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Luis Moreno-Ocampo Former ICC Prosecutor

Topic for October 2011 – February 2012

Prevention Question What measures should be taken to maximize the crime prevention impact of the International Criminal Court?

In establishing the International Criminal Court, the State Parties declared in paragraph 5 of the Preamble to the Rome Statute that they are “[d]etermined to put an end to impunity for the perpetrators of [the most serious crimes of concern to the international community] and thus to contribute to the prevention of such crimes.” The prevention of crime is inherent in the Office of the Prosecutor’s (OTP) core function of investigating and prosecuting the most serious crimes, as the threat of a prosecution may deter the commission of crimes. At the same time, some commentators have suggested that the threat of prosecution could have an opposite effect, deterring subjects of investigation or arrest warrants from surrendering or from supporting the peaceful settlement of a dispute, thereby perpetuating the commission of crimes.

The preventative impact of the OTP’s work is suggested, for example, by the testimony of Radhika Coomaraswamy, Special Representative to the Secretary General for Children in Armed Conflict, that prosecution of the crime of child recruitment in the Lubanga case had led armed groups using child soldiers worldwide to seek to negotiate the release of child soldiers.

In contrast, the possibility that the threat of prosecution could in some cases perpetuate crimes is suggested, for example, by the reported statement of Joseph Kony (leader of the Lord’s Resistance Army) that he will surrender only if the ICC warrant for his arrest were withdrawn.

The OTP has made it part of its strategy to maximize its contribution to the prevention of crimes, by such policies as adopting the approach of positive complementarity to encourage and support genuine national proceedings, and providing early information on its activities to alert States and organisations of the commission of crimes under the ICC jurisdiction. The preventative impact of the OTP’s work, however, depends also on the action taken by other actors, including states, international organisations, and civil society groups. At least three subsidiary questions are implicated in this inquiry.

First, what practical measures can be taken collectively to maximise the crime prevention impact of the work of the OTP? What policies might maximize the preventative role in the preliminary examination phase, where the OTP analyzes information on crimes to determine whether to open an investigation?

Second, how can states, international organizations, or NGOs maximise the prevention impact of the cases at the Court?

Third, how can we assess the preventative impact of the Court? How can we measure the extent to which crimes are being committed and determine whether changes are attributable to actions or policies of the Court, or of the Court in conjunction with the actions or policies of states, international organizations, or NGOs?

Background Materials — Prevention

  • Relevant Treaties

  • Official Documents (in chronological order)

  • Law Review Articles (in reverse chronological order)

    • Katherine Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach. 17 Hum. Rts. Br., Issue 2, (Winter 2010). Available online. Archived.

      The author argues that, through Complementarity, the ICC can encourage national courts to establish systems to try international crimes.

    • Eric Fish, Peace Through Complementarity: Solving the Ex Post Problem in International Criminal Court Prosecutions. 119 Yale L.J. 1703. (May 2010). Available online. Archived.

      “The ICC’s inability to suspend those warrants undermined the Ugandan government’s negotiating position and may have contributed to the failure of the peace process and Kony’s refusal to stop fighting.” The author argues that the Rome Statute should be amended to allow for a greater opportunity for peace negotiations to succeed.

    • James F. Alexander, The International Criminal Court and the Prevention of Atrocities: Predicting the Courts Impact. 54 Vill. L. Rev. 1, (2009). SSRN paywall.

      “To judge whether the [ICC] will actually contribute to a reduction in humanitarian atrocities, one must therefore examine all preventative effects, including the impact on public order.”

    • William Burke-White and Scott Kaplan, Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation. 7 J. Int’l Crim. Just. 257 (May 2009). Available online. Archived.

      The authors discuss various mechanisms for domestic justice including amnesty and courts-martial.

    • Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms. Conn. J. Int’l L., ( Spring 2008). Available online. Archived.

      The author argues that prosecution in the International Criminal Court is not the only means to achieve justice; she argues that the conflict between peace and justice is a false dichotomy.

    • Alexander K. A. Greenawalt, Justice without Politics? Prosecutorial Discretion and the International Criminal Court. 39 N.Y.U. J. Int’l L. & Pol. 583 (2007 ). Available online. Archived.

      “By prosecuting the few, rather than the many the transitional state may seek to acknowledge past wrongs, assign blame, mark a break from the past, and provide some sense of collective justice without jeopardizing the forward-looking goals of liberalizing political transition.”

    • Martin Mennecke, Punishing Genocidaires: A Deterrent Effect or Not?, 8 Hum. Rts. Rev. 4, 319-339 (July 2007). SpringerLink paywall.

      “ More than sixty years after the seminal Nuremberg trials, different forms of transitional justice mechanisms abound around the world. Above all, the International Criminal Court started recently the hearings in its very first case. Reading the document containing the charges against Thomas Lubanga Dyilo, a militia leader accused of horrendous war crimes committed in the Democratic Republic of Congo, the question of why to punish perpetrators of atrocity crimes seems almost ludicrous. However, concerns that international prosecutions inadvertently prolong or even exacerbate conflicts do require a response. Most proponents of international criminal tribunals argue that prosecutions have a deterrent effect. This article reviews the deterrence argument, highlights its inherent complexities, and proposes a refined approach to meet both the realities of atrocity crimes and international prosecutions.”

    • Kimberly Hanlon, Peace or Justice: Now That Peace is Being Negotiated in Uganda, Will the ICC Still Pursue Justice?, 14 Tulsa J. Comp. & Int’l L. 295 (Spring 2007). Lexis/Nexis paywall

      The author discusses competing interest of the ICC in “establishing itself as a legitimate body and Uganda’s interest in maintaining autonomy as it develops as a democracy and asserts its identity since colonialism.”

    • Julian Ku and Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 4 (2006). Available online. Archived.

    • Manisuli Ssenyonjo, Accountability of Non-State Actors in Uganda for War Crimes and Human Rights Violations: Between Amnesty and the International Criminal Court. J. Conflict & Security L., ( Winter 2005). Oxford Journal paywall, Taylor & Francis Online paywall

      The author considers the question of whether the domestic amnesty law is counterproductive to the ICC’s work in the case of Uganda.

    • Mahnoush Arsanjani and W. Michael Reisman, Developments at the International Criminal Court: The Law-in-Action of the International Criminal Court. 99 Am. J. Int’l L. 385 (April 2005). Available online. Archived.

      “A formidable challenge falls on the prosecutors and eventually on the judges who must determine whether and how to set priorities among their curial responsibilities and the inevitable political consequences of their actions.”

    • Jack Goldsmith and Stephen D. Krasner, The Limits of Idealism, 132 Dædalus No. 1, On International Justice (Winter 2003). JSTOR paywall.

    • John R. Bolton, The Risks and Weaknesses of the International Criminal Court From America’s Perspective, 64 Law and Contemp. Probs. 167, (Winter 2001). Available online. Archived.

    • Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, Am. J. Int’l L., ( January 2001). Available online. Archived.

      The author argues that empirical evidence suggests that the ad hoc tribunals have “significantly contributed to peace building in postwar societies, as well as to introducing criminal accountability into the culture of international relations.”

  • Other Articles (in reverse chronological order)