II. Application of Coercive Diplomacy to the ICC

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

A. Specific Demand

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

B. Time to Consider

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

C. Credible Threat

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

1. Unacceptable Costs to Perpetrator

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

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

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

2. Physical Capture

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

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

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

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

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

3. Evidence

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

4. Holding Site

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

D. Positive Incentives and Assurances

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

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

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

III. Limits to the Model

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

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

IV. Conclusion

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

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

1. 1.

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

2. 2.

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

3. 3.

   Id. at 4, 7, 75-76. ↩

4. 4.

   Id. at 7-8. ↩

5. 5.

   Id. at 6. ↩

6. 6.

   Id. at 14. ↩

7. 7.

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

8. 8.

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

9. 9.

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

10. 10.

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

11. 11.

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

12. 12.

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

13. 13.

    Fish, supra note 10, at 1713. ↩

14. 14.

    Akhavan, supra note 7, at 15. ↩

15. 15.

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

16. 16.

    Id. ↩

17. 17.

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

18. 18.

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

19. 19.

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

20. 20.

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

21. 21.

    Fish, supra note 10, at 1703. ↩

22. 22.

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

23. 23.

    A warrant for Bashir, supra note 11. ↩

24. 24.

    Annan, supra note 12. ↩

25. 25.

    George, supra note 2, at 55, 57. ↩

II. Broad View of Complementarity: Positive Complementarity

A. What is Positive Complementarity?

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

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

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

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

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

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

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

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

III. Peace or Justice?

A. The Debate Surrounding Peace or Justice

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

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

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

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

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

IV. Conclusion

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

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

1. 1.

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

2. 2.

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

3. 3.

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

4. 4.

   Id. art. 13. ↩

5. 5.

   Id. art. 17. ↩

6. 6.

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

7. 7.

   Id. ↩

8. 8.

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

9. 9.

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

10. 10.

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

11. 11.

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

12. 12.

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

13. 13.

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

14. 14.

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

15. 15.

    See Rome Statute art. 19. ↩

16. 16.

    Id. art. 1 & 5. ↩

17. 17.

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

18. 18.

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

19. 19.

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

20. 20.

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

21. 21.

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

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

A. Global Economic Sanctions that Deter Atrocities

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

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

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

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

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

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

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

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

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

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

i. Multi-lateral, with a few narrow exceptions.

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

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

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

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

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

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

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

iv. Avoid general bans on economic activities.

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

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

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

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

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

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

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

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

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

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

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

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

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

III. Conclusion

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

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

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

1. 1.

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

2. 2.

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

3. 3.

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

4. 4.

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

5. 5.

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

6. 6.

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

7. 7.

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

8. 8.

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

9. 9.

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

10. 10.

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

11. 11.

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

12. 12.

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

13. 13.

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

14. 14.

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

15. 15.

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

16. 16.

    See id. ↩

17. 17.

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

18. 18.

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

19. 19.

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

20. 20.

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

21. 21.

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

22. 22.

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

23. 23.

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

24. 24.

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

25. 25.

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

26. 26.

    Id. ↩

27. 27.

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

28. 28.

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

29. 29.

    Haas, supra note 17, at 81. ↩

30. 30.

    Geiss, supra note 20, at 186. ↩

31. 31.

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

32. 32.

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

33. 33.

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

34. 34.

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

35. 35.

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

36. 36.

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

37. 37.

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

I. Complementarity As Deterrence

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

A. Legal Basis and Implementation of Complementarity

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

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

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

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

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

B. Why Should the ICC Guide Domestic Judicial Development?

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

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

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

II. Complementarity and the Legitimacy of the ICC.

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

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

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

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

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

III. Measuring the Deterrent Effect of Complementarity

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

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

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

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

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

Conclusion

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

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

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

1. 1.

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

2. 2.

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

3. 3.

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

4. 4.

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

5. 5.

   Rome Statute, Article 88. ↩

6. 6.

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

7. 7.

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

8. 8.

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

9. 9.

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

10. 10.

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

11. 11.

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

12. 12.

    Id. ↩

13. 13.

    Id. ↩

14. 14.

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

15. 15.

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

16. 16.

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

17. 17.

    Id. at 22. ↩

18. 18.

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

19. 19.

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

20. 20.

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

A. Deterring Crimes Ex Ante

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

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

B. Deterring Crimes In Progress

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

C. Deterring Renewal of Hostilities

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

III. Fundamental Basis for Deterrence

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

A. Internalizing Norms

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

B. External, Material Pressure

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

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

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

IV. Policy Measures to Maximize Deterrent Effect

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

A. ICC Actions

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

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

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

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

B. International Actions Outside the ICC

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

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

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

V. Conclusion

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

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

1. 1.

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

2. 2.

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

3. 3.

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

4. 4.

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

5. 5.

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

6. 6.

   See generally Ku & Nzelibe, supra note 2. ↩

7. 7.

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

8. 8.

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

9. 9.

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

10. 10.

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

11. 11.

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

12. 12.

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

13. 13.

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

14. 14.

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

15. 15.

    Akhavan, supra note 13. ↩

16. 16.

    Akhavan, supra note 2, at 12. ↩

17. 17.

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

18. 18.

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

19. 19.

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

20. 20.

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

II. General deterrence

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

A. Lack of rationality

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

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

B. Government complicity

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

C. ICC’s party-based jurisdiction

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

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

III. Specific deterrence

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

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

A. Harsher punishment is an ineffective disincentive

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

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

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

B. Investigations deter negotiations for peace

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

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

IV. Plea bargaining to increase specific deterrence

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

A. Plea bargains as an alternative to amnesty

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

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

B. Pre-arrest plea bargaining prevents crimes

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

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

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

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

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

C. Rome Statute allows plea bargaining

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

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

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

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

V. Conclusion

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

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

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

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

1. 1.

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

2. 2.

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

3. 3.

   See note 1, supra. ↩

4. 4.

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

5. 5.

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

6. 6.

   Id. ↩

7. 7.

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

8. 8.

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

9. 9.

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

10. 10.

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

11. 11.

    See note 10, supra. ↩

12. 12.

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

13. 13.

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

14. 14.

    Mullins & Rothe, supra note 1, at 775. ↩

15. 15.

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

16. 16.

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

17. 17.

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

18. 18.

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

19. 19.

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

20. 20.

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

21. 21.

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

22. 22.

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

23. 23.

    Id. ↩

24. 24.

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

25. 25.

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

26. 26.

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

27. 27.

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

28. 28.

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

29. 29.

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

30. 30.

    Id. ↩

31. 31.

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

32. 32.

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

33. 33.

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

34. 34.

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

35. 35.

    Scharf, supra note 28, at 340. ↩

36. 36.

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

37. 37.

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

38. 38.

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

39. 39.

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

40. 40.

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

41. 41.

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

42. 42.

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

43. 43.

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

44. 44.

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

45. 45.

    Id. art. 53(3)(b). ↩