The Deterrence Lecture Question — Comments

James D. Fearon’s Lecture on Deterrence and the ICC

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Comment on the Deterrence Lecture Question: “To what extent is the deterrence of mass atrocities an attainable goal of the ICC?”

My initial reaction to this question is whether or not deterrence is/should be a goal of the ICC. Examining the preamble to the Rome Statute indicates that it is in fact a goal, on par with ending impunity, based on the clause: "Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes." Considering the U.S. system of justice, I think for some people, the potential for punishment is a deterrent to crime, but I am optimistic enough about humanity to hope that most people don't commit heinous acts, like murder, not out of fear for repercussion but out of some moral imperative. In the case of the ICC, I think it will be quite difficult for the court to act as a deterrent to mass atrocities based on the very nature of these crimes: genocide, crimes against humanity, etc. I do not believe the genre of people who are willing to commit such grave acts are likely to consider the legal ramifications, and certainly not the moral ones. Thus, I fear the deterrence of mass atrocities is not a very likely consequence of the ICC.

I think it unreasonable to put too much stock into the decision calculus that someone is faced with before deciding to commit heinous crimes. Most of the time other factors are going to outweigh the fear of a response from the ICC, especially given that there has only been 1 conviction in 10 years. These factors include the typical reasons for carrying out genocide and mass rape -- political considerations, tribal and ethnic tension, etc. So deterrence before any act has been committed seems unlikely. The second possibility for deterrence occurs after a leader has already carried out atrocious crimes and is faced with the decision of continuing or standing down. Here I also agree with Fearon. The calculus of incentives seems to motivate killing until a breaking point after which a leader can negotiate for a more desirable outcome -- that is going to the ICC -- which will take many years and could result in an acquittal. This option for deterrence also seems unlikely. One final point is the assumption that such leaders and offenders act rationally. This was a huge topic when trying to understand Saddam Hussein's reactions to the international community re: his nuclear arsenal so it is important to note that many of these offenders are in extreme situations and may not be rational to begin with.

Currently, the actions of the ICC do lead to some deterrence on the side of state officials. This is largely seen in the first stage of criminal justice described by Professor Fearon in which potential offenders choose whether or not to commit crimes in the first place. The reasons for this are both public and personal. As the leaders of nations, there exists a need to maintain diplomatic relations with a number of countries. A warrant by the ICC holds serious implications with regard to diplomacy. One, it is a serious hamper to political clout. States will be less willing to deal with diplomats with outstanding international warrants on their head. The stigma is great, but there are a number of practical considerations as well. A head of state or other official needs to travel out of diplomatic necessity. The risk that any such travel poses after any negative action by the ICC is serious. As individuals, many state officials hope to leave open the option to one day step down. Many of these leaders are not willing to sacrifice a shot at a happy, peaceful retirement through the commission of atrocities. Nonetheless, these arguments are shaky at best, and it is obvious that more work need be done to increase the deterrent effect of the ICC. Where this effect is truly hindered is the case of non-state offenders. For many rebel leaders or other figures facing ICC indictment, retirement is not an option. There is little hope for a peaceful abdication of power. The fear and deterrent effect lies in regimes opposed to such groups, not the proceedings of some distant judicial body. These figures fear torture and death, not indictment. Thus, in the first stage of decision making, the ICC holds little deterrent effect. However, it may serve as a better alternative than what they may otherwise face if they are caught, so in the second stage of decision making, it may lead offenders to step down. The primary cause for this current deficiency in the ICC lies in its inability to apprehend criminals. It remains a largely ineffective body because there is little reason to fear it. Indicted leaders face little worse than negative stigma, and for others, it provides a better option. Regardless, its presence remains irrelevant until those accused are apprehended.

Deterrence is an attainable goal for the ICC only to the extent of its power and reputation as legitimate enforcer of law and punishment. The ICC's ability to deter mass atrocities solely through its existence will thus rely upon fundamental first steps that include the following: strengthening ties with the UNSC, increasing the number of signatories to the Rome statute, apprehending suspects and trying them efficiently. Although these measures have proven difficult to accomplish thus far, they should remain the short-term focus of the organization; deterrence should result as a natural by-product of its recognition as an entity of significant threat. Therefore, the ICC should in the present focus its efforts on establishing itself in the manner aforementioned while keeping an eye on the horizon, deterrence existing as the end goal, the final destination.

