II. Deterrence as a Measuring Stick

Deterrence, as described above, is extremely difficult to measure. Especially with so little information to work with, finding empirical data with which to measure the effects of some form of transitional justice mechanism is difficult.6 It is also difficult to compare these types of mechanisms across countries, since they are often affected by different factors that are different from situation to situation.7 Beyond all of this, there is significant difficulties in measuring the exact impact that a justice mechanism, like the ICC, actually had on deterrence.8 For example, although there may be a period of peace and a lack of war crimes after an ICC indictment, that may have been caused by a political bargain or a military standoff and cannot be directly attributed to the acts of the ICC.9 It is also difficult to attribute a change directly to the ICC when, realistically, the stop of war crimes may come simply because there was a general uprising in peace and democracy in the country after a war has ended.10 Beyond that, general deterrence is difficult to measure, as it is difficult to know what leaders were thinking of committing atrocities before stopping after seeing other leaders punished.

That is not to say that justice mechanisms like the ICC cannot be linked directly to improvements in deterrence. However, much of what can be written about improvements in a state’s peace in a post-conflict situation is merely anecdotal or, as discussed above, difficult to believe with a flurry of other possible factors going towards the establishment of peace. For example, a qualitative study has been done on the ICTY’s effect on the former Yugoslavia.11 However, a study like this shows it weakness in its lack of quantitative data. Even statistical analysis can be difficult, and has shortcomings when attempting to show causation.12

When discussing this issue, however, it is important to recognize the shortcomings that occur when attempting to link deterrence and efficiency. This is important for two reason. First, it is important to recognize that any improvement the ICC makes could be attributed to other factors. Second, it is important to recognize that the shortcomings I discuss below could very realistically be the result of a small sample size and a short time period of results.

III. What is Deterrence?

In this comment, I will attempt to distinguish between numerous types of deterrence, discuss the ICC’s history in attempting to deter crimes, and compare those efforts to other international justice mechanisms’ abilities, thus far, in deterring crime. Within the discussion of each type of deterrence, I will also make arguments as to whether or not the ICC should legitimately focus on improving deterrence through increasing that type of deterrence.

A. Types of Deterrence

Deterrence takes numerous forms and, when discussing deterrence, it is important to distinguish between them when deciding what path to take in improving it.

Deterrence can first be divided into specific deterrence and general deterrence based on who it is meant to deter. Specific deterrence applies only to a singular individual, and is meant to stop the individual from committing a crime again after having already been punished.13 General deterrence, on the other hand, focuses on deterring the general population from committing the crime because of the punishment that it carries or because there is a general sense of normative value to not committing that crime.14 For example, a drunk driving law and subsequent prosecution may specifically deter an individual from drunk driving knowing that he or she has already been punished and the pain was not worth the pleasure. The same law would also generally deter individuals from drunk driving, not only because of the possible punishment, but because the law has established a general norm of not drunk driving.

It seems as though, in an international sense, improving general deterrence is significantly more important than improving specific deterrence. Many of the crimes committed and under ICC jurisdiction are difficult for anyone but someone in power to commit. This is only confirmed by many of the ICC indictments up to this point in time being leaders or generals. Once punished, it seems unlikely that the leader will ever be put into a position of power again and, therefore, there is less of a need for specific deterrence. However, increasing specific deterrence may be helpful for the ICC in situations in which it cannot physically convict a leader it has indicted because their home state gives them immunity. It may not be deterrence through threat of immediate punishment, but if a leader is fearful that they could be indicted in the future, they may stop committing the atrocities that they are currently committing.

General deterrence seems much more necessary, although the general population does not really need to be deterred from committing genocide or other war crimes. Instead, the focus should be on pushing general deterrence towards other leaders who are in a position to commit atrocities. Being able to punish leaders who are indicted for significant crimes can show leaders of other states that they are not immune to international law, despite any form of immunity that they may claim.

