The Prevention Question — Comments

Change Sort Order
Now: Oldest First

Comment on the Prevention Question: “What measures should be taken to maximize the crime prevention impact of the International Criminal Court?”

Argument

The ICC’s threat of punishment, while disincentivizing prospective criminals from committing crimes, ineffectively disincentives current criminals from committing further crimes. Thus, if the ICC wishes to prevent crimes in ongoing conflicts, it should employ practices beyond threatening punishment such as pre-arrest plea bargaining.

Introduction

Threatening punishment deters crimes by increasing their costs. According to this cost-benefit model of deterrence, the International Criminal Court (“ICC”) increases the costs of committing crime by increasing the certainty and severity of prompt punishment.1

I argue that this model is sometimes incorrect when applied to leaders of egregious criminal operations (“criminal leaders”). Specifically, where the likelihood of punishing a criminal leader in the near future is low, increasing the severity of threatened punishment does not deter further crimes. To supplement punishment’s lack of deterrence, I suggest that the Office of the Prosecutor employ other policies to prevent crimes, namely pre-arrest plea bargaining to incentivize criminal leaders’ surrender.

This Comment proceeds as follows. Part I explains the concepts of general and specific deterrence. Part II accepts that the ICC provides some general deterrence but lists several factors that decrease its extent. Part III argues that the ICC provides little—if any—specific deterrence. Part IV suggests employing pre-arrest plea bargaining to prevent crimes. Part V concludes.

I. General and specific deterrence

Deterrence comes in two forms: General and specific.2 Both employ the same cost-benefit deterrence model, but the model operates differently in each.3 With general deterrence, the source of deterrence is the ICC’s ever-present institutional threat of punishment.4 Thus, general deterrence occurs ex ante, when a prospective criminal leader is considering committing crimes.5 Here, the likelihood of punishment depends on the probability of the ICC investigating, indicting and arresting the leader.

Contrarily, specific deterrence occurs only after general deterrence has failed, when the leader has already committed crimes. Policies pursuing specific deterrence attempt to deter the leader from committing additional crimes by further increasing their costs.6 One such policy aims at increasing the likelihood of punishment, such as by investigating the crimes or indicting the leader. Another policy aims at increasing the severity of punishment by threatening harsher punishment for further crimes.

Despite specific and general deterrence being well-established, measuring the amount of crimes deterred is difficult.7 Indeed, scholars analyzing the extent of the ICC’s deterrence are divided on whether it’s substantial8 or minimal.9 Given these measurement difficulties, this Comment employs an incentive-based framework as a proxy for analyzing deterrence’s extent. Rather than attempting to analyze the quantity of crimes deterred, I analyze how threatening punishment changes incentives to committing crimes.

II. General deterrence

Although I agree that general deterrence disincentivizes prospective criminal leaders from committing crimes, I argue that the strength of this disincentive varies by context. Specifically, three factors weaken this disincentive: (1) The prospective criminal leader’s lacking rationality, (2) the government’s complicity in the crimes and (3) the crimes occur outside the ICC’s party-based jurisdiction.

A. Lack of rationality

A criminal leader’s lacking rationality weakens punishment’s disincentive.10 A subrational leader doesn’t fully appreciate the costs of committing crime.11 Many persuasively argue that criminal leaders committing the most heinous crimes (the type of crimes in the ICC’s jurisdiction) are not rational.12 These leaders may make decisions based on nationalistic passions, politics or ideals irrespective of a credible threat of punishment. For example, in December 1942 Nazi “Germany relentlessly continued the Holocaust” despite the Allies threatening punishment of those responsible.13 Similarly, “the Rwandan genocide’s on-the-ground enactment was anything but distanced and was driven by emotion.”14

However, even though criminal leaders aren’t rationale, they aren’t consequently entirely irrational.15 Their crimes often “require considerable planning and preparation,” which may allow some elements of rationality to enter their decision-making process.16

B. Government complicity

State-sanctioned crimes weakens punishment’s disincentive because they’re less likely to be punished. Likelihood of punishment necessarily depends on likelihood of arrest, which in turn depends on State cooperation. Without cooperation, the ICC’s ability to arrest criminals—absent an unlikely military intervention—is slight.17 When the government is complicit in a criminal operation, it’s unlikely to meaningfully cooperate with the ICC’s investigation of those crimes. For example, in the ICC’s investigations of Sudanese government officials for their crimes in Darfur, the Sudanese government refuses to cooperate and will not “surrender any Sudanese person to the Court.”18

C. ICC’s party-based jurisdiction

Prospective crimes that would occur outside the ICC’s party-based jurisdiction weakens punishment’s disincentive. The ICC’s traditional jurisdiction is party-based. It has jurisdiction over all qualifying crimes committed in the territory of a state party to the Rome Statute or committed by a national of a state party.19 Punishment’s disincentive is strongest here because the Court automatically has jurisdiction over the crimes, and the Prosecutor can initiate an investigation proprio motu.20

Comparatively, the ICC’s non-traditional jurisdiction is not party-based. Rather, it pends on the Security Council granting jurisdiction to the ICC for crimes committed by non-parties.21 Thus, when a prospective criminal leader contemplates committing crimes outside the ICC’s traditional jurisdiction, possibility of punishment first requires the Security Council granting jurisdiction.22 Since possibility of punishment is necessarily smaller than it is in traditional jurisdiction, punishment’s disincentive is weaker.23

III. Specific deterrence

When criminal leaders decide to commit crimes, general deterrence has failed. If the ICC responds by investigating, issuing arrest warrants or threatening increased imprisonment for continued criminality, it’s providing specific deterrence. Theoretically, the ICC’s response should disincentivize further crimes by increasing the likelihood and severity of punishment.

However, this is not the case. Threatening harsher punishment is an ineffective disincentive to committing further crimes. Additionally, investigations and indictments do not meaningfully increase the likelihood of punishment where arrest is unlikely. Furthermore, these investigations, while negligibly disincentivizing further crimes, strongly disincentivize political negotiations for peace.

A. Harsher punishment is an ineffective disincentive

Threatening lengthier imprisonment negligibly disincentivizes crime because it only slightly increases punishment’s severity. Often times, the ICC intervenes after a criminal leader has already committed serious crimes. Thus, the leader is already prone to lengthy imprisonment. Furthermore, imprisonment is only one component of punishment, the others including removal from power and stigmatization. Therefore, since the criminal leader’s punishment already includes removal, stigmatization and lengthy imprisonment, threatening a lengthier imprisonment does not meaningfully increase the punishment’s severity.

Moreover, increasing a theoretical prison sentence often does not increase actual imprisonment. Most criminal leaders are at least middle-aged. For example, Sudanese President Omar al-Bashir and Libyan President Muammar Gaddafi are 67 and 68, respectively. Thus, whether the prison sentence is eighteen years (the average sentence for high-ranking criminals by the International Criminal Tribunal for the former Yugoslavia)24 or fifty, length of imprisonment is effectively the same: Life.

Consequentially, these equivalent punishments could theoretically incentivize crime. Equivalent punishments provide no incentive to not commit further crimes. Furthermore, equivalent punishments may incentivize crime where the criminal leader believes committing more crimes could decrease the likelihood of arrest.

B. Investigations deter negotiations for peace

In addition to being a poor disincentive to committing crimes, ICC investigations disincentivize negotiations for peace that explore alternatives like amnesty or exile.25 Criminal leaders are less likely to negotiate for peace if they’re vulnerable to subsequent prosecution for their crimes.26

Even if political negotiations for peace are occurring, the threat of ICC prosecution may both hinder these negotiations and “induce leaders to prolong atrocities.”27 At minimum, criminal leaders will be reluctant to agree to an amnesty where the possibility of ICC prosecution remains.28 Indeed, the current situation in Libya exemplifies these hindrances. The New York Times reports that the United States and its allies are attempting to end violence in Libya by convincing Colonel Gaddafi to leave Libya and take refuge in another country.29 However, his likely indictment by the ICC complicates the search for a refuge country by limiting potential asylum states to those not party to the Rome Statute.30

IV. Plea bargaining to increase specific deterrence

Threatening increased imprisonment is an ineffective specific deterrent. Thus, if the Office of the Prosecutor wishes to prevent crimes in ongoing conflicts, it should employ supplementary policies. One such supplementary policy is the Prosecutor negotiating pre-arrest plea bargains with fugitive criminal leaders.31 The Rome Statute arguably allows pre-arrest plea bargaining, but successful implementation depends on the Judicial Divisions.

A. Plea bargains as an alternative to amnesty

The Prosecutor should not negotiate amnesties. Amnesties are inherently political.32 If the Prosecutor meaningfully participates in negotiating amnesties, he arguably abrogates his duty to ensure that “that the most serious crimes…[do] not go unpunished....”33 Contrastingly, pre-arrest plea bargaining is more tenable because it provides some imprisonment.

Yet, even though I argue that the Prosecutor should not meaningfully participate in negotiating amnesties, if a credible amnesty nevertheless develops, it arguably removes crimes covered by the amnesty from the Court’s jurisdiction.34 Per Rome Statute Article 17, crimes are inadmissible where they have “been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute....” Arguably, in all amnesties, the State’s negotiated amnesty constitutes an “investigation” and a “deci[sion] not to prosecute.” Furthermore, if the amnesty is credible, the decision resulted from neither “unwillingness [n]or inability” to prosecute. Rather, it resulted from an implicitly permitted reason—desire for peace.

B. Pre-arrest plea bargaining prevents crimes

Plea bargains prevent crimes. They incentivize criminal leaders to surrender by offering reduced punishment in exchange for surrender. Comparatively, without plea bargaining, a criminal leader has little incentive to surrender because she will effectively receive the same punishment—life imprisonment—whether she surrenders or not. Thus, if the Prosecutor plea bargains a shorter punishment, such as five years, it would incentivize the leader to surrender by giving her a legitimate reason: Less-than-life imprisonment.

By incentivizing criminal leaders to surrender, plea bargains prevent crimes. They prevent all crimes that the leaders would have otherwise committed while evading capture. In effect, plea bargains prevent crimes in a similar manner as exiles, by purging the key leaders orchestrating the crimes. Indeed, Professor Michael P. Scharf estimates that exiling Saddam Hussein in 2003 would have spared thousands of lives.35

Some may rail against pre-arrest plea bargaining, claiming it’s not justice36 or that it decreases the ICC’s general deterrence, but their criticisms are shortsighted. Pre-arrest plea bargaining doesn’t decrease the ICC’s general deterrence. Before committing crimes, the prospective criminal leader likely cares most about the risk of removal from power. Thus, while a possible plea bargain decreases length of imprisonment, it only negligibly decreases overall punishment for general deterrence purposes.

Additionally, plea bargains provide some justice.37 Although a plea bargained imprisonment of five years might seem nominal, it provides more justice than a negotiated amnesty that does not imprison the leader.38

Ultimately, however, plea bargains subrogate justice to peace. A similar trade-off occurs in U.S. domestic criminal tribunals, where prosecutors may subrogate justice to crime prevention. These prosecutors sometimes plea bargain to avoid the risk that the defendant isn’t convicted, thus allowing her to continue committing crimes.39 Although domestic plea bargaining occurs post-arrest, this difference is immaterial. Both scenarios operate the same: Reducing the accused’s punishment to prevent crimes. Additionally, pre-arrest plea bargaining is similar to the hostage-taking context, where negotiators may offer safe escape or reduced punishment in exchange for the hostage-taker not harming hostages.

C. Rome Statute allows plea bargaining

The Rome Statute likely permits pre-arrest plea bargaining. Articles 64 and 65 permit plea bargaining generally by granting the accused “the opportunity to make an admission of guilt....”40 However, these Articles also arguably permit pre-arrest plea bargaining. In granting the right to plea bargain generally, they do not limit it to only post-arrest plea bargains.41 This lack of express limitation arguably permits all plea bargains—whether occurring pre—or post-arrest.

Despite allowing pre-arrest plea bargains, the Rome Statute also permits the Trial Chamber to ignore any plea bargain struck. Under Article 65, the Trial Chamber may “[o]rder that the trial be continued under the ordinary trial procedures…[as if the] admission of guilt as not having been made....”42 Additionally, neither the Rome Statute nor the ICC’s Rules of Procedure and Evidence require that the Chamber honor the plea agreement’s negotiated punishment, and thus, the Chamber can assign a greater punishment than negotiated.43

The risk of the Trial Chamber ignoring a plea bargain may make criminal leaders reluctant to plea bargain. To reduce this risk, the Pre-Trial Chamber could pre-approve a pre-arrest plea bargain, thus signaling that the Court will honor the bargain. Arguably, the Rome Statute already allows this pre-approval. Under Article 53, the Prosecutor can decide to not prosecute when it’s “not in the interests of justice, taking into account all the circumstances....”44 Further, the Pre-Trial Chamber may review this decision sua sponte to determine whether prosecution is in the “interests of justice.”45

Applying Article 53, negotiating pre-arrest plea bargains to end seemingly endless violence is arguably in the interests of justice. Additionally, pre-arrest plea bargaining is arguably a decision to not prosecute for Article 53, thus granting the Pre-Trial Chamber power of review. Therefore, the Pre-Trial Chamber could exercise this power to affirm the substance of the Prosecutor’s plea bargain. This affirmance would likely motivate the Trial Chamber performing sentencing to strictly follow the plea bargain struck.

V. Conclusion

The ICC’s institutional threat of punishment disincentivizes prospective criminal leaders from committing crimes. However, this general disincentive is minimized by both personal characteristics—lacking rationality—and institutional—jurisdictional and enforcement limitations. And when general deterrence fails, specific deterrence is a poor disincentive to committing further crimes.

To increase crime prevention, I suggested employing pre-arrest plea bargaining. I did not, however, address the logistics of how plea bargaining would work in practice: Who negotiates the plea bargain; is the Prosecutor suited for it? Although I merely propose these questions for other to consider, I posit that the Prosecutor alone cannot feasibly negotiate plea bargains. Rather, the Prosecutor should work with others in the international community—states, IGOs and NGOs—in developing and negotiating plea bargains.

Irrespective of logistics are the concerns that pre-arrest plea bargaining isn’t justice. While I understand these concerns, ultimately, justice is relative. When capturing a criminal leader is unlikely, where is the justice in allowing him to continue to kill on the mere hope that the political climate will eventually allow capture? And if he’s finally captured after living a long life filled with crime, where is the justice if he dies during trial or shortly thereafter? Blindly hoping for a future punishment that may never come, costing thousands of lives in the intermediate, provides less justice than a discounted punishment in the present.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Christopher W. Mullins & Dawn L. Rothe, The Ability of the International Criminal Court to Deter Violations of International Criminal Law: A Theoretical Assessment, 10 Int’l Crim. L. Rev. 771, 773 (2010); David Wippman, Atrocities, Defence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473, 476 (1999); see also Payam Akhavan, Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism, 31 Hum. Rts. Q. 624, 625, 629 (2009); Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 777, 783, 788, 792 (2006).

  2. 2.

    Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 12 (2001); Linda M. Keller, The False Dichotomy of Peace Versus Justice and the International Criminal Court, 3 HJJ 12, 41 (2008); Wippman, supra note 1, at 476.

  3. 3.

    See note 1, supra.

  4. 4.

    E.g., Keller, supra note 2, at 41-42.

  5. 5.

    E.g., Wippman, supra note 1, at 476.

  6. 6.

    Id.

  7. 7.

    George S. Yacoubian Jr., Sanctioning Alternatives in International Criminal Law: Recommendations for the International Criminal Tribunals for Rwanda and the Former Yugoslavia, World Aff., Summer 1998, at 49.

  8. 8.

    Akhavan, supra note 2, at 26; M. Cherif Bassiouni, Combating Impunity for International Crimes, 71 U. Colo. L. Rev. 409; Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale L.J. 2537, at 2542. Not unexpectedly, the Prosecutor himself also advocates for the ICC’s deterrent effect. Mullins & Rothe, supra note 1, at 771, 772; see also Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, Address to the Assembly of States Parties at the Eighth Session of the Assembly of States Parties 2-3 (Nov. 18, 2009), available online.

  9. 9.

    E.g., Ku & Nzelibe, supra note 1, passim; Wippman, supra note 1, passim.

  10. 10.

    See, e.g., Akhavan, supra note 1, at 629; Mullins & Rothe, supra note 1, at 773, 774.

  11. 11.

    See note 10, supra.

  12. 12.

    See, e.g., Akhavan, supra note 1, at 629; Keller, supra note 2, at 42-43; Mullins & Rothe, supra note 1, at 773, 774.

  13. 13.

    Gary J. Bass, Stay the Hand of Vengeance 291-92 (2000).

  14. 14.

    Mullins & Rothe, supra note 1, at 775.

  15. 15.

    Id. (recognizing “the at least partially rational nature of the organizations which commit violations of international criminal law”).

  16. 16.

    Akhavan, supra note 1, at 630; see also Mullins & Rothe, supra note 1, at 775.

  17. 17.

    Prosecutor v. Blaškić, Case No. IT-95-14-AR108bix, at ¶ 26 (stating that “[t]he International Tribunal…[is not] endowed with enforcement agents of its own[ and thus] must rely upon the cooperation of States [in order to prosecute persons]”); Bert Swart, General Problems, in The Rome Statute of the International Criminal Court: A Commentary 1594 (Antonio Cassese et al. eds., 2002); see Mullins & Rothe, supra note 1, at 777-80; Steven D. Roper & Lilian A. Barria, State Co-operation and International Criminal Court Bargaining Influence in the Arrest and the Surrender of Suspects, 21 Leiden J. Int’l L. 457, 464 (2008) (stating that the Prosecutor is in a stronger bargaining position when investigating a matter referred by a state party); see also Alexander K.A. Greenwalt, Justice Without Politics? Prosecutorial Discretion and the International Criminal Court, 39 N.Y.U. J. Int’l L. & Pol. 583, 606-07 (2007).

  18. 18.

    See, e.g., Mullins & Rothe, supra note 1, at 777 (stating that President Omar al-Bashir declared that the government will not “surrender any Sudanese person to the Court.”).

  19. 19.

    Rome Statute of the International Criminal Court, Article 13, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute].

  20. 20.

    See Mullins & Rothe, supra note 1, at 776-78.

  21. 21.

    Rome Statute, supra note 19, art. 13(b).

  22. 22.

    See Mullins & Rothe, supra note 1, at 776-78.

  23. 23.

    Id.

  24. 24.

    Barbora Holá, Alette Smeulers & Catrien Bijleveld, Is ICTY Sentencing Predictable? An Empirical Analysis of ICTY Sentencing Practice, 22 Leiden J. Int’l L. 79, 90 (2009).

  25. 25.

    Ku & Nzelibe, supra note 1, at 817-19; see Michael P. Scharf, The Amnesty Exception to the Jurisdiction of the International Criminal Court, 32 Cornell Int’l L.J. 507, 508-09.

  26. 26.

    Ku & Nzelibe, supra note 1, at 818-19 (stating that “when weak states are embroiled in massive civil wars, belligerents or state actors who are participating in the human atrocities are less likely to have an incentive to sue for peace [(i.e., negotiate for peace)] if they know they will be subject to prosecution for their activities”).

  27. 27.

    Akhavan, supra note 1, at 631, 634; Ku & Nzelibe, supra note 1, at 817-19, 826.

  28. 28.

    Michael P. Scharf, From the eXile Files: An Essay on Trading Justice for Peace, 63 Wash. & Lee L. Rev. 339, 343-44 (2006).

  29. 29.

    David E. Sanger & Eric Schmitt, U.S. and Allies Seek a Refuge for Qaddafi, N.Y. Times, Apr. 17, 2011, at A1, available online.

  30. 30.

    Id.

  31. 31.

    Payam Akhavan implicitly posited this approach in her 2005 article: “[T]he terms of negotiation could include mitigated sentencing by the ICC in exchange for voluntary surrender.” The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court, 99 Am. J. Int’l L. 403, 419.

  32. 32.

    Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (stating that “[a]mnesty laws are political tools”); John Dugard, Dealing With Crimes of a Past Regime. Is Amnesty Still an Option?, 12 Leiden J. Int’l L. 1001, 1009 (1999) (stating that amnesties are a “political compromise”).

  33. 33.

    See Rome Statute, supra note 19, preamble (stating that a fundamental purpose of the ICC is to ensure “that the most serious crimes of concern to the international community as a whole must not go unpunished…[through] effective prosecution....”)

  34. 34.

    For more thorough analyses of the effect of amnesties on ICC jurisdiction, see Darryl Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions, and the International Criminal Court, 14 Eur. J. Int’l L. 481 passim (2003) and Scharf, supra note 25, at 521-26.

  35. 35.

    Scharf, supra note 28, at 340.

  36. 36.

    See Julian A. Cook, III, Plea Bargaining at the Hague, 30 Yale J. Int’l L. 473, 476 (2005).

  37. 37.

    Additionally, plea bargains are not foreign to international criminal tribunals; tribunals like the ICTY also employ plea bargaining. Id. at 476-77.

  38. 38.

    Cf. Charles P. Trumbull IV, Giving Amnesties a Second Chance, 25 Berkeley J. Int’l L. 283, 306 (2007) (arguing that amnesties are not justice and that prosecutions provide justice).

  39. 39.

    See Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. Chi. L. Rev. 50, 52 (1968); see also Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 5 (1979).

  40. 40.

    See Cook, supra note 35, at 504-05; see also Vladimir Tochilovsky, Rules of Procedure for the International Criminal Court: Problems to Address in Light of the Experience of the Ad Hoc Tribunals, 46 Neth. Int’l L. Rev. 343, 348 (1999); see generally Rome Statute, supra note 19, arts. 64(8), 65.

  41. 41.

    See generally Rome Statute, supra note 19, art. 65.

  42. 42.

    Rome Statute, supra note 19, art. 65(4); see also Tochilovsky, supra note 39, at 348.

  43. 43.

    See Cook, supra note 35, at 502, 504-05 (stating that ambiguity of the ICTY Statute granted judges the “authority to ignore any sentencing recommendations” and that the same ambiguity is present in the Rome Statute); see generally Rome Statute, supra note 19, art. 65; International Criminal Court, Rules of Procedure and Evidence, Rule 145, ICC-ASP/1/3 (Sept. 2002).

  44. 44.

    Rome Statute, supra note 19, art. 53(2)(c);

  45. 45.

    Id. art. 53(3)(b).

Argument

The International Criminal Court should actively employ positive complementarity and defer to non-prosecutorial methods when appropriate in preventing crime. Deterring crime involves more than prosecution by the ICC. Changing societal norms and standards through positive complementarity and alternative justice mechanisms may have a long-term preventative impact.

Introduction

If the ICC is to succeed in maximizing crime prevention, the ICC must strategically employ justice mechanisms and defer to alternative non-prosecutorial methods when appropriate. Preventing atrocities requires the ICC to defer to alternative non-prosecutorial methods, including truth commissions and amnesty. When the cost of prosecution means continued tyranny or bloodshed, the ICC should carefully weigh the benefits and costs of prosecution. However, the ICC should not defer to non-prosecutorial methods that undercut its raison d’être unless the alternative methods can accomplish similar objectives.1

Accordingly, I argue that maximizing crime prevention by the ICC necessitates a look at justice and peace mechanisms. In particular, the situation in Uganda illustrates the need for exploring alternative non-prosecutorial methods in so far as they achieve the primary objectives of the ICC in deterring criminal behavior.

Part I of this comment will discuss the dichotomy between peace and justice in furthering the overarching objects and purposes of the international criminal justice system. In Part II of the comment, I discuss how the ICC can effectively prevent future atrocities through positive complementarity by promulgating justice in the domestic sphere. Part III will discuss the issue of whether the ICC should defer to non-prosecutorial alternatives, and if so, under what circumstances. Finally, Part IV will conclude.

I. Peace or Justice

The Rome Statute’s Preamble envisaged the ICC as a mechanism to contribute to the prevention of “grave crimes [that] threaten the peace, security and well-being of the world.”2 In an armed conflict, where the threat of continued bloodshed is imminent, the decision to prosecute or defer to peace negotiations is a difficult dilemma faced by the ICC Prosecutor. On the one hand, to allow crimes against humanity and genocide, often committed by means of mass murders, dismemberments, kidnappings, and gang rapes, to go unpunished seems to betray the victims of such acts and encourage similar crimes against others.3 On the other hand, when prosecution would derail peace negotiations and fuel a cycle of violence, one must ask whether there is an affirmative duty to prosecute. These are serious considerations that the ICC Prosecutor must grapple with, including the consequences of his decisions.

A. Consequentialist Argument

From a consequentialist perspective, the ICC should select the course of action that will produce the best outcome.4 Under this theory, the ICC should carefully assess various courses of action, given limited information, and choose the action that will produce the most beneficial result. This would largely entail pursuing the course of action that produces a net social benefit in excess of opportunity costs.5 If the total consequences of prosecuting an individual would ultimately be dire rather than beneficial, prosecution should not be pursued.6 Accordingly, the ICC should base its decision to prosecute on the effects of prosecution, including whether it would result in further violence and atrocities or contribute to peace. Thus, one important consideration the ICC must weigh in making a calculated decision to prosecute is whether the course of action would result in less or more violence.

The costs of prosecution not only encompass administrative and judicial costs, but it also includes delaying peace efforts and contributing to long-term instability and violence.7 Under the consequentialist theory, the ICC should defer to alternative justice mechanisms in lieu of prosecution where there is a serious threat of increased violence and the costs of prosecution outweigh the benefits.

A critical restraint on effectively deciding whether to prosecute is the difficulty in accurately predicting the costs and benefits of such a decision. Consideration must be given to both short-term and long-term consequences. Prosecuting a war criminal may produce immediate dire consequences though this may be outweighed by its long-term benefits, such as securing peace. In other circumstances, prosecution may result in serious adverse consequences that may potentially lead to long-term instability and increased violence. Thus, it may be difficult to predict whether an ICC prosecution would deter a future would-be tyrant or incite him or other criminals to commit further atrocities. The paucity of information is one serious obstacle that the ICC Prosecutor must consider in evaluating the ultimate consequences of prosecution.8 Nevertheless, the ICC Prosecutor should defer to non-prosecutorial methods where the negative consequences of prosecution outweigh its benefits.