The ICC may not yet be able to have a compelling deterrent effect, but certainly has the future potential to be a significant factor. Its very existence is meaningful, representing a manifestation of international norms of acceptable state behavior. Diplomatic relations and international pressure could have an important influence on certain actors' behavior, especially state officials, but these tactics are less effective on figures that can easily melt away into the countryside, as has been seen with some rebel leaders. Unfortunately, the inability of the court to enforce its warrants is a huge obstacle to any significant deterrence effect, and is one of the biggest weaknesses of the institution. Yet, the issues of sovereignty are addressed, this will likely remain a major flaw. Historically, states are understandably reluctant to publicly endorse any infringement of national sovereignty, which an ICC warrant enforcement force would certainly be. Though it is certainly the more politically acceptable solution, relying on states to turn over these wanted figures is incredibly counterintuitive. Beyond the obvious potential for conflicts of interest, turning certain figures over to a foreign body can be domestically controversial and destabilizing. Until these perpetrators of violence actually believe that there will be consequences of their actions, the ICC will not be able to prevent atrocities, though it can address them retrospectively. An alternative solution to enforcing arrest warrants is needed before the ICC can truly help end the culture of impunity surrounding mass atrocity issues.

To be quite candid, the two talks we've heard on the ICC seem to paint a rather negative picture. Born out of a great deal of coercion on the part of lawyers or NGOs, who used false pretenses to encourage many small nations to sign on, the ICC appears tainted from the start. It's abysmal conviction rate (one since its establishment in 2002), lack of enforceability, and outrageously lengthy criminal proceedings have done nothing to better the ICC's image. The issue of deterrence is yet another item on the list of the ICC's shortcomings. Many have already commented on the innate issues with deterrence when dealing with human rights violations (given the innate moral depravity of leaders willing to commit such atrocities, and the subsequent improbability that such leaders would think twice about the consequences of their actions). While I agree with this point, I think the issue with deterrence runs much deeper. Given the ICC's complete inability to enforce its indictments, a reality that is further complicated by the often-corrupt and inefficient local enforcement agencies, deterrence is simply impractical and impossible. If those indicted are never held accountable, there is nothing to deter others from committing similar crimes. Additionally, I see a problem with specificity. The remarkable breadth of the ICC's jurisdiction, as well as the ambiguous definitions for crimes such as "willful killing" and "outrages upon dignity," leaves the Rome Statute riddled confusion. This ambiguity also negates any possible deterrence effect, as those most likely to commit such crimes are likely quite unclear on what constitutes a crime and what doesn't (although the likelihood that such an internal/moral debate would ever take place in the first place is near nonexistent).

I think that Professor Fearon made many good and intriguing points during his lecture on the ICC and whether or not they were capable of deterring mass atrocities. I think the biggest problem he brought up, and the biggest problem that I have always seen with the ICC, is that they lack the needed enforcement to really do any deterrence. They can issue out warrants and talk about crimes committed by certain individuals, but they (as they are right now) will always have to rely on others to get things done. Without the ability to assert yourself with the use of force, you do not really intimidate anyone. Do I ever think the ICC will have this capability? No, most likely not. This means then, that the ICC really needs to change from how it exists today to something more effective or it just needs to be done away with. The deterrence of mass atrocities could be an attainable goal of the ICC if they had a way to enforce the laws they are trying to persecute violators with. Until then, they will continue to have low conviction rates, little relevance on the international scene, and little respect from states who think about violating international law and choose to do so because the ICC is unable to deter their actions.

The goal of deterring war crimes of all types not just "mass" atrocities is expressed to be the goal of the ICC as set out in the Statute. But this is only possible in a world in which all countries are equally subject to its jurisdiction and in which the prosecutor can and will act independently and go after who ever is responsible no matter how big or powerful. This is not possible at present when for example the USA which is responsible for war crimes of untold numbers and magnitude refuses to be subject to the ICC and even threatens to use force to release any of its people who might be arrested by the ICC. This outright intimidation passes with little comment. It is no use going after small African commanders for alleged crimes especially when they all appear to stand in the way of western interests while others who commit crimes (eg Kagame. Museveni et al) who are US allies are not touched. The policy of politically selective prosecution has brought the ICC into fatal disrepute and made it appear to be a tool of the USA. whether it is in fact or not. Selective prosecution means that certain war criminals are given immunity. So their crimes are encouraged (Kagame being the most famous Africa example where the ICTR (of whom Bensouda was a part of the prosecution team) gave him complete impunity from his crimes in Rwanda and thereby encouraged him in his belief that he can get away with more mass atrocities in Congo.

