Invited Experts on Prevention Question

Anderson Avatar Image Kenneth Anderson Professor of Law Washington College of Law, American University

The ICC Would Increase Its Prevention Ability If the Prosecutor’s Discretion Were More Visibly Limited

The ability of the institution to prevent criminality must eventually, as with criminal law systems generally, rest upon a generally internalized set of norms, rather than the “naked” threat of possible enforcement.

Summary

The prosecutorial discretion granted institutionally to the ICC has the upside of allowing a resource-constrained prosecutor’s office to maximize its effect by being able to pick and choose where to act or threaten to act. The downside of this discretion, in what is otherwise a strongly rule-governed legal system established by treaty, is that if overplayed, it can undermine the legitimacy of the court and the norms that it attempts to uphold. The suggestion made here is that the long-term legitimacy of the court would be enhanced if prosecutorial discretion were cabined within greater rule-governed and accountable constraints. That legitimacy is crucial to deterrence over the long term, because the ability of the institution to prevent criminality must eventually, as with criminal law systems generally, rest upon a generally internalized set of norms, rather than the “naked” threat of possible enforcement.

Argument

A Politics, Not a Society

My own general views of the International Criminal Court are skeptical, principally on grounds that its mandate and aspirations do not correspond to an “international” body, because the legitimacy of a court of this kind requires, as Max Weber noted, that it be embedded in a genuinely social structure, and not merely in the institutions of international politics. The legitimacy of courts in enforcing the law in domestic societies depends fundamentally not upon naked deterrent calculations by would-be law-breakers, but upon the general casting of norms within a structure in which they are generally accepted and internalized. The internalization takes two directions, according to classic social theory, acceptance and adherence by nearly all and, if not obedience, then at least acceptance and internalization sufficient to regard violation as “deviance” from a legitimate social order. In order for there to be either of those forms of internalization leading to legitimacy, there must be a social order. Since I do not regard what passes for the international community as constituting a social order—a society, in Weber’s sense—it seems to me mere metaphor and analogy to consider that the ICC can play a role globally that criminal courts play domestically.

This is of course a distinctly minority view within international law as a field, and it is not my intention to pursue this level of argument here. Nonetheless, deep skeptics can sometimes play a salutary role in forcing enthusiasts to at least pause in the march forward to ask if it goes quite where they think it goes. In this case, the highest level question is, does the mission, goals, reach, ambitions and—notably—ability to deter of the ICC depend ultimately upon the “embedded” community being a society and not merely a politics? And if so, in what sense is the ICC embedded in a “society”?

The problem in raising this kind of question is that the ICC always has an answer to this kind of skepticism, even if it is granted as a category even in principle: give us time. We need more time to solidify and consolidate our institution, and the institutions among which it nestles; as international society, as you say, consolidates, it will too. If it becomes obvious that the ICC is achieving prevention of international crimes, then the question goes away. If there are questions about that, then at some point someone has to say, well, how much time before we are permitted to judge whether the institution is a success or failure or something in-between.

The Metrics of Prevention, or, the Dangers of Datasets

In practical terms, what are the metrics on which to ask whether the actions of the court or the prosecutor are having a preventative impact on international crimes? As I scan the scholarly literature, particularly that coming from political science, I am impressed with the efforts being made to establish measurable and quantifiable methods of establishing to the satisfaction of social science that an action, or threatened action, by the prosecutor or by the court had a deterrent effect, either in that direct case or indirectly elsewhere. And that the accumulation of such actions was having, or not having, such effects on a more global basis.

Methods such as examining statements by the subjects of such actions, whether reported in the press, or once in custody, can help give some sense of possible impacts. More indirect measures, looking to such things as child soldier recruiting practices, or rates of attacks in violation of the laws of armed conflict that were expressly raised by the prosecutor, can also help establish whether the institution has a preventative impact. I hope that scholars who deal in empirical methods elaborate more and better methods of evaluation. It is an improvement on the traditional methods of international law, which are not well-informed by social science.

Having said that, I want to express caution about the application of quantitative methods in an area so dependent upon long causal chains with vast arrays of potentially confounding variables. In an area in which data collection of the kind one would ideally like in experimental design is so difficult to come by, the temptation to assume that one’s dataset must say something important just because one was able to collect it is very powerful. Much of the argument necessarily takes the form of counterfactuals—akin to the ferocious argument today in the United States over “jobs created or saved,” which, after all, does have vast quantities of real data to draw on and yet remains contentious. Its equivalent in dealing with the effects of the court and the prosecutor, particularly over time, and beyond limited circumstances—which is to say, “but for the action of the court and prosecutor”—is just as contestable and, in my estimation, should not be the defining criterion.

Rather, the qualitative evaluation of such things as interviews with people directly involved, qualitative rather than narrowly quantitative inquiries, seem to me more useful, at least until there is something of the dense information networks that inform advanced societies in crime statistics. This creates its own set of difficulties; qualitative research carries, of course, many temptations to selection bias, preference for certain interpretations, what in retrospect looks to be over-emphasis on certain informants and kinds of information. And the “but for” problem inherent in the whole question of deterrence and prevention is just as real as with quantitative methods. One should be willing to offer different methods, and be willing to be skeptical and accept that they might reach quite different conclusions. And finally, it goes without saying, if one asks for the assessment, one cannot do so with an expectation of where the conclusion must come out.

The Model of Rational Deterrence

Classical criminal deterrence theory says that, assuming risk averse law-breakers who fear punishment, we balance off the resources put into monitoring and enforcement of the criminal law against the punishment attached to it. The greater the punishment, the less we need monitor for law-breaking; and vice-versa, the less the punishment, the more resources needed to monitor. The classical model assumes a further social assumption, the one noted in the opening section—viz., a general assumption of the legitimacy of the laws and legal order at issue.

We think that the international community has settled on a short list of the most heinous mass atrocity crimes that no rational human being could deny and committed them over to an international tribunal; but from out in the field, no one needs telling, it does not seem that way.

This might sound like pure theory, but it is the most practical deterrence problem of the court. None of these assumptions holds except at best weakly. Let us walk through them. Is the legal order at issue legitimate in the sense that its fundamental mandates are seen as legitimate and departures from them as “deviance”? For those of us from the human rights community, nothing could seem more obvious—but seen from the ground up, this is at best a weak assumption. We think that the international community has settled on a short list of the most heinous mass atrocity crimes that no rational human being could deny and committed them over to an international tribunal; but from out in the field, no one needs telling, it does not seem that way. This is for many reasons—yes, these are fundamental human rights, but …. Everyone knows this, but criminal law systems that do not enjoy this broad legitimacy among those it proposes to police will have to invest vastly more resources in monitoring and enforcement—and even then, traditional policing theory questions whether it can work.

Are the subjects of the ICC actions actually risk-averse? The question might seem surprising, but there are reasons to think it is only weakly true, at most. Yes, it is clear that in some circumstances, those named in court or prosecutor actions fear being arrested while traveling abroad. There are some indicators that some parties have at least discussed what the threat of ICC action might mean for them down the road. I don’t deny any of that. I want to suggest, rather, something that appears only sporadically in the literature—in part because it is not really part of the purely “rational” actor school of thought about deterrence and criminal punishment.

One of the peculiarities of the ICC as an institution is that it is addressed to individuals. The reasons why that is so are many and quite persuasive, but this fact nonetheless means that there is an odd gap between institutional responsibility for mass atrocity crimes and those of individuals. From the standpoint of rational deterrence theory, this criminalization of the individual agent’s activity should be a very good idea, because a risk averse individual agent will have good reasons to not want to internalize on an individual basis the crimes, so to speak, of the whole institution. Hence the risk aversion of the individual agent will run back to behavior by the institution as principal. This is all perfectly true in rational choice theory and agent-principal relations. It also fits well with the model of the criminal leader of a government or a society responding rationally to incentives and fear of punishment.

The models assume that criminals will cut and run to save themselves; the models underestimate, in my view, the extent to which many of the most important possible targets of the prosecutor are regarded by their followers and by themselves as genuine and faithful fiduciaries.

This account leaves out, however, a feature of even criminal leadership that is not rational in this way. Leaders are leaders, and though we correctly say that they are criminals and guilty of mass atrocity crimes, much of the time these acts are carried out—in their own self-perception and in that of their followers—as fiduciaries. However criminal their actions, they are invested by their followers with leadership, trust, obligation, and expectations of leading—what a society, a state, a government, a tribe, a clan, a family, whatever the criminality involved. The theories of prevention that underlie much of the advice to the prosecutor and the court depend fundamentally, it seems to me, on overly strong identities between “criminal” and “illegitimate”. The models assume that criminals will cut and run to save themselves; the models underestimate, in my view, the extent to which many of the most important possible targets of the prosecutor are regarded by their followers and by themselves as genuine and faithful fiduciaries.

I mean this only weakly, and such relationships eventually can be broken down—though a NATO campaign helps quite a lot—but this makes the proposition that a risk averse individual agent will convey such risk aversion to and through the institution only a weak proposition. In that case, the assumption of a risk averse target of criminal sanction is only weakly true.

Prosecutorial Discretion

On the classic deterrence model, prosecutorial discretion acts like a sort of “force multiplier” in military affairs—the threat that the prosecutor might intervene here or there gives either party a reason to be careful. In practical terms, however, the world is too big a place. The court asserts its legitimacy on the basis of a carefully negotiated and crafted rules-based system, a complex and highly structured treaty that establishes the terms of its own criminal law. Judges set about interpreting those structures to create an internally cognizable body of predictable rules. But then the system is run at the front end through a highly, if not purely, discretionary prosecutorial choice. And that prosecutorial discretion—though it fundamentally contravenes the legal tenets and indeed legitimacy of the rest of the system—is then announced as a virtue, not a necessary vice, because it enables this multiplier effect of enforcement.

While understanding all the reasons why the system works this way, let me say that on balance it is a very bad idea. In most domestic legal systems—leaving aside the altogether notorious American way of justice in this matter—discretion exists, but is cabined by many different things. Sometimes it is by formal mechanisms; in some places the law of bankruptcy gives a judge very wide discretion in dealing with creditors, for example, but locks the discretion within a stable set of otherwise predictable rules. Sometimes it is by informal mechanisms that are built into the cultural and extra-legal expectations of how the system is supposed to work. I suppose that many people, deeply involved in the elaboration of the ICC and its practices over many years, believe that this is the case here and now for the ICC prosecutor and discretion. Seen from the outside, however, the prosecutor’s office appears something of a wild card.