Another form of deterrence is compellence, or the ability to stop someone who is already committing a crime from continuing to commit that crime.15 Compellence has been less studied in the sphere of international law, but still presents a way for the court to improve its deterrence. This should be, in theory, the easiest form of deterrence to improve since, if the ICC was to finally enforce its indictments and prosecute leaders, it can be assumed that those crimes would stop being committed. Compellence and deterrence are really two sides of the same coin,16 and in many cases in which deterrence is examined, compellence can also be found.17 For example, if a the ICC was to use indict State B’s leader to stop State B from invading State A, that could be considered a case of enforcement working from both a compellence and deterrence perspective.18 This doesn’t necessarily mean that improving one will automatically improve the other, however, as there can be cases in which compellence occurs, but deterrence does not, and vice versa.19

These forms of deterrence also begin to take a look at two causes of deterrence. First, one school of thought states that deterrence occurs because of the associated punishment. In other words, a person who does not murder does so because he or she is afraid of the eventual punishment. A second school of thought instead contributes deterrence to normative values. According to this school of thought, a person who does not murder does so because he or she understands that murder, on its face, is a socially and ethically bad act, not because he or she is afraid of possible punishments. When expanded to the ICC and other international justice systems, punishment deterrence can be drawn to the prosecutor finding atrocities, indicting those who are responsible and, hopefully, punishing them.

It is easy to argue both sides of this issue, and it is difficult to really understand which one of these two schools of thought pushes deterrence. One could easily survey a group of one hundred and get answers from both groups. Yet, one has to consider if the theory of normative deterrence can truly extend itself to leaders on an international scale. Crimes that fall under the jurisdiction of the ICC, like genocide, are readily considered to be mass atrocities of human rights, and have been considered to be flagrant violations of international law far before any form of treaty codified them as unlawful. Yet leaders still commit these forms of atrocities, and there seems to be a lack of leaders readily deciding not to commit these atrocities because of international norms. Some of the leaders seem to actually believe that they are justified in their actions for some religious or territorial reason. If any theory of deterrence was to truly push international leaders towards not committing a crime, it would have to be the punishment theory. In order for the ICC to truly increase deterrence of these crimes, they must first prove to the international community that they have the ability to lay down harsh sentences on leaders who they indict.

B. Do Systems of International Justice have Deterrence Effects?

Before we can consider methods that can be implemented in an attempt to improve the ICC’s deterrence, we must look back on the history of deterrence at the ICC, as well as other international justice systems. Despite there being a lack of extrinsic evidence that can directly and causally link these systems and deterrence, we can look at past cases of international intervention to see what sort of effect intervention has in the first place.

For example, the ICTY’s work in Yugoslavia has been the subject of debate over the effectiveness of its prosecutorial power. Critics of the power of the ICTY’s deterrence point to the fact that, despite threats of prosecution, atrocities continued to occur.20 Even after actual prosecution, those same atrocities continued to occur.21 Proponents of the power of prosecutorial deterrence will instead point to the fact that there is at least some evidence that there was an increase in individual actors in Yugoslavia following human rights and humanitarian law.22 Despite a lack of extrinsic evidence, proponents will also argue that these types of international prosecutions, although not deterring anything in Yugoslavia, will deter other leaders from doing these same acts.23 Finally, these proponents will also argue that these ICTY prosecutions created an international norm against these crimes and, therefore, increased normative deterrence.24 Because of the lack of data and the issues discussed above, however, it is difficult to determine whether or not the ICTY’s efforts in Yugoslavia actually led to any deterrence.

