Journal Article

Doing Justice to the Political. The International Criminal Court in Uganda and Sudan: A Reply to Sarah Nouwen and Wouter Werner

Bas Schotel

in European Journal of International Law

Published on behalf of The EJIL

Volume 22, issue 4, pages 1153-1160
Published in print November 2011 | ISSN: 0938-5428
Published online November 2011 | e-ISSN: 1464-3596 | DOI: https://dx.doi.org/10.1093/ejil/chr080
Doing Justice to the Political. The International Criminal Court in Uganda and Sudan: A Reply to Sarah Nouwen and Wouter Werner

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This article is a reaction to Sarah Nouwen and Wouter Werner, ‘Doing Justice to the Political. The International Criminal Court in Uganda and Sudan’, 21 EJIL (2010) 941. It takes issue with attempts to understand international law and particularly the workings of the International Criminal Court in terms of Carl Schmitt’s thesis on the political as distinguishing between friend and enemy. My contention is that parties to a violent/political conflict may try to mobilize the law in their struggle, but that the structure of the law itself escapes the logic of the political: law cannot be ‘political’ in the Schmittian sense. The unexpected upshot of this is that Schmitt’s notion of the political may operate as a normative criterion for testing whether legal officials are still respecting the constraints of their practice. If legal authorities are indeed in the business of defining the enemy of mankind, then they are not doing this through or with the help of the law. They may simply act against the law. To substantiate this point, the article thinks through the difference between conventional and absolute/real enemies and contrasts these notions with the characteristics of (international criminal) law.

Journal Article.  3486 words. 

Subjects: Public International Law

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