.R v C.R, 22 November 1995, Case 48/1994/495/577
Clyne v NSW Bar Association (1960) 104 CLR 186
Connelly v DPP [1964] A. C. 1254
Democratic Republic of the Congo v Belgium – Case Concerning the Arrest
Warrant of 11 April 2000 – Judgment – General List No. 121 [2002] ICJ 1 (14
February 2002) Majority Judgment
Democratic Republic of the Congo v Uganda – Case Concerning Armed Activities
On The Territory of the Congo – General List No. 116 [2005] (19 December
2005)
Dole Chadee et al. v Trinidad and Tobago of 29 July 1998 CCPR-14-1/CCPR-
OP-3
DPP v Humphrys [1977] A.C. 1
Engel and Others v the Netherlands (1976) Series A no. 22
Ex P Badhan [1991] 2 QB 78
Ex P Dean [1993] QB 769
Ex P Schmidt Div. Ct. Roch L J & Sedley J 26 November 1993
Ex Parte Brookes (1984) 80 C. Appeal R. 164
Ex parte Quirin 317 U.S. 1 (1942) 1
Frisbie v Collins 342 U.S. 519 (1952)
Greece v the United Kingdom decision of 2 June 1956, 7
Green v U.S. 184 (1957)
Hamdan v Rumsfeld, Secretary of Defense, et al. Certiorari to the United States
Court of Appeals for The District of Columbia Circuit No. 05–184. Argued 28
March 2006 and decided 29 June 2006
Holtzman v Richardson 484 F. 2d. 1307 (2d. Cir. 1973)
Hui Chi-Ming v R [1992] 1 AC 34, 57
International Military Tribunal (IMT) Judgment, 30 September 1946 in 22 Trial
of German Major War Criminals: Proceedings of the International Military
Tribunal Sitting at Nuremburg 411, 444(1950) Opinion and Judgment,
International Military Tribunal at Nuremberg (1 October 1946), reprinted in
x International Criminal Law

Jordan J Paust et al., International Criminal Law: Cases and Materials (1998)
900, 904
International Military Tribunal at Nuremburg. HMSO Cmd 6964 (1946) 13,
reprinted in (1947) 41 American Journal of International Law 186
Ireland v United Kingdom Judgment of 18 January 1978, Eur. Ct. H.R,. Series A,
no. 25
Jago v District Court (NSW) (1989) 168 CLR 23
Jean-Bosco Barayagwiza v The Prosecutor Appeals Chamber Case no. ICTR-97-
19-I l decision of 3 November 1999 before: Judge Gabrielle Kirk McDonald
(P), Mohamed Shahabuddeen, Lal Chand Vohrah, Wang Tieya, Rafael Nieto-
Navia JJA (Barayagwiza I for convenience)
Judgment of German Major War Criminals. Proceedings of the IMT, Nuremberg,
Official Documents vol. I. (1947) 223
Ker v Illinois, 199 U.S. 436 (1886)
Keyowski v R. (1988) 62 CR (3d) 349, 550 per Wilson J
Lakhdar Boumediene et al., Petitioners v George W. Bush, President of the United
States et al. Supreme Court of the United States, unreported No. 06–1195.
Decided 12 June 2008
Lawless v Ireland Eur. Ct. H.R Judgment of 1 July 1961, Series A, no. 3
Libyan Arab Jamahirya v UK (Lockerbie case) [1992] ICJ Rep 3
Loizidou v Turkey Application No. 15318/89 judgment of 23 March 1995
Luftig v McNamara 252 F. Supp. 819 (D.D.C. 1966)
Mabo and Others v The State of Queensland (No. 2) (1992) 175 CLR 1
Madzimbamuto v Lardner-Burke [1969] AC 645 (PC)) per Lord Reid at 723–4
Marbury v Madison, 1 Cranch 137, 177 (1803)
Maxwell v The Queen (1996) 184 CLR 501
Mellifont v AG (1991) 173 CLR 289
Metropolitan Bank v Pooley (1885) 10 App. Cases 210 per Lord Blackburn, 220–21
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v the
United States of America), Decision on Jurisdiction and Admissibility (1984)
ICJ REP. 392, 27June 1986
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v the
United States of America), Decision on the Merits (1986) 14 ICJ, 62Mills v
Cooper (1967) 2 ALLER 100
Mitchell & Ors v DPP & Ano. CLR (1987) 127. Per Haynes P. at 129
Moevao v Dept of Labour [1980] I NZLR 464
Municipality of Mombasa v Nyali Limited [1963] E.A. 371
Murphy v Ramsey, 114 U.S. 15, 44 (1885)
North Sea Continental Shelf [1969] ICJ Rep paras 73–7
Ol Ole Njogo and Others v The Attorney General Civil Case No. 91 of 1912
(E.A.P. 1914), 5 E.A.L.R. 70
Proprietary Articles Trade Assoc. & Others v Att-Gen of Canada & others [1931]
AC 310 per Lord Atkin
 Table of Cases xi