The ICC has also used its prosecutorial powers to indict numerous groups for their war crimes. One group that the ICC has attacked are rebel groups and, in 2005, the ICC issued warrants for leaders of the Lord’s Resistance Army (LRA), a Ugandan rebel group.25 Because they have not operated in Uganda in recent years, they are a non-typical rebel group in that they seem to have no goal for overtaking a current government.26 Because they do not have similar goals to other rebel groups, it is difficult to discern how effective indictment of their leader will deter other rebel groups from committing similar mass atrocities.27 It is also difficult to discern deterrence effects because the LRA has been effective in avoiding prosecution after peace talks with the Ugandan government.28

Another example of ICC indictment can be seen in Darfur, when the ICC sent warrants for government officials and Sudanese leadership, including president Omar al-Bashir.29 Here, government officials and the leadership attacked civilians in order to curtail an insurgency campaign from ethnic separatists.30 In this situation, the perceived benefits to the government are high, because the negative punishment—prosecution—is outweighed by the benefits of actually committing these crimes: staying in power for longer periods of time.31 A situation like this may have less possibility for effective prosecutorial deterrence, since leaders in similar positions will have a similar desire to stay in power, and a threat of indictment may not scare them away from doing so.32 A similar line of reasoning is found in the ICC’s indictment of Laurent Gbagbo, President of Côte d’Ivoire.33

The ICC struggles with deterrence in these situations because most of the people indicted are rational actors in the sense that they act with their own best interests in mind. In the Sudanese example above, a leader in a similar position to al-Bashir may not care about the threat of indictment when the benefit of committing these war crimes is to retain power. For rebel groups, it may be the case that the positives of possibly overthrowing the incumbent government far outweighs threats made to them by the ICC or other international justice systems. Especially with the constraints around the ICC’s punishment and ability to prosecute—be it the limited strength of the convictions34 or difficulty in actually pursuing the prosecutions—the ICC has struggled to attach enough of a negative “bite” to their prosecutions to truly impose a deterrent effect on leaders. In the next section, I will go over some approaches the ICC could take in order to make it more difficult for a rational actor to ignore its power and, in turn, deter future atrocities from occurring.

IV. How can the ICC Truly Improve Deterrence?

Many of the ICC’s issues in actually deterring crimes can be directly attributed to its lack of prosecutorial power, or its lack of “bite” as it is referred to. Many of the proposed improvements to the ICC and its deterrence efforts, therefore, come from an improvement to its enforcement.

One way that the ICC could improve its deterrence is by increasing the negative that comes with the indictments. The ICC has not set down very harsh convictions for the people who are indicted and prosecuted of crimes under their jurisdiction. For example, before his sentence was overturned on appeal, Jean-Pierre Bemba was convicted of two counts of crimes against humanity and three counts of war crimes resulting in a sentence of eighteen years of imprisonment. For a leader who has to decide whether the risk of imprisonment is worth committing war crimes to continue to hold power, a relatively light sentence, especially in comparison to the crimes committed, will not make him seriously think twice. The ICC could do a better job of handing down harsher sentences, making the negative part of the equation stronger. Leaders would legitimately have to think if it is worth committing these types of crimes if the punishment was a life sentence. The extreme of this would be implementing the death penalty, although that seems like it would be really unreasonable since many states would object to the possibility of their leaders being killed, and many states have made clear that the death penalty should not be accepted in the international human rights sphere.

This would be an easier mechanism to implement because much of the power of these convictions is held in the ICC. The prosecutor and its office could simply create stronger convictions under the already lax sentencing guidelines that are set out in the Rome Statute.35 Although there is a limit of thirty years, there is a provision legalizing the use of a life sentence if the crime is grave enough.36 Being an open-ended guideline, this means that the ICC could hand down life sentences for leaders who commit these types of atrocities, thereby increasing the deterrence effect.

The other basic issue facing the ICC is that many of its indictments do not actually lead to these people being prosecuted. As seen in the above example of the Ugandan rebels, some of the people who are indicted can simply go into hiding. Other examples have been seen of leaders who will not be turned over by their home state, granting them fugitive status, like al-Bashir, discussed above. The ICC’s deterrence effectiveness is substantially reduced by the mere fact that, much of the time, it has no legitimate way of ensuring that its indictments actually go through. Leaders of other states may see that there is a legitimate punishment that the ICC can hand down, but not feel compelled to be deterred because they know that there is no way for the ICC to reach them. One way of possibly improving this would be to reach out to states in an attempt to make them send their leaders to the ICC. Although theoretically plausible and easily the most peaceful method, this is hard to imagine actually working when put to the test. It is difficult to find many states who would be willing to hand over their leaders if the ICC asked, especially since many of those leaders are in control at the time of indictment. Of course, another level of difficulty is presented if the indictment is put on a rebel group, who can be hard to track down and even harder to actually capture, especially if, like the Ugandan rebels, they move out of the jurisdiction of the state.