The desire, first, to obtain the force multiplier effect of discretionary prosecutor actions and, second, to assert the legitimacy that the court genuinely considers situations worldwide (and not just as a court for Africa, in the critical phrase)—yes, the reasons why the exercise of this discretion makes sense is clear. But the accompanying effect is also to de-legitimize both the prosecutor and the court, because the system is so much a rules based system otherwise. The prosecutor’s discretion on the front end undermines the legitimacy that accrues as Weber (to return to social theory) analyzed as a reason for bureaucratic rationalization of the rules and their enforcement.

A system for going after the world’s worst crimes and worst international criminals that has a feeling of simple misfortune to the participants will not fulfill very adequately either legitimacy or rational deterrence.

Moreover, the lack of predictability in a system in which the resources of the prosecutor are so small in relation to the whole world that intervention looks like a lightning strike, turns belief in the system as something no longer about legitimacy, or even about rational deterrence. It looks like just plain bad luck. A system for going after the world’s worst crimes and worst international criminals that has a feeling of simple misfortune to the participants will not fulfill very adequately either legitimacy or rational deterrence.

In a practical way, how to constrain this discretion and allow it sufficient play, while cabining it to make it more predictable? Well, this is not popular advice, but the first thought would be to announce in advance that the geographical reach of the court, not as a statutory matter, but as a resource matter, will be constrained—for example, to countries that might be listed in advance by a panel of the court, not the prosecutor, as being seen as at risk for the failure of the rule of law. Or simply explicitly limit, for now, the prosecutor’s reach to situations of actual civil war. These are tradeoffs, and any of these suggestions might have fatal downsides. My point, rather, it to observe that there is a tradeoff between the seeming invitation to evil-doers who will not be covered at that point by the prosecutor’s attentions (because they are in Asia or not in civil war, for example), and the sense that they are not really covered in a meaningful, deterrent sense anyway (because the world is too large, the OTP too small, and if discretion strikes, it was simply vagaries of fate).

Moreover, the relationship of the prosecutor to the Security Council in the exercise of discretion raises important questions about neutrality and the rule of law. I do not mean this in the way usually raised as a concern. I myself would vastly prefer to see the prosecutor constrained by the need of an actual referral in every case from the Security Council; I understand very well that the current system exists as it does in large part because outside actors, including NGOs and many countries, wanted a system that allowed them to “contract around” the dubious authority, and more importantly deadlock, of the Security Council. Point accepted for this discussion. The prosecutor, in that case, should either address situations that are already the subject of Security Council action, such as the authorization of humanitarian intervention, very strictly according to the terms of referral in a transparent and rule governed way—eschewing, in other words, the suggestion that the prosecutor is acting according to its pure discretion. Or else pursue its prosecutorial agenda purely according to its own criteria, without any particular attention to actions of the Security Council (outside of the formal referral process). One might question whether such a distinction can be maintained in fact, but appearances here matter.

The least attractive alternative is to be seen to be scurrying after the Security Council in a discretionary way. Why? Because it gives the unfortunate appearance that the sacred discretion of the prosecutor is something to be used in the agendas of other actors—even agendas that are, on their own terms, perfectly defensible. It is too strong and unfair to say that the prosecutor, in the case of Libya, has looked to the rest of the world as though the prosecutor were a mere camp-follower of the Security Council, or more precisely, NATO; the Security Council referral both helps the Prosecutor and hurts it in this regard. But a certain indecorous chasing-after has not gone unnoticed, as I read world opinion. Even if this is substantively quite unfair to the prosecutor’s office, a certain appearance is there.

The prosecutor ought to recognize that its discretion is useful, but only in very limited ways and rapidly becomes counter-productive to deterrence.

The broader practical point is that the prosecutor ought to recognize that its discretion is useful, but only in very limited ways and rapidly becomes counter-productive to deterrence. In any case, it runs strongly against much of the rest of a system of justice that is strongly rule-governed.

Conclusion

I have tried, I hope not too unsuccessfully, to make points that are within the structure of the court and prosecutor offices as they exist. I apologize for the excessive abstraction. But I do think there are certain practical points here concerning deterrence—viz., that the discretionary system as it exists now does not seem to me to promote deterrence. Finding ways for the prosecutor’s office to cabin that discretion voluntarily within a much more rule governed set of constraints would, paradoxically, increase legitimacy and the sense that action by the prosecutor or the court is more than just a misfortune.

Broude Avatar Image Dr. Tomer Broude Professor Hebrew University of Jerusalem

The Court should avoid all considerations of deterrence, contributing to crime prevention by buttressing a durable, consistent, credible, and legitimate normative environment in which serious crimes are not tolerated.

For the Court, the notion of deterrence as a component of the prevention of international crimes would be a misguided goal for several reasons.

Summary

The prevention of serious international crimes is unquestionably one of the Court’s ancillary objectives. However, this goal should not be confused with the ideas of specific and general deterrence. Specific deterrence is the concept whereby the threat of criminal punishment will discourage a particular potential and actual criminal from committing specific future criminal acts. General deterrence is the idea that the punishment of criminals will deter others from committing crimes. For the Court, the notion of deterrence as a component of the prevention of international crimes would be a misguided goal for several reasons.

First, most clearly, specific and general deterrence are empirically intangible—in the international criminal realm they can neither be proved or disproved in a methodological meaningful manner, beyond conjecture. Deterrence, therefore cannot, and should not, serve as an appreciable objective to be achieved by the Court.

Second, deterrence seems to assume that perpetrators of the most serious crimes can be deterred by the threat of punishment. There are very good reasons to suspect that this is in fact not the case. Many perpetrators are socially and psychologically undeterrable. This does not mean that criminal justice in general and the work of the Court in particular have no preventative impact—only that specific and general deterrence constitute an unsound purpose.

Third, a deterrence perspective is morally flawed because it adopts a rationalistic approach to crime that implicitly signals to potential serious criminals that their acts, however appalling, might somehow be absolved through future punishment—i.e., that the crimes they will commit have, in the worst case, a predefined price tag of a prison sentence—permitting them to take the risk of punishment while pursuing their despicable ambitions.

Fourth, specific and general deterrence cannot rest exclusively on the shoulders of a single institution, especially not a judicial one. Prevention should be viewed in a much broader, systemic and long-term manner, demanding more from non-judicial institutions.

In situations such as those in Sudan or more recently Libya, where international criminal arrest warrants have been issued to leaders at a time in which they are still actively engaged in alleged crimes, the goal of the Court, as such, cannot seriously be taken to be crime prevention in the sense of specific deterrence. Rather, the chief goal of the Court should remain the rendering of justice and accountability in the name of ending the impunity of perpetrators of international crimes, as a contribution to the buttressing of a durable, consistent, credible, and legitimate normative environment in which serious crimes are not tolerated. This will in turn lead to true crime prevention.

Several recommendations may be made in this respect, but the main advice offered is that the Court and in particular the Office of the Prosecutor, (OTP) stay their course, according deterrent effects only secondary attention in their decisions, if at all.

Argument

On June 27, 2011, the Court’s Pre-Trial Chamber I issued arrest warrants for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, on charges of murder and persecution as crimes against humanity in Libya.1 Subsequently, the civil war dragged on in Libya—ostensibly including cases of murder and persecution—for another two months, until Muammar Gaddafi reportedly fled Libya in late August. Did the issuance of arrest warrants by the court have any palpable effect on Gaddafi’s decision-making in the summer of 2011? On one hand, one might argue that the arrest warrant hung heavily over Gaddafi’s head, and that had it not been issued his oppressive regime would have gone on further, and that his criminal acts might have continued, a fortiori. On the other hand, one might claim that the arrest warrant only served to entrench Gaddafi, extending and prolonging the war where a less aggressive prosecutorial approach might have led him to step down peacefully, as Hosni Mubarak did not long before in Egypt.

These are tantalizing questions that, at first glance, might seem crucial for a reasoned assessment of the preventative impact of the Court. They can be analyzed from a variety of theoretical, methodological and empirical perspectives. They involve intriguing hypotheticals and counterfactuals, so we will never know their true answers, although they provide for fascinating salon talk. However, even if we held concrete answers to them, these are quite simply the wrong questions to ask in the context of a discussion on the crime prevention role of the Court. This is because they misconstrue crime prevention in the very narrow sense of precise causes and effects (i.e., did the Court’s arrest warrant deter Gaddafi from sanctioning serious crimes?), whereas crime prevention should rather be understood as a much broader, systemic and long-term concept (i.e., will the operation of the Court, in conjunction with actions taken by states, intergovernmental organizations and civil society, lead, over time, to a global normative environment in which the incidence of serious crimes is reduced?).

Indeed, the Court in general and the OTP in particular would do well to avoid narrow considerations of crime deterrence—as opposed to prevention—in their work, whether in preliminary examinations, investigations or prosecutions.

The goal of crime prevention is a secondary or ancillary one for the Court. While the international community certainly declares its will to see the perpetration of serious international crimes prevented, even eradicated, it does not expect the Court to achieve this goal, but only to contribute to it.

The prevention of international crimes is clearly embedded in the goals of the Court, as noted in the fifth preambular paragraph of the Rome Statute.2 Notably, however, the goal of crime prevention is a secondary or ancillary one for the Court: the prime mandate is putting an end to impunity for the perpetrators of the most serious crimes of concern to the international community. It is the achievement of this goal that is anticipated to “contribute to the prevention of such crimes”. The text itself suggests that while the international community certainly declares its will to see the perpetration of serious international crimes prevented, even eradicated, it does not expect the Court to achieve this goal, but only to contribute to it. This is the proper reading of the Court’s function in the area of crime prevention.

However, the systemic goal of crime prevention is too often conflated with the tenuous concepts of specific and general deterrence. Specific deterrence is a very narrow, yet intuitively sound idea, whereby the threat of criminal punishment will discourage particular potential and actual criminals from committing specific future criminal acts. General deterrence is the idea that the punishment of criminals will deter others from committing crimes. Theoretically, both concepts are derived from utilitarian rational choice theory, owing much, in the modern form, to the path-breaking work of Nobel Prize laureate Gary Becker. In a nutshell, criminals are assumed to be rational actors, and the decision to commit a crime is considered a rational one, in which the putative criminal weighs the personal benefits of the crime against the risk of being caught and punished.3 Aggregation of the ideas of specific and general deterrence soon leads to a discussion of optimal enforcement: what mix of policing, prosecution and punishment will lead to the most efficient social outcome?4 There is some empirical support for the theory of deterrence—in regular, domestic criminal law—but it remains largely controversial, despite its intuitive and theoretical strengths.5

The logic behind the discussion of the effects of Gaddafi’s arrest warrant on his subsequent behavior is clearly one of specific deterrence. Indeed, most critics of the capacity of the Court to contribute to prevention of serious crimes focus on deterrence, even leading to the conclusion that prosecution can cause—at the level of specific interaction—increased atrocities;6 a conclusion that is not so curious as it might sound, when one acknowledges the short-sightedness of the analysis it builds upon.