Prosecutor v Akayesu Case No. ICTR-96–4-A (Appeals Chamber), 1 June 2001.

Decision of 2 September 1998
Prosecutor v Brima, Kamara and Kanu, Written Reasons for the Trial Chamber’s
Oral Decision on the Defence Motion on Abuse of Process due to infringement
of Principles of Nullum Crimen Sine Lege and Non-Retroactivity as to Several
Counts, SCSL-04-16-PT 31 March 2004
Prosecutor v Deronjic, Miroslav ICTY Case Number: IT-02-61-S, 30 March 2004
Sentencing Judgment
Prosecutor v Dragan Nikolic Decision on Defence Motion Challenging the
Exercise of Jurisdiction by the Tribunal Case No. IT-94-2-PT
Prosecutor v Drazen Erdemovic, Majority Opinion and Separate and Dissenting
Opinion of Judge Cassese, ICTY Appeals Chamber Judgment of 7 October
1997
Prosecutor v Dusko Tadić a/k/a ‘Dule’. Case No. IT-94-1 (Appeals Chamber)
Unanimous Decision of 2 October 1995, ‘On The Defence Motion For
Interlocutory Appeal On Jurisdiction’ 2 October 1995
Prosecutor v Jean-Bosco Barayagwiza Appeals Chamber Case no. ICTR-97-19-I
Decision on Prosecutor’s Request for Review or Reconsideration dated 31
March 2000 before: Navanethem Pillay (P), Asoka de Zoysa Gunawardana,
Erik Møse JJ. (Barayagwiza II)
Prosecutor v Slobodan Milošević Richard May (P), Patrick Robinson, Mohamed
Fassi Fihri JJ. Decision on Preliminary Motions dated 8 November 2001 ICTY
Case No IT-02-54
Prosecutor v Thomas Lubanga Dyilo Case No. ICC- 01/04-01/06 Decision on the
consequences of non-disclosure of exculpatory materials covered by Article
54(3)(e) agreements and the application to stay the prosecution of the accused,
together with certain other issues raised at the Status Conference on 10 June
2008. Before: Adrian Fulford (P), Elizabeth Odio Benito, René Blattmann JJ,
dated 13 June 2008
Prosecutor v Thomas Lubanga Dyilo Case No. ICC- 01/04-01/06 Judgment on
the appeal of the Prosecutor against the decision of Trial Chamber I entitled
‘Decision on the release of Thomas Lubanga Dyilo’ The Appeals Chamber,
Sang-Hyun Song (P), Philippe Kirsch, Georghios M Pikis, Erkki Kourula,
Daniel David Ntanda Nsereko JJ, dated 21 October 2008
Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v
United Kingdom), Provisional Measures Order of 14 April 1992
R (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for
Defence (Respondent) [2007] UKHL The UK House of Lords
R v Conway (1989) 1 SCR 1659
R v Conway [1989] 70 CR (3d)
R v Forbes ex p. Bevan (1972) 127 CLR 1
R v Jones and others [2006] UKHL 16
xii International Criminal Law