In my opinion, the most effective way of improving deterrence would be to get the assistance of outside forces, be it the United Nations, NATO, or powerful states that are third parties to the conflict. This would help the ICC’s deterrence efforts twofold. First, they would gain the assistance of legitimate international actors, increasing the deterrence effect because leaders or rebel groups may actually fear a threat from an established international body like the UN. Second, many of these organizations actually have “teeth” and the ability to enforce in ways that are much more threatening than just an indictment with possible jail time. Many of these bodies also have the legitimate means of entering these states and stopping conflicts, meaning that leaders will have to understand that, unlike the ICC which really has no way of physically entering the state, the United Nations could easily send Peacekeepers into the state to stop the conflict and arrest the leader.

The United Nations is one international body that the ICC could look to for assistance. The United Nations, through UN Security Council Resolutions, has the ability either send peacekeepers into a state for humanitarian intervention, or authorize other states to enter into the state on similar grounds. The United Nations also has the ability to establish its own international justice tribunals, and has done so on two occasions, establishing the ICTY and the ICTR in the face of humanitarian crises occurring in both the former Yugoslavia and Rwanda, respectively. The United Nations has shown that it is willing to authorize the use of force to prevent humanitarian crises as well, as seen by their adoption of UNSC Resolution 1973, authorizing NATO forces to enter Libya in an attempt to stop the Qadhafi regime.37

The United Nation’s past actions have shown that there could be some successes if attempting to take this path. The United Nation/NATO intervention in Libya is regarded by some as a success and by some as a failure. The civil war in Libya was ended after Qadhafi’s regime fell. There is an argument to be made that, if not for the intervention, mass atrocities would have been continued to have been committed against innocent Libyan civilians.38 However, in the aftermath of the intervention, Libya has been thrown into chaos, with no established government truly taking hold. There is a current civil war occurring in Libya, and many critics of the UN intervention point towards the intervention as the starting point for said civil war.39

Although it is difficult to discern whether or not the UN intervention truly did bring these negative effects to Libya, it is easy to see that it did accomplish some deterrent effects. First, compellence, at least on the level of the current regime stopping mass atrocities against citizens, was accomplished through the use of force. There is a legitimate argument to be made that the UN intervention has created a significant deterrent effect on other leaders in similar situations. Qadhafi was similar to other leaders in that he committed these mass atrocities in an attempt to quiet his insubordinates and maintain power over a state that was beginning to show signs of pushing back against him. However, other leaders may now see that the negative of the equation could be not just losing power, but death. This is much more likely than indictments and a possible prison sentence to deter other leaders from acting in the same way.

Of course, there are significant obstacles that stand in the way of the ICC and the UN truly working together in these situations. First, the ICC would need to actually convince the UN to work with them in the situations where they are struggling to indict individuals. The UN would really only want to use force in situations of humanitarian intervention. The ICC, of course, only has jurisdiction over situations where there is probably need for some sort of humanitarian intervention. The second roadblock is the Security Council itself, since the use of force, or authorization of use of force, would need to come from a Security Council Resolution. With five powerful permanent member states each having a veto, there is a legitimate chance that one state could prevent the United Nations from intervening, as is the current situation with Russia and Syria.40 However, if the UN would agree, it would be internationally legitimate under the umbrella of humanitarian intervention. Although there are roadblocks to this implementation, history has shown that the UN has the ability to assist the ICC in not only increasing compellence through the use of force, but also possibly increasing deterrence.