In many respects, however, deterrence—both specific and general—is a red herring, especially in the area of international crimes.

For various reasons, some—even most—perpetrators of serious crimes might be undeterrable. This does not mean that criminal justice in general and the work of the Court in particular have no preventative impact—only that deterrence is an unsound purpose.

First, methodologically, it is essentially impossible to prove individual instances of successful specific or general deterrence, let alone to comprehensively evaluate its aggregated effects, beyond the occasional anecdotal evidence.7 As the “Gaddafi scenario” demonstrates, claims of specific deterrence—or exacerbation, on the other hand—appear to be purely conjectural. In contrast, it is very easy to demonstrate instances of the failure of deterrence; essentially, any crime committed despite the direct threat of prosecution and punishment seems to falsify specific deterrence, and even more so—general deterrence. Ultimately, this tells us little about the long-term contribution of the Court to crime prevention. Surely, “[S]ocieties can only hope that punishment will deter the transgressor as well as other potential offenders, but [they] can never assume it.”8 Instead of waiting for clear deterrent effects, and trying to engineer the Court’s work to promote them, it might be better to acknowledge that prosecutions will have an ongoing, abiding and systemic effect, and even then it is fair to say that “the general deterrent effect of such prosecutions seems likely to be modest and incremental, rather than dramatic and transformative.”9

Second, deterrence as a goal, builds upon fundamentally flawed theoretical conceptualizations and assumptions of the purported ‘utility functions’ of perpetrators of serious crimes. In other words, for various reasons, some—even most—perpetrators of serious crimes might be undeterrable. This does not mean that criminal justice in general and the work of the Court in particular have no preventative impact—only that deterrence is an unsound purpose.

This is far from a new observation. In 1928, debating the potential scope for the establishment of an international criminal court, the esteemed British international jurist, James Leslie Brierly, had this to say:

[it] is difficult to think of any really valuable service that the [international criminal court] could render, unless we are to believe that it would have a deterrent effect. But to suppose that men who are tempted to commit war crimes during the course of war will be strengthened to resist the temptation by the thought that at some future time they may have to account to an international court is probably to altogether misconceive the motives which affect the mind of the intending war criminal, ranging as these do from a lofty patriotism to the mere satisfaction of lust or cruelty. The nobler class of war criminal would probably regard the possibility of ultimate punishment, if he regarded it at all, as adding the attraction of martyrdom to the compelling sense of patriotic duty; the baser would realize that the prospect was remote in time and the chances of avoiding it high. It is hard to imagine a case in which the deterrent effect during a war of the institution of the court would not be practically negligible.10

Perpetrators of international crimes are subject to severe social pressures and impulses that are immediate and available, with which the distant specter of criminal prosecution by an international tribunal in the Hague pales in comparison.

More than eighty years—and many genocides and war crimes—later, it would be difficult to say that we know much more about the criminal mind of the perpetrator of the most serious international crimes, as far as specific deterrence is concerned. If anything, we have learned that the psychology of genocidaires, war criminals and perpetrators of crimes against humanity is a “psychology of evil” that is not fully understood. According to psychologist Ervin Staub,11—evil “grows” so perhaps it can be prevented at an early stage of social development, but at a certain point in time—when it is most threatening—it is undeterrable. Perpetrators of international crimes are subject to severe social pressures and impulses that are immediate and available, with which the distant specter of criminal prosecution by an international tribunal in the Hague pales in comparison.12 We also know that many of the most serious crimes are committed by individuals as “crimes of obedience”,13 in structures of authority that demand compliance in ways that the jurisdiction of the Court cannot compete with. Indeed, there is an inherent tension between the training of soldiers, however orderly and informed, and the goals of international criminal law: “a significant part of military training is breaking down a recruit’s reluctance to commit violent acts.”14 Letting loose this reluctance makes specific deterrence very difficult to achieve.15

Third, a narrow deterrence approach to international crime prevention, with its rationalistic-positivist trappings, is to some extent morally flawed. It sends a message to potential perpetrators that the most serious crimes can be committed and will even be tolerated by the international community so long as they are willing to pay the price of prosecution and punishment, instead of heralding the utter immorality of serious crimes. And as already discussed, potential perpetrators may well consider the price of prosecution a price worth paying—for social, ideological, political or ego-based reasons—even if it is assured by an effective system of international criminal prosecution.

This is a fundamental criticism that also reiterates that the idea of deterrence cuts across the grain of the ancillary goal of crime prevention as enshrined in the Rome Statute’s preamble. The preamble places the abolition of impunity as an absolute goal, before crime prevention as such. As we have seen, some of the arguments relating to deterrence would erode the goal of ending impunity, with no tangible advantages.

Fourth, the prism of deterrence places an undue burden on the shoulders of the Court, raising unrealistic and counterproductive expectations. Crime prevention is a far broader concept than deterrence, and much of it depends on processes that are well beyond the mandate of the Court—or of any Court, for that matter. Prevention includes not only deterring individual perpetrators, but also education and democratization, breaking down social structures that enable international crimes, early warning and surveillance systems, and above all—the political will to intervene where necessary to bring ongoing crimes to an end. In some cases, prevention might also need to be balanced against the prospects of peace and security, but these considerations, too, are beyond the reach of the Court.

Trusting criminal prosecution to deter specific criminals risks reducing the burden that weighs upon states and international organizations to actually intervene and prevent international crimes in action.

Moreover, trusting criminal prosecution to deter specific criminals risks reducing the burden that weighs upon states and international organizations to actually intervene and prevent international crimes in action. Returning to the “Gaddafi scenario”, it would be absurd to expect the Court’s arrest warrant to immediately deter Gaddafi from sanctioning and committing crimes, when his regime and misdeeds had been tolerated by the international community for over 40 years; and had the multi-state coalition not intervened militarily as it did, the arrest warrant would mean little. The debate over whether the threat of criminal prosecution may push perpetrators into a corner, entrenching them and causing atrocities to continue is misconceived because at such a stage of events, the perpetrators are already beyond deterrence. In terms of specific deterrence, it is nearly impossible to detect a causal effect between a criminal indictment and an increase or decrease in criminality, for many reasons—an example would be the arrest warrants issued by the Court with respect to Omar al-Bashir.16 Did these have the effect of softening his policies in Darfur and Southern Sudan? Or are the arrest warrants worthless piece of paper? We really can’t tell.

For all these reasons, quite simply, the perspective of deterrence as a measure for the Court’s contribution to crime prevention, is erroneous. The preventative impact of the OTP and the Court, at all stages of their operation, will be maximized when their main purpose is fulfilled, namely, the rendering of justice and accountability in the name of ending the impunity of perpetrators of international crimes. In fact, the Court should avoid decision-making that aims or attempts to create specific or general deterrence, which would be akin to navigating with a weathervane rather than with a compass. The Court will only contribute to true crime prevention by the buttressing of a durable, consistent, credible, and legitimate normative environment in which serious crimes are not tolerated.

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

  1. 1.

    The Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi et al., ICC-01/11-01/11 Pre-Trial

  2. 2.

    The paragraph reads as follows: “Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. 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].

  3. 3.

    See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 The Journal of Political Economy 169 (1968).

  4. 4.

    See Nuno Garoupa, The Theory of Optimal Law Enforcement, 11(3) Journal of Economic Surveys, 267 (1997).

  5. 5.

    See Raymond Paternoster, How Much do We Really Know About Criminal Deterrence?, 100(3) The Journal of Criminal Law and Criminology 765 (2010).

  6. 6.

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

  7. 7.

    Such as the observations by Amb. Radhika Coomaraswamy, UN Under-Secretary-General and Special Representative for Children and Armed Conflict, whereby the trial of Thomas Lubanga has brought changes in the treatment of children by combatants in conflict zones. However, Coomaraswamy also sees the deterrent effect of prosecution as general and even aspirational: “I found that fear of the ICC [is] a healthy development in international law […] Nobody can measure how many children have been saved because of deterrence. That’s not something you can measure, but hopefully that will be the case.”; see Associated Press, Judges Urged to Convict Congo Warlord Thomas Lubanga, The Guardian, (August 25, 2011). Available online.

  8. 8.

    See Juan E. Méndez, Accountability for Past Abuses, 19(2) Hum. Rts. Q. 255 (1997).

  9. 9.

    David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473, 488 (1999). See also Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95(1) Am. J. Int’l L. 7 (2001).

  10. 10.

    J. L. Brierly, Do We Need an International Criminal Court?, 8 British Year Book of International Law 81, 84 (1927).

  11. 11.

    Ervin Staub, The Roots of Evil: The Origins of Genocide and Other Group Violence, (Cambridge: Cambridge University Press, 1989).

  12. 12.

    For an early discussion, see Leo Alexander, War Crimes: Their Social-Psychological Aspects, 105 American Journal of Psychiatry 170 (1948).

  13. 13.

    V. Lee Hamilton and Herbert Kelman, Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility (New Haven, N.J.: Yale University Press, 1990).

  14. 14.

    William J. Astore, Book Review of Hugo Slim, Killing Civilians: Method, Madness, and Morality in War (New York: Columbia University Press, 2008). Michigan War Studies Review (2008) Available online.

  15. 15.

    For similar critiques of the rationality of “extraordinary” international criminals, see Mark A. Drumbl, Atrocity, Punishment and International Law, (Cambridge: Cambridge University Press, 2007) 17, 166-169.

  16. 16.

    ICC-02/05-01/0, Pre-Trial The Prosecutor v. Omar Hassan Ahmad Al Bashir, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Situation in Darfur, Sudan, March 4, 2009, followed by a second arrest warrant from July 12, 2010.

Burke-White Avatar Image William W. Burke-White, J.D., Ph.D. Deputy Dean and Professor of Law University of Pennsylvania Law School

Maximizing the ICC’s Crime Prevention Impact Through Positive Complementarity and Hard-Nosed Diplomacy

Too often, the ICC’s efforts to remain apolitical have undermined its ability and willingness to engage in the tough politics required to persuade states, effectuate arrests, and increase overall accountability. Instead, the Court must become better at making astute political calculations utilizing hard-nosed diplomacy when necessary.