Radhabinod Pal, Dissentient Judgment of Justice Pal: International Military

Tribunal for the Far East (1953)
Randu Nzai Ruwa & 2 Others v Internal Security Minister & Another [2012] eKLR
R. v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 A.C. 42
R. v Horseferry Road Magistrate’s Court, ex p Bennett (No3) [1995] 1 Cr App R
147, 149
R. v Dedan Kimathi S/o Wachiuri [1956] eKLRRepublic of Fiji v Prasad
(Unreported, Court of Appeal of Fiji, 1 March 2001, Civil Appeal No.
ABU0078/2000S)
Ridgeway v The Queen (1994–1995) 185 CLR 19
S.S. Lotus (France v Turkey) (1927), Permanent Court of International Justice
Publications, Series A, No. 9, at 18 (Sept. 7)
Southeast Mortg. Co. v Sinclair, 632 So. 2d 677(1994)
The State v Dosso [1958] 2 PSCR 180
The Legality of the Threat or Use of Nuclear Weapons, International Court of
Justice (Advisory Opinion of 8 July 1996) General List no. 95
The Prosecutor v Jean-Paul Akayesu Case No. ICTR-96-4-T Decision of 2
September 1998 at para 521
The Prosecutor v Siméon Nchamihigo Case No. ICTR-2001-63-DP before
Navanethem Pillay J. Decision of 8 May 2002 On the Defence Motion Seeking
Release of yhe Accused Person and/or Any Other Remedy on the Basis of
Abuse of Process by the Prosecutor
The Prosecutor v Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze and
Anatole Nsengiyumva Case No. ICTR-98-41-T ICTR Judgment and Sentence
of 18 December 2008
Uganda v Commissioner of Prisons, Ex parte Matovu [1966] EA 514
United States of America v Alstötter et al. (The Nuremberg Trials: ‘The Justice
Case’) 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948)
<http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/Alstoetter.
htm#War%20Crimes%20and%20Crimes%20Against> at 6 August 2009
United States v Alvarez-Machain, 504 U.S. 655 (1992)
United States v Araki, Dissenting Opinion of Justice Pal, in 105 The Tokyo Major
War Crimes Trial 36-7 (R. John Pritchard, ed.) (1998) at 37
US v Marion 404 US 307, 324 (1971) 61
USA v Von Leeb et al. (The German High Command Trial) Case No. 72 United
States Military Tribunal, Nuremberg (1948) Law-Reports of Trials of War
Criminals, The United Nations War Crimes Commission, Volume XII, London,
HMSO, 1949
Velvel v Johnson 287 F. Supp. 846 (D. Kan. 1968)
Walton v Gardiner (1993) 117 CLR 378
Williams v Spautz (1991–1992) 171 CLR 509
 Table of Legal Instruments

1215 Magna Carta 25 Edw. I, c. 29 (1297) (1215)

1814 United States Constitution
1899 Hague Convention For the Pacific Settlement of International
Disputes (Hague I) (29 July 1899)
1907 Hague Convention on the Opening of Hostilities (Hague III);
18 October 1907
1907 Pacific Settlement of International Disputes (Hague I);
18 October 1907
1919 The Covenant of the League of Nations
1928 ‘Kellogg–Briand Pact; 1928’ United States Statutes at Large,
vol. 46, part 2, 2343 Articles 1–3
1945 London Agreement of 8 August 1945 with the Charter
Annexed, subsequent trials on Control Council Law No. 10,
Punishment of Persons Guilty of War Crimes, Crimes Against
Peace and Against Humanity, 20 December 1945, 3 Official
Gazette Control Council for Germany 50–55 (1946)
1945 Agreement for the Prosecution and Punishment of the Major
War Criminals of the European Axis, and the Charter of the
International Military Tribunal, London, 8 August 1945
1945 Charter of the United Nations
1946 The Charter of the International Tribunal for the Far East
1946 Affirmation of the Principles of International Law recognised by
the Charter of the Nuremberg Tribunal, Resolution 95 (I) of the
United Nations General Assembly, 11 December 1946
1970 Resolution on Principles of International Law concerning
Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations,
UNGA Resolution 2625 (XXV)
(24October 1970)
1974 Definition of Aggression, United Nations General Assembly
Resolution 3314 (XXIX) of 14 December 1974
1976 International Covenant on Civil and Political Rights, 999
U.N.T.S. 171, entered into force 23 March 1976, Article 9 (1)
1978 Declaration on the Preparation of Societies for Life in Peace,
UNGA/ Res/33/73 (15 December 1978)
xiv International Criminal Law