So, the ICC is fatally flawed from the beginning and until it is a requirement that all countries be subject to it and that the ICC have absolute jurisdiction (that is countries cannot evade it by claiming to deal with war criminals in their forces and governments themselves -an absurdity) then the goal is a complete impossibility.

I work in the deterrence field, grant it the topic is terrorism, and I am not a lawyer, but the principles are the same. First, does the ICC have any legal authorities over non state actors, who commits almost all mass atrocities within a state border? One must realize mass atrocities happen as a result of power politics to either change a state action or (as in Africa) tribe against tribe civil war. Deterrence is key to preventing conflict and enhancing security. More importantly, it requires influencing political and military choices, dissuading it from taking action by making leaders understand the cost of the action is too great, is of no use, or unnecessary. Deterrence is also about credibility, to either prevent an attack, or respond decisively to an attack to discourage further action. Deterrence factors are either economic, the big stick approach, or a the carrot and stick approach. I presented at the HAGUE: Global Society of Victimology on deterrence factors for human rights and transitional justice May 2012. One of the things I discussed was a unity of effort that:

  1. Prioritize Prevention—deterrence activities should always shape the operational environment and keep the day to day activities below the threshold of armed conflict. Need to tailor deterrence to fit the particular actors and situations in order to dissuade the adversaries. Therefore, one must look beyond quick solutions to address root causes of state fragility, strengthening indigenous capacities, especially those of women, to prevent and resolve conflict supporting the peacebuilding capabilities or regional organizations. Don't look for cookie cutter solutions, it will required an international and regional integrated diplomatic, political, economic, military, and legal approach that leverages their capabilities to deterrence conflicting parties.
  2. Reshape Perceptions and influence in order to reconcile—here one will need a strategic plan to engage with the leaders. Mass atrocities do not occur without the sanctions of its leaders.
  3. Synchronize strategic plans, leverage the resources and relationships of NGO, IGO, PVOs to apply local pressure to deter activity. When I was in Afghan this worked, have to change the minds of people against the protagonists leaders.

I submit, you must look at not only the victim and offender relationship but also the leadership component or the cycle of violence will continue. Second, I am completing my Doctorate of Global Leadership, my dissertation will investigate the leadership traits and competences of the ICC and transitional justice mechanisms, to deal with this specific issue. I believe the ICC may lack the credibility to deter an action because the mechanisms do not have the necessary teeth, leadership backbone, and political will to create an international strategic plan of deterrence factors. This is one reason I am wanting to shape my dissertation to address the leadership within the ICC. Surprisingly, I am finding very little --- like nothing that remotely addresses intercultural leadership competences for ICC judges or prosecutors. Therefore, I would propose developing a leadership framework that will assist assessing decision makers to appoint judges with the right temperament, diplomatic leadership, cultural leadership, and political leadership competences to render effective decisions. Presently, it seems that the only qualification for appointment is a law degree and the right tribal/political pedigree connections. How is that perceived that those qualifications make for an effective judge or prosecutor? Let me mind you --I am not a lawyer. Interested in your opinion. Andrew

While deterrence seems an unrealistic goal for the ICC at the moment, I do not think it is necessarily impossible or impractical in the future. As others have remarked, there has only been one conviction at the ICC in 10 years, meaning conviction for these crimes is an exception rather than common practice at the ICC at this point. For deterrence to work, potential perpetrators must know that punishment exists, believe there is a credible threat of being punished, and judge their actions to not be worth risking that punishment. The Rome Statute has been widely signed, so we can presume that at least state actors are aware that punishment exists for these mass atrocities (I am not sure of the extent to which non-state actors are aware). However, such a low conviction rate does not make punishment seem like a credible threat and as others stated, the political, ethnic, social and other motivating factors for these perpetrators likely outweigh their fear of punishment by the ICC. However, if the ICC can issue indictments and arrest perpetrators in timely and consistent manner, then deterrence may be possible as these arrests accumulate. I thus agree with one of the comments above, that the ICC should focus on issues that are slowing down or preventing the indictment and arrest process for now, which will help towards achieving the goal of deterrence.