Summary

The Preamble to the Rome Statute of the International Criminal Court makes clear that one of the key purposes of the International Criminal Court (ICC) is the prevention of international crimes. Scholarship in domestic criminal law has shown that crime prevention is largely a function of incapacitation and deterrence. When criminals—international or domestic—are in custody, they cannot commit further crimes. And when potential criminals believe there is a high likelihood of prosecution and punishment, they can be deterred from the commission of future crimes.

On both of these grounds—incapacitation and deterrence—the ICC faces structural constraints that have limited its crime prevention impact to date. Without its own police or military capability, the Court must rely on national governments, which often lack either the will or capacity, to arrest and incapacitate suspects. Similarly, the ICC has extremely limited judicial capacity and will never be able to prosecute a significant proportion of the international crimes potentially within its jurisdiction that are committed each year, reducing the Court’s deterrent effect.

Yet, the ICC has the legal authorities and practical tools to overcome, at least in part, these limitations and increase crime prevention within the overall system of international criminal justice. First, the Court must fully implement a strategy of positive complementarity, through which it encourages or even cajoles national courts into undertaking their own investigations and prosecutions of international crimes. The admissibility requirements of the Rome Statute that allow the ICC to investigate and prosecute only where national courts are unable or unwilling to do so provide the Court with a mechanism to encourage national governments to undertake their own prosecutions. As most national governments would prefer to avoid the intrusion and sovereignty costs of an international prosecution on their territory, they will be more likely to investigate and prosecute crimes themselves when the ICC threatens to step in should they fail to act themselves. Through positive complementarity, the ICC can expand the community of courts engaged in the prosecution of international crimes, harnesses the judicial tools of national governments, and increase the perceived likelihood of prosecution of international crimes. The result is more effective incapacitation and deterrence, in turn, resulting in greater crime prevention.

Second, to enhance crime prevention, the ICC must improve its diplomacy, in part by embracing its role as an actor in global politics. 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. Too often, the ICC’s efforts to remain apolitical have undermined its ability and willingness to engage in the tough politics required to persuade states, effectuate arrests, and increase overall accountability. Instead, the Court must become better at making astute political calculations utilizing hard-nosed diplomacy when necessary. At times, that will require prosecutorial discretion to let some cases wait in order to ensure real accountability in others. Such political bargaining may not be ideal—it may even be ugly—but, the Court’s ability to persuade and harness national governments demands tough diplomacy.

While the ICC’s actual contribution to the prevention of international crimes is hard, perhaps even impossible to measure, through a strategy of positive complementarity and more effective diplomacy that embraces political context, the ICC can be best positioned to maximize the overall prevention of international crimes.

Argument

The Preamble to the Rome Statute of the International Criminal Court makes clear that one of the key purposes of the Court is the prevention of international crimes. According to paragraph 5 of the Preamble to the Rome Statute, through the establishment of the Court, States Parties 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.” Yet, despite nearly a decade of operation, the Court has yet to fully realize its crime prevention potential. Indicted warlords—from Uganda to Congo—and former or sitting heads of state—from Libya to Sudan—remain at large and international crimes persist.

Ultimately, the Court must become a diplomatic actor that, through all the tools at its disposal, drives national courts to undertake investigations, prosecutions, and arrests themselves.

This failure to bring about an end to impunity is fully understandable. The ICC was established as a court of limited means—a backstop to national jurisdictions that must rely on the will and ability of states to undertake arrests, provide access and evidence, and to fund the Court’s operations. Yet, notwithstanding those structural limitations, the ICC has far more potential for crime prevention than it has realized to date. In short, for the ICC to fulfill its crime prevention potential it must come to see itself as part of a broader network of courts and tribunals providing accountability for international crimes. It must develop approaches and strategies that harness the power of national governments and draw on the Court’s position as a hub in a broader community of courts. Ultimately, the Court must become a diplomatic actor that, through all the tools at its disposal, drives national courts to undertake investigations, prosecutions, and arrests themselves.

Scholarship in domestic criminal law has shown that crime prevention is largely a function of incapacitation and deterrence.1 At least to the degree that international criminals like their domestic counterparts are rational actors, this formulation holds true internationally as well as domestically. Obviously, when criminals—international or domestic—are in custody, they cannot commit additional crimes. Incapacitation thus leads to crime prevention. And, when potential criminals believe there is a high likelihood of prosecution and punishment, they may be deterred from the commission of future crimes. The greater both the perceived likelihood of prosecution and the severity of likely punishment, the stronger this deterrent effect should be. In this simple formulation, then, for the ICC to expand its crime prevention impact, it must both seek to incapacitate those criminals it has indicted and increase potential criminals’ perception of the likelihood of prosecution should they indeed commit international crimes.

Any potential international criminal must know that the likelihood of being the subject of an ICC investigation is very low and, even if indicted by the Court, the likelihood of arrest and punishment is even lower.

On both of these grounds—incapacitation and deterrence—the ICC faces real challenges that have limited its crime prevention function to date. First, the Court is structurally limited by the terms of the Rome Statute. As noted above, the ICC was created as a relatively week institution. Without its own police or military, the Court is unable to directly apprehend, and thereby incapacitate, indicted criminals. Instead it must rely on national governments, which often lack either the will or capacity, to arrest. The Court’s track record over the past ten years has shown just how difficult it is to effectuate arrests. A second structural limitation on the ICC’s preventive impact is its limited judicial capacity. The Prosecutor has acknowledged that, at best, the Court will be able to try a few suspects per year and will never be able to prosecute a significant proportion of the international crimes potentially within its jurisdiction.2 Hence, any potential international criminal must know that the likelihood of being the subject of an ICC investigation is very low and, even if indicted by the Court, the likelihood of arrest and punishment is even lower. In the early days of the Court’s operation, Ugandan rebel leader, Joseph Kony, was reportedly concerned that “black helicopters” with “ICC” written on the side might descend on his jungle strong-hold to carry him off to the Hague.3 Years later and still at large, Kony and other international criminals must have come to realize that helicopters are not on their way and that life on the run—even as an indicted international criminal—is not so bad. The result is that the Court has had a relatively weak deterrent effect and that any deterrent effect it may have will quite possibly continue to decline.

A second limitation on the ICC has been the Court’s strategic approach to date. The Court’s strategy has largely focused on completing several investigations and prosecuting those indictees it has been able to apprehend. That is a far narrower strategy than the one initially articulated by the Prosecutor in the first year or two of his term. In contrast, back in 2002 the Prosecutor recognized that the ICC might have a broader role in ending impunity than just investigating and prosecuting international crimes by also encouraging national governments to undertake their own investigations and prosecutions of such crimes. A September 2003 policy paper prepared by a group of experts convened by the Prosecutor noted, for example, that the OTP “will initiate prosecutions of the leaders who bear most responsibility for the crimes. On the other hand it will encourage national prosecutions, where possible, for the lower-ranking perpetrators, or work with the international community to ensure that the offenders are brought to justice by some other means.”4 This was an early articulation of what has come to be called a strategy of positive or proactive complementarity.5

In contrast with this broader vision of the Court engaging in positive complementarity, the actual strategy adopted by the Office of the Prosecutor has been far narrower and focused largely on the actual prosecutions of a select few individuals. Rather than adopt a bold policy of positive complementarity based on encouraging national prosecutions, the OTP has framed positive complementarity far more minimally in its 2006 and 2010 prosecutorial strategies. The Prosecutor’s 2006 Report on Prosecutorial Strategy noted that the Office has “Office has adopted a positive approach to complementarity, meaning that it encourages genuine national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.”6

The Prosecutor’s approach to encouraging genuine national prosecutions, however, has been limited. The 2010 Prosecutorial Strategy more clearly articulates the present limited interpretation of positive complementarity as consisting of four basic elements: (1) “providing information collected by the Office to national judiciaries upon their request; (2) “calling upon officials, experts and lawyers from situation countries to participate in OTP investigative and prosecutorial activities”, (3) “providing information about the judicial work of the Office to those involved in political mediation”; and (4) “acting as a catalyst with development organizations and donors’ conferences to promote support for relevant accountability efforts.”7 Noticeably absent from the Prosecutor’s current framing of positive complementarity are more robust visions of the concept, particularly using the threat of investigation and prosecution by the ICC to encourage national governments to prosecute crimes domestically or engaging in any direct capacity building efforts. While the structural limitations on the Court may be difficult or even impossible to change, this mind-set, approach, and strategy can be easily shifted in ways that expand the ICC’s crime prevention impact through more effective use of positive complementarity.

The ICC has the legal authorities and practical tools to overcome, at least in part, these limitations and significantly enhance its crime prevention impact. First, the Court must fully implement a strategy of positive complementarity. The admissibility requirements of the Rome Statute that allow the ICC to investigate and prosecute only where national courts are unable or unwilling to do so are often viewed as a limitation on the Court’s powers. True enough, but these admissibility requirements also provide the Court with a mechanism to encourage national governments to undertake their own prosecutions. Positive complementarity builds on the fact that the Rome Statute does far more than merely define the limits of the Court’s power. The statute creates a system of judicial enforcement for the prosecution of the most serious international crimes at both the domestic and international levels of governance. The statute also affirms the duties and rights of both national governments and the ICC to prosecute such crimes8 and reifies the obligations of states to assist the ICC in its own investigations and prosecutions.9 In so doing, the Rome Statute creates a tiered system of prosecutorial authority that could be characterized as the “Rome System of Justice.”10 Within this system, both the domestic and international levels of governance have interrelated international legal duties to provide accountability for international crimes. And it is in this collective of judicial institutions that the meaningful potential for crime prevention rests.

As a strategy for encouraging national governments to undertake their own prosecutions of international crimes, positive complementarity would allow the Court to catalyze national judiciaries to fulfill their own obligations to prosecute international crimes. Those obligations are found in a wide range of international treaties, including the Geneva Conventions of 1949 and the Genocide Convention, and such obligations are reaffirmed in the Preamble to the Rome Statute itself. Specifically, a strategy of proactive complementarity would use the Court’s legal and political powers to activate states’ domestic courts in international criminal prosecutions. The admissibility requirements of article 17 of the Rome Statute do not merely limit the cases the ICC can hear; rather, they regulate the allocation of authority between states and the ICC. Article 17 recognizes the shared competence, and perhaps even common duty, of national and international institutions to help bring about an end to impunity. In the Rome System, then, the ICC and national governments are engaged in a broad set of interactions directed toward accountability for international crimes.