B. Appropriateness Argument

A countervailing theory to the consequentialist theory is the logic of appropriateness. Decision-makers are driven by rules of appropriate or exemplary behavior and they seek to fulfill the obligations of their role and the ethos, practices and expectations of their institutions.9 Under this theory, actors follow norms because they think it is the right or legitimate thing to do.10 Accordingly, there is an affirmative duty to prosecute because it is morally right. Whether the effects of prosecution negatively outweigh its benefits is immaterial in deciding the proper course of action.

Under this paradigm, achieving justice is essential in the international human rights context. The logic of appropriateness would require the Prosecutor of the ICC to adhere to prosecuting criminals regardless of the outcome or any policy consideration. Whether the outcome contributes to an increase in violence, which results in mass atrocities and bloodshed is inconsequential. The ICC Prosecutor should prosecute those individuals who have allegedly committed human rights violations because it is the legitimate thing to do. Thus, this theory rejects non-prosecutorial methods since it would usurp the functions of the ICC Prosecutor to achieve justice.

In order to maximize crime prevention, the ICC must strategically employ those methods that will contribute to this objective. Because the logic of appropriateness must be rigidly applied and no consideration is given to the effects of prosecution, the logic of appropriateness must be discarded and replaced with the consequentialist theory in deciding whether to prosecute.

II. Positive Complementarity

Positive Complementarity is the idea that the Office of the Prosecutor (OTP) and Chief Prosecutor should encourage states to prosecute domestically.11 The objective of positive complementarity is to strengthen domestic capacity, which arguably will have a long-term preventative impact.12 The ICC can effectively prevent atrocities by encouraging states to establish systems and institutions to try international crimes.

A. Prevention and Complementarity in the International Criminal Court

A criticism of the ICC is that it presumes that the perpetrators of armed conflict are rational decision-makers, and thus are deterred by the threat of prosecution.13 Because mass atrocities occur during a collapse in the public order, assuming perpetrator rationality may be unreasonable.14 Positive complementarity, on the other hand, seems to be a more effective strategy to adopt because of its long-term impact on national judicial systems. The ICC can foster respect for the rule of law both domestically and internationally by adopting positive complementarity and cooperating with states parties to facilitate “ICC-supported transnational networks dedicated to international criminal laws.”15 Over time, strong judicial institutions can stabilize societies by establishing norms that prevent impunity and uphold the idea that no one is above the law. This in turn can strengthen the principles of democracy and the rule of law in a society. Additionally, the ICC can turn to the international community—the UN and other State Parties—to increase diplomatic pressure or encourage individuals to denounce the violations that they might otherwise have ignored.16

B. Positive Complementarity Applied to Uganda

On December 16, 2003, President Museveni referred the matter of the Lord’s Resistance Army (LRA) to the ICC for investigation and prosecution for serious violations of international law.17 In January 2004, Chief Prosecutor Moreno-Ocampo opened an investigation in the region, and after a year-long investigation, the court issued warrants for Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya.18 Although the Ugandan government referred the matter to the ICC, they also promised amnesty for the leaders of the LRA on the condition they disarm and return home.19 The Ugandan government recommended a traditional reconciliation ceremony called “mato oput” in lieu of criminal prosecution.20

The indictments issued by the ICC against the LRA’s leadership have served to bring the LRA to the negotiating table and contributed to the progress of the peace negotiations.21 Since the matter was referred to the ICC, the violence has decreased in Northern Uganda though a peace agreement remains to be signed.22 The Government of Uganda has begun to implement a method to try the perpetrators for international crimes domestically as a result of the ICC’s involvement and demands by the LRA leadership that they not be prosecuted abroad.23 This process has thus far engaged a significant number of leaders in government and civil society whose involvement and outreach efforts can foster respect for the institution and trials that result.24 The “envisioned war crime division of the Ugandan High Court” will reflect Ugandan and international standards of justice and incorporate traditional justice mechanisms.25 Although the impact of this collaborative process between local leaders and international advisors remains to be seen, the OTP’s active engagement of States Parties seems to contribute to the progression of the Ugandan peace process “in both expanding the judicial system and engaging various parts of society in the process.”26 The ICC’s involvement in Uganda will be critical in fostering norms and standards that uphold the rule of law. Moreover, the establishment of a war crimes division will be one step in the right direction for establishing a stable judicial system and eventually a stable government.

III. Non-prosecutorial Methods

Victim communities seek justice in Uganda through traditional reintegration ceremonies whereas the ICC Prosecutor seeks justice through criminal prosecutions.27 Because the Rome Statute is silent on amnesty and truth commissions, the statute might allow sub rosa recognition of amnesty or other alternative justice mechanisms (AJM) in certain circumstances.28 Those circumstances consist of the following: (1) Article 16 deferral resolution, where the Security Council would require the ICC to suspend the Ugandan prosecution as a threat to international peace29; (2) Article 20 ne bis in idem, Ugandan AJM can be treated as prior prosecution blocking subsequent ICC proceedings30; (3) Article 53 prosecutorial discretion, which allows the Prosecutor to decline to prosecute in the interest of justice31; and (4) Article 17 inadmissibility,32 where Ugandan AJM would render the case inadmissible under the principle of complementarity.33

A. Alternative Justice Mechanisms

Through AJM the ICC can foster the rule of law in regions that have been torn by conflict and violence. This can in turn have a tremendous deterrent effect. One-size fits all justice does not seem to work where the threat of prosecution remains illusory. AJM may be a more effective measure in deterring criminal behavior because it would utilize traditional methods of justice, specific to a certain region or culture to accomplish the same objectives of the ICC—advancing justice and punishing criminals. Before deferring to AJM, the ICC must ensure that the AJM in question will accomplish the objective of crime prevention. The AJM must be assessed based on a two-part inquiry: (1) whether the AJM is per se legitimate, and (2) whether the AJM would be necessary to secure peace.

1. Uganda’s AJM

The threshold requirement of legitimacy focuses on whether the agreement is legitimate. Legitimacy requires the agreement to be promulgated by a democratically elected government or international body, rather than a government motivated by covering up its own international crimes.34 The AJM must represent the people and adhere to a principle of nondiscrimination. Additionally, the AJM should hold those culpable of perpetrating crimes responsible regardless of their status or affiliation to the government or a criminal organization.

The decision for Ugandan AJM appears to be legitimate because it was first proposed by Acholi leaders, rather than the government.35 Unlike the truth commission established in Uganda during the 1970s, it does not seem that the Ugandan government will adopt the AJM to protect itself.36 Ugandan AJM would represent the interest of the people, including the most marginalized segments of society which initially called for AJM.37 Additionally, Ugandan AJM seems to be widely supported by the Acholi and victims who desire truth commissions and mato oput.38 At the outset, Ugandan AJM seems to be a legitimate alternative to prosecution under the ICC.

Secondly, the Ugandan AJM is necessary to secure peace within the region. The replacement of ICC prosecution with AJM in the Uganda situation may be critical in furthering peace negotiations between the LRA and the government.39 The LRA maintains that before they can sign any peace deal the warrants against Kony and his top commanders must be dropped.40 Thus, Uganda’s request for the ICC to withdraw its warrants seems necessary to securing peace.

In attempting to secure peace, Uganda may implement various mechanisms. For example, a truth commission process such as that used in South Africa can serve to reveal the perpetrators of crimes and foster condemnation of those crimes and censure the perpetrators. South Africa’s Truth and Reconciliation Commission (TRC) model illustrates how public condemnation and reparations for victims can serve a deterrent effect.41 Accordingly, Uganda should consider a truth commission to morally condemn the crimes and the perpetrators through public disgrace, stigma, and censure, as well as incorporate reparations for the victims.42

Furthermore, Ugandan AJM may come in the form of mato oput, a traditional justice mechanism that combines shaming with a compensatory remedy. The “mato oput” ceremony requires that the perpetrator of the crime admit wrongdoing to the victim, ask forgiveness, and pay compensation.43 Given its communal origins, shaming is traditionally part of the Acholi culture, and is incorporated into mato oput.44 “The local shaming punishment might be as close to proportional punishment as an ICC sentence.”45 Mato oput is not without flaws as it would require perpetrators of crime, many being children soldiers, to pay compensation to the victims. Presumably, these children soldiers would not have any financial resources for victim reparations.

Despite these challenges, mato oput and the truth commission seem to be the best alternative for securing peace in Uganda while also advancing the principle of justice. For such mechanisms to have a deterrent effect, the truth commission report and the outcome of mato oput must be widely publicized. Similar to prosecution, it may be difficult to measure the actual deterrent effect of Ugandan AJM. Nevertheless, AJM achieves two important objectives: securing peace and advancing justice.

IV. Conclusion

In conclusion, the ICC should employ positive complementarity or defer to alternative justice mechanisms in order to maximize crime prevention. Under positive complementarity, the ICC can effectively prevent atrocities by encouraging states to establish systems and institutions to try international crimes. This in turn can foster a respect for the rule of law that will likely have positive long-term reinforcing effects. Furthermore, when prosecution would result in increased violence and bloodshed, the ICC should defer to alternative justice mechanisms. Consequently, both peace and justice can be achieved under these two methods.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 419 (2008).

  2. 2.

    Rome Statute of the International Criminal Court, Preamble, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute].

  3. 3.

    Eric Blumenson, The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court, 44 Colum. J. Transnat’l L. 801, 819 (2006).

  4. 4.

    Id. at 823.

  5. 5.

    Id.

  6. 6.

    Id. at 824.

  7. 7.

    See Eric S. Fish, Peace Through Complementarity: Solving the Ex Post Problem in the International Criminal Court Prosecutions, 119 Yale L.J.1703, 1708 (2010).

  8. 8.

    Blumenson, supra note 3, at 828.

  9. 9.

    See James G. March and Johan P. Olsen, The Logic of Appropriateness 3-14 (Center for European Studies University of Oslo Arena Working Paper 2004), available online.

  10. 10.

    See James Fearon and Alexander Wendt, Handbook of International Relations, 60-63 (Sage Publications, 2002).

  11. 11.

    Katherine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 Hum. Rts. Br. 21, 22 (Winter 2010).

  12. 12.

    Id.

  13. 13.

    Id. at 24.

  14. 14.

    Tom Farer, Restraining the Barbarians: Can International Criminal Law Help?, 22 Hum. Rts. Q. 90, 98 (2000).

  15. 15.

    Marshall, supra note 11, at 25.

  16. 16.

    Id.

  17. 17.

    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, 304 (2007).

  18. 18.

    Id. at 304-305.

  19. 19.

    Hanlon, supra note 17, at 295; see also Manisuli Ssenyonjo, Accountability of Non-State Actors in Uganda For War Crimes and Human Rights Violations: Between Amnesty and the International Criminal Court, 10 J. Conflict & Security L. 405, 419 (2005).

  20. 20.

    Tristan McConnell, Uganda Sees Local Justice as Key to Peace, Christian Science Monitor, Sept. 8, 2006, available online (during the “mato oput” ceremony, “the perpetrator of a crime meets the victim, admits wrongdoing, asks for forgiveness, and pays compensation. The ritual ends with perpetrator and victim sharing a cup of sheep’s blood mixed with a bitter root.”)

  21. 21.

    See, e.g. International Crisis Group, Africa Report No. 124: Northern Uganda: Seizing the Opportunity for Peace (Apr. 2007), available online.

  22. 22.

    Uganda Violence: One of the World’s Most Neglected Crises, Reuters Alertnet, Sept. 17, 2009, available online (last visited May 11, 2011).

  23. 23.

    Michael A. Newton, The Complementarity Conundrum: Are We Watching Evolution or Evisceration?, 8 Santa Clara J. Int’l L. 115 (2009).

  24. 24.

    Marshall, supra note 11, at 26.

  25. 25.

    Id.

  26. 26.

    Id.

  27. 27.

    Jeffrey Gettleman, Uganda Peace Hinges on Amnesty for Brutality, N.Y. Times, Sept. 15, 2006, available online (last visited May 11, 2011).

  28. 28.

    Keller, supra note 1, at 238.

  29. 29.

    See Rome Statute, supra note 3, art. 16 (Deferral of investigation or prosecution: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect: that request may be renewed by the Council under the same conditions.”).

  30. 30.

    See Rome Statute, supra note 3, art. 20(Ne bis in idem: “3. No person who has been tried by another court for conduct also proscribed under article 6, 7, 8, or 8 bis shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”).

  31. 31.

    See Rome Statute, supra note 3, art. 53 (“Initiation of an investigation […] 2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because: […] (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims, and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime.”).

  32. 32.

    See Rome Statute, supra note 3, art. 17 (“Issues of admissibility 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”); see also William W. Burke-White, 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, 268-275 (2009).

  33. 33.

    Keller, supra note 1, at 238.

  34. 34.

    Mahnoush H. Arsanjani and W. Michael Reisman, Developments at the International Criminal Court: The Law-in-Action of the International Criminal Court, Am. J. Int’l L. 385, 393 (2005).

  35. 35.

    Keller, supra note 1, at 238.

  36. 36.

    Id.

  37. 37.

    Adam Branch, International Justice, Local Injustice: The International Criminal Court in Northern Uganda Disssent, Summer 2004, at 22, 24.

  38. 38.

    Kasaija Phillip Apuuli, The ICC Arrest Warrants for the Lord’s Resistance Army Leaders and Peace Prospects for Northern Uganda, 4. J. Int’l Crim. Just. 179, 183-185 (2006).

  39. 39.

    Julian Ku and Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 777, 820 (2006); see also Reuters, Uganda Aide Criticizes Court over Warrants, N.Y. Times, Oct. 9. 2005, available online, (last visited May 11, 2011).

  40. 40.

    Uganda rebels in fresh truce, BBC, Jan. 12, 2009, available online, (last visited May 11, 2011).

  41. 41.

    Blumenson, supra note 4, at 865.

  42. 42.

    Alexander K.A. Greenawalt, Justice Without Politics? Prosecutorial Discretion And the International Criminal Court, 39 N.Y.U. J. Int’l L. & Pol. 583, 614 (2007).

  43. 43.

    Hanlon, supra note 17, at 306.

  44. 44.

    Keller, supra note 1, at 269.

  45. 45.

    Id.

Introduction

The ICC has been established with jurisdiction over various types of crimes, including: genocide, war crimes and crimes against humanity. These crimes affect “international peace and security.”1 The main purpose of the Court is to end impunity for these crimes and bring individuals who have committed such crimes to justice.2 At the most basic level, the function of the ICC is to promote accountability.

There is no doubt that the Court will fulfill this function. It will “try and sanction some number of individuals for crimes within its jurisdiction.”3 Moreover, the Court will play an instrumental role in further developing and refining norms of behavior that are acceptable within international criminal law.4 However, despite its promise, there are limits to the Court’s ability to build peaceful societies and deter—i.e. to discourage or prevent—the commission of future crimes.

In this essay, I will consider why collective violence takes place. To fully understand the capacity of the ICC to deter violence we must understand the factors that lead to violence. I will argue that a deadly conflict is an “event with a structure, a process and a character.”5 Deadly conflicts do not merely arise spontaneously, but generally evolve as a result of historical, social, political, economic and cultural factors.6 The ICC has a limited capacity to respond to such complex phenomena and undo the legacies of complex violence.

Deadly Conflicts and Political Violence

Ethnic conflicts and riots come in many guises, and many are deadly. Professor Horowitz defines a “deadly ethnic riot” as an “intense, sudden, though not necessarily wholly unplanned, lethal attack by civilian members of one ethnic group on civil members of another ethnic group, the victims chosen because of their group membership.”7 Deadly ethnic riots are the most common form of collective violence.8 Types of riots differ in two crucial respects: the scale and brutality of killings.9 While a few are killed in some conflicts; other types of ethnic violence result in a high number of casualties. The degree of brutality with which the killings are committed usually varies from conflict to conflict.

In deeply divided societies, ethnic riots can occur at any moment. In the presence of certain political and social conditions riots or isolated acts of violence often turn into protected civil wars.10 The fact that the government supports violence against a certain group is in many circumstances crucial for deadly conflict to develop. This is perhaps “the most significant facilitator”11 of violence. Governmental encouragement or more broadly, social support, can make a difference between “at most a series of isolated assaults and large-scale collective violence.”12 In pursuit of broader political, social and economic objectives, states may authorize the commission of crimes which violate the state’s own domestic law and international laws.13

There are a variety of precipitating events which generally precede riots and ethnic conflicts. These events trigger the transition from peace to violence. To be effective, the events must convince the core participants in the conflict that violence is warranted. Violence must be seen as an appropriate response against the members of a select group. It usually develops as a result of an ongoing relationship between groups.14

The intended victims of the violence are not chosen by chance.15 A group may be regarded as a long-standing enemy, or a political threat which justifies violent action against the group. Ancient enmities tend to play a role in directing violence at a particular group.16 Thus, there is commonly a tendency to single out traditional ethnic enemies.17 Moreover, groups that are perceived as having the capacity to attain control over the state and achieve political dominance are more likely to be isolated as victims of violence than other groups. “[N]umerical majorities can behave as if they were minorities—by magnifying threats from minorities and underestimating their own capacity to deal with those threats.”18 Minorities are often described as “agents” of foreign powers that are considered politically threatening.19 “The perception of the target group’s political power tends to include power ascribed to the group’s external affiliates.”20

There is generally a hostility of atmosphere between the groups that provokes the violence. This hostility, in turn, breeds ethnic polarization and dehumanization of the ‘other’ to legitimate the ensuing violence, destruction and subordination of the group. The potential for violence is greatest in periods of transition and uncertainty that bring about changes in pre-existing ethnic relations or intensify already existing tensions between groups.21

The Role of the ICC

The ICC serves several important post-conflict intervention functions: it investigates war crimes; intervenes in situations where effective domestic legal institutions may be absent; and holds individuals responsible for their actions or inactions in times of conflict. The extent to which individuals are held responsible depends on the degree of their knowledge, involvement and capability.22 The Court addresses important questions of justice and allocates “responsibilities in contexts where it is often unclear who”23 has committed the crimes in question. This is an important function, because misunderstandings as to what happened during a conflict, can often lead to new conflicts.

The value of the ICC must, therefore, not be understated. There is no doubt that the ICC has an important role to play in the prosecution of war criminals in war-torn societies. The ICC, however, is only able to act, where the crime in question falls within the ambit of the Rome Statute. Prosecution can only occur where the ICC has jurisdiction over both the suspect and the crime. This is an important limitation on ICC’s ability to intervene. Moreover, the ICC is reliant on Member States for its effective and efficient functioning.

Conclusion

An important goal of this essay has been to shed light on the causes that lead to deadly conflicts and the potential of the ICC to deter such conflicts. Collective violence tends to take place within a socially accepted context. I have argued that the ICC plays an important role in highlighting the responsibility of those directly or indirectly involved in war crimes and other crimes against humanity. Most importantly, the Rome Statute grants the Court power to investigate violations of international criminal law and to proceed with prosecutions where jurisdiction can be found.

However, prosecutions alone are insufficient to end impunity. Bringing about systematic shifts in ethnically divided societies is difficult and requires the design of institutions that safeguard basic freedoms and human rights. The international community must assist the ICC in its deterrence function and efforts to induce certain actors to comply with internationally accepted norms. It is crucial to end cycles of violence and break up genocidal patterns.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Machteld Boot, Genocide, Crimes Against Humanity, War Crimes (2002) 610.

  2. 2.

    Id.

  3. 3.

    Joanna Harrington, Michael Milde and Richard Vernon (eds), Bringing Power to Justice? (2006) 101.

  4. 4.

    Id.

  5. 5.

    Donald Horowitz, The Deadly Ethnic Riot (2001) 71.

  6. 6.

    Boot, supra note 1, at 143.

  7. 7.

    Horowitz, supra note 5, at 1.

  8. 8.

    Id.

  9. 9.

    Id. at 6.

  10. 10.

    Id. at 3-4.

  11. 11.

    Id. at 343.

  12. 12.

    Id. at 344.

  13. 13.

    Alette Smeulers and Roelof Haveman (eds), Supranational Criminology; Towards a Criminology of International Crime (2008) 136.

  14. 14.

    Horowitz, supra note 5, at 151.

  15. 15.

    Id. at 194.

  16. 16.

    Id. at 155.

  17. 17.

    Id. at 157.

  18. 18.

    Id. at 172.

  19. 19.

    Id. at 174

  20. 20.

    Id. at 177.

  21. 21.

    Id. at 331.

  22. 22.

    Toni Erskine (ed), Can Institutions Have Responsibilities? (2000) 176.

  23. 23.

    Id. at 234.

I agree with Mr. Goldstone that the emerging doctrine of Responsibility to Protect (R2P) represents a key opportunity for the ICC to maximize its crime prevention capabilities. However, its usefulness seems limited by the recently defined crime of aggression, which allows for force only in the traditional cases of self-defense or U.N.S.C. authorization. While the U.N.S.C. is to be applauded for utilizing an R2P rationale for the first time following the limited adoption of the doctrine at the 2005 World Summit, the recent veto of the resolution on Syria and the past threatened vetoes on Sudan highlighted by Mr. Goldstone demonstrates exactly why the International Commission on Intervention and State Sovereignty originally put forth a framework allowing R2P to be invoked absent U.N.S.C. authorization. Despite the difficulties associated with relying on U.N.S.C. authorization in situations involving a humanitarian crisis, suggestions from the U.S. delegation to the Kampala conference that the crime of aggression exempt legitimate humanitarian actions were rejected.

This leaves me with a question that I would like to pose to Mr. Goldstone and other Forum participants: Though the crime of aggression does not come into effect for years and will be constrained by a variety of jurisdictional limitations, will it nonetheless have a chilling effect on nations considering the use of force to avert humanitarian catastrophe? In a related question, will the crime prevention capabilities of the ICC be hamstrung by the new crime if nations are even less likely to use force against rights-violating regimes?

Professor Goldstone praises the ICC as the world's best hope for preventing crimes against humanity. But it's just that: A hope.

He argues that the key to achieving justice and preventing crimes is universal ratification of the Rome Statute. I disagree. Signatories aren't the key; soldiers are.

The Democratic Republic of Congo, for example, signed the Rome Statute. And the ICC indicted Congolese General Bosco Ntaganda. Yet he lives openly, luxuriously and lawlessly. (http://motherjones.com/politics/2011/09/bosco-ntaganda-congo-warlord)

Sudan, by contrast, did not sign the Rome Statute. But the same result occurs: Indicted President Al-Bashir continues as head of state. Professor Goldstone, while acknowledging this, claims the ICC's arrest warrant created "serious consequences" for Al-Bashir, which also sent a "loud and clear" message to all would-be tyrants.

Except the consequences weren't serious. They were solely a threat to arrest Al-Bashir if he leaves Sudan. And not even a strong threat because he still visited three countries. So Al-Bashir can continue his crimes undeterred, so long as he forgoes diplomatic jaunts abroad.

These consequences do send a message to would-be tyrants. A loud and clear one too. But not a salutary one.

And then there's Libya, which Professor Goldstone cites quite favorably. Libya, like Sudan, did not sign the Rome Statute. But unlike Sudan, the Security Council authorized use of military force to protect civilians. This force was instrumental in removing Gaddafi from power. And I somehow doubt increasing the number of Rome Statute signatories would have hastened his removal.

Argument

In order for OTP to maximize its prevention of crime, it must base its policies on a cost-benefit model of deterrence. This model advances the idea that an actor will stop (or not begin) rights violating behavior when the cost of that behavior outweighs its benefits. There are different classes of actors that the ICC must work towards deterring however, and each class has different considerations that play into their cost-benefit analysis.1 OTP must tailor its policies to these actor types in order to successfully raise the costs of rights violating behavior for each.2

I. The Model

An analysis of the crime prevention effect of the ICC begins with a question: How can the Court influence an actor’s decision to violate the law? Scholarship on the topic has focused on two models of deterrence designed to answer this question, each economic in nature.3 The first model is built around two factors: certainty of punishment and severity of punishment.4 If an actor does not believe that he is likely to be punished, and that any punishment that occurs will be relatively minor, then they will not be deterred from engaging in rights violating behavior.5 The second model utilizes a cost-benefit analysis which supposes that an actor will violate the law when the benefits of non-compliance outweigh the costs.6

The choice of model plays a crucial role in our analysis. Utilizing the first model, Julian Ku and Jide Nzelibe concluded that international criminal tribunals can only have a deterrent effect against a small class of actors and are more likely to exacerbate atrocities.7 In contrast, Payam Akhavan used the cost-benefit analysis in concluding that these tribunals can play a major role in preventing crime.8 So which model is better? Ultimately it is the cost-benefit model that provides a more complete picture of the crime prevention capabilities of the ICC.

This model includes key elements that are missing from its counterpart. First, an ICC indictment brings other forces into play besides the threat of punishment. Both international and local condemnations often follow the issuance of indictments, or are ramped up in the wake of them.9 Both of these factors should not be underestimated, as internal and external isolation can have important political consequences for rights violators.10 Secondly, the Ku and Nzelibe model fails to properly incorporate the value of the rights violating behavior to the actor. Many war crimes and crimes against humanity (including systematic attacks on civilians, widespread sexual assault, use of child soldiers, etc.) are decisions made at varying levels of command and control.11 These decisions are made on the basis of their value to the actor, whether that value is strategic, political, or something else.12 Not all strategies involving rights violations may be particularly valuable, and might only be implemented because the costs associated with them are relatively low.

Finally, the two factors from Ku and Nzelibe’s model, certainty and severity of punishment, are incorporated within the broader cost-benefit analysis as costs associated with rights-violating behavior. Even if an actor believes that there is only a small chance that he will be caught, let’s say ten percent, this will still factor into his decision making process. While a ten percent certainty of punishment is unlikely to prevent an actor from committing crimes that are highly beneficial to him, it may take on greater significance when weighed against the commission of a crime that is less beneficial. When you add possible internal and external political isolation to the cost calculation, this possibility becomes even more likely. This reason, and the others listed above, makes the cost-benefit model the more accurate tool for analyzing the crime prevention impact of the ICC.