1981 African [Banjul] Charter on Human and Peoples’ Rights, adopted

27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M.
58 (1982), 1520 UNTS 217, entered into force 21 October 1986
1982 Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982 assented to 29 March 1982
1984 Declaration of the Right of Peoples to Peace, UNGA Res 39/11
(12 November 1984)
1993 United Nations Security Council Resolution 827(1993)
with the Statute of the International Criminal Tribunal for
the Former Yugoslavia Annexed
1994 Statute of the International Criminal Tribunal for Rwanda,
annexed to Resolution 955, SC Res 955, UN SCOR, 49th
sess, 3453rd mtg, UN Doc S/RES/955 (1994)
1995 International Criminal Tribunal for Rwanda, Rules of Procedure
and Evidence Adopted on 29 June 1995 pursuant to Article 14 of
the Statute of the International Criminal Tribunal for Rwanda,
annexed to Resolution 955, SC Res 955, UN SCOR, 49th sess,
3453rd mtg, UN Doc S/RES/955 (1994).
1998 Rome Statute of the International Criminal Court, opened for
signature 17 July 1998, 2187 UNTS 3, art 83(2) (entered into
force 1 July 2002).
2002 Agreement between the United Nations and the Government
of Sierra Leone on the Establishment of the Special Court
for Sierra Leone, signed on 16 January 2002, Statute of the
Special Court Annexed
 Preface

Law and violence have a deeply ambiguous relationship to each other. The law
is supposedly the antithesis of violence and yet the law is at the same time the
legitimation and institutionalization of some forms of violence. This collection
of essays weaves disparate threads together organized around the core argument
that criminalizing violence involves imposing a monopoly on the legitimate use
of force. This inquiry seeks to construct and unpack a legal argument for a legal
answer to a legal problem: namely, whether (and if so how) the law itself provides
an answer to the question of whether law is a suitable medium or not to resolve
the related issues of the prevention of violence, the illegal use of force and the
criminality of aggression in international law. It looks at the law on the use for
force (in saving and protecting life) rather than the use of force (in inflicting death,
destruction and injury). The stakes raised in this inquiry reveal the law as a line that
separates, as well as invests with meaning, the boundary dividing life and death.
These lines of inquiry therefore have implications in both law and jurisprudence
generally.
The inquiry was prompted by a certain discrepancy (or development) in legal
opinion regarding legally regulating violence that has arisen in the past 60 years
or so. Justice Robert Jackson, speaking for the United States of America at the end
of the first Nuremberg Trial in 1945, punctuates this period at one end. He said it
was illegal and criminal for any ‘nation to redress grievances or seek expansion
by resort to aggressive war’. At the other end of the period is Mr Bill Richardson,
again speaking for the United States, at the United Nations Conference on the
establishment of the International Criminal Court in 1998. He said that acts not
clearly criminalized under international law should be excluded from the definition
of aggression and that it was therefore premature to attempt to define aggression in
terms of individual criminal responsibility.
This project takes its cue from the arguments, exemplified by Bill Richardson’s
statement, against legally defining the crime of aggression. These arguments by
default (either designed or accidental) favour instead political action such as in
the United Nations Security Council against the International Criminal Court in
framing matters of aggression and the use of force. The focus on the United States
is in recognition of both its indispensable role and pivotal influence in developing
international criminal law and its preponderant military force. This correlation of
law-making power with preponderant force is no coincidence at all.
Although an adequate definition of aggression is itself not the core problem,
issues resulting from the history of defining aggression arise once the chequered
evolution of attempts at codification is examined. The focus is therefore on the
xvi International Criminal Law

conceptual definability of a crime of aggression, which is a legal-theoretical matter,

and not on the actual process of providing a definition, which is a matter decided
by the political process that achieved the necessary consensus. It is therefore not
so much an issue of the lack of law in defining aggression in international criminal
law as it is one of assembling adequate political consensus to craft an objective
legal standard sufficiently oblivious of military might.
The inquiry here tests whether the power to inflict death and injury is outside
or inside the law. This project questions whether using the law to address political
violence would legally entail an abuse of legality or not. Abuse of legality means
capturing legal rules, principles and processes in ways that undermine the rule of
law and human rights, but doing this in the name of upholding the rule of law or
protecting human rights. This takeover or mimicry of law makes it difficult to discern
between what is good faith application of legal principle and what is a travesty of it.
My intuition is that even in the absence of specific laws governing an ambiguous
state of facts, there is always legality as an approach to unstructured situations.
This legality (as a way of doing things) exists side-by-side with, and even without,
specific laws. Laws are evidence of legality and not the other way round. Legality
in that way justifies acts even in the absence of clearly enabling structures. Given
this, the task I set out to do is to trace a line dividing politics and law that assigns
the characterization of aggression to legality. The argument therefore contends that
there is an emerging but contested global monopoly on the legitimate use of force.
This monopoly is oriented towards future human security and global stability that
are necessarily predicated upon legality as a stabilizer of future expectations.
In other words, when confronted with the threat or use of violence, the
questions posed are recast to whether there is a distinction between just and unjust
force and violence, who decides this, how, and with reference to what. Couched
like this, the questions are more amenable to processing within the legal system
from legislation to adjudication and enforcement, rather than by brute force, which
would be the default mode of dispute resolution in the absence of peaceful dispute
settlement. Most importantly, and this is the crux of the matter, even though brute
force is brought to bear, this will in itself not change the law but only breach it.
Further, where it is claimed that such use of force in fact has changed the
law, this violence is not just contrary to law but also against the law. That is, it
is simultaneously a crime of aggression and an abuse of the legal process and
undermines global order. This is violence against the notion of law itself, not
only against its provisions but against the very order of normality that makes the
law intelligible. This is demonstrably on the wrong side of the line separating
self-defence from taking the law into one’s own hands. Actors that claim the
justification of law deserve, as it were, ‘their day in court’ to prove or have their
claims disproven in an appropriate manner and forum.
Consequently, the argument is that law is the appropriate medium within
which to discuss regulating violence in a globalized society. The thesis pursued is
that ‘peace’, normatively speaking, does not require the absence of coercion but
merely presupposes a monopoly on the legitimate use of force. This legitimacy
 Preface xvii