The ICC could also go to other international organizations with power, like NATO, in an attempt to gain assistance in deterrence. NATO’s forces are only meant to be called upon when one of the member states has been attacked,41 which is justified through the use of collective self-defense, one of the justifications for the use of force. As discussed above, however, NATO has supplied forces for use in situations of humanitarian intervention when authorized under a UN Security Council Resolution. However, NATO also used military force in preventing atrocities against civilians without Security Council authorization as well, when they bombed Kosovo in an attempt to bring a stop to many different crimes against humanity being committed by Yugoslavia against the people who lived there.42

As with the UN uses of force, there is legitimate debate over whether or not this actually helped the situation in Kosovo. The conflict ended, and Yugoslavia removed itself from Kosovo, so compellence was achieved. However, the Yugoslavian leader did not find himself in a worse position because of NATO’s use of force, as he survived the war and continued to rule. However, he was eventually overthrown after being indicted by the ICC. There may not have been much of a deterrent effect in this situation, because the leader was not put under any pressure from NATO. However, leaders may see that committing these atrocities could lead to intervention from NATO and, eventually, possible removal from power, increasing the deterrent effect.

Again, there are issues surrounding the ICC and NATO working together in these situations. As with the UN, NATO would have to agree to actually assist the ICC in these situations. This may be slightly more difficult since, unlike the UN, the troops themselves do not belong to any singular body, but are instead troops and weaponry that have been supplied by other states. The United States may be less likely to send some of their troops far distances under NATO command just to assist the ICC in stopping a humanitarian crisis and capturing a leader. On top of that, there is no legitimate law that gives NATO the ability to intervene in other states without the authorization from the UN Security Council. NATO’s bombing of Kosovo, done without legitimate authorization, was justified under international law’s general rules around the responsibility to prevent humanitarian crises. However, it was heavily criticized by numerous players in the international sphere, especially the UN. If NATO suddenly used this power more and more, there may be a general backlash against NATO and, even more so, the ICC if they are the ones requesting assistance.

Finally, the ICC can look for more powerful states to assist them in these situations. States could send their own troops to states in which the ICC is struggling to prevent a humanitarian crisis or struggling to capture an indicted leader. States are subject to the same rules of law as other international bodies, however, and cannot just send their troops to sovereign states for no reason. However, the UN has recently shown its support for an idea called “Responsibility to Protect” (R2P). Under this idea, states have the responsibility to protect people from violence and persecution, even in other states’ territories, but only if that state cannot prevent those atrocities itself.43 Under this general guideline, a state like the United States could send troops to another sovereign state for humanitarian reasons. One could easily see how this type of intervention would increase compellence and deterrence, since military force could be used to stop a conflict from occurring, and other leaders may want to avoid having a powerful western state enter their territory.

Again, the big issue with the ICC pursuing this path would be how much states actually would want to participate. Most states have no ability to actually send their troops far away just for humanitarian purposes. Those that do have that ability are scared to do so, with the thought that entering a sovereign state’s territory could lead to conflict within that foreign sphere. Even if they do want to help a state, R2P is not a rule of international law, but rather just a UN-supported idea. It has yet to truly be used and, if a state were to use military force in another state under the justification of R2P, there could be legitimate backlash in the international community.

V. Conclusion

Deterrence, although difficult to measure, is a legitimate means of defining the successes of the ICC. The ICC, to this date, has not proven that its powers, which are essentially limited to indictments and minor sentences for punishment, actually do a legitimate job of deterring actors from committing atrocities. This is because the negative consequences of the act do not even slightly outweigh the positives, which, as discussed above, can range from maintaining power to overthrowing a government. In order for the ICC to truly increase its powers of deterrence, it needs to increase the negative consequences behind these actions.