II. The Actors

In order to effectively utilize the cost-benefit model, we must possess an understanding of the different classes of actors involved in a conflict; without this we cannot analyze the ways that each may be expected to behave within the framework. At the greatest level of abstraction, there are three classes of actors who commit human rights abuses. There is the doer; the foot soldier who commits the rape, murder, abduction, etc. in question. Then there is the planner; the politician who incited ethnic cleansing, the general who implemented it, and the commander who managed it. Finally, there are the aiders and abettors.13 These broad classes provide some guidance on how the cost-benefit model can be applied. However, there are other considerations that will impact how an actor perceives the costs and benefits of an illegal rights-violating strategy.14

Narrowing down these considerations is necessary in order to distill distinct, coherent classes of actors. To do so, one would normally look to a more complete historical record of rights violating behavior; time and resource constraints require a more limited approach in this comment however. Thus, we will look at the cases that the ICC has already become involved in, via indictment or investigation, to provide the classes of actors to be examined in this paper. In addition, OTP provided its perspective on the classes of actors that the Court should focus on its 2003 policy paper:

The global character of the ICC, its statutory provisions and logistical constraints support a preliminary recommendation that, as a general rule, the Office of the Prosecutor should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organization allegedly responsible for those crimes.15

The ICC has followed this policy in the six situations where proceedings have begun thus far.16 Four involve indictments against rebel leaders.17 The Sudan case also involves an indictment against a sitting head of state, as well as indictments against an official in his administration and a leader of a government backed militia.18 The final situation the Court is involved in is brand new: the initiation of an investigation into the ongoing conflict in Libya.19

Thus, ICC practice to date leaves us with three primary classes of actors that the Court is seeking to deter: 1) the Rebel Leader 2) the Head of State and 3) the State-Endorsed Group Leader.20 A conflict context is assumed for each actor, since all of the ICC situations thus far have involved conflict environments.

One class of actors that is missing is that of the foot soldiers. Considering the jurisdictional barrier posed by the Rome Statute and resource constraints cited by OTP in its 2003 Policy paper, this is unsurprising.21 It also makes some sense in light of the cost-benefit model; valuation of both the costs and benefits of rights-violating behavior is more difficult with low level implementers. This is because such actors can have a wider variety of motivations that determine the value of their behavior.22 It is also harder to measure the costs of that behavior as seen by these actors, since they are farther removed from the ICC as an institution. In addition to these difficulties, social psychology provides explanations of the behavior of low level implementers that may divorce them from the cost-benefit model altogether.23 Yet, despite the aforementioned problems, there is a benefit in looking at the possible deterrence of this class of actors that will be explored as well.

III. Applying the Model

Now that we have distilled four classes of actors that the ICC is seeking to deter, we can apply the cost-benefit model to each. In order to do so however, we must first pick an illegal rights violating strategy as an example. Since ethnic violence has been alleged in many of the situations that the ICC is already involved in, we will use this as our across the board example for all four classes. Ethnic violence is a crime under Article 7(1)h of the Rome Statute.24 A variety of explanations have been offered to explain why it is a part of so many protracted civil wars.25 For the purposes of determining the value of systematic murder or extermination of civilians for all four classes of actors, we will focus on three that are the most relevant to this specific subset of ethnic violence. The first argument claims that ethnic violence is used by political elites to increase their power.26 The second explanation deals with the security dilemma posed by signaling problems and threat evaluation between ethnic groups. In domestic systems with a weak (or uninterested or biased) government, ethnic groups become responsible for their own defense. As neighboring groups arm, it is difficult to tell if they are doing so for offensive or defensive purposes, and inter-ethnic tensions increase.27 This model shares some similarities with Fearon’s concept of credibility failures on the part of majority ethnic groups.28 The final explanation is one linked to extremism. This explanation argues that extreme elements of an ethnicity will use violence to undermine the peace process by making it appear that even the moderates of the group lack the will to stop such acts.29

The following sections will first detail the benefits of the illegal rights violating strategy to the actor, and will then explore how the actor will value the costs that the ICC can bring to bear along with possible policy reforms that will maximize those costs.

A. The Rebel Leader

Benefits: There are several possible benefits of a decision to systematically murder or exterminate civilians in a rival ethnic group by a rebel leader. The first value of such a strategy is found at the nexus of the second and third explanations of ethnic violence detailed above. The security dilemma model explains why a rebel leader may wish to block peaceful negotiations: if the other ethnic group is armed and mobilized, it will not have enough credibility in the eyes of the rebel leader to respect his group’s rights. Murder and extermination of the rival group’s civilians thereby allows the rebel leader to disrupt negotiations. Thus, the rights violating behavior in this scenario has the benefit of keeping the conflict ongoing, and the rebel leader will place a high value on this as it keeps him in a position of power so that he can continue to pursue his agenda.

Costs: The ICC will have difficulty imposing costs on the rebel leader. The international condemnation and external isolation that can follow ICC interest are only threats to a rebel leader who is supported by those nations that pay attention to the court. Since most rebel leaders are not reliant on outside support, and those that are receive it from nations that disregard the ICC, this is an almost non-existent cost.30 Currently, internal condemnation and isolation are also minimal costs to a rebel leader. In order for rival constituencies within the rebel leader’s group to utilize an ICC indictment as an isolating tool, the ICC would need a high degree of respect on the ground in the region. Amidst accusations that the ICC is a neo-colonial institution fixated on Africa, the necessary standing has not yet been achieved.

Yet there has been a link between ICC involvement and the decreasing intensity of Lord’s Resistance Army violence.31 This means that certainty of punishment, the remaining cost to balance against the benefit of the strategy, may be highly valued by rebel leaders. This makes sense considering that, with the exception of the foot soldier, the rebel leader is the most likely to actually end up in the custody of the ICC.32

Conclusions: While the use of major ethnic violence is likely to be a valuable strategy to the rebel leader, his more precarious strategic position means that he is acutely sensitive to the possibility of ending up in the Hague. Therefore, this class of actor will be increasingly deterred from the use of this strategy as his power weakens and the threat of prosecution increases. Thus, the ICC should focus on strategies that can weaken the strategic position of this class of actors. One way this might be done is by using the international public outrage over rights abuses committed by a Rebel Leader to stir up support (financial, strategic, etc.) for the state in which the leader resides in order to increase their capability to fight and capture him.

B. The Head of State

Benefits: The first model attributing the outbreak of ethnic violence to political incitement provides the clearest indicator of the strategy’s value to a head of state. By playing upon the historical divides that become enshrined in one ethnic group’s perception of another33, politicians can rally their base and shore up their own political power. Once a politician has utilized this strategy, he has effectively ruled out the possibility of reining in the consequences of his rhetoric. To attempt to punish supporters who have begun to perpetrate acts of violence against the rival ethnic group would erode support, so the head of state is incentivized to encourage these acts rather than denounce them. This creates a cycle of escalating violence that can eventually result in systematic murder and extermination.34

However, utilizing ethnic division is only one way to achieve political power. While it may be the easiest path in some circumstances35, the presence of alternative options to rally political support does decrease the value of this benefit somewhat.

Costs: For the head of state, international isolation represents a much greater cost than it does for the rebel leader. An ICC indictment of a head of state on charges related to ethnic violence will likely result in condemnation from many nations in the international system. The consequences of this condemnation can be varied, and can include revocation of foreign aid or membership in vital international organizations, or even possible military action. However, this cost can be mitigated somewhat by the support of nations that disregard the ICC.36

ICC indictments can also rally domestic political dissent against a leader. If an indictment has resulted in major consequences for a nation, like economic sanctions, then political rivals will be able to play upon those costs in order to isolate the head of state. If the ICC has a good standing within the country, the indictment on its own can be used a tool for isolation.

When it comes to certainty of punishment however, the head of state will value this cost less than the rebel leader. The strategic military position of a head of state is generally more secure than that of a rebel leader, and short of a foreign military intervention, since he faces little prospect of being placed into ICC custody. Significant international isolation that leads to domestic consequences can increase the certainty of punishment for a head of state however, by making his political situation more precarious.

Conclusion: To prevent crimes committed by heads of state, the ICC must work to expand its influence with nations in the international system so that heads of state do not have support systems to rely upon. Increased international pressure can lead to domestic consequences for a head of state’s political position. Without this kind of domestic isolation, the ICC cannot in turn increase the certainty of punishment for the head of state. Thus far, this has been a problem for the ICC.37 There are no easy answers as to how the ICC can improve its standing in the international system. If the court were to adopt a more consequential perspective, it could be possible for the Court to work out compromises with regional coalitions like the African Union (i.e. We won’t investigate these two lesser allegations of rights violating behavior in Member X and Member Y if you support our efforts against Member Z and the more serious allegations there). While this might seem anathema to a young international body that must build its reputation, it could yield vital strategic partnerships for the ICC that may result in a Head of State being apprehended or pushed out.

The ICC must also develop a strong on-the-ground reputation in order to create internal political costs for Heads of State who are indicted. The Court is already on the right track with its efforts in Sudan, The Central African Republic, Kenya, Democratic Republic of the Congo, and Uganda; where the Court has programs in place for community and media outreach.38 These efforts must be increased, spread proactively to similar states (otherwise the Court will always be in a position of playing catch-up as crimes are committed in states where the ICC has no presence), and expanded in scope. In order to meaningfully improve its reputation, the Court must go beyond outreach directly related to its judicial functions (i.e. raising awareness about procedures, etc.), and consider instituting programs that combat corruption and other tangentially related issues.39 People will not necessarily support the court just because they know more about it, but they will if the court is seen as a force for positive change in their society. This support will in turn result in negative domestic political consequences for a Head of State who chooses to utilize a rights-violating strategy and is indicted by the court.

C. The State Endorsed Group Leader

Benefits: For the State Endorsed Group Leader, ethnic violence represents a low cost way to make economic and security gains for his group. The cost of the strategy is low for this actor for several reasons. One, like the Rebel Leader, he is insulated from international pressure because he is an internal actor. This insulation is not as strong for this class however, since they are still somewhat reliant on government auspices, and the Head of State, as discussed above, is vulnerable to international pressure. In addition, the strategic costs are lower for this class because of that government support, which provides increased resources and protection. While Darfur rebel groups may be able to resist Janjaweed militias to some extent, they are at a huge disadvantage because of the resource inequities.40

Thus, the State Endorsed Group Leader represents a hybrid of sorts; this class possess characteristics of both of the two previous actor archetypes. This makes it more difficult to ascertain motivations (and thereby benefits), since the State Endorsed Group Leader could b using ethnic violence for his own ends, or as a means of pleasing a Head of State, or both. What is certain here is that the costs of such rights-violating behavior are relatively low for this class compared to the other two.

Costs: The hybrid nature of this class also makes it difficult to evaluate the value it will place on the costs that the ICC can bring into play. As mentioned above, this kind of leader may be somewhat affected by international condemnation collaterally, but not to the extent that the Head of State is. This leader will also be less worried about the certainty of punishment, since their relationship with the state offers a degree of protection (they do not have to be concerned about the government finding them and shipping them to the Hague.) These considerations mean that the State Endorsed Group Leader may actually represent the most difficult class of actor for the ICC to effectively reach.

Conclusions: The best way for the Court to extend its reach to this difficult class of actors is to attack their connection with state. Once the State Endorsed aspect of this class disappears, it essentially becomes the same as the Rebel Leader, the class that the ICC has had the most success with thus far. To do this, the Court must once again take a consequential standpoint and choose to only focus its attention of the SEGL. Then the Court can offer an ultimatum to the Head of State in nation: Withdraw your support for this leader and give them up to us, or we will focus our attention on you. At this point, the Head of State will engage in the cost-benefit analysis laid out above (the costs of ICC indictment vs. the costs of turning over a possible key constituent). If the ICC can raise the costs for the Head of State, then that will have an impact here as well.

A final policy change that the Court should consider is going after foot soldiers, since this could raise the costs for all three of the actor classes discussed above. While this class is the most difficult to analyze with the cost-benefit model because the numerous possible motivations an individual solider might have for participating in ethnic violence, successful deterrence of this class will bleed into all the others. A foot soldier who is frightened of facing justice at the ICC will be less inclined to follow obviously illegal orders, and that resistance translates into additional costs for commanders all the way up the chain.

Ultimately, many of the recommendations made in this comment may not be feasible at this point. Resource constraints, and the interests of justice, represent two substantial barriers to many of these ideas. Nevertheless, OTP and the Court as a whole must incorporate the cost-benefit model of analysis into their policy decisions, considering that crime prevention is a major goal of the institution.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    It is important to note that this comment is focused on the deterrence of individuals; thus, classes of actors refers to commonalities among individuals engaging in rights violating behavior.

  2. 2.

    This paper is written from a consequential perspective, though the author understands that OTP and the ICC have interests other than crime prevention to balance as well.

  3. 3.

    Each model is only loosely economic in nature. Specifically, the cost-benefit model utilized here is not a traditional in the sense that it is not strictly tied to an analogy with the market mechanism. For a discussion of the benefits of more relaxed model that allows for greater freedom of valuation to legal study and the social sciences, see Amartya Sen, The Discipline of Cost-Benefit Analysis, 29 J. Legal Stud. 931 (2000).

  4. 4.

    See Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 777 (2006).

  5. 5.

    Id.

  6. 6.

    See Payam Akhavan, Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7 (2001). See also Akhavan, Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism, 31 Hum. Rts. Q. 624 (2009).

  7. 7.

    Ku, supra note 4, at 778.

  8. 8.

    Akhavan, supra note 6, at 12.

  9. 9.

    The ICC indictments of Joseph Kony and other Lord’s Resistance Army Leaders serves as an example of both kinds of pressure. See Robert C. Johansen, Peace and Justice? The Contribution of International Judicial Process to Peacebuilding, in Strategies of Peace: Transforming Conflict in a Violent World 196 (Daniel Philpott & Gerard Powers ed. 2010) (highlighting that the international community’s awareness of the LRA’s activities was raised following the indictments and that the organizations behavior changed following the indictments.)

  10. 10.

    Internal and external isolation should be considered as distinct costs and not lumped into the certainty of punishment factor, which Akhavan leans towards doing at points. See Akhavan, Are International Criminal Tribunals a Disincentive to Peace?, 641. Ku and Nzelibe also argue that.

  11. 11.

    See Stathis N. Kalyvas, The Ontology of “Political Violence”: Action and Identity in Civil Wars, 1 Perspectives on Politics 475 (2003) (pointing out that civil wars provide many actors, from the local to the national leader, an opportunity to use violence in pursuit of a variety of ends.)

  12. 12.

    For example, ethnic violence can be seen as method of achieving political power through terror, by making a specific group easier to govern, or by eliminating them altogether in the case of genocide. See Stathis N. Kalyvas, The Logic of Violence in Civil War, 3-4 (2000).

  13. 13.

    Unsurprisingly, these classes of individual actors reflect the modes of responsibility that have developed in international criminal law jurisprudence. See Antonio Cassese et al., International Criminal Law, (2010). (Part III-Modes of Criminal Responsibility: 1. Commission; 2. Co-perpertratorship; 3. Planning; 4. Ordering; 5. Aiding and Abetting; 6. Incitement to commit genocide; 7. Joint Criminal Enterprise; 8. Superior Responsibility.)

  14. 14.

    For example, audience costs, traditionally applied in the study of international disputes, may have a place in the cost-benefit analysis related to the ICC’s ability to prevent crime. See James Fearon, Domestic Political Audiences and the Escalation of International Disputes, 88 Amer. Pol. Sci. Rev. 577 (1994) (arguing that type of government plays a key role in determining audience costs for a leader who backs down).

  15. 15.

    International Criminal Court Office of the Prosecutor, Paper on some policy issues before the Office of the Prosecutor, (2003) available online (last visited on April 16th, 2011).

  16. 16.

    International Criminal Court, Situations and Cases, available online (last visited on April 15th, 2011).

  17. 17.

    See International Criminal Court, The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odiambo, and Dominic Ongwen, available online (last visited on April 15th, 2011) (ICC case against Lord’s Resistance Army leaders in Uganda). See also The Prosecutor v. Thomas Lubanga Dyilo; The Prosecutor v. Bosco Ntaganda; The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, and The Prosecutor v. Callixte Mbarushimana, (Cases against rebel leaders in the Democratic Republic of the Congo). See also The Prosecutor v. Bahar Idriss Abu Garda and The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus (Cases against rebel leaders in Darfur region of Sudan). See also The Prosecutor v. Jean-Pierre Bemba Gombo (case against Central African Republic Rebel Leader).

  18. 18.

    See The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) ; The Prosecutor v. Omar Hassan Ahmad Al Bashir available online (last visited on April 15th, 2011).

  19. 19.

    We will ignore this situation for the purposes of this comment, because it is still in its infancy as far as the ICC is concerned.

  20. 20.

    The limited nature of this comment has led the author to include subordinate actors in each of these respective classes.

  21. 21.

    Rome Statute, art. 5.

  22. 22.

    See Kalyvas. For example, individuals taking part in genocide may be doing so with economic opportunism in mind. The amount of property theft in Bosnia and Rwanda following each genocide would lend credence to this idea.

  23. 23.

    Donald G. Dutton, The Psychology of Genocide, Massacres, and Extreme Violence: Why “Normal” People Come to Commit Atrocities, (2007).

  24. 24.

    Rome Statute, art. 7(1)h (stating that “Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.) For the purpose of this analysis, we will assume that act in connection is extermination, illegal under Rome Statute art. 7(1)b.

  25. 25.

    See James Fearon, Ethnic Mobilization and Ethnic Violence, 10 (2004) available online (last accessed April 17th, 2011).

  26. 26.

    V.P. Gagnon, Ethnic Nationalism and International Conflict: The Case of Serbia, 19 International Security 130-166 (1995). See also Michael E. Brown, Causes and Implications of Ethnic Conflict, 92, 97-98, in The Ethnicity Reader: Nationalism, Multiculturalism and Migration (Montserrat Guibernau and John Rex, ed.). (arguing that leaders appeal to nationalism and ethnicity in order to rally supporters, and in doing so, also blame the group’s problems on other ethnicities in the area).

  27. 27.

    Barry Posen, The Security Dilemma and Ethnic Conflict, 35 Survival 27-47, (1993).

  28. 28.

    Fearon, supra note 25, at 9.

  29. 29.

    Andrew Kydd and Barbara F. Walter, Sabotaging the Peace: The Politics of Religious Violence, 56 International Organizations 263 (2002).

  30. 30.

    Abdalla Burja, African Conflicts: Their Causes and their Political and Social Environment, Development Policy Management Forum Occasional Paper 4, available online, (last accessed May 3rd, 2011).

  31. 31.

    Akhavan, supra note 6, at 642.

  32. 32.

    Ku, supra note 4, (arguing that rebel leaders are more likely to be removed from positions of power and thereby face ICC jurisdiction).

  33. 33.

    Brown, supra note 26, at 99.

  34. 34.

    Gagnon, supra note 26, at 130.

  35. 35.

    For example, among communities with long traditions of strong ethnic identity and enmity for neighboring groups.

  36. 36.

    The case of Sudan represents such an example. The support of African neighbors and China has given Sudan a greater capability to ignore the indictment of al-Bashir for genocide.

  37. 37.

    The Court’s difficulties with the African Union stand out.

  38. 38.

    International Criminal Court Public Documentation Section, Outreach Report 2010, (2010), available online, (last accessed May 3, 2011).

  39. 39.

    Such programs could be considered part of a pro-active complementarity campaign. See William Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome system of International Justice, 49 Harv. Int’l L.J. (2008).

  40. 40.

    Peter Verney, Darfur’s Manmade Disaster, Middle East Research and Information Project (2004), available online, (last accessed May 5th, 2011) (discussing early accounts of the Sudanese government supplying the Janjaweed and coordinating operations with helicopters.)

Argument

The International Criminal Court (ICC), as an isolated legal institution, has minimal deterrent effect on the crimes it has jurisdiction over. However, it is a part of a greater trend in international law fostering universal condemnation for these crimes and thus creating an environment where such crimes are unsupportable and indefensible.

I. Introduction

The preamble of the Rome Statute asserts that one of the goals of the ICC is “to put an end to impunity for the perpetrators […] and thus to contribute to the prevention of such crimes.”1 However, the debate over the whether the ICC and international criminal tribunals generally actually deter crimes pre-dates the establishment of the ICC and continues to the present.

In this comment, I argue that the ICC has limited direct impact on deterring crimes in the short-term but is significant as part of a long-term movement towards uniform, international denunciation which would, in turn, have a major deterrent effect. Part II discusses the limits of the ICC as a direct deterrent in three situations: where crimes have not yet occurred, where crimes are ongoing, and where crimes have recently ceased. Part III addresses the fundamental basis of how the international community can deter these atrocities and the role the ICC plays in developing that community. Lastly, Part IV explores possibly policy measures for the ICC and state and non-state actors may take to bolster this basis.

II. The ICC as a Direct Deterrent

The common interpretation of “prevention” touted by proponents of the ICC is a fairly straightforward deterrence rationale: because people fear prosecution and imprisonment by the ICC, they will not commit atrocities which will bring it under the ICC’s jurisdiction. However, this logic encounters some difficulties in practice.

As an empirical matter, this assertion is difficult to demonstrate. Proof of deterrence requires comparing what did happen to what purportedly would have happened if the ICC did not exist—a counter-factual situation virtually impossible to determine with surety. One could look at statements by criminals and would-be criminals as to why they chose to commit or avoid committing crimes but even that assumes they fully and honestly disclose their motivations. Attempts at studying the deterrent effect of international criminal tribunals have yielded mixed results; as such, no widely-accepted empirical answer definitively supports or detracts from this claim.2

Another aspect of the deterrence analysis is the question of context. Different situations create different motivations for potential criminal actors3 which must be met be corresponding disincentives. The most obvious example is that of an individual planning to commit an atrocity. A second situation would be where an individual has already committed crimes and plans to continue to do so. Lastly, in an area where atrocities have recently occurred, those who remain, whether on the perpetrating side or victimized side, may wish to renew hostilities. Ideally, the ICC would provide deterrence against crimes in all three situations; however a closer analysis of each case sheds doubt to that idea.

A. Deterring Crimes Ex Ante

In the first scenario, the prospective deterrent effect of the ICC assumes that criminals view the ICC as a concrete disincentive to committing crimes. This assumption means that deterrence would only work under certain conditions. First, because the ICC is a “court of last resort,”4 perpetrators are already subject to domestic prosecution where sentencing may well be more severe than at the ICC.5 Fear of ICC prosecution would only be relevant where such domestic prosecution is unlikely to occur.

Secondly, even without the threat of domestic judicial consequences, crimes carry extralegal ramifications as well. Those who commit atrocities expose themselves to possible retribution, such as kidnapping, torture, or execution by rivals. Such risks are far more immediate and more threatening than the vague and distant chance of ICC capture and prosecution.6 Lastly, those who have ideological agendas, as is often the case in genocide, may find that pursuing their ideals through atrocities is worth any risk of punishment. For these latter these latter two reasons, the fear of arrest and punishment alone would be insufficient to incur a deterrent effect. ICC prosecution would only be a deterrent if would-be perpetrators believed that garnering the ICC’s attention would prevent them from achieving their goals. Under this analysis, the ICC’s deterrent effect is limited to situations where criminals are not already subject to effective domestic prosecution and where they perceive the ICC to be a tangible, practical threat.

B. Deterring Crimes In Progress

When considering ongoing crimes, the threat of ICC prosecution can cut both ways. Consider in a domestic context—a cornered criminal may on one hand decide to cut his losses and perhaps even surrender; on the other hand, he may take hostages or fight back harder than ever. This holds true in the international context as well. Advocates of the ICC assert that there are instances when individual actors mitigate their criminal actions in light of prosecutions by an international criminal tribunal.7 Conversely, when a criminal has already committed major atrocities and become subject to ICC prosecution, he has little reason to stop, especially if his past crimes merit a life sentence or more. In fact, in such a case, the ICC prosecution may paradoxically be an incentive to continue committing bad acts. When face with an arrest warrant, a criminal may decide to hold peace-talks hostage,8 retaliate in revenge,9 or even be motivated to intensify violence to ensure he stays in power.10 These mixed results indicate that prosecution as an incentive for stopping ongoing crimes is likely more dependent on the individual actor than it is on any ICC’s actions.

C. Deterring Renewal of Hostilities

Finally, the direct preventative impact of the ICC in the third situation is similarly limited. Ideally, the promise of justice at the ICC would help diminish antagonism when a brutal conflict ceases. However, The Hague is perhaps too far removed from the recovering locales to have such a beneficial effect. This is true on a number of levels. The ICC sits in Western Europe, physically distant from where these crimes occurred. The locals who experienced the hostilities and now live in the aftermath often do not see the trials and convictions due to sheer distance.11 Additionally, the ICC embodies a view of justice that may differ from what the local people have traditionally viewed as justice or conflict resolution. If people do not view the ICC as a legitimate response to the crimes that plagued their country, they may well be motivated to take revenge for themselves. The ICC might even undermine efforts to achieve domestic stability since it allows the state to foist prosecution onto an outside party rather than build up their own judicial system.12

III. Fundamental Basis for Deterrence

While the ICC, as a standalone institution, has limited deterrent effect that is not to say that the ICC has no preventative merit at all. In conjunction with other international actions, the ICC bolsters a movement towards universal censure of the most severe crimes, which will ultimately result in general deterrence of such crimes. This deterrence comes about in two ways: through internalization of moral norms and through external pressures

A. Internalizing Norms

One effect of international condemnation of these atrocities is to nurture the internalization of the rule of law in regards to international criminal law.13 “The real power of law to secure systematic compliance does not rest, primarily on police enforcement […] but, rather, on the general belief of those whom the law is addressed that they have a stake in the rule of law itself: that law is binding because it is the law.”14 Where a society uniformly deems an act to be abhorrent, it becomes less likely that individuals will engage in that act, thus creating a deterrent effect by preventing such crimes from even being seriously considered in the first place. This creates a social bulwark against even ideological motivations. Where crimes have already begun, instilled norms will hamper its spread by making it difficult for the perpetrators to gain support. A related aspect of internalized social mores against crimes is internalized accountability. If actions are generally condemned as criminal, people are more likely to expect its perpetrators to be held accountable—whether by the ICC or by domestic judicial mechanisms.15

B. External, Material Pressure

The second deterrent effect resulting from universal condemnation is external pressures. These are negative consequences that stem from foreign states rebuking the crimes of a domestic actor. In the most severe example would be invasion and the overthrow of a government committing atrocities. Less extreme examples of using force include the NATO intervention in Kosovo and more recently, in Libya. External pressure can also be subtler, such as economic sanctions or withdrawal of political support. In an increasingly globalized world, foreign relations are vital to maintaining power in a domestic context. An aspiring leader who knows that committing war crimes to amass power locally will alienate him internationally will think twice about taking such actions—not because of a fear of punishment but because of a fear of not achieving his goals. Even to ideologues, “[m]omentary glory and political ascendancy, to be followed by downfall and humiliation, are considerably less attractive than long-term political viability.”16

The ICC is vital to cultivating this environment of uniform condemnation. It reinforces the idea that these crimes are the most severe and most abhorrent acts no matter where they are committed or by whom. By emphasizing accountability for these crimes, the ICC fortifies the norms reviling them. Furthermore, ICC prosecutions convey the message that the international community is paying attention to these atrocities and will take action to punish them.