should be considered as a matter of and for pre-existing standards of greater or

lesser detail (that is, legality). To orient the debate, this relates to considerations
associated with consolidating the international community as a multifaceted
pluralistic society. These considerations increasingly indicate legality as the
means to approach the use of force from the local to the global level as it affects
individuals, communities, States and humanity alike.
Further, using legality would substitute the terrorist/freedom fighter paradox
for a general objective legal standard instead of singular subjective self-interested
stances. Therefore, in place of mutually exclusive self-justified violence by
States, an all-inclusive framework of rules and exceptions would generally apply
in discerning competing claims. In criminal law terms, possible exceptions,
justifications, excuses or defences may include self-defence, humanitarian
intervention, the responsibility to protect, measures undertaken to combat
terrorism and the like.
To summarize, the project is organized by arguing against the objections
opposing further legalization of the use of force and consequently proposing
rendering inapplicable the relevant customary international law. These revolve
around the propositions that law is either unable or unsuitable to resolving the role
of force in international relations and that this is best left to the political sphere
(effectively therefore in the realm of combat with no normative distinction between
sides). However, implicit in the argument is that the usefulness or inability of the
law is for the law to decide, not a literal trial by battle. This is because the legal
system is itself best placed to judge on its own misuse or any abuse of legal process,
which would essentially involve taking life (and liberty or property, which relate
to quality of life) without due process of law; in other words, violently, which is
precisely what is at stake.
The method used here analyses of the observation and description of the legal/
illegal distinction when applied to force, violence or aggression. This distinction is
drawn through an exclusion and inclusion mechanism that alternately protects life
from and exposes it to force/violence. This process is underwritten by a functional,
but not essential, distinction between force (which is sanctioned by law) and
violence (which is outside or contrary to law according to law).
Specific to this process is criminalizing violence and institutionalizing force
by withholding legitimacy from the latter and granting it to the former through
a claimed monopoly on a legitimacy that is politically contestable but beyond
legal reproach. The work addresses this process by highlighting the dialectic of
inclusive exclusion and exclusive inclusion through the deconstructive parsing
and examination of the language contained in critical phrases and terms that were
arrived at, or departed from, through the political process.
I employ a critical theoretical methodology to interrogate the relationship
between law and violence in the context of communal order and disorder. Critical
theory makes it possible to analyse international society as a whole in terms of
place and time but also values interdisciplinary perspectives to supplement the
law, including politics and not ignoring economics. This is to make the implicit
xviii International Criminal Law