After the principal that citizens of a country have certain human rights was established at the Nuremberg trials, several tribunals have been established dealing with prosecuting those who committed human rights violations in certain specific countries, but it was not until the ICC was established that prosecution of the violation of human rights could be considered to be an ongoing project to diminish the incidence of such violations on a global basis. Whatever the deterrent effect of the previous tribunals may have been, it is fairly clear that the founders of the ICC wanted to deter such conduct in the future. Though the preamble to the Rome Statute establishing the ICC does not contain the word “deterrence,” the statement “Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes” pretty clearly indicates that deterrence was considered to be one of the goals of the court. That said, the question of whether such a goal is attainable depends on how “attainment” is defined. Can the court by deterring such conduct eliminate human rights violations? Almost certainly not. But it may be an attainable goal to use “deterrence” to “contribute to the prevention of such crimes.”

Although domestic criminal law sanctions have not historically provided a high degree of deterrence, the international situation is considerably different. The type of crimes of atrocity that the ICC deals with are not isolated crimes committed by individuals for personal reasons, as in the domestic scenario, but rather a continuing pattern of violations of human rights most often committed by government officials or rebel groups.

I would submit that the majority of the type of human rights violations that the ICC is dealing with occur in attempts to either gain or maintain political power. Examples that have been discussed are Libya, Sudan, and Syria. Whether the human rights violations in these cases are being perpetrated by the established government, or by rebel groups fighting against the government or between themselves, it is clear that the ICC cannot simply go into these countries and arrest the persons responsible for these violations. That does not mean, however, that the actions of the ICC have no effect. Most of us would agree that a lawfully established government has a right, if not a responsibility, to use force to counter an insurrection against it. Many would also agree with the proposition that, if a lawfully established government is overly abusive to the citizens of that country, it loses legitimacy (as the U.S. claimed in the case of Libya) and a rebellion against it is justified. It is only when the conflict results in widespread human rights violations that the ICC would become involved.

Don’t think that the threat of involvement by the ICC has no effect, it does have an effect, whether it is a government or a rebel group that is being investigated. A number of states have called for the ICC to investigate the human rights crisis in Syria, and the Syrian response to that indicates that they are clearly concerned about ICC involvement. No government leader wants to lose legitimacy in the eyes of other nations and end up like Saddam Hussein or Muammar Gaddafi. As for rebel groups, David Scheffer in his book “All the Missing Souls” quotes Patrick Makasi, a former leader of the LRA in Uganda: “In the bush, ICC is always the main discussion.”

In order to provide real deterrence, though, the ICC needs to be visible and to provide a real threat to those who commit these crimes of atrocity. It needs to develop a record of successful prosecutions and sentences to establish that governments and other groups cannot commit such crimes with impunity. It needs to prove that those who commit such crimes will be brought before the court to be tried, and if convicted, sentenced to meaningful terms in prison, and not be able to avoid prosecution simply by agreeing not to commit any more crimes of atrocity. Although this may be attainable in cases involving Party states to the Rome Statute, it is a considerable problem with non-Party states because of the necessity of a U.N. Security Council referral before the Prosecutor can investigate such crimes in a non-Party state. As we have seen in the cases of Sudan and Libya, however, this is not unsurmountable. There are indications that a referral may be possible in the case of Syria, as well.

Perpetrators of crimes of atrocity need to know that the eyes of the world are on them, and the world will not countenance such behavior. While it may not stop them from committing crimes of atrocity, it will certainly make them think twice. This may be as much deterrence as we can expect from the Court.

Prosecutor Shamila Batohi brought up a range of fantastic questions, including the following ideas, which deserve further discussion. Does the ICC really prevent future conflict instead of responding to post conflict? Prosecutor Batohi argues that given the ICC's status as a permanent institution of international justice, it does require that states cooperate to bring justice for crimes committed. However, if the states don't cooperate or do not have the resources to cooperate, that is when the ICC gets involved, creating a situation in which states will deter crimes in order to prevent the an encroachment of sovereignty by an international institution, such as the ICC. Covering 121 states parties and 2.3 billion people, the iCC does have a lot of jurisdictional and may serve to as a determent to criminal acts by many countries because of the threat of ICC involvement.

However, Prosecutor Batohi made a good point that the degree of state involvement depends on how high up the people being persecuted go. If dealing with higher echelons of power and criminal actions, the states are much more reluctant to get involved, forcing the ICC to become involved. However, a state of noncooperation could be highly detrimental to the ICC's effectiveness, once again complicating the idea of ICC's deterrent effects. Does the threat of the ICC really create accountability when higher echelons of power are to be prosecuted? In reality, the ICC's power is lessened once powerful interests create a threat to its effectiveness.