It should be noted that internalization and external pressures do not operate independently—actions by foreign governments can have a direct impact on the domestic views. Consistent international community denunciation of bad actors may help bolster domestic efforts to foster war crimes trials and prosecute criminals.17

IV. Policy Measures to Maximize Deterrent Effect

This ideal end result of a world where atrocities would be stymied both internally and externally is by no means a foregone conclusion. This is a goal which requires a precise confluence of factors from every realm of international relations, not just judicial. The ICC and the international community need to take additional steps to achieve this result.

A. ICC Actions

The ICC for its part can do a number of things to increase its deterrent effect as part of this international trend. First, ICC prosecutions should focus on the highest level offenders. In order for deterrence to have the greatest impact, the ICC must demonstrate that attaining political status and power does not provide immunity from prosecution for the most severe crimes.

Secondly, to that end, because the ICC has limited resources, it may be wise of the ICC to allow mid-level and lower-level offenders to plea bargain. This provides incentives for the supporting players to surrender, isolating the higher-ups. Moreover, information gained from lower-level offenders can be used to more effectively prosecute their leaders. In that same vein, the ICC should refrain from offering plea bargains or other mitigated measures like amnesties to the highest level offenders. Such an act would undermine the deterrent threat of the ICC as a legal institution and as well as the general movement towards uniform, international condemnation.

Third, the ICC should improve their outreach to the states where it has open cases. Trials, public information learned from the trials, and convictions should be widely published in the local language in the local areas. Where domestic views of justice differ greatly from the ICC’s conception, there should be efforts to not simply explain the ICC’s prosecutions but also reconcile them with local ideals.

Lastly, in coordination with the previous point, the ICC should allow alternative justice mechanisms to be respected in complementarity considerations, particularly for low-level offenders. Domestic mechanisms in general boost the public awareness of the resolution process, leading to a localized deterrent to re-starting hostilities. Alternative justice mechanisms, such as the gacaca courts in Rwanda, are also more familiar and understandable to the people directly affected. When properly carried out, they provide a path to re-integration without complete amnesty which again serves to maintain peace.18

B. International Actions Outside the ICC

As previously stated, the ICC alone is insufficient to be a deterrent; it must have the support of the international community. In order for the ICC to be viewed legitimately and for its goals to be universally accepted, more states need to become State Parties or at least publicly express support the ICC. Arguably, this has been a recent trend in international relations as seen by the Security Council referrals of the Sudan and Libya to the ICC. Three of the five permanent members of the Security Council are not parties to the ICC but have advocated or at least not blocked the referrals.19 Such actions indicate support for the ICC’s authority as well as unified condemnation of the crimes in question. In order for this trend to gain momentum and last, states must continue to make similar political decisions.

Additionally, states who are already states parties to the ICC should actively assist the ICC where possible. The ICC lacks police enforcement and must rely on its states parties to execute arrest warrants and collaborate with investigations. Such cooperation is necessary to the credibility of the ICC as a legal institution and as a deterrent.20

Non-governmental organizations, international and domestic, also have a role to play. Internationally, such groups should publicize ICC efforts to increase understanding of the ICC’s goals and bring to light the violence of the atrocities it is prosecution. Furthermore, groups should increase political pressure on governments by not just condemning offenders but nations who support those offenders politically, socially, or economically.

V. Conclusion

Preventing major international crimes is a hugely complicated matter. Deterrence is difficult to quantify or even necessarily identify in reality. It is tempting to view long-term, ongoing crimes like the crimes in Darfur or recent atrocities like Gaddafi’s recent violent suppression of protests in Libya as evidence that international criminal tribunals have no deterrent effect. While it may be true that the ICC is greatly limited in its ability to stop crimes in the short-term, its existence and function herald a development in international law where not just the ICC holds bad actors accountable, but the entire international community participates in preventing and punishing major crimes. This result is not an inevitability to be taken for granted but rather a possibility to be pursued. In order to achieve this goal, the ICC and the international community will need to take affirmative steps to bolster international law and nurture support for its underlying norms.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Preamble July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute].

  2. 2.

    Gary Jonathan Bass, Stay the Hand of Vengeance 291 (Princeton 2000). See also Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7 (2001) (asserting that the ICTY and ICTR had a helped prevent hostilities from re-emerging or worsening in their respective areas). Cf. Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 777 (2006) (analyzing data regarding African coup participants and contending that ICTs may not have deterrent effects and might even worsen conflicts).

  3. 3.

    For the purposes of this comment, criminals (or potential criminals) are assumed to be rational actors since deterrence, from any source, only works with rational actors.

  4. 4.

    Kofi Annan, Africa and the International Criminal Court, N.Y. Times, June 29, 2009, available online.

  5. 5.

    Rome Statute, supra note 1, at art. 77 (limiting penalties to imprisonment or property forfeiture).

  6. 6.

    See generally Ku & Nzelibe, supra note 2.

  7. 7.

    David Wippman, Atrocities, Defence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473 (1999). See also Bass, supra note 2, at 290 (citing various commentators asserting the deterrence effect of the Nuremberg Trials).

  8. 8.

    Uganda Rebels in Fresh Truce Call, BBC News, Jan. 12, 2009, available online (“The LRA insists the International Criminal Court must drop warrants of arrest for Mr Kony and his top commanders before they can sign the peace deal.”).

  9. 9.

    Sudan Expels Aid Groups in Response to Warrant, MSNBC, Mar. 4, 2009, available online.

  10. 10.

    Max Boot, Qaddafi Exile Unlikely, Commentary, Mar. 23, 2011, available online, (“Qaddafi has every incentive to fight to the death and take a lot of people down with him”).

  11. 11.

    Kenya For and Against ICC, IRIN, Jan. 20, 2011, available online.

  12. 12.

    Mahnoush H. Arsanjani & W. Michael Reisman, Developments at the International Criminal Court, 99 Am. J. Int’l L. 385, 392 (cautioning that Uganda’s referral to the ICC may be a move to defer a politically risky and resource-consuming problem to the international sphere).

  13. 13.

    Payam Akhavan, Are International Criminal Tribunals a Disincentive to Peace?, 31 Hum. Rts. Q. 624, 641 (2009).

  14. 14.

    Thomas M. Franck, Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium, 100 Am. J. Int’l L. 88, 91 (2006).

  15. 15.

    Akhavan, supra note 13.

  16. 16.

    Akhavan, supra note 2, at 12.

  17. 17.

    Rebecca Evans, Pinochet in London—Pinochet in Chile: International and Domestic Politics in Human Rights Policy, 28 Hum. Rts. Q. 207 (2006) (noting how the confluence of domestic development in human rights law and attempted international prosecutions of Pinochet ultimately led to Pinochet’s domestic arrest and prosecution despite initially receiving amnesty).

  18. 18.

    Linda M. Keller, Achieving Peace With Justice the International Criminal Court and Uganda Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209 (arguing that the ICC could accept alternative justice mechanisms in Uganda in order to balancing considerations of justice and peace).

  19. 19.

    Philippe Sands, The ICC Arrest Warrants Will Make Colonel Gaddafi Dig in His Heels, guardian.co.uk, May 4, 2001, available online.

  20. 20.

    Kofi Annan, Justice vs. Impunity, N.Y. Times, May 30, 2010 available online (“There must be no going back or lessening of momentum. Our challenge is to protect the innocent by building a court so strong, universal and effective that it will deter even the most determined of despots”).

Positive Complementarity: Prospects and Limits

Argument

In order to maximize its effectiveness in the prevention of crimes, the ICC should continue to encourage and assist States Parties in undertaking national prosecutions of international crimes through what is called “positive complementarity.” While there are significant obstacles to positive complementarity, there are several ways to overcome them and to implement positive complementarity effectively.

Introduction

One of the primary functions of the International Criminal Court (“ICC” or “Court”) is the prevention of crime.1 However, due to its global mandate and limited resources, the impact of the ICC on crime prevention is minimized. As a solution, the Office of the Prosecutor (“OTP”) has endorsed what certain scholars have called “positive complementarity,” whereby the Court cooperates with national criminal jurisdictions by encouraging states to prosecute cases domestically whenever possible.2

This paper will begin by briefly laying out the Court’s prospects for deterrence.3 Then, Part II will present the concept of positive complementarity and why it would advance the deterrent goals of the ICC. Part III will discuss potential problems that may arise with the practical application of positive complementarity. Despite these problems, Part IV will posit several ways in which positive complementarity can be effectively implemented.

I. The ICC and Prevention

The Preamble to the Rome Statute says that the States Parties to the Rome Statute 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.”4 The theory is that if perpetrators are effectively prosecuted and punished, the higher likelihood of their own prosecutions will make future wrongdoers more likely to choose not to commit international crimes.5 The OTP believes that criminal prosecutions “send an important warning to those individuals who might otherwise continue to resort to violence and criminality as a means of achieving their aims.”6

However, there are limits to this theory. Certain scholars argue that “in reality, an offender has ‘about as much chance of being prosecuted as winning the lottery.’ ”7 Because of the limited resources and capabilities of the ICC, perpetrators face a low probability of prosecution. Consequently, some have argued that the “practical result is impunity.”8 One major reason why the threat of punishment is so ineffectual is that states are either unwilling or unable to prosecute international criminals in their own national courts alongside the ICC. Thus, scholars like William W. Burke-White proposed a solution called “positive complementarity,” where “the ICC would cooperate with national governments and use political leverage to encourage states to undertake their own prosecutions of international crimes.”9 The OTP has embraced this policy because in doing so, the preventative impact of the ICC can be increased.

II. Positive Complementarity and Prevention

Positive complementarity may help advance the goals of the ICC for a number of reasons. First, given the ICC’s nearly global mandate and its limited resources, it will often not be possible for it to prosecute a majority of those most responsible for international crimes.10 Hence, there is a strong possibility that the Court will become overburdened with cases and need to off-load its burden to national criminal jurisdictions.11

Second, since Article 1 of the Rome Statute declares that the ICC “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern,” the Court is unable to prosecute lesser offenders; this has been called the “impunity gap.”12 In order to help close this gap, positive complementarity encourages “domestic prosecutions of international crimes, including those that may not meet the gravity threshold for prosecution by the ICC.”13 As a result, while the ICC concentrates on more serious international crimes, national governments can prosecute those responsible for lesser crimes so that a larger portion of international crimes are held accountable.

Third, national courts are more cost-effective and efficient than international criminal tribunals for “evidence collection, protection of witnesses, and transportation of those who are facing charges.”14 This is because international criminal tribunals are often “far away from the crime scene, in both geographic and cultural terms,” and because national courts can utilize local personnel, need less translations, and have more judges who are available.15 Thus, in certain cases, national courts are simply better suited for prosecutions of many international crimes.16 Moreover, by unloading potential cases to domestic prosecution and utilizing the resources of national criminal courts, the ICC can focus on the most serious international crimes where it would be most effective or where national governments are unwilling to prosecute themselves.17

In addition, the duty of domestic prosecution of international crimes is found in existing state obligations under various international treaties, including the Geneva Conventions of 1949 and the Genocide Convention, and the Preamble to the Rome Statute itself.18 Also, positive complementarity is part of the OTP’s strategy.19 In a statement, the OTP stated, “[T]he Office has adopted a positive approach to complementarity, meaning that it encourages national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.”20

Thus, not only will the continuation of positive complementarity maximize the ICC’s impact on crime prevention, but it will reinforce existing international duties of states to prosecute domestically and help foster the OTP’s explicit desire to cooperate with national criminal jurisdictions.

III. Challenges for Positive Complementarity

There are several problems with the notion that positive complementarity will enhance the efficacy of the ICC. One major problem is that many mass atrocities take place in societies and cultures that are steeped in violence and disorder, making domestic prosecutions impractical. For example, in Rwanda, the government was unable to carry out judicial proceedings against the perpetrators of the 1994 genocide because of the “political turmoil, armed conflict, and the resultant damage and destruction to the infrastructure and governmental institutions.”21 These situations are better suited for ICC intervention because a call for positive complementarity would be unrealistic.

However, even in situations of serious international crimes where states have nascent court systems with a certain level of sophistication, it is often the case that national criminal systems are significantly lacking or too culturally distinct to meet ICC standards of investigation and prosecution.22 For example, in Uganda, the Lord’s Resistance Army has targeted an ethnic group called the Acholi and is “responsible for the forced abduction, conscription, and abuse of tens of thousands of [the Acholi] children.”23 But instead of a criminal trial, there is a traditional ritual called “mato oput,” which involves an admission of guilt followed by sanctions.24 Consequently, “the token nature of the sanction, the lack of procedural rigor, and the emphasis on forgiveness and reconciliation reveal something very different from the kind of criminal justice typically associated with serious violent crimes.”25

Article 17 of the Rome Statute provides some guidance as to what constitutes an acceptable “investigation” or “prosecution.” The Statute declares that domestic proceedings must be in accord with “principles of due process recognized by international law” and “conducted independently and impartially…in a manner which, in the circumstances, is [consistent] with an intent to bring the person concerned to justice.”26 If a state fails to investigate or prosecute in accordance with these standards, the Court can decide that the state is either “unwilling” or “unable” to genuinely carry out the investigation or prosecution.27 Accordingly, even with a lax reading of these brief guidelines, it would be difficult to argue that mato oput falls within the rigors of Article 17.

However, this problem extends to highly developed states as well. For example, for certain ICC crimes, it may be difficult to find a matching crime in a domestic criminal system.28 Moreover, even if there is a matching crime, “many states have criminal provisions that penalize the same conduct that would fall under one of the substantive definitions of crimes proscribed by the ICC, but which do so under different legal characterizations.”29 As a result, if a state has a criminal system that does not closely mirror the offenses listed under the Rome Statute, the OTP is free to simply consider that the state is unable to prosecute the crimes.30 In other words, where a domestic criminal system covers a different range of conduct than the Rome Statute, states run the risk of “relinquishing their competence to investigate and prosecute, because the ICC may declare them to be ‘unable.’”31 Consequently, the principle behind positive complementarity of respecting and encouraging national criminal jurisdictions is severely undermined.32

At the same time, even in highly developed states that attempt to prosecute domestically, many national prosecutors may not be familiar with prosecuting mass atrocities or war crimes cases. One reason for this is that it is difficult to construe and apply the elements of international crimes within the Rome Statute, given the complexity of many of the crimes’ definitions.33 A second reason is the high evidentiary demands of international crimes. The problem is that “the huge number of acts committed in the context of international crime” means that “the number of victims and possible witnesses can run into tens of thousands,” and the sheer “magnitude of the mayhem requires examining an immense volume of forensic evidence, witness testimony, expert witness statements, and relevant documents.”34

A third reason is that evidence for international crimes, unlike in domestic cases, is often controlled differently by each government and significantly influenced by international organizations and non-government organizations (“NGOs”). For instance, while a third party state with significant intelligence-gathering capabilities may be willing to cooperate with the Court, a state whose national allegedly committed the crime may not be so willing.35 Such was the case in Croatia, where “important information relating to crimes committed by Croats in Bosnia was held by the Croatian government,” which “denied that it possessed this information and…refused to disclose it despite repeated requests from the ICTY.”36 In addition, international organizations and NGOs play a large role in informing the ICC about the occurrence of potential crimes within the Court’s jurisdiction, investigating and evaluating states’ compliance with international obligations, and pressuring states that fail to comply with requests from the ICC.37 Thus, in order to perform its investigative and evidence-gathering functions, the ICC is particularly dependent on states, international organizations, and NGOs, each of which controls and influences material evidence differently.38 For these reasons, the unfamiliarity of domestic prosecutors with the wide complexity of prosecuting international crimes poses another substantial challenge to positive complementarity.

IV. Implementing Positive Complementarity

Despite the problems discussed above, there are several ways that positive complementarity can be implemented effectively. First, for national criminal jurisdictions with inadequate resources, facilities, and procedural safeguards, the ICC can assist states in prosecuting crimes themselves by providing access to its legal archives and expertise for information relating to serious international crimes. For example, the ICC Legal Tools Project is dedicated to building an online database with an expansive library of legal documents and research that is available to the general public.39 The purpose of the project is:

to level the playing field in the documentation, investigation, prosecution and adjudication of core international crimes and in the defence of persons accused of them, allowing national judicial institutions to process international crimes involving their nationals or committed on their territory that may otherwise have lacked the means to do so.40

Although the Legal Tools Project would be helpful to many states, it needs to go further than providing information that is publicly available. Since much of the Court’s investigative work is carried out in countries where security for investigators, victims, and witnesses is uncertain, an effective program needs to ensure their safety and protection.41 Moreover, because the OTP relies heavily on confidential information and evidence to investigate and prosecute international crimes, the program must also secure the careful safekeeping and proper transfer of confidential materials.42 In addition, the program must provide an effective way to search through the daunting amount of international criminal law material within the ICC so that states can quickly and efficiently find relevant materials. While such a program would be useful for highly developed states as well, it would be particularly useful for underdeveloped states in helping them build national capacity to investigate, prosecute, and adjudicate serious international crimes.43

Second, the ICC can work together with international bodies such as from the United Nations, NGOs, or even other States Parties to draw international attention to a difficult situation.44 In doing so, the ICC may be able to stigmatize the wrongdoer into negotiating with the Court or national governments and thereby facilitate resolution or peace.45 Also, the ICC can increase international pressure on States Parties to follow through with their obligation to undertake criminal prosecutions themselves.46 To take it a step further, the ICC can collaborate with other states, international organizations, and NGOs to help states with underdeveloped criminal systems conduct national prosecutions by training domestic judges and attorneys, providing technical assistance and support, and even working on domestic judicial reform.47 In doing so, the ICC can contribute to creating stronger institutions and in the long run strengthening the rule of law both domestically and internationally.48

Third, Burke-White argues that if the ICC can build a strong track record of prosecuting and investigating serious international crimes in various states, the credible threat of its own intervention into domestic criminal courts may incentivize national governments to pursue prosecutions themselves.49 This is because the failure of national governments to investigate or prosecute involves numerous costs. If the ICC intervened, not only would states “lose prosecutorial freedoms like the ability to determine specific charges, witnesses to be called, and evidence to be presented,” but also “international prosecutions may impose reputation costs on national governments…by indicating that they have failed to meet their legal obligation to prosecute crimes domestically.”50

One current situation exemplifies the very real threat and influence of ICC intervention. One week after the Prosecutor announced that he would begin an investigation in Sudan, the Sudanese government announced that it would “establish special domestic tribunals to prosecute approximately 160 individuals suspected of international crimes in Darfur.”51 While it is debatable whether the Sudanese court planned to genuinely prosecute those individuals, it is clear that the considerable costs of ICC intervention can effectively pressure national courts to accept the political and financial costs of prosecuting international crimes themselves in order to avoid international intervention.52

Lastly, the most robust and powerful form of positive complementarity would be to modify the Rome Statute so that it formally obligates states to exercise national jurisdiction whenever possible.53 While “the complementarity scheme of the Rome Statute is founded on the primary responsibility of national courts, there are no express duties in this regard, let alone a means of enforcement.”54 Without an express obligation in the Rome Statute for states to prosecute international crimes domestically, increasing international pressure on states through threats or negative publicity, or even helping governments build the capacity to prosecute domestically may not be enough to force states to actually do so. A formal obligation would provide the impetus needed to compel adherence by States Parties.55 However, at the same time, even a formal obligation would not resolve several existing challenges to positive complementarity, including the lack of exactly matching international crimes in domestic criminal systems and the unfamiliarity of prosecutors with the complexity and high evidentiary demands of prosecuting international crimes.56

V. Conclusion

In order to maximize its effectiveness in the prevention of crimes, the ICC should continue to encourage and assist States Parties in undertaking national prosecutions of international crimes. While there are significant obstacles to positive complementarity, there are several ways to overcome them and to implement positive complementarity effectively.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Preamble to the Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute].

  2. 2.

    Katherine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 No. 2 Hum. Rts. Brief 21, 22 (2010).

  3. 3.

    I will be using “deterrence” and “prevention” interchangeably.

  4. 4.

    Rome Statute, supra note 1, at Preamble.

  5. 5.

    But see Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities, 84 Wash. U. L. Rev. 777, 790 (2006) (“[T]here is almost no scholarship attempting to analyze whether, as an empirical matter, [international criminal tribunals] are likely to have, or actually have had, any deterrence effect on perpetrators of humanitarian atrocities.”).

  6. 6.

    Lisa J. Laplante, The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence, 43 J. Marshall L. Rev. 635, 640 (2010) (citing ICC-OTP, Fourth Report of the International Criminal Court to the U.N. Security Council Pursuant to UNSCR 1593, 10 ICC-OTP (Dec. 14, 2006)).

  7. 7.

    Id. at 641 (citing Michael L. Smidt, The International Criminal Court: An Effective Means of Deterrence?, 167 Mil. L. Rev. 156, 188 (2001)). Available online. Archived.

  8. 8.

    Id.

  9. 9.

    William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 54 (2008).

  10. 10.

    Id. at 75.

  11. 11.

    Jessica Almqvist, Complementarity and Human Rights: A Litmus Test for the International Criminal Court, 30 Loy. L.A. Int’l & Comp. L. Rev. 335. 349 (2008).

  12. 12.

    Id.

  13. 13.

    Burke-White, supra note 9, at 74.

  14. 14.

    Almqvist, supra note 11, at 349. See Burke-White, supra note 9, at 68.

  15. 15.

    Id. See Burke-White, supra note 9, at 68-69.

  16. 16.

    Id.

  17. 17.

    Burke-White, supra note 9, at 74-75.

  18. 18.

    Id. at 57. See Rome Statute, supra note 1, at Preamble (“Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,”).

  19. 19.

    Rome Statute, supra note 1, at art. 1 (“[The ICC] shall be complementary to national criminal jurisdictions.”).

  20. 20.

    Int’l Crim. Ct., Office of the Prosecutor, Report on Prosecutorial Strategy, at 5 (Sept. 14 2006).

  21. 21.

    Jimmy Gurule, United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court’s Jurisdiction Truly Complementary to National Criminal Jurisdictions?, 35 Cornell Int’l L.J. 1, 25 (Feb. 2002).

  22. 22.

    See Rome Statute, supra note 1, at art. 17.

  23. 23.

    Alexander K.A. Greenwalt, Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court, 50 Va. J. Int’l L. 107, 112 (2009).

  24. 24.

    Id. at 125.

  25. 25.

    Id.

  26. 26.

    See Rome Statute, supra note 1, at art. 17(2).

  27. 27.

    Id. at art. 17(1)(a).

  28. 28.

    Jann K. Kleffner, The Impact of Complementarity on National Implementation of Substantive International Criminal Law, 1 J. Int’l Crim. Just. 86, 96 (Apr. 2003) (“What, for instance, should be the ordinary crime available for an investigation and prosecution of the grave breach of the Geneva Conventions of compelling a prisoner of war or other protected person to serve in the forces of a hostile power, or of the serious violation of the laws and customs applicable in armed conflicts involved in the declaration that no quarter will be given?”).

  29. 29.

    Lieutenant Colonel Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court, 167 Mil. L. Rev. 20, 70 (Mar. 2001). Available online. Archived.

  30. 30.

    Id. at 71.

  31. 31.

    Kleffner, supra note 28, at 101.

  32. 32.

    Newton, supra note 29, at 72.

  33. 33.

    Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 Am. J. Int’l L. 510, 542 (July 2003).

  34. 34.

    Regina E. Rauxloh, Plea Bargaining: A Necessary Tool for the International Criminal Court Prosecutor, 94 Judicature 178, 183 (Jan.-Feb. 2011).

  35. 35.

    Danner, supra note 33, at 528.

  36. 36.

    Id.

  37. 37.

    Id. at 533.

  38. 38.

    Id. at 528.

  39. 39.

    International Criminal Court, What are the ICC Legal Tools?, available online (last visited Apr. 17, 2011).

  40. 40.

    Morten Bergsmo et al., New Technologies in Criminal Justice for Core International Crimes: The ICC Legal Tools Project, 10 Hum. Rts. L. Rev. 715, 724 (Dec. 2010).

  41. 41.

    Rauxloh, supra note 34, at 183.

  42. 42.

    Rachel Katzman, The Non-Disclosure of Confidential Exculpatory Evidence and the Lubanga Proceedings: How the ICC Defense System Affects the Accused’s Right to a Fair Trial, 8 Nw. U. J. Int’l Hum. Rts. 77, 81 (2009).

  43. 43.

    Bergsmo et al., supra note 40, at 723-724.

  44. 44.

    Greenwalt, supra note 23, at 161.

  45. 45.

    Id.

  46. 46.

    Marshall, supra note 2, at 25. See Rome Statute, supra note 1, at Preamble.

  47. 47.