Positive complementarity derives its force from this broad perspective on the Rome System of Justice since it utilizes the potential for the ICC to encourage domestic prosecutions and contribute to the effective functioning of national judiciaries. Such a policy could produce a virtuous circle in which the Court stimulates the exercise of domestic jurisdiction through the threat of international intervention. The threat of international prosecution by the ICC generates a positive set of incentives for national governments to pursue prosecutions themselves. ICC prosecution not only shifts a financial burden from states to the international community, but its intervention into otherwise exclusively domestic criminal processes imposes considerable sovereignty costs on national governments that states may seek to avoid by undertaking their own investigations and prosecutions.11

Where the sovereignty costs of international intervention outweigh the political and financial costs of domestic prosecution, the threat of ICC intervention may encourage domestic judicial systems to prosecute international crimes themselves.

Involvement by the ICC also imposes a wide range of non-financial costs on states that fail to undertake genuine investigations and prosecutions. In particular, through a prosecution by the ICC states will lose prosecutorial freedoms like the ability to determine specific charges, witnesses to be called, and evidence to be presented.12 Additionally, the internationalization of a prosecution may result in greater (and largely negative) publicity for the state and restrict its ability to control or manipulate publicity surrounding a trial. Likewise, international prosecutions may impose reputation costs on national governments, both with respect to other states and domestic audiences, by indicating that they have failed to meet their legal obligation to prosecute crimes domestically.13 Given these sovereignty costs imposed by international prosecutions, many states may be willing to accept the political and financial costs of domestic prosecution in order to avoid international intervention. Where the sovereignty costs of international intervention outweigh the political and financial costs of domestic prosecution, the threat of ICC intervention may encourage domestic judicial systems to prosecute international crimes themselves.

Where positive complementarity works, the Court would not have to undertake prosecutions of at least some cases itself and could focus its energy and resources on those cases in which there is no available domestic alternative, thereby maximizing its contribution to the statutory goal of ending impunity. By fully utilizing this tool of positive complementarity, the ICC can encourage, prod or even cajole national government into investigating and prosecuting international crimes. In so doing, the ICC expands the community of courts engaged in the prosecution of international crimes, harnesses the judicial tools of national governments, increases the perceived likelihood of prosecution of international crimes, furthers deterrence, and ultimately should enhance crime prevention.

The ICC and, particularly, the Office of the Prosecutor, have a number of tools at their disposal, including leverage and persuasion, that can be part of a strategy of positive complementarity to promote national investigations. The ability to use leverage arises principally from the basic legal relationship enshrined in the Rome Statute, which confers upon the ICC the authority to intervene when national governments fail to undertake investigations or when their efforts at prosecution are less than genuine. For national governments that would prefer domestic investigation and prosecution to international action, the mere existence of the ICC may do much to encourage genuine national proceedings. Where the use of such leverage is not possible, more active efforts by the Prosecutor could range from diplomatic communications with governments to the provision of assistance in undertaking prosecutions. In addition to altering the incentives facing national governments through the threat of international prosecution, the ICC can also change the domestic calculation of whether to undertake national prosecutions by utilizing the diplomatic and publicity channels available to the Court. The ICC can also use publicity and outreach to increase the reputation costs for States that fail to undertake genuine prosecutions on their own. Statements to the U.N. Security Council and the Assembly of States Parties or to NGOs that condemn states for failing to prosecute international crimes can significantly increase the reputation costs those states face for their policies of inaction.

Getting governments to act potentially against their own interests requires strong diplomacy.

Of course, positive complementarity generally, and the arrests and prosecutions by domestic authorities particularly, depends on action by national governments. Getting governments to act potentially against their own interests requires strong diplomacy. To be successful and to maximize crime prevention, the ICC needs to shift its diplomatic approach. In short, the Court must embrace its role in the international political system.

To date, the Prosecutor has tried to avoid being seen as a political actor seeking to influence domestic political processes. Nudging, prodding, cajoling, or even threatening national governments with the possibility of international prosecution runs the risk of making the Court appear political. As the Prosecutor has explained: “I shall not be involved in political considerations. I have to respect scrupulously my legal limits.”14 This desire to remain apolitical has led the Prosecutor and the Court as a whole to frame its efforts as purely legal, driven by the provisions of the Rome Statute. The result is that the Court has often been caught politically off-guard, seen as disconnected from realities on the ground, and unable to garner the necessary support from national governments to make the arrests necessary to fully realize the Court’s deterrent and crime prevention capabilities.

While an apolitical court focused solely on its legal mandates is a laudable goal, it is simply impracticable and, perhaps, even a bit naïve. International criminal justice takes place within a context of global politics.

While an apolitical court focused solely on its legal mandates is a laudable goal, it is simply impracticable and, perhaps, even a bit naïve. International criminal justice takes place within a context of global politics. Indictments of heads of state, rebel leaders, or regional warlords carry significant political implications for national governments, regional peace efforts, and even the international system itself. The ICC’s efforts to indict and apprehend Bashir and Qaddafi are emblematic thereof. In a context in which NATO forces are attacking Libya, regional peace-efforts are underway, and major powers including France, the UK, and the US are actively engaged on pursuing regime change in Libya, there is simply no way to insulate the ICC from global politics. And even where, as in the case of both Qaddafi and Bashir, the Court’s jurisdiction stems from a UN Security Council Resolution, each move by the Court—the opening of an investigation, the decision and timing of an indictment, and efforts to arrest indictees—carries political ramifications. Within this political space, the ICC is a powerful actor, often with diplomatic leverage over national governments. By, rhetorically at least, ignoring that political context and focusing solely on the law, the ICC actually undermines its own ability to provide accountability and maximize its crime prevention impact. Instead, if the ICC were to embrace its diplomatic clout within the international political system, it would be far more likely to achieve its objectives with respect to the actions of national governments.

An important distinction must be drawn here between the politicization of the Court and an improvement in its political sensibilities and diplomatic capabilities. The Prosecutor is, of course, correct that the Court should not be politicized, as in simply doing the bidding of powerful states or overlooking legal requirements. Rather, the Court needs to recognize and embrace the political context of its actions and, thereby, improve its diplomatic outcomes. Sometimes this may mean simply identifying and acting on diplomatic opportunities to encourage national prosecutions or arrests by domestic authorities when they arise. In other circumstances, astute diplomacy may militate against opening an investigation or issuing an indictment at a particularly politically sensitive moment, instead deferring or delaying that prosecution until such time as the Court can be assured of the support from national governments necessary to complete an investigation and arrest indicted suspects. And, in still other circumstances, the Court may need to engage in hard-nosed bargaining with national governments, which have the tools, resources, or leverage necessary for the Court to carry out its own mandate.

The Office of the Prosecutor will have to come to recognize that diplomacy is a core function of the Court and that only through effective diplomatic efforts, that often include political tradeoffs, can the Court both meet its overall objectives and maximize its crime prevention impact.

Admittedly, politics can be ugly and more concerted diplomatic efforts by the ICC that recognize political context may be controversial. However, such efforts are far more likely to result in arrests of international criminals by national governments and domestic prosecutions that are absolutely essential to realizing the crime prevention mandate of the ICC. To achieve these goals, the Court and, particularly, the Office of the Prosecutor will need to build and expand its internal political analysis capabilities, not just with respect to the countries in which the Court operates, but also to the global political dynamic more generally. Likewise, the Office of the Prosecutor will have to come to recognize that diplomacy is a core function of the Court and that only through effective diplomatic efforts, that often include political tradeoffs, can the Court both meet its overall objectives and maximize its crime prevention impact.

In closing, it is worth highlighting the difficulty of measuring in any empirical way the crime prevention impact of the ICC. Crime prevention, even in a domestic context, is difficult to measure. Causation is the ultimate challenge as conclusively linking changes in patterns of criminal behavior to particular external factors, such as the establishment of a new court, can be close to impossible. Domestic criminology scholars have sought to identify such causal relationships within domestic societies through large—n empirical studies. In the international context, however, the limited availability of crime data makes such empirical studies impracticable and unreliable.

Instead, the Court’s crime prevention impact may be best understood—though not empirically confirmed—by looking to proxy variables and data that are in some way indicative of the Court’s impact on actual criminal behavior. For example, it may be possible to look to changes in the frequency of national prosecutions for international crimes as an indicator of the overall effectiveness of the system of international criminal justice, in which the ICC plays a critical role. Increases in national prosecutions should both serve an incapacitation function and increase the deterrent effect of international justice overall. Such analysis will never be conclusive as to the impact of the Court itself, but may at least provide a proxy to determine whether the overall effort to prevent international crimes is moving in the right direction.

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

  1. 1.

    For domestic legal analogies, see Johannes Andenæs, Punishment and Deterrence (1974) (providing a traditional account of the logic of criminal deterrence); Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates, (Alfred Blumstein et al. eds., 1978) (examining how punishments impact criminal behavior). For an application to the work of the ICTY, see Payam Akhavan, Beyond Impunity: Can International Criminal Justice Deter Future Atrocities?, 95 Am. J. Int’l L. 7, 12 (2001) (“[T]he threat of punishment may persuade potential perpetrators to adjust their behavior.”). For broader application in international criminal law, see Jan Klabbers, Just Revenge? The Deterrence Argument in International Criminal Law, 12 Finnish Y.B. Int’l L. 249, 251-53 (2001).

  2. 2.

    Michel de Smedt, Statement at the Second Public Hearing of the Office of the Prosecutor (Sept. 25, 2006). Available online.

  3. 3.

    Interview with Fabius Okomo, in Gulu, Uganda (Aug. 27, 2006).

  4. 4.

    Paper on Some Policy Issues Before the Office of the Prosecutor (September 2003), available online. More recent policy statements have taken a far more limited view of positive complementarity and its associated tactics.

  5. 5.

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

  6. 6.

    International Criminal Court, Office of the Prosecutor, Report on Prosecutorial Strategy, 14 September, 2006. Available online.

  7. 7.

    International Criminal Court, Office of the Prosecutor, Prosecutorial Strategy 2009-2012, 1 February 2010. Available online.

  8. 8.

    See 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], preamble (“[I]t is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes” and “[T]he most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”).

  9. 9.

    See id. arts. 86-99.

  10. 10.

    See William W. Burke-White, Complementarity in Practice: The International Criminal Court as Part of a System of Multilevel Global Governance in the Democratic Republic of Congo, 18 Leiden J. Int’l L. 557-90 (2005); see also William W. Burke-White, A System of Multilevel Global Governance in the Enforcement of International Criminal Law (July 14, 2006) (unpublished Ph.D. dissertation, Cambridge University) (on file with author).

  11. 11.

    Here “sovereignty costs” refer to what Kenneth Abbott calls “the symbolic and material costs of diminished national autonomy.” Kenneth W. Abbott, Symposium on Method in International Law: International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 Am. J. Int’l L. 361, 375 (1999).