deep structural debate explicit and, incidentally but more importantly, bring to
light a method for discerning between competing teleological claims that pit law
against politics and vice versa in defining violence and aggression.
In bringing to light this method for discerning between legal and political claims,
I need an analytical and descriptive theory that purportedly considers different
social perspectives simultaneously yet separately, while leaving each supreme in
its domain. That is, what is required is a meta-narrative or paradigm that provides
some measure of objectivity without solely relying on legal arguments to promote
exclusively legal solutions for a social problem. For this purpose, sociological
systems theory saves the argument from lifting itself up by its own bootstraps
because it assigns certain characteristics to social systems, which are reducible in
inner logic to binary coding both in political communication (friend/enemy) and
legal communication (lawful/unlawful); all of which much simplifies the task of
classification.
I contribute a prescriptive and normative perspective on the back of
this descriptive systems theory. This is accomplished through utilizing the
descriptiveness in assigning a truth/untruth value to competing teleological
arguments. These arguments dispute between what is and what is not customary
international law, in terms of what use the law is in the context of violence.
The methodology brings together (in an overall framework of a shared relation
to ‘life’) Niklas Luhmann’s description of humans as divided into mind and body
(or in his terms, ‘psychic’ and ‘organic systems’), as well as Michel Foucault’s
‘biopolitics’ and Giorgio Agamben’s conjunction of Zoë or ‘bare life’ and Bios
or ‘social life’ in the human, as all describing an identical phenomenon. This
phenomenon is the contemporary centrality of ‘life and death’ in social control as
means and end, tool and material. This phenomenon may be named ‘biolegality’,
meaning law oriented to life as its referent and justification and therefore legitimacy.
Elements of Niklas Luhmann’s sociological systems theory inform the research
paradigm within which I work. It focuses on communication and assigns humans a
decentred role as part of society’s environment, comprising of the mind and body as
separate systems unified in the human. Further, because Niklas Luhmann regarded
the law as society’s immune system, he explicitly inflected it within a biological
register. The layered method chosen reflects that the social debate sought to be
untangled and unpacked is convoluted with political arguments dressed up as legal
ones and with legal arguments disparaged as political ones.
Consequently, critical theory is the genre within which I write, with a
systems theoretical sensibility. Luhmann, Foucault and Agamben provide for
both theoretical conceptualization and empirical practice in their identification
of social processes linked to or mimicking life processes, thereby demonstrating
that life is itself conceptually both the subject and object manipulated in the
process. I scrutinize not the human actors as such but their communicative acts.
Communication and language are the core concerns and the specific subject and
focus of my work.
 Preface xix

This study distinguishes force from violence by initially uniting them in

the value-neutral concept of coercion. It subsequently distinguishes them as
force being coercion used for social ends (for example, law enforcement or
self-defence), while violence is coercion for anti-social ends (here the crime of
aggression is portrayed as threatening collective security and peaceful change).
With reference to human society writ large, social/anti-social is congruent with
friend/enemy in the political sphere and lawful/unlawful in the legal system. The
resolution therefore to the current debate is more legalization that deeper embeds
the use of force in society for social ends and either blackens or whitens the current
grey areas that are still rhetorically insisted upon as a matter for politics. This is
especially relevant in highly politicized contexts, such as war or revolution and the
transition through to peace and justice.
The project therefore observes the manipulation, apportionment and direction
of life and death processes in society by tracing an overarching but contingent
trajectory of an expanding and consolidating line that draws and dissolves
boundaries within it. This is theory building that looks upon law and violence as a
self-referential bundling in which the terms opposed only make sensible meaning
in relation to each other. At its simplest, law is not violent and violence is not
lawful. This thesis will propose some amelioration in the actual application of law
through debating its effects on individuals and communities.
Chapter 1 inquires into the responsibility to protect civilians from political
violence. The chapter inquires into the expansion of the rule of law in international
law as it relates to the use of force. The consequential but regrettable necessity
of a forcible response to real or threatened mass atrocities underscores this
fundamental undesirability of violence versus its inevitability. The compromise
reached is that force, although inevitable, should only be used sparingly. Chapter
2 is a theoretical and empirical investigation into whatever causal link there may
be between international criminal trials and preventing political violence through
exemplary prosecutions. Specifically how do representative trials of persons
accused of having the greatest responsibility for the most serious crimes of concern
to the international community as a whole, supposedly bind recurrent violence?
The argument pursued is that by using an accused as an example, a court engages
in an indirect and uncertain substitution of personal rights for social harmony and
order. Chapter 3 argues that in international law the Hobbesian social contract
intended to prevent violence works in exactly the same way as a Faustian pact.
That is to say, even when it is effective whatever it achieves could still have been
realized without it. But once utilized there is no objective proof of its contingency
likewise just as before it is resorted to there is no proof of its necessity. Essentially
it creates its own reality poised as it is between necessity and contingency.
Chapter 4 expounds on the linkages between the crime of aggression and
the abuse of legal process. It explores how the doctrine of the abuse of legality
relates to aggression from local to global contexts. This chapter argues that society
politicises violence when it is indistinguishable from force by dividing it into a
binary pairing of social/anti-social. Society permits, if not encourages, the former
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