    Elena Baylis, Reassessing the Role of International Criminal Law: Rebuilding National Courts through Transitional Networks, 50 B.C. L. Rev. 1, 23-24 (Jan. 2009).

  48. 48.

    Marshall, supra note 2, at 25.

  49. 49.

    Burke-White, supra note 9, at 69, 87.

  50. 50.

    Id. at 69-70.

  51. 51.

    Id. at 71.

  52. 52.

    Id. at 70, 72.

  53. 53.

    Payam Akhaven, Whither National Courts? The Rome Statute’s Missing Half, 8 J. Int’l Crim. Just. 1245, 1247 (Nov. 2010). Some may argue that this proposal technically falls outside the scope of positive complementarity due to the fact that it is an obligation for states to prosecute domestically rather than an encouragement of states to do so.

  54. 54.

    Id. at 1266.

  55. 55.

    Id. at 1247-1248 (“While this obligation may be partially extracted from existing conventions and customary law, it requires further law-making to become coherent and complete.” ).

  56. 56.

    See supra Part III.

Argument

The International Criminal Court can increase its legitimacy by focusing upon a strategy of complementarity. Such a strategy would mean that the ICC works closely with member states to develop and act upon agreed-upon standards of prosecution in cases of war crimes and other results of widespread violence. This strategy would also increase the visibility of the ICC such that it would not be seen as a remote tool of Western influence.

Introduction

If the International Criminal Court is to deter war crimes, it must act well before conflict erupts. Once conflict has begun or passions have been kindled, it is not likely that participants in that conflict will make rational cost-benefit analyses of different courses of action. It seems even less likely that they will factor in any deterrent effects resulting from ICC action or penalties.

Therefore, if the ICC is to effectively deter crimes against humanity it must intervene far ahead of the start of any conflict by establishing norms and working with national and regional governance bodies to improve local judicial resources. Considering that the ICC complements the jurisdiction of its members, it is well-positioned to assist in guiding the development of local judicial processes such that state parties are less likely to be “unwilling or unable” to prosecute war criminals.

The impetus for focusing on the complementary relationship between the ICC and national courts comes from two related concerns: the lack of legitimacy of the ICC in the eyes of some member states and a general lack of consistent norms governing international criminal law. The ICC can address these concerns by assisting developing local judicial systems and thereby developing international criminal law norms in concert with the governments and non-governmental organizations of the member states. The ICC may improve its legitimacy—and correspondingly, its effectiveness in prosecuting war criminals—by clarifying to its members that it is meant to be a court of last resort and that domestic courts should take the lead. The ICC is not intended to supplant the authority of the domestic judiciary.

The overarching goal is to undercut the types of political rhetoric that leads to mass atrocities. By establishing both legitimacy and a set of norms, the ICC will be able to create guideposts for leaders to determine how their proposed behaviors will be viewed by members of the international community. In a sense, this method is intended to deter the formation of political structures and narratives which lead to large-scale coordinated acts of violence.

In Part I, this Article explores the concept of complementarity in general. Part II examines how a focus upon complementarity can increase the legitimacy of the ICC among the member states, thereby improving its support and efficacy. Finally, Part III closes with some suggestions as to how the success of such a policy might be measured.

I. Complementarity As Deterrence

Deterrence can come from a more forceful application of William Burke-White’s concept of “proactive complementarity”, in which the ICC takes an active role in the judicial development of the member states.1 Burke-White’s idea is an acknowledgement of the oft-expressed complementary nature of the ICC as a court of last resort which springs into action only when a national judiciary is “unwilling or unable” to prosecute war crimes. The discussion of “proactive complementarity” and complementarity, in general, seeks to lay a foundation upon which this comment can discuss the means through which the ICC can increase its legitimacy among member states.

A. Legal Basis and Implementation of Complementarity

Article 17 provides a legal basis for a policy of complementarity. Article 17 envisions the ICC as a court of last resort, acting only where domestic courts are “unwilling or unable” to prosecute war crimes.2 As such, the ICC has a residual responsibility and is forced to assume a greater burden in the absence of domestic enforcement mechanisms. Bolstering domestic enforcement mechanisms means that the ICC will have less need to act to prosecute and will be able to focus its energies upon the most egregious of war crimes.3 Article 17 renders cases inadmissible unless the above exception of “unwilling or unable” obtains in a given scenario. This means that the national courts get the first shot at prosecution, with referral only being possible if those efforts are unable to proceed for any number of reasons, such as a total collapse of a judicial system or political pressure preventing prosecution.4

One might also find additional legal basis in the text of Article 88 of the Rome Statute, which provides: “States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.”5 Although Article 88 vests States Parties with the responsibility for cooperating with the ICC, it can be understood that the ICC has at least some interest in helping States Parties to cooperate.6 If the ICC is depending upon the cooperation of States Parties in conducting its work, then it behooves the ICC to take an active role in ensuring the availability of appropriate judicial procedures within that nation. Where the legal foundation provided under Article 17 may not provide an avenue for evaluating the quality of justice provided by domestic legal systems, Article 88 may be read in concert with it to allow a means for the ICC to evaluate domestic judicial procedures, such that they meet whatever is determined to be “international standards of justice”.

Intervening early with leaders allows the ICC to potentially defuse the situation before things turn violent and before passions are enflamed to a point where rationality no longer holds sway. Once conflict has started and violence has erupted, the struggle appears to the participants as one of life and death.

Complementarity targets the leaders and the political environment that they have the potential to create. Although war crimes might be committed by lower-ranking officers or ground troops, the directives leading to such actions tend to be transmitted from the top. Political leaders can use enmity between groups to further their own ends, couching attacks on outsiders in language that suggests that they are acting in the interest of their political constituents or of the integrity of the state.

The means of deterrence goes beyond a weighing of the benefits of engaging in war crimes against the potential cost of punishment. One of the goals of an aggressive policy of complementarity is to stigmatize certain behaviors before they occur by having the elites internalize some version of international criminal law norms.7 Perhaps it is idealistic to think that political leaders will react to opprobrium from other world leaders or that they will worry about being labeled as a pariah, but as awareness and understanding of the role of the ICC increases, this becomes a bigger stick.8 The ideal and end result of this type of influence is that elites will be less likely to support a regime that seeks to engage in widespread violence.

B. Why Should the ICC Guide Domestic Judicial Development?

One could easily ask the question: why should the ICC undertake the project of judicial reform? Why not USAID or another UN body? In a certain sense, the answer arises neatly from the concept of complementarity itself. The ICC is invested with the goal of deterring war crimes and crimes against humanity.9 The ICC’s role as a court of last resort positions it to exert influence upon all parties to increase their abilities to prosecute violations of international criminal and humanitarian law. As such, it is in the best position to transmit guidance on these issues. The ICC has been constituted to address this specific area of criminal law and should thus take an active role in its development from a set of principles to cluster of concrete guidelines and standards.

Further, through the Registry, the ICC can supply domestic courts with expertise in conducting trials involving crimes under the ICC jurisdiction. The idea of using an international legal body to develop local capacity is not a new one—it has been done with varying levels of success in post-conflict Bosnia-Herzegovina, with local courts working in concert with the International Criminal Tribunal for the Former Yugoslavia.10

In aiming to build such capacity, it is important to ensure that discussions are done in the spirit of mutual exchange—not as top-down lectures from the “international community” to local courts. Rather, solutions should be tailored to meet the needs of local governments and constituents. By allowing members of the local legal system the chance to feel that they are influencing the shape of international criminal norms, the ICC can maximize the legitimacy gains from a program focused upon complementarity.

II. Complementarity and the Legitimacy of the ICC.

The ICC should make a concerted effort to increase its legitimacy in the eyes of its member states. This is work that will take many years of increasing awareness and cooperation with local judges, attorneys and political elites, but this legitimacy will provide the conduit through which the ICC can enforce international criminal law norms. Complementarity provides a means of increasing awareness, cooperation and trust between the ICC and the domestic public.

Certain member states and regional organizations too often have a tendency to see the ICC as a tool of Western control or colonialism.11 Much of the criticism comes from what can be interpreted as an unfair targeting of African leaders by the ICC prosecutor. Specifically, these perceptions have led organizations such as the African Union to refuse to fully cooperate with the efforts of the ICC.12 The difficulties that a lack of legitimacy causes becomes apparent with Niger’s resistance to cooperate with the ICC in apprehending Col. Muammar Gaddafi, influenced in no small degree by the stance of the African Union.13

To overcome this type of resistance, member states must feel that they are invested in the ICC. Complementarity should provide the means for member states to become involved in the construction of international criminal law norms.14 This kind of involvement will help to draw clear lines around what types of behavior is unacceptable among peer nations. The type of involvement envisioned includes, inter alia, the training of judges, prosecutors and defense attorneys.15 Similarly, the ICC can provide expertise and technical assistance to member states who request it, perhaps mitigating the types of situations in which domestic courts are unable to prosecute.

One of the continual struggles faced not only by the ICC, but also by the ICTY and ICTR, is the remoteness of those courts.16 International tribunals may have less impact because of this remoteness or may more easily be characterized as a tool of Western influence rather than dispensaries of justice.17 Complementarity would tend to make the work of the ICC more visible to domestic onlookers. Granted, this is a process which might take decades to unfurl, but increasing local awareness of the court’s activities would not only serve to increase legitimacy and familiarity, but also would buttress other goals of the ICC such as evidence collection, etc. Visibility would also improve the general deterrent effect of the court. Whereas currently, many leaders might fear ICC sanctions about as much as they fear getting struck by lightning, increased visibility would make the notion of prosecution more realistic—in either an international or domestic tribunal.18 Once a state party has had a chance to adopt international criminal law norms, referral to the ICC will have more legitimacy because—at least ideally—the ICC and state party will have applied a consistent standard to the question of what it means for a domestic court to be “unwilling or unable” to prosecute a war crimes defendant.

Collaborating closely with state parties would tend to create a more principled set of guidelines for when the ICC should determine that the state parties are not able to prosecute violators.19 The member state would have a better sense of what is expected of them because they would be able to refer to criteria developed in concert with the ICC.

III. Measuring the Deterrent Effect of Complementarity

A policy of complementarity should increase the number of domestic prosecutions of crimes that fall under the jurisdiction of the ICC. Judicial reforms and international criminal law norms would combine so that domestic courts are more likely to prosecute those who commit war crimes.

The obvious, observable effect would simply be domestic courts would be less “unwilling or unable” to prosecute war crimes. Such a change would manifest itself through an increase in the number of prosecutions in domestic courts, regardless of the result. As noted by William Burke-White, prosecutor Luis Moreno-Ocampo has expressed approval for a metric in which the absence of ICC intervention indicates success.20

Of course, this does force us to prove a counterfactual, which is problematic. There could be a host of other reasons for an increase in domestic prosecutions of war crimes. An increase in prosecutions could be related to political change or other exogenous shocks to the domestic judicial system. As with any complex situation, it would be somewhat difficult to establish a clear line of causality from the actions of the ICC to the increase in prosecutions.

However, a correlation between ICC activity and prosecutions could suggest that the ICC’s efforts are successful. Acknowledging that correlation does not equal causation, it might be possible to claim that the ICC is at least partially responsible for changes in the numbers of prosecutions. As the dataset expands over time and across countries, it might be easier to remove other factors and draw a direct causal link between ICC actions and domestic prosecutions. Where such a line is established, it would become apparent that causality would move in a single direction: from the actions of the ICC to the number of prosecutions in domestic courts.

But an increase in domestic prosecutions does not equal an increase in deterrence. For a strategy of proactive complementarity to be successfully measured, one must demonstrate that the increasing likelihood of prosecution leads to greater deterrence. In general, this would seem to be the consensus and the expectation—given that leaders act rationally and thus have reason to consider the ICC when making cost-benefit analyses of possible behaviors.

Conclusion

The arc of discussion in this comment proceeds from the idea that the International Criminal Court has a role to play in domestic judicial development, in conformity with established principles of complementarity. By acting prior to conflicts, the ICC can influence domestic courts to prosecute and also increase its legitimacy. The goal would be to show that the ICC does not wish to usurp sovereignty and whisk criminal defendants away to The Hague. In fact, the ICC should show that it wants the opposite: for member states to resolve their own conflicts, but be ready to refer matters to the ICC where there is a malfunction.

In pursuing a strategy of complementarity, it is important to remember that the ICC is a new court with less than a decade of experience. It is too early to deliver a verdict as to whether the ICC can deter war crimes and it is important to take the them necessary to “install” what is a rather ambitious international endeavor. Although my comment moves through the issues rather quickly, there is much to be said for an approach that seeks to build a long-term foundation and an environment that can propagate clear norms. This may turn out to be a generational project, and it is one that will proceed in fits and starts. However, if the international community—however conceived—has committed the goal of deterring grave crimes against humanity, then the ICC has great potential as a tool.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See generally, William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J.. 53 (2008).

  2. 2.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], Article 17.

  3. 3.

    See generally, Lisa J. Laplante, The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence, 43 J. Marshall L. Rev. 635, 637 (2010).

  4. 4.

    This does not provide an avenue for the ICC to evaluate the quality of justice, rather just the simple fact of its availability or non-availability. See Mahnoush H. Arsanjani, W. Michael Reisman, The Law-in-Action of the International Criminal Court, 99 Am. J. Int’l L. 385, 387 (2005).

  5. 5.

    Rome Statute, Article 88.

  6. 6.

    For a more in-depth discussion of the possible uses of Article 88 of the Rome Statute, see Olympia Bekou, A Case for Review of Article 88, ICC Statute: Strengthening a Forgotten Provision, 12 New Crim. L. Rev., 468-83 (2009).

  7. 7.

    See also, Maj. Michael L. Smidt, The International Criminal Court: An Effective Means of Deterrence?, 167 Mil. L. Rev. 156, 170 (2001) (discussing the modes the role of political elites in fomenting violence and how they might respond to disapproval from the international community). Available online. Archived.

  8. 8.

    Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 12 (2001).

  9. 9.

    Rome Statute, supra note 2, Preamble (stating goals of ICC).

  10. 10.

    See generally, Mark S. Ellis, The Legacy of the ICTY: National and International Efforts in Capacity Building, in Assessing the Legacy of the ICTY, (Richard Steinberg ed. 2011).

  11. 11.

    BBC, Gaddafi Must Not Be Sheltered, Says William Hague, September 7, 2011. Available online. Archived. See generally, Akhavan, supra note 7.

  12. 12.

    Id.

  13. 13.

    Id.

  14. 14.

    Development of judicial and prosecutorial practice should not be a one-way street. The ICC should take care to understand local systems of justice and ensure that if traditional means of retribution or reconciliation are used, they are used consistently. See generally, Lars Waldorf, Mass Justice for Mass Atrocity: Rethinking Local Justice As Transitional Justice, 79 Temp. L. Rev. 1, 19 (2006); Alexander K.A. Greenawalt, Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court, 50 Va. J. Int’l L. 107 (2009).

  15. 15.

    Training the defense bar is especially crucial as it improves the quality of justice by increasing the perceived impartiality of the ICC. If parties loyal to a target of a prosecution feel that their compatriot had a fair day in court they would seem less likely to engage in extra-legal means of remedy.

  16. 16.

    Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 25 (2001).

  17. 17.

    Id. at 22.

  18. 18.

    Further, even where violators “win” the conflict they might know that they cannot escape prosecution via their influence on domestic courts. If they “lose”, they know that they will face the wrath of a domestic court, where available.

  19. 19.

    The intent here is to create a consistent means of evaluating the quality of judicial processes such that targets of warrants cannot claim to have been too unfairly targeted. A corollary issue is the idea of prosecutorial discretion, which can be bounded to some degree by a stable set of rules for referral to the ICC. Again, the idea in limiting the extent of prosecutorial discretion would be to limit allegations of unfair targeting. However, much of this discussion falls outside the scope of this comment. For more insight, see Alexander K.A. Greenwalt, Justice Without Politics? Prosecutorial Discretion and the International Criminal Court, 39 N.Y.U. J. Int’l L. & Pol. 583 (2007). These principles should also incorporate some notion of local dispute resolutions, see supra note 14.

  20. 20.

    William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 55 (2008).

Interesting post Jonathan. I think the idea of proactive complementarity goes into the right direction, but there are also some dangers in trying to rush domestic prosecutions. The International Crimes Division (ICD) of the Ugandan High Court would be a good example for the type of domestic prosecutions furthered by the ICC that you suggest. The Court was set up in the scope of the accountability discussions during the Juba negotiations with the Lord's Resistance Army. The need to talk about accountability arose due to the fact that the ICC had issued warrants against LRA commanders. In the process of setting up the ICD, judges flew to the Hague for trainings and the Office of the Prosecutor shared information with the Ugandan Directorate for Public Prosecutions. Without going into too much details, the ICD has had a bumpy start. It has tried to indict a mid-level LRA Commander, Thomas Kwoyelo, based on breaches of the Geneva Conventions and national Ugandan law. During the process it became clear that the court had huge problems to guarantee witness protection. There were issues concerning the fairness of the trial due to some problems in sharing evidence with the defence. Additionally, sources close to the ICD claim that the court lacks the proper procedures and experience to judge cases of this magnitude.
Some people I have talked to have suggested that the ICC is just supporting domestic prosecutions, without caring for the quality of the processes. The problems of the ICD serve critics of the ICC as just another proof that the Court supports the government in it's effort to pursue one-sided prosecutions in Uganda. So there is no guarantee that the furthering of domestic prosecutions really brings the ICC closer to the people on the ground.

Argument

The ICC’s overall effectiveness would be improved if it undertook a clear rule delineating when a state is “unwilling or unable” to prosecute on its own.

In order to achieve the aims of preventing crime, promoting justice, and ending impunity for perpetrators of serious crimes, the ICC must continually legitimize itself in the eyes of the international community. At the same time, the imperative to strengthen the ICC’s authority must be tempered by the concept of “positive complementarity.” This practice allows states to prosecute on their own, thus respecting national judicial and political systems while providing them with aid. Inevitably, however, situations occur in which states’ capabilities fail, and justice would best be served by the ICC’s assertion of its own jurisdiction. While the Rome Statute gives some guidance as to when the ICC’s prosecution of criminal perpetrators will be admissible, this point is uncertain at best. The Court must draw a clear line delineating particular circumstances in which it will cease to complement states and will prosecute on its own. This will improve the ICC’s authority because it will provide a predicable, concrete threat to perpetrators, as well as clear legal guidance to states.

The Limits of Positive Complementarity

The idea of positive complementarity is grounded in Article 17 of the Rome Statute.1 This article endows the ICC with jurisdiction2 over a case only in certain circumstances: when a state is unwilling or unable to prosecute on its own, when a state has already prosecuted or begun prosecution of the crime, or when the case is not “of sufficient gravity to justify further action by the court,” to name some.3 These provisions are designed to encourage national jurisdiction whenever possible. While positive complementarity is undoubtably desirable in certain circumstances, it has some downsides, and should be clearly limited.

The doctrine of positive complementarity maintains that the ICC should encourage state prosecution of crimes, asserting jurisdiction over a case only as a sort of last resort. This provides a variety of benefits. First, it conserves the ICC’s resources, and solves the practical problems that the Court may face in conducting dangerous or difficult investigations in another state’s territory. By encouraging national prosecutions, positive complementarity may also help build judicial systems in underdeveloped states.4 Perhaps most importantly, positive complementarity helps to resolve an oft-cited problem of negotiations with war criminals.5 This argument posits that when the ICC issues an arrest warrant for a war criminal, that criminal is left with little incentive to negotiate or to stop committing atrocities, since he will be prosecuted if caught. On the other hand, if the ICC leaves prosecution to states, the state will have stronger grounds to negotiate with the criminal, since it can offer alternatives such as asylum or reduced sentencing in return for a peaceful settlement.6 Furthermore, allowing national jurisdictions to prosecute on their own allows opportunities for cultural-sensitive “alternative justice mechanisms,” which may supply the most appropriate method of punishing war criminals.7 Since they are more attuned to the needs and customs of the people, culture-specific punishments may bring accountability, victim justice, and reconciliation that distant and foreign prosecutions at the ICC cannot.8

For these reasons, positive complementarity should remain a central tenet in the Rome Statute, and should be employed where appropriate to achieve peaceful outcomes. However, there are some obvious limits to the effectiveness of such an approach. Often, states may be unable to prosecute in a satisfactory way. If a state cannot prosecute or prosecutes insincerely, war criminals may continue to act with impunity. In some cases, they may even resume positions of power. Instances of such impunity would have the additional negative effect of undermining the ICC’s authority, as it may be seen to have implicitly condoned impunity by failing to prosecute. This also will invariably be a large obstacle in advancing victim justice and thus inhibit peace-building in that nation. Hence, there are undoubtedly situations in which the ICC, and not the state, must prosecute criminals.

At present, there is no bright line rule governing when the ICC will operate through positive complementarity and when it will prosecute. The conditions which limit the admissibility of cases under Article 17 are vague, and fail to provide concrete guidance for when the Court will assert jurisdiction. Most importantly, the Court must clarify when a state is “unwilling or unable” to prosecute on its own.9 A clear rule will project predictability, will be more decisive than the current indeterminate rule, and will pose a more definite threat to criminals. This will in turn strengthen the ICC’s authority and deterrence effect. A rule will also provide the international community with stable and foreseeable legal norms. States will have an expectation of when positive complementarily will no longer be an option. This may incentivize them to prosecute more effectively on their own, and will also undermine their objections to ICC jurisdiction when it is asserted. Finally, deterrable war criminals will also be able to better grasp the ICC’s stance, and will understand that negotiations with states are only available up to a certain point. This may encourage negotiations when they are viable. At the same time, the existence of a point when prosecution is certain will destroy the possibility for criminals of unending impunity. For these reasons, it is important that the ICC adopt a definitive stance to determine when a state is “unwilling or unable” to prosecute.

Rules that the ICC could Adopt to Clarify its Grounds for Jurisdiction

A central part of the Rome Statute pertaining to when the ICC and not the state will prosecute lies in Article 17. Although there are other instances under which the ICC may assert jurisdiction, Article 17 provides the general rule.10 Therefore, any discussion of a clear rule separating ICC prosecution from state prosecution, or positive complementarity, centers on an analysis of Article 17. Subsections 1(a) and (b) reference a state’s “unwillingness” or “inability” to “genuinely” prosecute crimes. Although Sections (2) and (3) provide some instances of what constitute these terms, such as “an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice,”11 these fall short of providing the necessary clarity. In order to undertake a position which will give guidance, Article 17 should be broken down and further elucidated. Most importantly, a clear rule indicating when the ICC will exercise jurisdiction turns on when a state is “unwilling or unable” to genuinely prosecute a crime.

Article 17, section (2) clarifies when a state is “unwilling” to prosecute satisfactorily. Unwillingness is found where a state prosecutes with the aim of “shielding” the perpetrator from responsibility,12 where there is an “unjustified delay” in prosecution which is “inconsistent with an intent to bring the person concerned to justice,”13 or where the proceedings are not being conducted impartially and again are “inconsistent with an intent to bring the person concerned to justice.”14 Each of these conditions provides a good start to creating a bright line rule, but needs more specific elaboration of when the ICC will assert jurisdiction. For instance, “unjustified delay” may indicate weeks, months, or years.

There are several stances that could be incorporated as official interpretations of the ICC regarding unwillingness. First, a state may be “unwilling” per se if those charged with crimes are in power, or in control of the justice system which would be responsible for prosecuting. The definition of “shielding” a criminal is more difficult to pin down. An effective way in which a state may effectively be seen as “shielding” the criminal is when it provides any situation in which the perpetrator could possibly return to power. This would allow states to give criminals either criminal sanctions (even if reduced in exchange for cooperation, following the style of U.S. courts), asylum, or various alternate justice mechanisms (provided they do not supply political immunity). Whatever the outcome, under any such instance the criminal must be permanently prohibited from ever returning to power. Thus the interpretation could read something like: “A state will be deemed to shield perpetrators if their sentencing would allow them, in any way, to reassume a position of political power.” “Impartial” proceedings could likewise incorporate this bar on political immunity. They could also further be defined as having 1) any involvement of the perpetrator’s political party in his criminal proceedings; or 2) any evidence of bribery over a certain amount, or other similar payoffs.

The definition of “unable” is as vague as that of “unwilling,” though the Rome Statute elaborates even less, stating “a total or substantial collapse or unavailability” of a state’s national judicial system.15 A total collapse of a judicial system, whether by falling into the hands of the party charged or by complete destruction of the judiciary, is a fairly clear allowance for ICC jurisdiction. A bright line rule for “total collapse” should thus be relatively straightforward. The definition of “substantial collapse or unavailability” however, must be elaborated upon. One instance of this could be when a state judicial system is not capable of prosecuting on its own. This could be because of a complete dearth of economic resources (i.e. the country’s economy cannot support a judicial system), evidence of regular corruption or bribery, or a major lack of people who are adequately educated. Any one of these factors may be said to constitute a “substantial collapse or unavailability” of a state’s judicial system. By contrast, if a state is able to prosecute, but only is able to prosecute poorly (i.e., it has ample people to serve the judiciary, but who have only poor training), it should not be deemed either “substantially collapsed” or “unavailable.” Positive complementarity should be favored, since the ICC and other international organizations may help oversee the prosecutions.

A final way in which a judicial system may be defined to be “substantially” collapsed is if there is a record of failed negotiations, or of past impunity of the war criminal. For example, if positive complementary has once failed to remove the perpetrator from power, the state may properly be said to be unable to prosecute. In addition, if formal negotiations have been held repeatedly with the war criminal (for example, more than two times), but have not come to fruition and/or have led to more violence, the nation may be held to be similarly unable. Under clear guidelines such as these, the ICC may maintain its respect for national prosecution and help to develop a state’s judiciary. At the same time, when the state will not prosecute adequately to ensure justice and remove criminals from power, the ICC will have strong grounds for jurisdiction over war criminals.

These interpretive suggestions are merely examples, and are not exhaustive. An ideal rule may require clarification of other terms. However, redefining these key terms in some way will substantially improve the rule of ICC admissibility. This in turn will give the international community much needed guidance of the Court’s stance, and endow it with legitimacy in conducting investigations and in establishing a more authoritative image.