  12. 12.

    For example, territorial states have no control over actual prosecutions before the ICC. Charges are determined by the prosecutor and confirmed by the Pre-Trial Chamber. Decisions to keep certain information under seal are at the discretion of the Chamber, and publicity is handled through the Court’s Public Information Division. See Rome Statute, supra note 8, arts. 53-58. To get a sense of the ICC’s present and, perhaps, inadequate media and publicity efforts, the ICC website provides a catalog of press releases, which are indicative of the relatively limited outreach efforts to date. Available online (last visited Nov. 14, 2007).

  13. 13.

    For a discussion of the role of reputation, see Jonathan Mercer, Reputation and International Politics (1996). Available online.

  14. 14.

    The Prosecutor has made clear his desire to remain independent of international politics. See Keynote Address of Luis Moreno-Ocampo, Council on Foreign Relations, 4 February 2010. Available online.

Goldstone Avatar Image Richard J. Goldstone Professor Fordham Law School

The crime prevention potential of the International Criminal Court (the ICC) depends upon its credibility and the support it receives from governments and especially those of States Parties to the Rome Treaty.

Whilst investigation and prosecution of war criminals might conceivably make a peace negotiation more difficult that has not been the experience thus far. On the contrary, for example, the indictment of Radovan Karadžić facilitated the Dayton conference and the end of the war in the former Yugoslavia.

Summary

The International Criminal Court represents the culmination of the rapid growth of international criminal justice during the past 18 years. With the Security Council reference to the ICC of the Libyan situation, it has become a part of the emerging doctrine of the “Responsibility to Protect”. Whilst investigation and prosecution of war criminals might conceivably make a peace negotiation more difficult, that has not been the experience thus far. On the contrary, for example, the indictment of Radovan Karadžić facilitated the Dayton conference and the end of the war in the former Yugoslavia. The arrest warrants issued for President al-Bashir of Sudan and President Muammar Gaddafi of Libya are likely to deter the commission of egregious war crimes by other would-be war criminals.

Non-governmental organizations have played and continue to play a crucial role in developing the influence and credibility of the ICC. However, the future success of the ICC and its ability to prevent the commission of serious war crimes will depend upon the support and cooperation it receives from governments and especially from those of the most powerful nations.

Argument

Measures to maximize the Crime Prevention Impact of the International Criminal Court

The time for international criminal justice is not past. On the contrary, it is dawning. The necessity of denying impunity to war criminals has never been greater. And that need is growing.

There has been a rapid and impressive development of international criminal law and justice during the past 18 years since the establishment of the United Nations International Criminal Tribunal for the former Yugoslavia (the ICTY). The future of international justice depends upon the ICC and the system under which it operates achieving wide credibility. That can be hastened if this Court has the full support of the most powerful nations of the world—including the United States.

The small, tentative, and halting steps we have taken towards a more perfect system of international justice have, over the years, carried us a very long way.

The ICC represents the culmination of the evolution of international criminal law that I have been fortunate to have witnessed during my life in the law. The history is long and uneven, with defeats that break our hearts and with successes that hint at humanity’s true and higher nature. The small, tentative, and halting steps we have taken towards a more perfect system of international justice have, over the years, carried us a very long way. Today I add my voice to those who praise the ICC as the world’s best hope for genuine accountability for crimes against humanity and thereby contribute to their prevention.

The years since World War II have seen monumental changes in the nature of warfare. During the past 65 years, humanity has been blessedly spared of conflicts of that global magnitude. But as we have learned through painful experience with proxy wars, ethnic conflicts, and brutally oppressive regimes, the threat of atrocities has not diminished. Asymmetric warfare, terrorism, and urban warfare provide chilling opportunities for savage abuses. We need only open a newspaper or turn on a television to witness the voices from around the world crying out for justice. As members of the international community committed to peace for all of humanity and to justice for all of our brothers and sisters, we must dedicate ourselves anew to the rule of law in all corners of the planet we share.

The “Responsibility to Protect” doctrine was born out of egregious examples of the global community nations failing to intervene in the face of the most serious violations of the human rights of innocent civilians.

The deterrent capability of international criminal law has been bolstered by the application of the recently developing doctrine called the “Responsibility to Protect”. This doctrine was born out of egregious examples of the global community nations failing to intervene in the face of the most serious violations of the human rights of innocent civilians. One recalls that in the middle of 1994, over 800,000 innocent children, women and men were slaughtered in the Rwandan genocide. Rather than authorize its peacekeepers already in place in Rwanda at that time, the United Nations withdrew all but 500 of them. It would have taken but a small additional force to have effectively prevented much of the killing. There are other examples. One thinks of the killing fields in Cambodia.

After receiving the report from a high level panel of experts established by him in the aftermath of the Rwandan genocide, Kofi Annan, then Secretary-General of the United Nations, called upon Governments to embrace the responsibility to protect their own citizens. He made it clear that the primary responsibility rested on the Governments concerned. But if they are unwilling or unable to do so, the responsibility shifted to the international community. He emphasized that in such an event, the international community must use a range of measures designed to protect endangered populations, including diplomatic and humanitarian efforts and, only as a last resort, the use of military force.

Of course politics will play a determinative role in whether or when this doctrine of Responsibility to Protect will be implemented. There was a signal failure in the case of Burma when Russia and China vetoed a Security Council resolution that would have enabled the Council to become seized of the situation there. Those two nations argued that Burma did not pose a threat to international peace and security in the region and that the internal affairs of Burma did not have a place on the Security Council agenda.

The first time that the United Nations Security Council took active steps under this doctrine of Responsibility to Protect was in respect of the situation in Libya.

The first time that the United Nations Security Council took active steps under this doctrine of Responsibility to Protect was in respect of the situation in Libya. On 26 February 2011, the Security Council unanimously adopted a resolution referring the Libyan situation to the Prosecutor of the ICC. In accordance with the Rome Statute, the Prosecutor had the responsibility for determining whether to proceed with such an investigation. After a preliminary investigation, the prosecutor determined that there was sufficient evidence to establish that crimes against humanity were being committed by the regime of Muammar Gaddafi. He reported to the Security Council at the beginning of May 2011, that there was also relevant evidence of the commission of rape, deportation and forcible transfer that constituted war crimes under the Rome Statute. The investigation that followed was directed at those who appeared to bear the highest responsibility for the commission of those war crimes. Over 10,000 people were reported killed and many more tens of thousands injured. The prosecutor also reported that he intended to seek arrest warrants against three members of Colonel Gaddafi’s Government and that he had evidence to establish that Gaddafi’s forces had “systematically” attacked civilians in recent months. He reported to the Security Council that the three appeared to bear the greatest criminal responsibility for crimes against humanity and they included those who gave the orders for the alleged atrocities. In consequence, Pre-Trial Chamber I of the ICC issued warrants against Gaddafi himself, his son, Saif al Islam Gaddafi—whom the court dubbed Libya’s “de-facto” prime minister, and Libya’s head of intelligence, Abdullah Al-Senussi, who is Gaddafi’s brother-in-law. They are alleged to have committed crimes against humanity.

The Security Council further authorized enforcement action under its peremptory powers conferred by Chapter VII of the United Nation’s Charter. It did so after determining that the situation in Libya constituted a threat to international peace and security. The resolution went on to authorize “all necessary measures” (that is, military action) to protect civilians and civilian populated areas under threat of attack and to enforce compliance with a no-fly zone. The implementation of those measures has effectively removed Gaddafi and his autocratic government. The exceedingly difficult task of building a democratic system in Libya will soon begin.

There is great diversity across the many peoples of the world, from East to West, in their conceptions of the right and the good, and of justice and the rule of law. The ICC represents a core set of commitments about which there can be no dispute.

I praise the ICC for what it has accomplished and issue a call to action for what remains to be done. All nations must ratify the Rome Statute and become full members in the international pursuit of justice against war criminals. They should do so with full force and without reservation because it is the right and moral thing to do. There is great diversity across the many peoples of the world, from East to West, in their conceptions of the right and the good, and of justice and the rule of law. The ICC represents a core set of commitments about which there can be no dispute. It is a universal moral vision around which the people of the world can join together in one voice, unified at long last, to proclaim that we are all brothers and sisters on this Earth. And for the first time in history we will not permit our brothers and sisters to be victims of such crimes any longer, wherever they may occur.

The question facing the international community is whether we will have a better world in which all war crimes are credibly and efficiently investigated and those guilty of war crimes are prosecuted and appropriately punished—in other words withdrawing impunity for war criminals. I cannot believe that we would have a better and more peaceful world if were to revert to the pre-World War II situation in which war criminals were effectively beyond the reach of justice. If we care about the victims of war crimes and their rightful claims for justice, the solution is an obvious one.

International criminal law will not be fully effective unless and until all the nations of the world are prepared to respect and implement it. If there was universal ratification of the Rome Treaty it would become wholly unnecessary for any domestic court to exercise universal jurisdiction. All alleged war crimes would be amenable to the jurisdiction of the ICC. This gets to the very heart of the ICC’s promise, and what it might mean for the rule of law throughout the world. The Nuremberg Trials and the ad hoc tribunals of the 1990s were monumental achievements of justice, but they were only a beginning. Their limitations are present in their names: they were ad hoc and extraordinary. True justice must be ordinary and regular, unremarkable and without exception. The International Criminal Court, with the support of the entire brotherhood of nations, might achieve exactly that.

Until universal or near universal ratification of the Rome Treaty has been achieved the crime prevention ability of the ICC will depend upon the political will of those 116 nations that have thus far ratified the Rome Treaty. Although it is not one of those states, the United States is now supportive of much of the work of the ICC. It is highly significant that it voted affirmatively to refer the situation in Libya to the ICC. It is those states that must garner the political will to encourage and, if necessary, pressure, all states to honor the decisions and orders of the ICC.

Even in cases where the Security Council has referred a situation to the ICC, its political will to ensure that its reference is effective has been disappointing. I refer to the situation in Sudan. It was referred to the ICC on 31 March 2005. Eleven members voted in favor of the resolution. There were four abstentions including the United States. The first two arrest warrants in consequence of this reference were issued in May 2007. Then, in March 2009, a further warrant was issued for the arrest of the President of Sudan, Omar al-Bashir. To this date none of those arrest warrants have been executed. Sudan, even though bound by the Security Council reference to the ICC, is in contemptuous disregard of its international obligations. Mainly because of threats of a veto by China and possibly by Russia, the Security Council has been unable to take appropriate action to ensure that Sudan co-operates with the ICC. The regular reports from the ICC to the Security Council with regard to this situation have not resulted in any meaningful response.

