Nikolas M. Rajkovic

On ‘Bad Law’ and ‘Good Politics’: The Politics of the ICJ Genocide Case and Its Interpretation

The discontent within legal ranks over the recent judgment of the International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro can be described as nothing other than poignant. The stylized characterization voiced privately by many critics is that the judgment amounted to ‘bad law’ and ‘good politics’; that the Court’s ruling had been profoundly influenced by Serbia’s fragile domestic politics and hence this worked silently to constrain the Court’s rationale and lawmaking. Sadly, critics opine, this political intrusion into the sanctuary of lawmaking produced a judgment that now denies the ‘universal’ deterrent which the Genocide case could have provided. This article, however, takes direct issue with axiomatic interpretations of what constitutes ‘bad law’ and ‘good politics’ in the Genocide case, and argues instead that an antithetical characterization of law with politics proves fundamentally misleading when analysing the Genocide judgment, overlooking the inherent association between law and politics in complex cases that have now become ‘bread and butter’ for international lawyers. In sum, this article will argue, the judgment should not be written off using the dichotomy of ‘bad law’ and ‘good politics’, but rather should invoke critical reflection within the academic discipline and professional practice on the problems of politics which constitute and hence unavoidably permeate cases that emerge from calamitous failures of international politics. The hardening of the fictional boundary between law and politics may provide a convenient gambit for those advocating the ascendancy of international law. However, it is argued, obfuscating the political swamp which is ‘international justice’ cannot make a juridical pasture no matter how much authoritative or ‘learned’ ink is spent; and this is perhaps the key lesson which should be discerned by legal experts from the Genocide case as a whole.

Rules, Lawyering, and the Politics of Legality: Critical Sociology and International Law's Rule

After decades of rule-of-law promotion in world affairs, international law and legality have regained scholarly imperative. Yet this has not dissolved disciplinarity between international law (IL) and relations (IR), but furthered a priori theorizing and the unilateral extension of disciplinary research agendas. A prime example is the influential ‘legalization agenda’ of IR scholarship, where an institutionalist doctrine has renarrated the ‘L word’ through a fetishizing of rules and a managerial focus on rule compliance. However, this approach confronts a problem of relevance as international struggles increasingly involve contests over how to legally characterize issues, actions, and events, and this engages juridical and normative dimensions of rule application which are beyond the managerialism of compliance. This article argues for greater sociological and critical engagement with the way in which the concept of law operates through juridico-political practices of legality, and the aim is to provide a theoretical and empirical discussion that revives the significance of the juridico-political world for scholarships which have habitually underplayed the constitutive significance of lawyering for rule application. To do so, this article, first, addresses the profundity of Kants work and concern over laws application by a rule-applier and, second, claims this has long invited a more critical sociology. To initiate that social exploration, the paper draws on both Pierre Bourdieus concept of the ‘juridical effect’ and the Foucauldian notion of ‘normative law’ to theorize the significance of juridical and normative practices in the making of international laws rule. In the final section, I introduce the empirical benefit of these critical sociologies by turning to the law of armed conflict (LOAC), and the ways juridical and normative power have enabled sophisticated militaries of the developed world to constrain the application of the LOAC in contemporary wars of asymmetric combat.