Methods for Implementing a Clearer Rule

Once it has formulated its position on jurisdiction, the ICC must make that position known. The ICC’s grounds for establishing jurisdiction are contained in the Rome Statute. It is not necessary to formally amend the Statute, since the vagueness and breadth of the current rule, namely Article 17, provide ample room for interpretation. Nonetheless, it is important that the ICC formulate and make known an interpretive rule as soon as possible. Since widely known, clear guidelines for jurisdiction are critical in legitimizing the ICC, the sooner a rule can be disseminated, the better. One way in which the ICC may formulate such an a rule is through case law, specifically by articulating its position in a judicial opinion. However, given the limited number of cases that the ICC hears, and the fact that not all will include jurisdictional questions, an opinion which may articulate the definitions of unwilling or unable may be long in coming. Furthermore, ICC decisions do not have stare decisis effect—although highly persuasive, they are not binding. Because a solid interpretive stance rising from continued case law could take years, the Court should supplement this method of rule formulation with an official statement summarizing its interpretation of “unwilling or unable.”

An issuance of interpretive stance (“issuance”) may be given under the authority of Article 4 of the Statute, which endows “the Court” with “such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.”16 Since the issuance would be purely an interpretation of the statute, and would not conflict with established international law norms, it should be entirely consistent with the Court’s interpretive mandate under Article 21.17 As discussed, interpretive guidance is crucial, and so may properly be considered as “necessary” to fulfill the Court’s functions under Article 4.

Because Article 4 refers to the legal capacity of “the Court,” and since the judges of the ICC will formulate opinions in future cases, the issuance should be formulated by the Presidency. Under Article 38(3)(a), the Presidency, comprised of the President, and the First and Second Vice-Presidents, is responsible for “[t]he proper administration of the Court.”18 An issuance of how the Court will legitimately interpret the Rome Statute would fall under this category. The Presidency should ideally represent the position of the judges when formulating the interpretation. Although there is no mandate under Article 38(3)(a) to do so, it is in the best interests of the Presidency to issue a stance that will be followed in the future by at least a majority of the judges. In addition, the Presidency should seek the concurrence of the Prosecutor, as an interpretation of Article 17 is a “[matter] of mutual concern.” under Article 38(4).19 This also would be in the best interests of the Court, since the concurrence of the judges and the Prosecutor is highly desirable when preparing an interpretive stance. This is both so that the position can be followed through in practice, and so that the ICC an internal congruence, which will further strengthen its solidarity and authority.

Concerns that issuing such a interpretive stance will exceed the Court’s authority under the Rome Statute should not be validated.20 Since the judges may legitimately interpret the language of the statute in individual cases, they should be free to take an official stance on such language.21 Public knowledge of this will aid states by improving understanding of the legal expectations of the ICC, and will benefit the ICC by strengthening its authority.

Conclusion

Clear definitions such as the ones proposed may entail many of the same criticisms that the ICC currently faces. For example, if the ICC will assert jurisdiction after two failed negotiations between the state and the perpetrator, the perpetrator may still lose incentive to negotiate and may cause more violence. However, a line must be drawn somewhere; at some point the Court must not risk the impunity of war criminals. When an interpretive stance is solidified, the international community will better understand the ICC’s legal position, which will better allow them to comply with it. Without clear guidance of what constitutes “unwilling or unable,” it is extremely difficult for the ICC to adopt a consistent stance; absent such predictability, the ICC will not be able to gain authority. In the end, the ICC must establish itself as a predictable, authority-wielding institution in order to to prevent crime, deter war criminals, and promote justice. This will require a definite message of when the ICC will prosecute.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Article 1 also emphasizes the importance of positive complementarity in establishing the ICC, which “…shall be complementary to national criminal jurisdictions.” Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], art. 13.

  2. 2.

    The Rome Statute refers to this jurisdiction as “admissibility”; in Article 5 it discusses “jurisdiction” in terms of the subject matter (i.e. the crime committed). This comment will discuss the ICC’s jurisdiction in terms of this “admissibility,” and not in terms of whether the crime committed constitutes a crime over which the ICC has jurisdiction. See Rome Statute, supra note 1, at art. 5.

  3. 3.

    Rome Statute, supra note 1, at art. 17.

  4. 4.

    See Katherine A. Marshall, Prevention and Complementarity in the International Criminal Court: a Positive Approach, 17 Hum. Rts. Br. 21, 26 (2010).

  5. 5.

    For more on this argument, see Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209 (2008); Eric M. Fish, Peace Through Complementarity: Solving the Ex Post Problem in the International Criminal Court Prosecutions, 119 Yale L.J. 1703 (2010).

  6. 6.

    See Fish, supra note 5, at 1711.

  7. 7.

    For instance, some believe that the Ugandan truth commissions, or mato oput, could be a preferable way to punish Ugandan war criminals. See generally Keller, supra note 5 and see Fish, supra note 5.

  8. 8.

    See Keller, supra note 5, 223-237 (2008).

  9. 9.

    Rome Statute, supra note 1, at art. 17.

  10. 10.

    Although they are important to a holistic ICC jurisdictional stance, this comment will not address how the ICC can clarify its positions regarding state referrals or prosecutorial proprio motu investigations. The ICC should clarify its positions on each provision to establish clear jurisdictional guidelines. However, because each is complicated and controversial, and involves different considerations, a separate discussion would be necessary to develop a rule in each of these circumstances. For the provisions see Rome Statute, supra note 1, art.14-15.

  11. 11.

    Id. at art. 17 (2)(b).

  12. 12.

    Id. at art. 17 (2)(a).

  13. 13.

    Id. at art. 17 (2)(b).

  14. 14.

    Id. at art. 17 (2)(c).

  15. 15.

    Id. at art. 17 (3).

  16. 16.

    Rome Statute, supra note 1, at art. 4(1).

  17. 17.

    Article 21 discusses applicable law, from statutory definition, to general principles of law. Id. at art. 21.

  18. 18.

    Id. at art. 38(3)(a).

  19. 19.

    Id. at art. 38(4): “In discharging its responsibility under paragraph 3(a), the Presidency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern.” The court’s admissibility will invariably affect and involve the Prosecutor.

  20. 20.

    Indeed, the Office of the Prosecutor has already published an “Informal Expert Paper” discussing Article 17 interpretation. While this paper provides some good guidance, a more active interpretation of the Court itself would be more widely known and most effective. See Informal expert paper: the principle of complementarity in practice, ICC-01/04-01/07-1008-AnxA, (30 March 2009).

  21. 21.

    This is especially true given the slow-moving pace of interpretation via case law in the ICC.

Economic Sanctions & Capacity Building: Two Approaches to Prevent Atrocities Most Effectively

Argument

Because the ICC does not address crime with all of the traditional tools of punishment, it follows that the ICC must look to creative, non-traditional approaches for it to maximize its crime prevention impact. The ICC, then, should focus on two specific priorities, the first of which it have little or no role in effectuating: first, and most importantly, the international community must impose significant, personal economic sanctions on those defendants evading ICC arrest warrants (with the most effective deterrent expected upon other potential violators); and second, it needs to provide useful support to national judicial institutions.

I. Introduction

Sometimes forgotten or lost in the discourse revolving around the efficacy of the International Criminal Court (“ICC”) is the uniqueness that defines the institutional capabilities of the ICC itself. Unlike traditional courts of a sovereign country, the ICC has narrowly proscribed abilities to accomplish daunting tasks that its member countries have, effectively, foisted upon it with quite ambitious treaty language.1 Directly following one of its fundamental aspirations, the punishment of heinous human rights violations,2 it expressly affirms the importance of preventing this outrageous conduct.3

To accomplish that particular purpose, though, the ICC lacks some of the basic tools that typical courts possess: including the ability to issue an order that a responsive law enforcement agency or security apparatus will carry out.4 Additionally, even as every criminal court must justify its jurisdiction over the accused, the ICC has a particularly intricate jurisdiction and admissibility framework for determining the appropriateness of the ICC as a forum in every case.5 The Chief Prosecutor must also show that both the crime and the criminal rise to a sufficient level of importance that justifies ICC involvement, inter alia.6 All of these characteristics distinguish the ICC from a typical national criminal tribunal, and that difference must be recognized when theorizing about how to maximize, most effectively, the crime prevention impact of the ICC. Otherwise, commentators risk misdiagnosing the issue and developing a prescription in error.

Observers of the ICC also cannot forget that the ICC is a judicial institution. Not surprisingly, courts most effectively prevent crime by punishing it. Because many recognize that the ICC has not been able to try many of the people it indicts, they settle on another useful role for the ICC: assisting national judicial systems in an attempt to prevent crime. The ICC, however, remains focused on those leaders at the top of a countries’ food chain, so this paper proceeds on the assumption that assisting national judicial institutions, especially when the indicted individual remains in power, will probably not prevent currently-occurring or future crimes most effectively—or crimes sustained anywhere other than the country receiving assistance, and probably only to the subset of future crimes.7 In other words, asking the ICC to accomplish goals in that vein may bring about some useful results, but the true potential of the ICC rests in reaching verdicts—and, more specifically, in the world seeing that process conclude with a verdict.8 Achieving that end serves as my North Star, even as I will acknowledge that other efforts can attain some level of crime prevention success. Part II will explicate these two approaches in detail, before offering concluding remarks in Part III.

II. Approaches That Can Effectively Harness The ICC’s Institutional Uniqueness

A. Global Economic Sanctions that Deter Atrocities

The first, and ultimately most important strategy presented here actually requires little effort on the part of the ICC. That observation stems what I find is the most fundamentally important quality of a judicial institution: legitimacy.9 Unlike the respect that the rule of law receives in many westernized countries, the international community clearly lacks that same high esteem in regards to the mandate of the ICC.10 Consequently, the international community must properly establish the institutional respect necessary to realize, most effectively, the prevention of war crimes.11 While the ICC will serve as the greatest institutional beneficiary should the international community rally behind bringing in recipients of its arrest warrants (as it clearly has not done thus far), this approach will provide the ICC with little, if any, role.

With that perspective in mind, the question becomes how can the international community support the ICC, which relies upon it to detain those individuals that it issues arrest warrants for. The answer to this inquiry, unlike many on this subject, is actually quite simple: the international community must fervently support the apprehension of all those to whom the ICC issues an arrest warrant. That conclusion begs a much more difficult, and politically fraught, inquiry: what does an international effort look like, and by what means is it nurtured, for successfully beckoning those indicted to surrender to the ICC?12

1. The Role of Economic Sanctions in Allowing ICC Trials to Proceed (and in Preventing Crime).

The ICC’s inability to bring in defendants for trial largely stands as the obstacle preventing the ICC from fully functioning within its current mandate.13 What most commentators will generally acknowledge, though, is that maximizing the crime prevention impact of the ICC, as it is currently structured, cannot be accomplished without a strong infusion of international assistance.14 Put differently, maximization of the ICC’s crime prevention impact cannot occur within anything resembling the status quo and without broad international advocacy. To bring in perpetrators and reinforce (or develop) the international norm that “crime doesn’t pay,” the ICC must rely upon international pressure. That leaves the obvious question of what type of international pressure.

Generally speaking, three forms of international pressure exist. These range from diplomacy to economic sanctions to military engagement. Relying on diplomatic pressure serves as the least costly alternative, with a full scale military invasion possessing the highest budgetary price tag. Beyond considerations of line-item expenditures, economic sanctions can cost the United States economy large amounts in the form of lost business opportunities.15 As a practical matter, then, only diplomacy serves as a low-cost option.

When diplomacy fails, as it typically does in these circumstances, an uncomfortable question remains: is trying war criminals worth the high cost associated with bringing them in? From a militaristic perspective, up to this point, that answer is almost always no. With a couple of notable exceptions, few countries willingly risk their own blood and treasure to see perpetrators of mass murder in a distant land brought to justice. In other words, while they readily issue diplomatic statements condemning such actions, they remain far less willing to go any further.

Economic sanctions, then, appear as a third way to balance costs and moral outrage. Quite significantly, this cost does not exist on the federal budget, so the political headwinds remain significantly weaker than, say, when a Prime Minister proposes military action. But, by any measure, the costs can be quite substantial to every country that participates.16 Thus the challenge: convince individual countries to join a costly march that may, in the end, accomplish little beyond causing a country to suffer while its elite continue to prosper and live in impunity. On the other hand, no one wants to stand by and watch another Rwandan massacre occur. Consequently, economic sanctions emerge time and again as an acceptable, if not preferred, response to moral outrage. Even still, how would economic sanctions operate in bolstering the ICC’s lack of legitimacy on the world stage?

In this context, economic sanctions send two particular messages in line with specific and general deterrence principles. First, if the ICC an arrest warrant for an individual for war crimes, they will have to come to The Hague or face extensive, personal economic penalties—assuming an effective sanctions regime. Second, other individuals who may consider committing these same kinds of atrocities will realize the significant penalties associated with this conduct. The aspiration is that those future perpetrators may come to view the costs of such reprehensible behavior as much too high. That, while setting a fantastically high bar, remains the goal.

Economic sanctions along these lines have a number of necessary characteristics. These descriptors will be listed below before further explication will follow.

  • [i] Multi-lateral, with a few narrow exceptions.
  • [ii] As specific as possible, focusing first on travel bans and asset freezes.
  • [iii] Arm embargos for large-scale and advanced weaponry.
  • [iv] Avoid general bans on economic activities.
  • [v] Provide for suspension of sanctions given a specific exigency.
i. Multi-lateral, with a few narrow exceptions.

The first quality serves as a general litmus test of a sanction’s effectiveness. Unless a specific country wields an inordinate amount of influence over the sanctions target, chances are that unilateral sanctions, while politically pleasing, will be economically ineffective.17 After all, how unilateral sanctions can press an elite into turning him—or her-self in to the ICC, when other global competitors stand ready to fill the gaps left by the sanctioning country’s disappearing enterprise, is unknown.18 For that reason alone, barring the special influence exception articulated previously, unilateral sanctions are discouraged.

ii. As specific as possible, focusing first on travel bans and finance freezes.

Within the economic sanctions discourse, the modifier “smart” is used to describe sanctions that seek a very particular ends while avoiding unnecessary collateral damage.19 That adjective doesn’t seem too useful here because, inter alia, it doesn’t specifically describe the means by which the sanctions act. Precise sanctions as a term, whether the targeted activity is large or small, seems to better capture this notion.

In delineating precise sanctions, the focus should begin with the kinds of sanctions that exact the lowest costs on those carrying out the sanctions. Naturally, then, these should include travel bans and freezes of financial assets.20 Travel bans offer a relatively costless, symbolic gesture that begins what will hopefully consist of a series of efforts to isolate a leader. If properly carried out, freezes of financial assets can effectively cripple a regime because unpaid foot soldiers tend not to fight willingly. Because speed and secrecy are of the utmost importance for carrying forth this prerogative, enacting these sanctions might qualify as the kind a country could, on its own, enact before seeking international support. To the extent that secrecy is no longer important, and the nation issuing unilateral sanctions does not possess an inordinate amount of influence over the sanctions target, a concerted effort should be made to proceed only with broad international support to ensure that the sanctions regime is effective.

iii. Arms embargos on large-scale and advanced weaponry.

Counter-intuitively, general arms embargos can cause more bloodshed. This occurred during the Balkans conflict when, upon a cessation of outside arms supplies to the area, the Serbs, who now solely possessed almost all of the munitions factories throughout the conflict area, immediately had a superior military position to carry out their campaign of horror.21 The massive, unintended consequences that resulted from that general arms embargo should cause one to pause before reinstituting that same kind of regime elsewhere.

Those events have not led me to conclude that arms embargos should never occur, but rather that arms embargos, unless all sides in a conflict have similar weapons inventories and production capabilities, should only be levied in regards to large-scale and advanced weaponry. While some risks remain that any embargo could tilt the playing field towards one opponent, stopping the flow of these weapons classes reaches a proper balance between legitimate arms and those that can destroy hundreds, if not thousands, of lives. And generally speaking, only advanced economies can produce many of those tools of destruction efficiently,22 so pulling them out of a conflict zone, unless one side already has a large inventory of and production capability for these weapons, will only tilt a conflict in the direction of peace.

iv. Avoid general bans on economic activities.

Beyond travel bans, asset freezes, and arms embargos, individual sovereigns and the international community have utilized a number of varying techniques in enacting economic sanctions. These include whole scale trade embargos,23 to prohibited trade with entities associated with a particular group—in one case, the Revolutionary Guard Corps of Iran.24 What is clear from history is that broad trade embargos inflict large amounts of pain on everyday citizens while the elite continues to live in relative prosperity.25 The economic suffering of everyday people creates two, significant unintended consequences. First, it allows the elite to consolidate control over the distribution of goods.26 That has important implications for the political opposition’s ability to sustain its movement. Second, and equally as significant, the scarcity of goods allows an indicted political leader to foster a siege-like mentality among the people of his or her nation.27 Both of those consequences suggests that precise sanctions are, as a general matter, superior to general trade embargos meant to persuade leaders to accept a demand.

Further, a group of people that can barley manage fulfilling the basic necessities of life may have little interest in sending their leader to the ICC while quite fixated on finding the next meal. Correspondingly, a well-nourished populace is better positioned to organize opposition.

General trade embargos also have far-reaching consequences on the trading partners of the leader targeted with sanctions. For instance, while the American oil industry lost out on lucrative opportunities in Iraq for many years, all of Iraq’s trading partners, including Turkey, sustained even greater losses at the hand of the United Nations sanctions against Iraq.28 Richard Haas has suggested that those sovereigns that sanction should also set aside a compensatory fund for third-party nations who suffer from the sanctions’ effects.29 This fund would also ensure better compliance with the sanction regime by lowering the urge to cheat.

v. Provide for suspension of sanctions given a specific exigency.

One interesting observation provided by Robin Geiss stems from the proposition that sanctions work best when the citizenry in the country of a particular leader targeted for sanctions does not actually suffer enormously at the hands of the sanctions. While some level of suffering remains inevitable, temporarily halting the sanctions if, for instance, a humanitarian situation spirals out of control, will preclude the sanctions regime from engendering significant levels of collateral damage.30

Sanctions, based upon these guidelines, have a legitimate chance at persuading a leader indicted by the ICC to change course. Clear examples from history, though, show that economic sanctions do not always work. A quintessential example of ineffective sanctions on a country is the continuing effort to convince North Korea to cease its nuclear weapons program. Even as most North Koreans live in abject poverty, Kim Jong Il, North Korea’s leader, spends a massive annual sum on expensive cognac (and many other luxuries).31 But sanctions apparently led Col. Mummar Gaddafi to give up his nuclear weapons program, paving the way for the military campaign that appears to have ousted him from leadership. Whether those same sanctions would have convinced Col. Gaddafi to show up in The Hague, though, is a far different question. What that episode does teach is that sanctions can incentivize leaders to take actions that they previously found unthinkable.32

2. Even if Leaders Won’t Surrender Pursuant to an ICC Arrest Warrant, the Sanctions Levied Have an Important General Deterrent Purpose.

Sanctions probably have their best chance of preventing crime that has not yet occurred. While leaders will probably dig in against economic sanctions with their personal freedom on the line, another leader may view those costs as too high to proceed with actions resembling war crimes. But to impose near-suffocating, personal economic costs, the international community must stand in solidarity behind these sanctions. It goes without saying that isolating a leader, which is essentially what economic sanctions accomplish, does not work if other nations fail to enforce them. In other words, the international community cannot allow justice to leak due to pure economic opportunism. While some leaders wouldn’t mind sipping Hennessey cognac in their isolated nation amidst the great suffering of their people, some leaders might not like that idea and adjust their behavior—once they saw the international community punishing it—accordingly.

B. A Role for the ICC: Useful Assistance to National Judicial Institutions

The second, far more inferior strategy for maximizing the crime prevention impact of the ICC involves coordination with signatory countries to better improve national judicial systems. This approach, largely characterized as positive complementarity,33 relies upon a variety of means to bolster a nation’s judicial system. And unlike economic sanctions, the ICC may take a direct role in carrying forth this goal.

While this seems less helpful given that the targets in these kinds of cases are equivalent to a king or prince of that nation, the International Criminal Tribunals established for Rwanda and the former Yugoslavia demonstrate how important this assistance can be. Principles of specific deterrence would also support this kind of assistance.34

Beneficial forms of ICC-led assistance could include both monetary and judicial aid. In considering monetary assistance, while focusing less on physical structures, unless critical, and focusing more on the necessary elements of a criminal prosecution, such as research materials and advocacy training, will give these nations a foundation to prosecute absent ICC assistance.35 In the meantime, loaning judges, prosecutors, and defense counsel could be useful if national leaders (and those in the legal profession) accepted these services.36 Ideally, some type of clinical education would accompany this legal assistance in the form of simulations and the like. Given the ICC’s superior, albeit limited, resources, as well as its unique platform to champion a judicial cause, it possesses the practical tools to carry forth this goal.

By choosing to channel judicial resources to a country in need, questions of implementation arise. Will civil or common law control? How long will the international footprint last? Who will fund this endeavor if the United States, as a non-signatory to the Rome Statute, offers little monetary aid? It’s also unclear whether the ICC possesses authority under the Rome Statute to spearhead these efforts.37 Perhaps they could send human resources, but passing out monetary aid seems more like a job fit for the United States Agency for International Development (“USAID”).

III. Conclusion

Clearly, inherent difficulties exist under either approach for maximizing the crime prevention impact of the ICC. Notably, under the first, foreign polices of “non-intervention” telegraph a general unwillingness to punish most types of repugnant behavior without a close nexus to a national interest. There are also rather large opportunity costs to forgoing business opportunities that sanctions foreclose. A partial solution involves transforming the issue into a poignant moral question, i.e., will country X allow more bloodshed by ignoring sanctions so its large corporations can record higher profits? NGOs certainly have a place in framing this kind of debate.

At bottom, though, persuading leaders to come in may prove impossible. Persuading future leaders to avoid the same sorts of conduct, because of the difficulty that widely-enforced sanctions will visibly impose on current indicted leaders, may prove not only possible but effective. Simultaneously, the ICC can champion improvements in national judicial systems. And by taking steps to shore up national legal systems, these actions could have the unintended consequence of improving its own legitimacy—by showing that administering justice, and not playing politics, remains its foremost priority.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    See Preamble of the Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], (proposing “to put an end to impunity for the perpetrators of [grave] crimes,” by “[r]esolv[ing] to guarantee lasting respect for and the enforcement of international justice”).

  2. 2.

    Rome Statute, supra note 1, Preamble (describing the ICC’s mandate to include “jurisdiction over the most serious crimes of concern to the international community”).

  3. 3.

    Rome Statute, supra note 1, Preamble (declaring that the ICC should “contribute to the prevention of [grave] crimes”).

  4. 4.

    Due to this deficiency, Author prescribes a sort of ICC snatch team as one of two ways to improve the crime prevention impact of the ICC. See David Scheffer, Maximizing Opportunities to Deter Further Atrocity Crimes, ICC Forum, Oct. 6, 2011, available online.

  5. 5.

    See Rome Statute, supra note 1, art. 12, 13, & 17.

  6. 6.

    See Rome Statute, supra note 1, art. 6, 7(1), & 8(1).

  7. 7.

    It’s not clear how, on a general deterrence theory, future perpetrators in other countries would be deterred by judicial improvements in another sovereign. There certainly is an argument that future war crimes will be deterred in the country that receives judicial assistance.

  8. 8.

    Just outcomes remain critical for fostering support for the ICC among the international community. An incorrect guilty verdict could seriously undermine the marginal support that currently exists for the ICC, even if a defendant may have been guilty of other, lesser offenses.

  9. 9.

    Time and again, commentators extol the necessity of this virtue in preventing crime. See James Alexander, The International Criminal Court and the Prevention of Atrocities, 54 Vill. L. Rev. 1, 26 (2009).

  10. 10.

    In an almost mechanical fashion, an ICC indictment tends to precipitate the following sequence: first, the indicted usually issues anti-western tirades before subsequently vowing to avoid the tribunal entirely. See Bashir rattled, but unbowed, BBC News, May 13, 2009, available online. In other words, these alleged perpetrators of war crimes tend to personify the definition of impunity.

  11. 11.

    The ICC may be able to slowly develop the respect necessary for it to establish international legitimacy through impartial behavior. The problem here is that it does not have enough partners willing to utilize their police powers. But without another alternative, it must rely upon the unreliable international community to fill this void. See Jack Goldsmith, The Self-Defeating International Criminal Court, 70 U. Chi. L. Rev. 89, 92 (2003).

  12. 12.

    Because an indictment represents the Prosecutor’s judgment that a sovereign is “unwilling or unable” to try the alleged perpetrator in question, Rome Statute, supra note 1, art. 17, a national trial is hardly an option here.

  13. 13.

    Of course, the ICC could always function on a wider scale if more countries ratified the Rome Statue, but that is not to say that it cannot effectively work within the parameters that currently govern its operation.

  14. 14.

    See, e.g., Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 10 (2001).

  15. 15.

    See Gary Clyde Hufbauer & Barbara Oeeg, Economic Sanctions: Public Goals and Private Compensation, 4 Chi. J. Int’l L. 305, 310-11 (2003) (noting the 94-99% reductions in bilateral trade flows, as well as the loss of confidence in American suppliers “out of fear that, in the future, their US Suppliers might be caught up in a sanctions episode.”).

  16. 16.

    See id.

  17. 17.

    See Richard N. Haas, Sanctioning Madness, 76 Foreign Aff. 74, 77 (1997) (“Unilateral sanctions are particularly ineffective.”).

  18. 18.

    See Gary Clyde Hufbauer et al., Economic Sanctions Reconsidered, 12 (2d ed. 1990).

  19. 19.

    See generally Smart Sanctions: The Next Steps-The Debate on Arms Embargoes and Travel Restrictions within the Bonn-Berun Process, (Michel Brozoska ed., 2001).

  20. 20.