Notwithstanding the failure to bring President al-Bashir before the ICC, the effect of the arrest warrant has certainly had serious consequences for Al-Bashir. There are now 116 nations obliged to arrest him should he visit their shores. It was for this reason, for example, that President Al-Bashir was not invited to attend the 2010 inauguration of President Zuma in South Africa. The South African Government explained to the Sudanese Ambassador to Pretoria that if their Head of State were to visit South Africa, the South African authorities would have no option but to arrest him and transfer him to The Hague. Unfortunately, in recent weeks President Al-Bashir has been allowed to visit three African members of the ICC, Chad, Kenya and Djibouti. Those countries have failed to honour the international obligations they solemnly assumed by ratifying the Rome Treaty. I do hope that the other members of the Treaty will make their voices heard in opposition to this trend. In the face of the latest events in Libya, the Security Council should recognize that with the best will in the world a fair trial for Gaddafi in Libya would not be possible in the coming years. It should insist that Gaddafi be transferred to The Hague for trial before the ICC. That is what its resolution of February 2011 envisaged. The message for other would-be tyrants would be loud and clear.

The role of the ICTY in ending the war in the former Yugoslavia is a poignant example of the impact that international law can have in promoting the peaceful resolution of armed conflicts. [...] In effect the indictment [of Karadžić] facilitated the Dayton meeting and the end of the war in the former Yugoslavia followed from it. This is a clear illustration of justice assisting peace.

Many feared that the threat of individual criminal liability would drag out conflicts as leaders refused to surrender in the face of prosecution in the international courts. These fears, it turns out, were unfounded. The role of the ICTY in ending the war in the former Yugoslavia is a poignant example of the impact that international law can have in promoting the peaceful resolution of armed conflicts.

It was the agreement reached by the warring parties at Dayton in November 1995 that brought the war in the former Yugoslavia to an end. That meeting could not have taken place if Radovan Karadžić, the Bosnian Serb leader and Commander-in-Chief of the Bosnian Serb Army, had been able to attend it. This was only four months after the Bosnian Serb Army had massacred some 8,000 civilian men and boys at Srebrenica. Both the ICTY and the International Court of Justice held it to constitute genocide. It would not have been morally or politically possible at that time for the leaders of Bosnia and Herzegovina to attend a meeting with Karadžić. In September 1995, I issued a second indictment against Karadžić and his army chief, Ratko Mladic, based upon events in Srebrenica. That effectively prevented Karadžić from attending the Dayton meeting—he would have been arrested by the United States and transferred to The Hague for trial. He had no option but to accept being represented at Dayton by the President of Serbia, Slobodan Milosevic. In effect the indictment facilitated the Dayton meeting and the end of the war in the former Yugoslavia followed from it. This is a clear illustration of justice assisting peace.

I accept that an arrest warrant might have the opposite consequence and make peace negotiations more difficult. But as far as I am aware, that has not happened thus far.

I accept that an arrest warrant might have the opposite consequence and make peace negotiations more difficult. But as far as I am aware, that has not happened thus far.

The role of non-governmental organizations with regard to the advance of international criminal justice cannot be over-emphasized. They played a crucial role in building the political will of the Security Council to establish the ad hoc tribunals for the former Yugoslavia and Rwanda and in helping ensure that the arrest of the most wanted criminals indicted by them were brought to trial. They have played a signal role with regard to the ICC and their influence at meetings of the Assembly of States Parties is well known.

The Coalition for the ICC (the CICC) represents over 2500 civil society organizations from 150 countries. In recent months the Coalition for the Int’l Crim. Court has recognized that the most important individuals for the success of the ICC as an impartial and fair institution are its judges. The 18 judges of the ICC are elected by a two-thirds majority of all the States Parties (known as the Assembly of States Parties). The threshold is thus a high one. Nominees for election must possess competence in criminal law and procedure or in relevant areas of international law. They are required to be persons of high moral character, impartiality and integrity who are eligible for appointment to the highest judicial office in their own country. The Assembly of States Parties, in electing the judges is obliged to have regard to the representation of the principal legal systems of the world, equitable geographical representation, and a fair representation of female and male judges.

Because of the importance of the role of the judges, with the approval of the leadership of the Assembly of States Parties, the CICC has set up an Independent Panel on ICC Judicial Elections. It is my privilege to chair this Panel. It consists of five persons, one from each of the United Nations regions. It will be our duty to consider the documents submitted by the nominating Governments and to make a public determination as to whether the nominee is qualified for election as a judge of the ICC. The criteria for qualification are those contained in the Rome Treaty. The ultimate role of the Independent Panel will be to ensure the perception and reality of ICC judges as impartial and fair jurists. Those are crucial prerequisites to the credibility of the institution.

The ability of the ICC to prevent the commission of the most serious violations of international criminal law will depend upon its efficient and successful prosecution and punishment of those tyrants responsible for the unspeakable crimes that have too frequently become a feature of our modern world. To that end its credibility is paramount.

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

  1. .

    I have drawn substantially on the 5th Princess Maha Chakri Sirindhorn Lecture on International Humanitarian Law, delivered in Bangkok, Thailand on June 13, 2011.

Scheffer Avatar Image Ambassador David Scheffer Mayer Brown/Robert A. Helman Professor of Law and Director, Center for International Human Rights Northwestern University School of Law

Maximizing Opportunities to Deter Further Atrocity Crimes

A highly effective arrest mechanism at the International Criminal Court should prove to be a powerful deterrent to would-be perpetrators of atrocity crimes, as many would recognize the likely futility of escaping from the arm of international justice.

Summary

Recent empirical research demonstrates the deterrence value of international and domestic prosecutions of human rights violators, including perpetrators of atrocity crimes. I propose two initiatives easily compatible with the Rome Statute to enhance the crime prevention capabilities of the International Criminal Court. First, Article 18 of the Rome Statute should be used by the Prosecutor to notify jurisdictional States of their responsibility to end the further commission of atrocity crimes in the relevant situation by their citizens or others falling within their domestic jurisdiction. To supplement the Prosecutor’s notification under Article 18, a coalition of major powers—those already States Parties and a few significant non-party States, among them permanent members of the Security Council—should be identified and cultivated to apply maximum diplomatic pressure on each notified jurisdictional State to minimize or end the atrocity crimes over which it may have control through the actions of its nationals or others. The Article 18 notification procedure thus creates a unique opportunity for major powers to weigh in to prevent further criminal conduct.

Second, the failure of national authorities to apprehend and facilitate transfer to The Hague of a significant number of the Court’s indicted fugitives undermines the ability of the International Criminal Court to prevent atrocity crimes because there is lacking the powerful example of an effective arresting authority deployable on short notice on the territory of the fugitive. I propose serious consideration be given by the Office of the Prosecutor, the Registry, and ultimately the Assembly of States Parties of negotiating a Protocol to the Rome Statute that would enable States Parties and even willing non-party States to agree, in advance, to the prospect of a special enforcement team, comprised of experienced and highly talented police and military personnel trained in the skills of tracking and apprehending indicted war criminals, entering the territory of a State Party to the Protocol at the direction of the Pre-Trial Chamber to track and arrest the indicted fugitive in the event Rome Statute Part 9 cooperation procedures prove insufficient. No such action by the special enforcement team could commence without the prior special consent of the host nation for each such entry. But as a ratified party to the Protocol, such host nation already would have endorsed the concept of such entry by the special enforcement team and ironed out the basic procedures for such an action in the event special consent is granted in a particular case. A highly effective arrest mechanism at the International Criminal Court should prove to be a powerful deterrent to would-be perpetrators of atrocity crimes, as many would recognize the likely futility of escaping from the arm of international justice.

Argument

The International Criminal Court operates under a large cloud of counterfactual theorizing. The skeptics of international justice advance the easiest of arguments, namely that in the absence of arrest warrants by the International Criminal Court (or other tribunals), then cease-fires, humane policy-making, peace agreements, and even the removal of tyrants from power (with air flights to sanctuary jurisdictions) would be far more negotiable and achievable. Such simplistic logic is intoxicating and governments, prominent leaders, and international and regional organizations sometimes succumb to the skeptics’ rationale.

There remains no evidence that the absence of international arrest warrants against Syria’s Bashar al-Assad, Zimbabwe’s Robert Mugabe, Iran’s Mahmoud Ahmadinejad, North Korea’s Kim Jong-il, or Burma’s military leadership has softened their repressive and brutal rule or opened productive diplomatic channels to any of them.

If only the skeptics’ facts were so easy to discover. Aside from representations by alleged war criminals, who curiously are not trusted with expressing the truth on any other issue, that they somehow will be more cooperative in the absence of criminal investigations and arrest warrants, there is scant evidence that tyrannical leaders transform themselves into peacemakers in the absence of either the threat or reality of criminal prosecution. (Threats of domestic prosecution hounded both President Zine El Abidine Ben Ali of Tunisia and President Hosni Mubarak of Egypt as their governments fell in early 2011.) There remains no evidence that the absence of international arrest warrants against Syria’s Bashar al-Assad, Zimbabwe’s Robert Mugabe, Iran’s Mahmoud Ahmadinejad, North Korea’s Kim Jong-il, or Burma’s military leadership has softened their repressive and brutal rule or opened productive diplomatic channels to any of them. There are many examples in recent decades of political and military leaders, saddled with domestic or international arrest warrants, ultimately losing power and thus greatly enabling the end of atrocity crimes (genocide, crimes against humanity, and war crimes), or at least most of them, in their lands. The recent collapse of Muammar Gaddafi and his regime doubtless resulted not only from the relentless actions of rebel forces and NATO, but also from Gaddafi’s further loss of legitimacy among his own people—and certainly with most governments—once he was indicted by the International Criminal Court. One skeptic’s counterfactual argument is an optimist’s counterfactual or factual rebuttal, and so the debate lingers on.

But the objective of crime prevention in the work of the International Criminal Court will benefit from the arrival of University of Minnesota Professor Kathyrn Sikkink’s new book, Justice Cascade: How Human Rights Prosecutions are Changing World Politics (New York: W.W. Norton & Company, 2011). My September 2011 review of this book appears in the online edition of The New Republic , available online and archived. In that review, I explain how path breaking Sikkink’s systematic, empirical, comparative research is, for she and her team of Ph.D. candidates demonstrate how criminal prosecutions of high-level perpetrators of atrocity crimes and other human rights abuses can significantly help diminish the level of human rights abuses in societies emerging from repression, as well as in neighboring countries. In short, the enforcement of domestic and international criminal law in the realm of human rights violations and atrocity crimes can have a positive impact on crime prevention (notably human rights violations) over the long term, which in Sikkink’s research can be counted in years or at most one or two decades.

