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

Subject Areas : Journal of Law and Politics

Seyed-abbas Poorhashemi ¹ (-)
Mahmood Golestani ² (-)

Received: 2015-10-12 Accepted : 2015-10-12 Published : 2013-07-23

Keywords: justice, Political, International Criminal Court, Friend, Enemy, Mankind,

Abstract :

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