    See Robin Geiss, Humanitarian Safeguards in Economic Sanctions Regimes: A Call for Automatic Suspension Clauses, Periodic Monitoring, and Follow-Up Assessment of Long Term Effects, 18 Harv. Hum. Rts. J. 167, 184 (2005).

  21. 21.

    Paul R. Williams & Michael P. Sharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia, 25 (2002).

  22. 22.

    See T.S. Jan & C.-G. Jan, Development of Weapons Systems in Developing Countries: A Case Study of Long Range Strategies in Taiwan, 51 J. Oper. Res. Soc’y 1041, 1043 (2000).

  23. 23.

    Adam Winkler, Just Sanctions, 21 Hum. Rts. Q. 133, 138 (1999).

  24. 24.

    Editorial, Congress, Sanctions, and Iran, N.Y. Times, July 2, 2010, at A18.

  25. 25.

    Haas, supra note 17, at 80 (“authoritarian, statist societies are often able to hunker down and withstand the effects of sanctions.”).

  26. 26.

    Id.

  27. 27.

    Id. (“sanctions can sometimes trigger a ‘rally around the flag’ nationalist reaction”). See also Hufbauer, supra note 18, at 12.

  28. 28.

    Douglas Frantz, At Iraq’s Backdoor, Turkey Flouts Sanctions, N.Y. Times, March 30, 2001, at A1 (describing Turkish officials estimates that the sanctions had damaged Turkey’s economy to the tune of $35 billion to $40 billion).

  29. 29.

    Haas, supra note 17, at 81.

  30. 30.

    Geiss, supra note 20, at 186.

  31. 31.

    See Elizabeth Williamson, Hitting Kim Jong Il Right in the Cognac, Wash. Post, Nov. 30, 2006, (citing an estimate putting Kim Jong Il’s “annual cognac budget at up to $800,000 a year.”).

  32. 32.

    See Patrick E. Tyler, Blair Visits Qaddafi, Ending Libya’s Long Estrangement, N.Y. Times, March 26, 2004, at A3.

  33. 33.

    See generally ICC, OTP, Report on Prosecutorial Strategy, at 5 (September 14, 2006) (“[T]he Office has adopted a positive approach to complementarity, meaning that it encourages national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.”).

  34. 34.

    Principles of general deterrence might apply here, allow its unclear why a potential perpetrator would change course because of the ICC’s promise of judicial assistance. Presumably, they would believe themselves capable of refusing such support, thereby rending the offer an ineffective deterrent.

  35. 35.

    See Norman Farrell, The Evolution of Capacity Building Through Direct Interaction: A Prosecutor’s Perspective, in Assessing the Legacy of the ICTY 177, 178-79 (Richard H. Steinberg ed., 2011).

  36. 36.

    See Bakone Justice Moloto, International Facilitation of the Self-Determined Development of the Legal System of the Former Yugoslavia, in Assessing the Legacy of the ICTY 173, 174-75 (Richard H. Steinberg ed., 2011).

  37. 37.

    The Rome Statute does not specify the legality of the ICC’s efforts in this regard.

ICC Should Plea-Bargain to Prevent Crime and Bring Restorative Justice to Victims

Argument

The International Criminal Court (ICC) should utilize plea bargaining with criminal leaders prior to trial to remove criminal leaders who enflame hostilities from their positions of power. By removing criminal leaders, the ICC can serve its mission by preventing future crimes emanating from that conflict and bringing restorative justice to victims of mass atrocities.

Introduction

While unyielding prosecution of the most heinous crimes appears to best serve justice in the abstract, the International Criminal Court (ICC) must utilize plea bargaining with criminal leaders to prevent future crimes emanating from that conflict and bring restorative justice to victims. When used effectively, plea bargaining will prevent future crimes emanating from a conflict by concluding the conflict before either side fights to annihilation. Recent crimes in the former Yugoslavia and Rwanda have been reliant upon a few criminal leaders who enflamed hatred and organized mass atrocities. Plea bargaining will hasten the end of such conflicts by removing criminal leaders who, until confronted, will continue to commit crimes. Moreover, concluding conflict will enable victims and the international community to rebuild sooner than if the ICC had waited for criminal leaders to be extradited or overwhelmed by force. While plea bargaining may not serve retributive justice, the ICC must act to prevent future crimes emanating from an ongoing conflict and bring restorative justice to victims.

I. Crime Prevention

The ability of the ICC to prevent future crimes has been hotly contested. Scholars have suggested methods to quantify the deterrent effect of the ICC on criminal leaders, however, most agree that it is almost impossible to conclusively prove that the ICC has deterred crime. One suggestion is that prosecution of criminal leaders by the ICC will signal to others that similar crimes will not be tolerated.1 However, if one is to believe that future criminal violators are dissuaded by selective prosecution of a few individuals often in distant parts of the world, one must make a few assumptions. First, one must assume that criminal leaders will be aware of the ICC and its prosecutions. Second, one must assume that criminal leaders act rationally and that the threat of prosecution will discourage conduct. Third, one must assume that criminal leaders will fear the remote likelihood of prosecution—few criminal violators are ever held before a criminal tribunal. As such, one must accept a series of assumptions to find that ICC prosecution may prevent future criminal conduct in other locations around the world.2

Conversely, the ICC can prevent future crimes emanating within an active conflict by removing the criminal leaders involved. By bringing peace, the ICC prevents future crimes that would have resulted from an active conflict. In order to settle conflicts, the ICC must remove criminal leaders from power. Recent history in the former Yugoslavia and Rwanda suggest that criminal leaders were central to inciting hatred and organizing political forces to create mass atrocities. As former United States Ambassador to Yugoslavia Warren Zimmermann stated, “There was plenty of racial and historical tinder available in Yugoslavia. But the conflagrations didn’t break out through spontaneous combustion. Pyromaniacs were required.”3 Similarly, in Rwanda, mass atrocities were carried out in a coordinated manner under criminal leaders who sought to use racial enmity to enhance their power. By removing these criminal leaders, the court can make a contribution to peace and discredit the criminal leaders who are the root cause of mass atrocities.4 Simply by removing ruthless criminal leaders from an active conflict, the ICC can prevent future crimes emanating from that conflict.

The Office of the Prosecutor (OTP) should use plea bargaining or even amnesty to encourage criminal leaders to accept responsibility and remove themselves from active hostilities. It is important to note that this comment is limited to instances of active hostilities and to criminal leaders who maintain a position of power at the time he or she comes before the ICC. If the conflict has been concluded before the criminal leaders are brought before the court, then the court is not deterring future crimes by removing the criminal leaders from the conflict. Therefore, the justification for plea bargaining as preventing future crimes emanating from that conflict is lacking. In instances where the OTP may encourage a criminal leader to lie down his or her weapons and submit to the jurisdiction of the court, plea bargaining is a powerful tool to prevent future crimes.

At present, during active hostilities it is often near impossible for the ICC to gain control over accused criminal violators. Moreover, criminal leaders will continue to fight until they achieve their objectives or are overwhelmed unless offered a tempting alternative such as a plea agreement. The ICC can insert itself into active hostilities which appear to be swaying against criminal violators, in instances where military pressure, fatigue or international pressure has begun to chip away at popular support for criminal leaders. As opposed to waiting for the pressure to oust criminal leaders—who might then be extradited to the ICC for trial—the ICC may seek to remove criminal leaders from the conflict by offering a lesser sentence or, in some cases, even exchanging a guilty plea for amnesty and exile. Plea bargaining may be a tempting alternative to eventual military defeat or ongoing conflict and could offer criminal violators a “dignified” way to end a destructive campaign. Most importantly, plea bargaining offers the chance to end an active conflict sooner and subsequently to save the lives of future victims.

One example where plea bargaining should have been used by the OTP is in the peace negotiations between Joseph Kony and the government of Uganda following decades of heinous crime by the Lord’s Resistance Army (LRA). The government of Uganda had negotiated with the LRA for amnesty and protection from ICC prosecution in exchange for the end of hostilities.5 However, the OTP refused to withdraw warrants for the arrest of LRA leaders including Kony. The Ugandan government is of the belief that this decision harmed efforts at reconciliation with the rebel group.6 Although there is no clear cause and effect, the OTP could have successfully used plea bargaining to encourage an end to this conflict. Even if the OTP offered LRA leaders amnesty, the LRA leaders would be called to answer before a national tribunal in Uganda and the ICC could claim as a victory the prevention of future crimes by the LRA.

Under the Rome Statute which created the ICC and OTP, the OTP has the power to plea bargain with criminal leaders in the interest of justice. During the framing of the Rome Statue which created the ICC, delegates did not come to an agreement about if national amnesty would preclude prosecution before the ICC. The statute, however, contemplates the OTP forgoing prosecution “in the interest of justice” even where the court has jurisdiction.7 The statute does not expressly prohibit the incorporation of amnesties and other agreements to preclude ICC prosecution in the interest of justice. Moreover, The OTP is empowered under Article 53(4) of the Rome Statute to reconsider the decision to prosecute based new facts and information.8 New facts may include the existence of a peace agreement that has been reached conditionally upon the withdrawal of ICC warrants. It would seem to follow that the power to withdraw prosecution entirely would also include the power to narrow prosecution. Therefore, it may be argued that plea bargaining in the interest of justice is similarly permissible.

The barriers to plea bargaining include threatening the credibility of the ICC and embroiling the OTP in political questions such as when to accept or reject a negotiated settlement to bring peace. First, some will argue that plea bargaining will give the impression that the ICC is negotiating with accused criminal leaders and in some cases will result in criminal leaders receiving lesser sentences than mid—and low-level violators. However, the decision between the appearance of steadfastness coupled with continuing conflict against the appearance of pragmatism and an end to conflict must sway in favor of ending conflict and consequently saving lives. The ICC must not become a stumbling block in the peace process. Second, the OTP must engage in the difficult, diplomatic question of when to accept a negotiated settlement for peace. It must be up to the OTP to decide when a settlement appears to serve justice—in such instances, the OTP must be free to accept a settlement to ensure justice when the alternative will neither bring peace or justice.

To prohibit the OTP from plea bargaining to remove criminal leaders would go against the recent tradition of international law and might actually perpetuate mass atrocities. It is important to note that amnesties have ended two-thirds of the wars since 1989; amnesty is a commonly accepted solution in international law.9 Moreover, by denying the OTP the power to plea bargain to end active conflicts would render null any effort to reach peace that included amnesty or negotiated sentencing. Each conflict would have to end with criminal violators either captured and extradited to the Hague or killed.10 Such could cause the ICC to be a barrier to peace—and would therefore violate the ICC’s mandate to seek restorative justice.

II. Restorative Justice

The mandate of the ICC calls for retributive justice against the worst criminal violators. For the purposes of this comment, retributive justice is defined as utilizing proceedings to seek reprisal and express moral outrage at certain conduct.11 The focus of retributive justice is on striking back at the accused through punishment and, in some circumstances, discouraging similar conduct within the community. The mandate of the ICC certainly includes elements of retributive justice; for example, the ICC seeks to end impunity for the worst violators and calls for punishment of crimes which the international community has recognized as especially heinous. The ICC seeks to hold those accountable for outrageous conduct and is empowered to hand down lengthy terms of imprisonment. The mandate of the ICC, however, is unique in that it also seeks to deliver restorative justice to victims of mass atrocities.

The ICC has notable unique features which demonstrate that its mandate includes not only retributive justice, but also restorative justice. Restorative justice is defined as utilizing proceedings to enable victims to return to life as it was before a crime.12 The focus of restorative justice therefore is on reconciliation between the victim and the accused and restitution for injuries which the victim has suffered. The mandate of the ICC encourages restorative justice through various mechanisms; for example, the ICC allows for those convicted to be held liable for reparations, compensation and rehabilitation for victims of mass atrocities.13 Moreover, the court seeks reconciliation between victims and the accused through victim participation in proceedings. The ICC is asked to enable victims and the accused to return to a productive life and rebuild their community. Therefore, the mandate of the ICC calls for both retributive and restorative justice.

The Office of the Prosecutor (OTP) should seek to deliver restorative justice to victims of crime through plea bargaining when it is unlikely that the court will be able to deliver retributive justice. As seen in the example of Uganda above, the refusal of the OTP to accept negotiated peace including amnesty for criminal leaders may have caused the peace agreement to fail. In such instances, the choice is not between justice or peace, but between continued conflict or peace. The ICC had little leverage to threaten the arrest of Joseph Kony, yet the OTP would not allow the criminal leaders of the LRA to negotiate for amnesty. Even today, Kony remains at large and the government of Uganda seeks to combat the Lord’s Resistance Army. Only in instances of peace can the ICC offer restorative justice—it is impossible for victims of crime to return to normal life while conflict is ongoing.14 A choice by the OTP which continues conflict cannot be deemed a choice in favor of justice. Rather the OTP must seek to offer restorative justice to victims by allowing for negotiated settlements, and even amnesty, when the alternative is a continuation of conflict and likely additional crimes.

Restorative justice has been preferred by national governments and in some instances may be seen as equivalent to retributive justice. It is hard to argue against those who seek retributive justice against accused criminal leaders for heinous crimes. However, in Uganda the national government sought to offer amnesty to criminal violators because peace and reconciliation were seen as the only hope for justice after decades of crime.15 Some might argue that there can be no justice until criminal violators are brought before a tribunal and sentenced to lengthy terms in prison. However, such retributive justice is often not available and the OTP must show deference to national calculations of justice. A pragmatic decision that creates peace and honors the findings of victims of crime is superior to a principled decision which may continue conflict and create future victims of crime.

Plea bargaining is superior to an offer of simple amnesty. Plea bargaining demonstrates that criminal violators cannot bargain to completely escape punishment and requires an acceptance of guilt by criminal violators. By removing criminal leaders from an active conflict, the OTP offers restorative justice enabling victims to move forward with rebuilding their lives. Even if sentences are short, the ICC allows for restorative justice by removing criminal leaders; not one criminal leader has returned to power after being brought before an international tribunal.16 By bringing criminal leaders before the ICC, the court ensures that victims can return to the task of rebuilding without the fear of criminal leaders returning to spark conflict again. However, in certain circumstances, even negotiated amnesty which brings with it restorative justice is preferable to continued conflict.

In regards to active conflict, the ICC may simply not be the forum through which victims might pursue retributive justice. While the ICC has yet to sentence a convicted criminal leader, other similar criminal tribunals in the former Yugoslavia and Rwanda have meted out seemingly light sentences given the gravity of crimes before the courts. For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have handed down a thirteen year sentence for the crimes of torture, cruel treatment of detainees and personally participating in the murders of nine detainees; an eight year sentence for attacks on civilians; and a fifteen year sentences for crimes of genocide and extermination.17 While it is unclear what sentencing guidelines will be implemented by the ICC, similar criminal tribunals appear to have favored restorative justice as opposed to retributive justice at sentencing. Lastly, the prospect of spending life in prison may cause rebel leaders to simply fight to the death in effect causing even greater harm. In such instances, retributive justice will come at such a cost that victims and the OTP should prefer negotiated peace to prevent future crimes and to begin the process of restoring the community.

Conclusion

Plea bargaining can be effectively used to remove criminal leaders from an active conflict by offering a tempting alternative to continued violence or the prospect of a life-long prison sentence. The OTP is empowered to honor plea agreements between criminal violators and national governments or to negotiate a plea agreement with criminal leaders. Plea bargaining to end an active conflict serves both the interest of crime prevention and restorative justice in that ending conflict prevents future crimes emanating from the conflict and brings victims back to a position where they can begin to rebuild. While a plea agreement may not satisfy the desire for retributive justice, the OTP must prioritize preventing future crimes emanating from a conflict and the possibility of restorative justice over the costly alternative of continued violence.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    James F. Alexander, The International Criminal Court and the Prevention of Atrocities: Predicting the Court’s Impact, 54 Vill. L. Rev. 1, 32 (2009).

  2. 2.

    It is not my purpose to address these arguments in this comment, rather I lay out these assumptions to contrast them with the assumptions required to accept peacemaking through plea bargaining as crime prevention.

  3. 3.

    Payam Arkhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 11 (2001).

  4. 4.

    Id. at 7.

  5. 5.

    Manisuli Ssenyonjo, Accountability for Non-State Actors in Uganda for War Crimes and Humanitarian Rights Violations: Between Amnesty and the International Criminal Court, 10 J. Conflict & Security L. 405, 422 (2005).

  6. 6.

    Id. at 422.

  7. 7.

    Alexander K.A. Greenawalt, Justice Without Politics? Prosecutorial Discretion and the International Criminal Court, 39 N.Y.U. J. Int’l L. & Pol. 583, 617 (2007).

  8. 8.

    Ssenyonjo, supra note 5, at 428.

  9. 9.

    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, 333 (2007).

  10. 10.

    Eric S. Fish, Peace Through Complementarity: Solving the Ex Post Problem in International Criminal Court Prosecutions, 119 Yale L.J. 1703, 1708 (2010).

  11. 11.

    Linda Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 266 (2008).

  12. 12.

    Id. at 275.

  13. 13.

    Id.

  14. 14.

    Ssenyonjo, supra note 5, at 428.

  15. 15.

    Keller, supra note 11, at 270.

  16. 16.

    Alexander, supra note 1, at 23.

  17. 17.

    Id.

Argument

To achieve long-term deterrence and prevention of crimes, the ICC must first be seen as a legitimate and credible threat. To be seen as a credible threat, the ICC should employ two methods. First, the ICC should take a broad view of the “complementarity” principle. Second, when the ICC decides to issue an arrest warrant, it should resolutely pursue prosecution.

I. Introduction

One of the principle objectives of the International Criminal Court (“ICC”) is long-term deterrence and the prevention of the most serious crimes1 condemned by the international community.2 An important focus of the ICC in pursuing its objectives is to seek international justice against perpetrators of human rights atrocities.3 To achieve this, the ICC must assert itself as a credible threat over time through the direct cooperation with national governments, and the promotion of domestic prosecutions. Alternatively, when national prosecution is unattainable and the ICC decides to assert jurisdiction over a matter, the ICC should seek justice by resolutely pursuing prosecution through the various methods enumerated in the Rome Statute.4 It must be emphasized that employing these methods to attain long-term general deterrence and crime prevention will not bear immediate results. Rather, these inherently nascent objectives will develop through the systematic and consistent use of these methods by the ICC over time.

Part II of this comment will discuss the ICC taking a broader view of complementarity by being more proactive and involved in encouraging national governments to prosecute. It will discuss the potential contributions this could provide to credibility, as well as the limitations to positive complementarity. In Part III, I will discuss the situation in which the ICC actually decides to prosecute an individual itself. I will argue that in this situation, the ICC should remain resolute in pursuing prosecution in order to gain credibility. I will further highlight the limitations the ICC faces, including potential ethical dilemmas and international criticism. Part IV of this comment concludes.

II. Broad View of Complementarity: Positive Complementarity

A. What is Positive Complementarity?

As originally conceived, complementarity5 was intended to be a narrow instrument that highlighted the ICC’s role as a backstop to national jurisdictions.6 The ICC was supposed to be a substitution of an international forum for a domestic one,7 and the principal intention was to protect national sovereignty.8 This initial idea of the ICC being a complementary judicial institution to domestic judicial institutions has progressed into what some call positive complementarity.

Positive complementarity is the idea that the ICC can participate more directly and in conjunction with national governments by encouraging them to prosecute crimes in their own national courts.9 It involves cooperation between the ICC and the national governments, in which the ICC can use some of its leverage and authority to encourage and aid national governments when mass crimes are being committed in those nations. Since its establishment, the policy of the ICC’s Office of the Prosecutor has been to take a broad view of complementarity as evidenced by a statement made in 2003 by the Chief Prosecutor Luis Moreno-Ocampo.10 Additionally, the ICC continues to employ this policy,11 which continues to emphasize the importance of working together with individual states.

B. How can Positive Complementarity help the ICC become a credible threat?

The ICC can engage in positive complementarity with national governments in varying degrees. For example, at the bare minimum, the ICC could encourage national governments to prosecute by informing them of situations that have come to the attention of the ICC and wait to see how the state responds. If the state fails to investigate or take any interest in the matter, the ICC could then conduct its own investigation and decide whether or not to pursue the situation. This option would be relatively close to the originally conceived idea (sometimes referred to as “passive complementarity”12) and would be a fairly weak form of positive complementarity for the ICC to engage in.

Alternatively, The ICC could go a step further by not only encouraging national governments to prosecute, but also by using its resources and capabilities to reinforce domestic prosecutions. For example, the ICC might provide aid in domestic investigations, evidence production, training, and other practical methods that can help strengthen the infrastructure of national courts. Additionally, the ICC could expand its cooperative strategy by working together with international, intergovernmental, and non-profit organizations to provide services and support to national governments in their pursuit of prosecution. This expansion of collaboration between the ICC, states and other international actors could serve as an impetus for states to pursue prosecution because they would now have international support rather than working alone. This assumes that the state is actually willing to pursue prosecution and that what was stopping them before was the lack of support and collaboration that positive complementarity would help provide.

Utilizing this broad view of positive complementarity would help with long-term deterrence in two ways. First, by fortifying national judicial systems, the ICC would be aiding states to further develop their national courts—a benefit that could potentially outlast whatever current situation the state is dealing with. Second, and more importantly for the ICC, it would help to build international recognition of the ICC as a credible threat. If the ICC is proactively and consistently involved in facilitating domestic prosecutions, it would slowly emerge as an actor that people recognize and connect to justice. Through this recognition, the ICC would slowly develop as an international credible threat by representing itself not only as a court that itself prosecutes, but also as a court that is actively involved with national governments in aiding with prosecution domestically. Paramount to the success of this strategy is consistency in the ICC’s policy for positive complementarity over time. Assuming that the threat of punishment can serve as a general deterrent to criminal behavior,13 the ICC’s consistency in proactively supporting domestic prosecutions would help to gradually increase deterrence and crime prevention.

There are some limitations to this idea of deterrence and crime prevention through positive complementarity and supporting domestic prosecutions. First, positive complementarity may also involve the ICC encouraging non-prosecutorial means, especially if this is what the national government of a state is actually seeking. I will speak more about the dilemma of peace versus justice in Part III of this comment. For now, however, I will emphasize that to achieve credibility and long-term deterrence, the ICC’s involvement with national governments should be restricted to encouraging prosecution rather than non-prosecutorial methods. Another limitation to positive complementarity is the ICC’s limited resources. Depending on how many trials the ICC itself is conducting, it might not have the adequate funding to take a proactive stance on complementarity. As the ICC is funded by states, there is also a possibility that funding will decrease if states do not support a broad view of complementarity. This is probably the biggest hurdle for the ICC to overcome given that states might be reluctant to provide enough funding if the ICC is taking such a proactive position. Finally, some scholars argue that the threat of prosecution and punishment does not actually deter future atrocity crimes.14

It is necessary to understand that the long-term benefits of positive complementarity will not be immediately apparent. States must be willing to engage in the idea of investing now for a future long-term gain of crime prevention in order for positive complementarity to truly help with deterrence. By taking a more proactive stance with regard to complementarity, the ICC can better position itself as a credible threat, which can subsequently lead to the long-term prevention of crimes.

III. Peace or Justice?

A. The Debate Surrounding Peace or Justice

When positive complementarity does not work and national governments are unwilling or unable to prosecute an individual, the ICC can conduct an investigation and depending on the individual circumstances, may seek prosecution or decide that the criminal behavior is not extreme enough to fall within its jurisdiction.15 The ICC has jurisdiction over some of the most serious crimes of international concern, including genocide, crimes against humanity, war crimes, and the crime of aggression.16 Accordingly, the ICC will issue arrest warrants and seek to prosecute individuals only in the most serious and extreme situations that are not being addressed by national governments. Thus, when the ICC issues an arrest warrant, the question becomes whether the ICC should be steadfast in its pursuit of prosecution, or whether it should be willing to negotiate with the perpetrators of crimes. Should the ICC seek justice and remain resolute in prosecuting, or should it be willing to partake in non-prosecutorial methods when those with arrest warrants ask for amnesty? This “peace or justice” question is an extremely complicated one laden with controversy and ethical predicaments. Many strong opinions exist as to whether prosecution is in the best interests of the international community when atrocities are being committed and there is a chance to end the immediate crimes. If one of the principal objectives of the ICC is to generally deter and prevent future criminal activity, however, the difficult answer to this dilemma favors continuous and resolute prosecution of the perpetrators by the ICC as opposed to pursuing non-prosecutorial methods.

B. If the Goal is Long-Term General Deterrence of Atrocity Crimes, the ICC Should Resolutely Pursue Prosecution

Part of becoming a credible threat internationally involves proactive involvement in prosecutions carried out domestically—this can be achieved through positive complementarity. Another part of becoming a credible threat involves the ICC resolutely prosecuting individuals it deems to fall within its jurisdiction. The consistent policy of prosecuting individuals responsible for atrocity crimes may, over time, create an expectation in individuals that punishment is a viable consequence of their choice to commit crimes condemned by the international community. It is argued that the threat of punishment usually serves to deter rational actors, and some of the individuals that the ICC would target for prosecution might not be rational.17 For the purposes of this comment, perpetrators are assumed to be rational actors.18

Assuming that deterrence can be achieved through the threat of prosecution, the biggest question becomes whether the ICC’s goal of deterrence means it should resolutely seek prosecution over non-prosecutorial methods when they become available. Given the ICC’s goals and focus on justice and crime prevention, it should resolutely pursue prosecution. Other actors and domestic courts can always use non-prosecutorial methods, but the ICC is a prosecutorial institution and is not the appropriate forum for these methods.19 There are, however, a number of drawbacks to this position. First, as previously mentioned, the ICC has limited resources and can only have a few trials per year. Second, the ICC lacks an enforcement body that would allow it to not only issue arrest warrants, but also be able to pursue individuals and actually get them to The Hague. Third, by resolutely prosecuting, many believe the ICC would be prolonging conflicts that could potentially be resolved through non-prosecutorial means. Although these drawbacks are ever present, it will do more harm for the ICC to defer to non-prosecutorial methods once it has already issued arrest warrants. For the ICC to sometimes prosecute and other times withdraw its arrest warrants will render it an international body that reinforces the norms against atrocity crimes only sometimes. Additionally, it sends mixed signals to possible perpetrators of crimes. This is particularly troublesome in situations where a country self-refers a matter to the ICC,20 then changes its mind and wants to give amnesty.21

Ultimately, it is not an easy question whether the ICC should resolutely prosecute in order to help with long-term deterrence. There are financial, practical and ethical impediments to resolute prosecution that the ICC must overcome to more effectively be seen as a credible threat to potential perpetrators. If the goal is to prevent deaths now and end current conflicts as soon as possible, then the ICC should sacrifice its endeavor to become a credible threat and prevent future crimes by taking a step back from its pursuit of prosecution. If the goal, however, is deterrence and the prevention of future crimes (which means less atrocity crimes in the future, and thus, less deaths in the long-term), then the ICC should resolutely prosecute in situations where it has become involved.