Imagine what will transpire ten or twenty years from now in those nations where the International Criminal Court is now exercising its prosecutorial jurisdiction. Will we witness a steady diminishment of serious human rights abuses, indeed atrocity crimes, in Sudan, Southern Sudan, Libya, the Democratic Republic of the Congo, Uganda, Central African Republic, and Cote D’Ivoire? Will we conclude, years from now, that the Court’s investigative and prosecutorial work in these nations had something to do with those trends? If Sikkink’s skillful research instructs us of what is to come, as I believe it does, we will see crime prevention at work thanks, at least in part, to the International Criminal Court’s current caseload. That does not point to additional measures, but more of the same.

The question remains, however, what new measures by the prosecutor of the International Criminal Court might facilitate crime prevention, or deterrence, in the future. I propose two initiatives easily compatible with the Rome Statute.

I. Article 18 Measures

Article 18 of the Rome Statute of the International Criminal Court is one of three complementarity provisions, namely Articles 17 (Issues of admissibility), 18 (Preliminary rulings regarding admissibility), and 19 (Challenges to the jurisdiction of the Court or the admissibility of a case). Typically, Articles 17 and 19 take center stage in complementarity analyses, as they pertain to direct challenges to admissibility regarding specific cases and thus seem most relevant. In fact, Article 18, about which far less is discussed or examined, is the mother of all complementarity privileges and has major significance for crime prevention objectives.

Where there has been either a State Party referral (or self-referral) (Article 13(a)) or a proprio motu prosecutor investigation (Article 13(c)), the Prosecutor is required to “notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned.” [Article 18(1)] The Prosecutor’s notification seeks to stimulate credible domestic investigations and prosecutions of alleged perpetrators of atrocity crimes, perhaps by a number of the notified States in the relevant situation, thus obviating the need for the International Criminal Court to exercise direct jurisdiction. The rationale of Article 18 is essentially reactive in nature, namely, atrocity crimes allegedly have been committed and the Court is encouraging States of normal jurisdiction in the matter to respond to those crimes and bring the perpetrators to justice. If the notified States fail to take action in response to the notification within six months, or sooner under certain circumstances, the Prosecutor can take steps under Article 18 to engage directly with investigations and trigger full engagement by the International Criminal Court.

I propose that the Office of the Prosecutor consider a proactive role for itself under Article 18 authorities. The notification by the Prosecutor under Article 18 can carry a much more potent message to the States with normal jurisdiction (“notified jurisdictional States”), and those are the States that likely would be engaged in the armed conflict or human rights catastrophe and thus capable of ending the atrocity crimes. Here, of course, I view crime prevention through the prism of preventing further commission of atrocity crimes once the Court’s jurisdiction has begun to be exercised in any particular situation, and not as crime prevention prior to the Court’s engagement.

The Prosecutor’s notification should be individually tailored for each notified jurisdictional State, but could carry some variant of the following basic message:

I am putting your government on notice that the International Criminal Court will be examining your performance during the coming months, including in the event you inform the Court within one month of this date that you are investigating your nationals or others within your jurisdiction with respect to criminal acts which may constitute crimes referred to in Article 5 of the Rome Statute. You should be taking constructive steps that will minimize exposure of your nationals and others within your jurisdiction to criminal investigation and prosecution by the International Criminal Court for these alleged atrocity crimes. That means your government should actively intervene—diplomatically, economically, juridically, or through any other legal means—to end the criminal conduct giving rise to this notification. The Prosecutor will monitor carefully to see if, in response to this notification, your government exercises its responsibility to investigate and prosecute those over whom it has jurisdiction and whether your government takes steps to minimize or end the commission of further atrocity crimes attributable to those individuals falling within your jurisdiction.

To supplement the Prosecutor’s notification under Article 18, a coalition of major powers—those already States Parties and a few significant non-party States, among them permanent members of the Security Council—should be identified and cultivated to apply maximum diplomatic pressure on each notified jurisdictional State to minimize or end the atrocity crimes over which it may have control through the actions of its nationals or others. The Article 18 notification procedure creates a unique opportunity for major powers to weigh in to prevent further criminal conduct. Where the Prosecutor’s notification to a particular government is confidential under Article 18(1), the Prosecutor nonetheless could communicate with one or more members of the coalition of major powers to suggest the application of diplomatic overtures (and perhaps more assertive measures) to the notified jurisdictional State for the purpose of preventing further commission of atrocity crimes.

This proposal recognizes that the conventional interpretation of Article 18 rests on establishing the ultimate scope of the Court’s jurisdiction in a particular situation depending on how notified jurisdictional States respond to the Prosecutor’s notification of an Article 13(a) or Article 13(c) investigation. But nothing in the Rome Statute prevents the Prosecutor from using the Article 18 notification far more effectively to achieve two internally consistent objectives: first, to encourage complementarity through national investigations and prosecutions, and second, to prevent further commission of atrocity crimes at the hands of a notified jurisdictional State’s nationals or others within in its jurisdiction.

II. A Protocol to Enforce Arrest Warrants

Weaknesses and failures in enforcing arrest warrants of the International Criminal Court can constitute a major incentive for further commission of atrocity crimes, thus defeating the objective of crime prevention. Credible threats of actual arrest are proven deterrents to most crimes and yet the reality of arrest by the International Criminal Court remains highly problematic, particularly given the challenges of sovereignty and poorly trained or equipped domestic police forces. How can the prospect of arrest of indicted fugitives of the International Criminal Court be improved and hence serve as a long-term deterrent to the commission of further atrocity crimes?

The International Criminal Court lacks explicit statutory authority to create its own police or military force to achieve the arrest of indicted fugitives. [I propose a] special enforcement team [which] would be empowered to arrest the indicted fugitive and render him or her to the custody of the International Criminal Court in The Hague.

The International Criminal Court lacks explicit statutory authority to create its own police or military force to achieve the arrest of indicted fugitives. Yet the failure of national authorities to apprehend and facilitate the transfer to The Hague of a significant number of the Court’s indicted fugitives undermines the ability of the International Criminal Court to prevent atrocity crimes because there is lacking the powerful example of an effective arresting authority deployable on short notice on the territory of the fugitive. While the cooperation of States Parties under Part 9 of the Rome Statute is the strongly preferred methodology for voluntary surrenders and involuntary arrests of indicted fugitives, there is a supplemental means of assistance that should be seriously considered in the event Part 9 cooperation fails to secure the arrest of an indicted fugitive.

I propose serious consideration be given by the Office of the Prosecutor, the Registry, and ultimately the Assembly of States Parties to negotiating a Protocol to the Rome Statute that would enable States Parties and even willing non-party States to agree, in advance, to the prospect of a special enforcement team, comprised of experienced and highly talented police and military personnel trained in the skills of tracking and apprehending indicted war criminals, entering the territory of a State Party to the Protocol at the direction of the Pre-Trial Chamber to track and arrest the indicted fugitive. No such action by the special enforcement team could commence without the prior special consent of the host nation for each such entry. But as a ratified party to the Protocol, such host nation already would have endorsed the concept of such entry by the special enforcement team and ironed out the basic procedures for such an action in the event special consent is granted in a particular case. The Pre-Trial Chamber would consider the request of the Prosecutor and, if approving of the Prosecutor’s request, authorize entry of the special enforcement team onto the territory of the consenting host State. The Pre-Trial Chamber would act sub secreto if required by the circumstances and issue a sealed decision for the special enforcement team to enter the host State’s territory so as to maintain the secrecy of the operation. The host State’s special consent could be delivered either prior to or within a specified period following the Pre-Trial Chamber’s affirmative decision. The special enforcement team would be empowered to arrest the indicted fugitive and render him or her to the custody of the International Criminal Court in The Hague.

This proposal invites understandable skepticism for several reasons. First, how would such a special enforcement team be formed and financed? I propose that the special enforcement team be a volunteer force recruited, organized, and trained by a group of experienced experts selected by the Assembly of States Parties, acting upon the recommendation of the President of the Assembly and with the approval of a majority of that body. In order to better facilitate compliance with international humanitarian law and international criminal law in any such operation, I would recommend that only government personnel of willing governments be engaged in the entire spectrum of the special enforcement team’s creation, training, and operations. Any reliance on private military contractors would raise too many concerns about oversight and compliance with international law and the responsibility of participating governments to act strictly in accordance with the Protocol.

Only States Parties to the Protocol would be responsible for financing the special enforcement team in accordance with a scale of assessments set forth in the Protocol. Any State Party to the Protocol that consents to entry of the special enforcement team on its territory for any particular arrest operation also would have to shoulder some portion of the costs associated with that deployment, as determined on a case-by-case basis through procedures set forth in the Protocol. Granted, such funding would not be easy either to negotiate or collect. But a voluntary trust fund could be created into which States Parties to the Protocol and non-party States to the Protocol could contribute to help offset the costs, and that option might interest the participation of major powers that find more effective apprehensions of indicted fugitives beneficial to their own respective foreign policy objectives.

Second, would a special enforcement team threaten national sovereignty? Concerns of sovereignty would be addressed through the voluntary participation of States in the Protocol and the requirement for the host nation’s special consent for every entry onto the territory of that country. Hot pursuit across sovereign borders would not be permitted unless the nation into which the special enforcement team enters from the host nation also is a State Party to the Protocol and has given its special consent for such hot pursuit. But there would be procedures in the Protocol anticipating that possibility and the need for such decisions in a timely fashion.

Third, how would violations of international humanitarian law or domestic criminal law by any member of the special enforcement team be handled? The Protocol could stipulate, as do standard status of mission agreements, that any such violations would be investigated and, if merited, prosecuted by the sending State of the accused individual. This may be so sensitive an operation on a nation’s territory, however, that conventional accountability procedures may not suffice to encourage “buy-in” by States to join the Protocol. A new approach may need to be considered, which would require further consideration during the drafting of the Protocol.

I do not underestimate the controversial character of this proposal. But I do believe that if the International Criminal Court is to strengthen its arrest capabilities beyond improved Part 9 cooperation by States Parties to the Rome Statute, and demonstrate a higher percentage of successful arrests in a timely manner, then something like the Protocol described above needs to be considered. Likewise, the objective of crime prevention can only be advanced with a proven record of enforcement of arrest warrants impressive enough to deter would-be perpetrators from assuming they would enjoy a life of freedom following the commission of atrocity crimes.