The solution, then may be to have states internalize the principles of international justice. However, when states have such powerful economic and profit-based interests, can the issue of justice come to the forefront? Unity of thought and action may be hard to achieve, as Prosecutor Batohi suggested, but I wonder if there might be a way to calibrate the interests so that they also serve the cause of international justice?

Deterrence or Peace? I’d argue that with an overarching intent to promote peace, the ICC would inherently consider the deterrence of mass atrocities as under their jurisdiction as well. Within the lens and scope of the ICC, I believe deterrence would happen through verbal conviction and threat, rather than physical persuasion or perhaps monetary incitement. Whether or not the Court is truly able to deter mass atrocities is an entirely different question. My stance on the matter founds its basis on the reality that the ICC has been severely unable to fully bring to court and prosecute many of the individuals which it has convicted. Its history is not one of successfully bringing to justice many of those who commit crimes against humanities. This said, I imagine the threats of the ICC hold little validity, which leads me to assume that an attempt to deter mass atrocities through a system of threatening corrupt national leaders would sadly fall flat. I wonder then if there are any other ways in which the ICC could positively affect the deterrence of mass atrocities, though with no military or monetary jurisdiction, I am unable to brainstorm any other effective methods. I’d argue that if the ICC was able to, say within the next 5-10 years, bolster the credibility of its courts and prosecution, then perhaps they would be able to play a much more powerful role in the deterrence of mass atrocities.

Does the ICC have deterrence effects? Two aspects of the issue are important to note to answer this question. First, what is needed for the legal institution to have the deterrence effects? Legal institutions around the world bear deterrence on potential criminals not because their often elegant buildings stand on the ground as symbols of justice for all. Thousands of criminal provisions are only pieces of paper, when the “punishments” are not put into effect. Unfortunately, yes again, it is back to the ICC’s arrest (and persecution) issue. The records of 1 acquisition and 1 acquittal question the very existence of ICC, and of course, the supposed deterrence effects of ICC follow as controversial issue. Needless to say, ICC must persecute more criminals in the next decade; otherwise, the deterrence effects will be very much minimal. The second aspect of the deterrence issue is follow-up of what “flatpax” wrote in his comments. Considering the nature of criminals who committed heinous crimes – genocide and crimes against humanity in particular –, I also question ICC’s deterrence effects on these individuals. According to one research in psychology, depending on the cruelty of crimes, the perception of rules by criminals varies (the perception of pain also varies). Of course, it is important to note that these criminals of genocides usually participate in atrocities indirectly, which is different from what the individual serial killers perceive. Nonetheless, they are similar in their disregard of humane morality, and therefore, the deterrence effects of ICC on the potential criminals may be rather limited.

Years from now, deterrence may be an attainable goal for the ICC, but as of current, the ICC lacks the authority to be an effective source of deterrence. Looking at the data over the past decade, the ICC has made one, only one, conviction, and eleven outstanding arrest warrants. The ICC has no authority or power to bring those charged to the Hague to be tried. Additionally, all of those investigated by the ICC deserve to be imprisoned for their actions, however, in four cases (nearly 20% of cases) the charges were dismissed. Someone with the power to commit mass atrocities will be little concerned with an agency which, in ten years, has only made one conviction. The likelihood that that an arrest warrant will be issued for them, let alone served or them being brought to the Hague, is so infinitesmal that it would not be a deterring factor for the vast majority of these criminals. However, if the ICC were to have a method to enter a country and carry out their arrest warrants it may gain credibility as a force to be reckoned with and may be able to become a deterring factor.

I do not believe that deterrence of mass atrocities is an attainable goal for the ICC, but I do not think that this in any way diminishes its importance in modern-day society. Mass atrocities like the ones prosecuted by the ICC happen for myriad different reasons, and are typically based on deeply ingrained preexisting tensions and conflicts which the fear of legal retributions cannot possibly "cancel out". Incentive-wise, the idea of the ICC as a force to diffuse conflict, as analyzed by Dr. Fearon, only really makes sense in a framework wherein agents are rational, which is often very far from the truth in these types of conflicts. However, it is the case that victims of such atrocities deserve the dignity and recognition from the international community that the ICC provides. The recovery period after an atrocity can often be extremely long and grueling for victims and their communities. I believe that the ICC can be most effective in a role where they increase international awareness of criminal acts and expedite these recovery periods.