Although I discussed that the ICC could just increase the strictness of their punishments, I also argued that it would be easier to find other ways to increase the negative consequences. Involving other international bodies—be it the United Nations, NATO, or other powerful states—would address this twofold. First, it would increase the negative consequences by increasing the “bite” behind them, as military intervention from powerful organizations and any of the possible consequences that could extend from that is a much worse “negative” than jail time. Second, this assistance could easily help the ICC improve on their other deterrence issue, which is their inability to actually bring many of the people they indict in for trial. There are ways, be it in UN Security Council Resolutions or general principles around humanitarian intervention, to get these players involved, and although there may be roadblocks to doing so, the ICC should make a concerted effort to bring in these players to increase the ICC’s deterrence.

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, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online. ↩

2. 2.

   Id. ↩

3. 3.

   Id. ↩

4. 4.

   Oskar N.T. Thoms, James Ron & Roland Paris, The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners, Centre for Int’l Pol’y Stud. Working Paper (Apr. 2008), available online. ↩

5. 5.

   Kate Cronin-Furman, Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocities, 7 IJTJ 434 (Nov. 1, 2013), paywall, doi. ↩

6. 6.

   Thoms et al., supra note 4. ↩

7. 7.

   Id. ↩

8. 8.

   Cronin-Furman, supra note 5. ↩

9. 9.

   Id. ↩

10. 10.

    Id. ↩

11. 11.

    Thoms et al., supra note 4. ↩

12. 12.

    Id. ↩

13. 13.

    Paul Huth & Bruce Russett, Testing Deterrence Theory: Rigor Makes a Difference, 42 World Pol. 466 (Jul. 1990), paywall, doi. ↩

14. 14.

    Id. ↩

15. 15.

    David Mendeloff, Punish or Persuade? The Compellence Logic of International Criminal Court Intervention in Cases of Ongoing Civilian Violence, Int’l Stud. Rev. (Dec. 02, 2017), paywall, doi. ↩

16. 16.

    Vesna Danilovic, When the Stakes are High: Deterrence and Conflict Among Major Powers 48 (2002), available online, doi at https:/doi.org/10.3998/mpub.16953. ↩

17. 17.

    Id. ↩

18. 18.

    Id. ↩

19. 19.

    (For example, if the ICC was to indict State B’s leader for invading State A in a way that goes against the Rome Statute, but State B doesn’t stop its invasion, it would be considered a case in which there was no compellence. However, there could still be a general deterrence effect if other leaders, seeing the indictment, decided not to act in a similar manner). ↩

20. 20.

    David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473 (1999), available online. ↩

21. 21.

    Id. ↩

22. 22.

    Id. ↩

23. 23.

    Id. ↩

24. 24.

    Id. ↩

25. 25.

    Cronin-Furman, supra note 4. ↩

26. 26.

    Id. ↩

27. 27.

    Id. ↩

28. 28.

    Id. ↩

29. 29.

    Id. ↩

30. 30.

    Id. ↩

31. 31.

    Id. ↩

32. 32.

    Id. ↩

33. 33.

    Id. ↩

34. 34.

    Rome Statute, Art. 77. ↩

35. 35.

    Id. ↩

36. 36.

    Id. ↩

37. 37.

    Security Council Resolution 1973, UN Doc. S/RES/1973 (Mar. 17, 2011), available online, archived. ↩

38. 38.

    Shadi Hamid, Everyone Says the Libya Intervention was a Failure. They’re Wrong, Brookings Markaz (Apr. 12, 2016), available online. ↩

39. 39.

    Id. ↩

40. 40.

    Julien Borger & Bastien Inzaurralde, Russian Vetoes are Putting UN Security Council’s Legitimacy at Risk, Says US, The Guardian, Sep. 23, 2015, available online. ↩

41. 41.

    The North Atlantic Treaty, art. 5, Apr. 4, 1949, 34 U.N.T.S. 243, available online. ↩

42. 42.

    Adam Roberts, NATO’s “Humanitarian War” over Kosovo, 41 Survival 102 (1999), available online. ↩

43. 43.

    Responsibility to Protect, United Nations Office on Genocide Prevention and the Responsibility to Protect, available online (last visited Jun. 19, 2018). ↩