IV. Conclusion

In conclusion, the ICC should engage in two methods to ultimately become a credible threat and deter crimes in the future. First, it should take a broad view of the “complementarity” principle and proactively work with national governments and other international actors to further domestic prosecutions. This will help the ICC become a more credible institution, which over time, will assist in with the ICC’s focus on crime prevention. Second, in the situations where the ICC itself issues arrest warrants, it should remain resolute in its prosecution and not become involved in non-prosecutorial methods. The ICC is a prosecutorial institution and it would undermine its focus and credibility to send mixed signals on its determination to seek justice. Although there are short-term implications to this strategy, in the long-term, the ICC will become a credible institution and can help prevent the atrocity crimes it is intended to deter.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    The terms “deterrence” and “prevention” will be used interchangeably.

  2. 2.

    See Preamble to the Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]; Overview of the Rome Statute of the International Criminal Court (1998-1999), available online (“[e]ffective deterrence is a primary objective of those working to establish the international criminal court”) (last visited Sept. 29, 2011).

  3. 3.

    Id. (“Resolved to guarantee lasting respect for and the enforcement of international justice”).

  4. 4.

    Id. art. 13.

  5. 5.

    Id. art. 17.

  6. 6.

    See William W. Burke-White, Implementing a Policy of Positive Complementarity in the Rome System of Justice, 19 Crim. L. Forum 59, 60 (2008).

  7. 7.

    Id.

  8. 8.

    See Mahnoush H. Arsanjani & W. Michael Reisman, The Law-in-Action of the International Criminal Court, 99 Am. J. Int’l L. 385 (2005). (The idea of complementarity was originally intended as enabling the ICC to step in when states could not or would not prosecute, rather than for the ICC to take a more positive role with national governments.)

  9. 9.

    See William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 54 (2008).

  10. 10.

    See Luis Moreno-Ocampo, Prosecutor of the ICC, Statement Made at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court (June 16, 2003). “As a consequence of complementarity, the number of cases that reach the Court should not be a measure its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.”) Available online (last visited September 29, 2011).

  11. 11.

    See Office of the Prosecutor, Report on Prosecutorial Strategy 2009–2012, (February 1, 2010). Available online (last visited September 29, 2011). (Discussing working with States to promote domestic proceedings, as well as contributing to preliminary examinations, investigations, and prosecutions.)

  12. 12.

    See Burke-White, supra note 6, at 56.

  13. 13.

    See Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7 (2001). (Discussing credible threats of punishment achieving general deterrence of potential perpetrators and the unconscious inhibitions against crime (especially hatred crimes) that develop in a society that could solidify resistance to those seeking to exploit ethnic hostility.)

  14. 14.

    This is a highly contested debate where some scholars argue that prosecution does not actually deter potential perpetrators of mass atrocities, while others argue that prosecution or the threat of prosecution do serve as a deterrent. This comment is written under the assumption that the future threat of prosecution will deter criminal behavior.

  15. 15.

    See Rome Statute art. 19.

  16. 16.

    Id. art. 1 & 5.

  17. 17.

    See Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 272 (2008).

  18. 18.

    I do not purport to examine the psychological condition of atrocity criminals in this comment. However, even assuming some of these criminals are irrational actors, it is difficult to imagine a perpetrator completely lacking concern with regard to the international community in today’s world. There are many non-prosecutorial disincentives, such as international economic sanctions, that when combined with the threat of prosecution and punishment, can motivate even irrational actors to act in certain ways.

  19. 19.

    Non-prosecutorial methods can be very effective in certain situations and can be pursued by other actors, but the ICC is meant to be a prosecutorial institution. At the point in which the ICC becomes involved, the situation is at a stage that warrants prosecution because other actors have not sought any sort of resolution. For the ICC to be involved only in extreme situations reinforces the idea that prosecution at this level is appropriate and can help build the ICC’s credibility as a prosecutorial institution for the most serious crimes.

  20. 20.

    See Keller, supra note 17, (discussing the background of Uganda’s referral to the ICC, which it has subsequently sought to withdraw to pursue some form of amnesty.)

  21. 21.

    These situations put the ICC in a difficult position because they have issued arrest warrants and the state is willing to grant amnesty. One actor is talking amnesty while the other refuses to give into extortion by withdrawing its arrest warrants. Joseph Kony, the leader of the rebel group the Lord’s Resistance Army, is still at large today.

Coercive Diplomacy: An ICC Approach to Minimize Human Rights Atrocities

Argument

Instead of focusing on a retribution approach, the ICC should think about using a coercive diplomacy framework in some cases. At a time when perpetrators have committed crimes and are able to wage ongoing human rights abuses, this approach may induce short-term deterrence.

Introduction

For some power-hungry tyrants, the threat of prosecution by the International Criminal Court (the “ICC”) will not result in surrender. A focus on retribution and a threat of punishment, such as life imprisonment, may be viewed as unfeasible by the perpetrator. This may often create an antagonistic environment, from the perpetrator’s point of view and psychological state, whereby parties are unable to freely negotiate and come to an acceptable solution. The problem is that it is unlikely for some corrupt individuals to act rationally in the midst of chaos; therefore, the threat of prosecution by the ICC is not necessarily an effective deterrent.1

At such a time then, in the midst of ongoing and imminent perpetration of crimes, the most vital question should be how the ICC can act to minimize deaths, injuries, and crimes. The ICC should build up its knowledge of coercive diplomacy in order to induce some perpetrators to undergo a more rational cost-benefit thought process and step down from power.

Part I of my analysis briefly explains the coercive diplomacy framework. Part II applies it to the ICC’s function using current and past examples. Part III sets forth the limits to my model, and Part IV concludes.

I. Coercive Diplomacy Framework

As Alexander George explains it, coercive diplomacy is a form of crisis bargaining. Namely, it is a defensive strategy undertaken in response to an opponent’s enroachment or aggressive action.2 With respect to the ICC, the goal is to deter criminal behavior. The general framework is composed of four main elements: (1) a specific demand, (2) time to consider, (3) a credible threat, (4) coupled with positive incentives and assurances to make it easier for the adversary to accept the demands.3 It is important to employ a flexible strategy with different approaches. Such variants of coercive diplomacy include the ultimatum, the tacit ultimatum, the gradual turning of the screw, and the try-and-see approach. The demander can shift from a weaker to a stronger variant of the strategy in order to more effectively solidify his or her request being granted by the target.4

II. Application of Coercive Diplomacy to the ICC

When applying the coercive diplomacy framework to the ICC, a turning of the screw approach would most likely be used. Often times, when the ultimatum approach has been used in the past, it has been a failure because the demander’s threat appeared so strong and obstinate that the target did not perceive any negotiating room and was pushed into war. For an example of this contention, see the case of U.S. foreign policy toward Japan leading up to Pearl Harbor. As I suggest, it is imperative to save lives by refraining from backing the opponent into a corner or appearing to have a retribution focus. Instead, we need to give the perpetrator time and an opportunity to negotiate by gradually stepping up pressure with our request to stop committing crimes. How then can we apply this gradual cranking up the pressure variant of coercive diplomacy to the ICC?

A. Specific Demand

First, there must be a specific demand. The demand should be clear and concise with no room for misconception as to what is being asked of the perpetrator. The ICC’s demand to the criminal is to stop perpetrating crimes. This element is easy to satisfy.

B. Time to Consider

Second, the ICC must contemplate a timeframe to allow the perpetrator to decide whether he will comply with the demand. The ICC must determine the appropriate sense of urgency to create and it should give the perpetrator an opportunity to disengage before resorting to military operations with the aid of any states that are willing to intervene.5 If for instance domestic courts are corrupt or ineffective, then the ICC must give strong recommendations before using the ICC to indict and prosecute. The ICC should only step in after adequate time has been given to the nation or domestic court, by resorting to positive complementarity, to settle the internal conflict. However, though the perpetrator needs time to consider his next move, the ICC must balance the allowable time with the risk that mass atrocities are being continued and innocent civilians are losing their lives. This balancing approach therefore must be taken with respect to the appropriate timeframe on a case-by-case basis.

C. Credible Threat

The third element, the credible threat or credible threat of punishment, is the most complex and at some points, problematic. What matters here is the perpetrator’s perception of the credibility or potency of the threat.6 The credible threat consists of four basic elements: (1) the perpetrator believes that the ICC will engage in escalation that would result in unacceptable costs, (2) an effective means to physically capture or arrest the criminal, (3) reliable evidence, and (4) a location where criminals can be housed.

1. Unacceptable Costs to Perpetrator

There are different ways that a threat may provide unacceptable costs to the perpetrator. Unacceptable costs can be in the form of a damaged international reputation, loss of credibility, or often times physical capture, endangerment, or prosecution, which will be further discussed in the next element. If any of these occurrences exist and lead the perpetrator to alter his behavior, then this element has been met.

For instance, the threat of prosecution or arrest warrants issued may induce the internal government to implement serious reforms to the existing state of affairs. A credible threat must provide an incentive for constructive political behavior.7 This type of threat has arguably impacted the turmoil in Sudan. The Executive Summary of the Crisis Group article advises that the ICC must leverage and persuade the National Congress Party that it will only secure a one-year deferral of Omar al-Bashir’s case, using the United Nations Security Council’s power by way of the Article 16 procedure of the Rome Statute, with serious judicial reforms and by attaining an adequate Darfur peace settlement.8 In Uganda, the ICC’s threat of prosecution induced an internal change of approach by granting the perpetrators amnesty after their step-down from power. The amnesty ceremony, known as “mato oput,” must have “teeth” in the perpetrator’s eyes. That is, the perpetrator, Joseph Kony for instance, must perceive a suffering of some sort.9 The ICC’s warrants motivated the Lord’s Resistance Army (“LRA”) to negotiate for peace. After the ICC indicted five LRA leaders in 2003 and later issued arrest warrants for them in 2005, the government and the LRA both agreed in 2007 that the leaders would undergo trials in Ugandan courts. Similarly, international warrants politically undermined perpetrators such as Slobodan Milosevic and Charles Taylor. The important benefit of warrants is that it isolates perpetrators politically.10

Another consideration is that the behavior of some perpetrators may be affected by loss of respect or reputation internationally, which is why a threat backed by international support is more credible than one that is not. Although the support of non-signatories of the Rome Statute, such as the United States, Russia, and China is not imperative, it could be influential. For instance, for the threat of arrest to be credible to Al Bashir and other top leaders in Sudan, the ICC needs more international backing of the warrant. This includes all signatories of the Rome Statute as well as non-signatories. The more international backing there is for both the arrest warrant and the ICC, the less likely it is that Al Bashir or his loyalists will continue to allow him to escape from the hands of justice and perpetrate crimes.11 In referring to the United States, Russia, and China refusing to ratify the Rome Statute, Kofi Annan warned, “The opposition of those hostile to the ICC, combined with the inertia or distraction of those who support it, could mean the balance could easily tip away from justice.”12 As another example of the potential power of international arrest warrants, the threat of embarrassment due to an investigation by the ICC may have started the split between warlord Laurent Nkunda and the government of Rwanda.13 This model is more effective in situations where perpetrators are aware of and are influenced by their reputation; thus, the credible threat of prosecution will induce them to stop perpetrating crimes. Cooperation of States Parties and NGOs also remains imperative. Another method of creating unacceptable costs to the perpetrator could be the ICC seeking alliances with well-respected leaders or thinkers of the perpetrator’s nationality to make public statements condemning and discrediting his acts. For instance, this occurred with Milorad Dodik, the Prime Minister of Republic Srpska, who pledged cooperation with the ICTY, called for the arrest of Radovan Karadzic and Ratko Mladic, and promoted and called for the return of Muslim and Croat refugees.14

2. Physical Capture

This element of the credible threat is the toughest to realize. Thus, resources need to be focused on this area. It is often difficult to effectively sustain a threat of prosecution or an arrest warrant without military backing. For example, arrest warrants proved to be futile for the LRA. As William Burke-White writes in his opinion, diplomacy is essential. He says, “Getting states to arrest and thereby incapacitate criminals and/or convincing them to undertake their own investigations and prosecutions requires astute diplomacy that recognizes context, political realities, and state interests.”15

Thus, in order to assert a credible threat, the ICC needs as much support as it can receive in order to physically capture the criminal. This includes accepting support from any and all States Parties, non-States Parties, and agencies that are willing to offer support for this area, including NATO. In employing the gradual turning of the screw approach, the ICC should be willing to accept military support from all sources that could provide the necessary pressure to induce the perpetrator to disengage and negotiate.

Various means have been used to arrest the criminal in the past. Allies have been created with local military to capture the target. For instance, Mladic’s captors consisted of Serb forces. Burke-White refers to the shortcomings of the ICC’s efforts in which such diplomacy was lacking. I endorse his suggestion to use the “tough politics required to persuade states and effectuate arrests.” He argues that the Court “must become better at making astute political calculations utilizing hard-nosed diplomacy when necessary.”16 The ICC must be more aggressive in forming these alliances and using a type of diplomatic approach in attaining this goal. Another way to accomplish this end in transitional-state scenarios where the anti-perpetrator faction is the prevailing party is to direct this faction to seize the perpetrator.

I suggest employing full-scale intelligence, spies and alliances with local military or the perpetrator’s military in order to capture the perpetrator. More resources should be allocated for this purpose. I also endorse David Scheffer’s approach to this problem of creating a well-trained special enforcement team to carry out this function.17 One effective way to seize the perpetrator is to gain the cooperation of neighboring States Parties’ governments to provide assistance, especially when the target is travelling or entering States Parties’ territories.

However, this approach has unfortunately been problematic at times. Under Article VI of the Genocide Convention, contracting parties to the Genocide Convention are obliged to execute the arrest warrants for genocide issued by the ICC, provided that they have accepted its jurisdiction.18 Nevertheless, some States Parties have chosen to disregard their duties in this arena. For instance, Al Bashir of Sudan, for whom there is currently an outstanding arrest warrant, has moved through various African States Parties’ lands and has been welcomed by those nations instead of being arrested. This behavior of States Parties neglecting to enforce warrants not only undermines the credibility of the ICC’s threat but it is also illegal because these nations are signatories of the Rome Treaty. It is absolutely imperative, as a starting point, for signatories to the Rome Statute to abide by the mandate of the Treaty and cooperate with the ICC in executing these arrest warrants. Full support in the handing over of criminals by all countries will prevent assuring perpetrators that human rights abuses can be fledged at home while having the later opportunity to live comfortably abroad in a host nation, as has occurred with many criminals. This happened with Idi Amin of Uganda who was taken in by Saudi Arabia where he continued to live well until he died of natural causes, without undergoing prosecution. It is imperative that all nations come together to prevent this type of occurrence, which in turn will strengthen the credibility of the ICC.

3. Evidence

Victims must have an awareness of effective means to preserve and transport reliable evidence to the ICC, and the ICC must be able to organize and quickly process evidence for trial once arrest warrants are issued. Perpetrators must be aware that this effective mechanism is in place. This mechanism is currently in place at the ICC and will not be problematic when waging a credible threat to a perpetrator.

4. Holding Site

Similarly, finding a place to warehouse criminals once they have been convicted is also not problematic. States Parties have an opportunity to volunteer housing the convict, and the Netherlands similarly offers its territories to provide the holding site for criminals.

D. Positive Incentives and Assurances

Often times, the purpose of using this model is to induce the perpetrator to disengage or surrender by using the credible threat as a tool for bargaining or negotiating. Thus, the ICC can couple the threat with positive incentives and assurances to make it easier for the adversary to accept the demand to stop perpetrating crimes.19 Failed attempts at coercive diplomacy between nations in the past have often resulted due to a lack of blending carrots with sticks. Thus, the ICC may be more effective in its effort to use this technique by offering certain accommodations or concessions when asking the criminal to surrender.

Specifically what types of accommodations or concessions may the ICC offer to a perpetrator? One idea is plea-bargaining. In shying away from a full-fledged retribution focus, a threat of increased imprisonment may not induce a criminal to voluntarily dismantle. Thus, the prosecutor may increase the ICC’s preventative impact by negotiating pre-arrest plea bargains with perpetrators.20 Although a lower prison term may be unsettling for some who endorse the western notion of justice, the ICC’s most important focus should be attaining peace as soon as practically possible. Incapacitation will still occur and a plea-bargaining focus in some situations will have a specific deterrence effect.

Another concession that the prosecutor may endorse is for the United Nations (“UN”) to grant immunity to leaders in return for their step-down from power. For instance, the UN having such a mechanism of granting immunity to Muammar al-Qaddafi of Libya may be a more effective pathway to peace and stability in the region. Similarly, retracting arrest warrants or the UN Security Council taking a case away from the ICC can be used as a bargaining or negotiating tool if it is likely to save lives. This may be a viable option in cases where outstanding arrest warrants may in fact increase the crimes being perpetrated in a region. For instance, the ICC’s inability to suspend arrest warrants may have contributed to Kony’s refusal to stop violence in Uganda.21 Sudan provides one example regarding the effect on the peace process due to the Security Council’s power to take away cases from the ICC if violence is increased. Some argue that the impact of the arrest warrant was such that Al Bashir would be a liability for his party and would thus cause his resignation and possible exile.22 However, others argue that the stick of indictment for Al Bashir, combined with the carrot of suspending the warrant, has not induced him to cooperate.23 Nevertheless, this case remains open. The main point here is that the ICC, as in institution of justice, should be, as Kofi Annan says, “a partner to peace, not an impediment.”24

III. Limits to the Model

This model assumes rationality on the part of the actor. The goal of this model is to induce a greater cost-benefit analysis on the part of the actor. In cases of actors who are recalcitrant or unpredictable, this model will not induce a rational negotiating behavior. One such actor is Qaddafi, for example. In 1986, the United States’ use of coercive diplomacy led to Qaddafi perpetrating more terrorist attacks.25 Idi Amin, former president and tyrant of Uganda, similarly failed to display any acknowledgment of rationality in his outlandish perpetration of human rights abuses.

Another limit to this model are cases where the perpetrator has ample financial capacity and assets, strong international support, or absolute power. This type of scenario makes it difficult for the ICC to launch a credible threat. For instance Joseph Stalin, other than having several meetings with international leaders such as Churchill and Roosevelt at the Tehran and Yalta Conferences, was largely disconnected from international politics. Due to his ability to identify and rid himself of opposition both in the military and elsewhere, he was able to dominate a solid rule in the Soviet power with fear as an element. This would have made launching a credible threat to him difficult had the ICC and interest in deterring large-scale crimes existed back then. Former President of Egypt, Hosni Mubarak, for example was backed by strong western powers, Dick Cheney repeatedly calling him a friend and ally—this may have made it harder for the ICC to hypothetically launch a credible threat against him as well. Also, as I noted earlier, the biggest obstacle with this coercive diplomacy model is how to assure physical capture of the criminal in launching a credible threat. Again, international cooperation and abidance by the Rome Statute remains imperative.

IV. Conclusion

My proposed framework applied to the ICC is a method the prosecutor may want to consider when viable. Although the ICC’s deterrent effect is often discussed in a broader and more long-term capacity as a body of justice, my goal of proposing this model is more limited. My aim is to bargain to deter and to offset ongoing and imminent perpetration of crimes. Despite the prosecutor’s efforts in the past to adhere solely to the Rome Treaty’s legal mandate and to refrain from engaging the ICC and perpetrators from a political standpoint, the ICC must be more cognizant and accepting of playing a more diplomatic role while immersing itself in the political sphere to achieve its objectives in delivering a credible threat. The key is to implement concrete ways to capture the criminal and receive military backing in our effort to launch a credible threat and, thereby, induce criminals to surrender or negotiate. The starting point is to achieve compliance, by States Parties to the mandate of the Rome Statute by capturing these criminals who enter upon their territories. Overall, it is advisable for the Court to expand its knowledge of coercive diplomacy and find innovative ways to implement it in certain contexts.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Alexander K.A. Greenawalt, Justice Without Politics? Prosecutorial Discretion and the International Criminal Court, 39 N.Y.U. J. Int’l L. & Pol. 583, 606 (2007).

  2. 2.

    Alexander L. George, Forceful Persuasion: Coercive Diplomacy as an Alternative to War 68 (February 1992).

  3. 3.

    Id. at 4, 7, 75-76.

  4. 4.

    Id. at 7-8.

  5. 5.

    Id. at 6.

  6. 6.

    Id. at 14.

  7. 7.

    Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 12 (2001).

  8. 8.

    Sudan: Justice, Peace and the ICC, Crisis Group Africa Report no. 152, July 17, 2009 at ii.

  9. 9.

    Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 270-71 (2008).

  10. 10.

    Eric S. Fish, Peace Through Complementarity: Solving the Ex Post Problem in the International Criminal Court Prosecutions, 119 Yale L.J. 1703 (2010), at 1706, 1713.

  11. 11.

    A warrant for Bashir: Can Sudan’s serving head of state really be brought to justice for his alleged crimes in Darfur?, The Economist, Mar 5, 2009, available online.

  12. 12.

    Kofi Annan, Justice vs. Impunity, N.Y. Times, May 31, 2010, available online.

  13. 13.

    Fish, supra note 10, at 1713.

  14. 14.

    Akhavan, supra note 7, at 15.

  15. 15.

    William Burke-White, Maximizing the ICC’s Crime Prevention Impact Through Positive Complementarity and Hard-Nosed Diplomacy, ICC Forum, Oct. 5, 2011, available online.

  16. 16.

    Id.

  17. 17.

    David Scheffer, Maximizing Opportunities to Deter Further Atrocity Crimes, ICC Forum, Oct. 5, 2011, available online.

  18. 18.

    Paola Gaeta, Response to Darfur Question, ICC Forum, May 2011, available online.

  19. 19.

    George, supra note 2, at 6, 10-11.

  20. 20.

    Payam Akhavan, The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court, 99 Am. J. Int’l L. 403, 419 (2005).

  21. 21.

    Fish, supra note 10, at 1703.

  22. 22.

    Sudan: Justice, Peace and the ICC, supra note 8, at 23, 26, 30.

  23. 23.

    A warrant for Bashir, supra note 11.

  24. 24.

    Annan, supra note 12.

  25. 25.

    George, supra note 2, at 55, 57.

It is to be hoped that the ICC, like other courts, would be able to play a crime prevention role in respect of the offences with which it deals; but a few basic points need to be made in the interests of realism.

First it is not like other courts. Domestic criminal courts have jurisdiction over a geographical area covered by law enforcement officials who feed offences into those courts. There is reach, permanence and consistency of action. There is a real risk of detection and adjudication and outcomes are broadly predictable. The ICC has been given the world—but only in respect of some uncommon offences and only when the domestic courts are unable or unwilling to act. It is a backstop. It is not “on the job” in any one place at any time, even for its particular offences.

Secondly, crime prevention is not really the work of the courts, in any event. Crime prevention is done by a wide range of measures affecting persons, places, activities, security, etc—education of people, design concepts for buildings and neighbourhoods, methods of handling valuable goods, control of intoxicating substances, preventive policing and so on. Those measures do not really work for ICC crimes and, other than awareness and action by strong and fearless domestic actors and their allies, it is difficult to think of measures that might.

Thirdly, if crime prevention is meant to be effected by the sentencing function of criminal courts, through individual and general deterrence, then we need to think again. Punishment (and the prospect of punishment) does not deter serious offenders, as countless reputable studies continue to show. And the ICC deals with the most serious. Perpetrators of war crimes, genocide and crimes against humanity do not think about getting caught, let alone punished.

Fourthly, any deterrent effect of the criminal justice system (that there is) is achieved through the certainty of detection. Psychological studies show that while punishment can modify behaviour, it is most effective when it is: immediate (ie within seconds of the behaviour); inevitable; severe; understood to be a consequence of the behaviour; AND alternative behaviours are understood by the recipient of the punishment to be available. Try fitting that into the ICC’s model.

If the certainty of detection and inevitability of punishment are to be assured for ICC crimes, then more must be done than tinkering with the operations of the Court or its structural framework. This is a job for the domestic politicians and courts and the UN. What are the chances? In the meantime, however, the ICC does have an important role to play in cleaning up after the most horrific of events and carrying out international revenge on our behalf in a principled and broadly acceptable way.

I work with a good number complex crime victims. The population is those who are victims of terrorism and human trafficking; women, children and their families. My commentary is based on experience with these victims rather than theory.

Sadly, in America, our legal system fails especially in complex cases. One reason I discovered is that many attorneys don't want to take on a complex case as they could earn the same income from a "easy," case. Second is a resistance by the private legal system to perform their own research in overlapping issues. Third is a resistance to correct legal issues or "oversights," outside a systems jurisdiction, even if a past issue is contributory to a current legal issue within their jurisdiction. Fourth is a tendency to provide legal assistance to criminals rather than those who are the victims of their crimes.

Private resources outside the judicial system lack in complex management. They expect clients to fit program molds and case plans regardless if it is applicable to their safety or general well being. Long term observational studies show repeat mental, physical, financial and family reoccurring violence as being contributory. Given these systems make little to no attempt to understand complexity in the individuals they serve is suggestive of a intent to keep the cycle of crime and violence ongoing.

If an effort was made within the United States to address the human rights issues of these victims I would consider an action of the ICC not legally necessary, however that is not the situation. To date, the ICC is the only court who can save these victims.