I. The Prosecutor Should Prioritize Deterrence in Case Selection Because It Supports the Goals of the ICC and Evidence Has Shown Case Selection Does Provide a Deterrent Effect

The Prosecutor enjoys immense discretion in deciding upon the strategies and policies for case selection, investigation, and prosecution. In considering cases for investigation and prosecution, the Prosecutor should prioritize the selection of cases that promote the deterrent effect of the ICC. It is clear that deterrence is an overarching goal for the ICC. Deterrence is specifically identified in the Rome Statute.7 In addition, ICC President Chile Eboe-Osuji outlined the importance of deterrence when he said:

Globally speaking, the ICC has loosened the grip of tyranny in our time. Oppressors can no longer be sure that they would enjoy complete and utter freedom from accountability for their cruelty. Victims now have a place that they can look to in hope of justice. And the oppressors will always have to worry about what the ICC might do, sooner or later.8

The deterrent effect of the ICC is also important for its legitimacy in the international community.

The increased prominence of the deterrence argument reflects a shift […] away from more duties and obligations to the positive consequences that these tribunals can bring about.9

It appears the international community has an expectation of a deterrent effect from the ICC. As such, this should be of concern to the Prosecutor when selecting cases for investigation and prosecution.

In addition, evidence shows that case selection of the Prosecutor does have a deterrent effect on perpetrators. A 2016 study conducted by Hyeran Jo, Mitchell Radke, and Beth Simmons10 found that:

The ICC and the norms it embodies are highly salient institutions that have caught the attention of would-be perpetrators, and influence them to reassess their prospects for apprehension and punishment.11

For example, in Uganda, investigation into rebels groups, such as the Lord’s Resistance Army:

Appears to have contributed to fissures within the rebel leadership (at least some of whom were prompted to jump ship) and to have encouraged defection of rank-and-file soldiers.12

It appears that it was not the fact that the ICC existed or was involved in the situation, but rather the choice of the Prosecutor in case selection and investigation that had the most deterrent effect on these groups.

Surprisingly, however, we found that rebel groups seem to be strongly deterred when investigations begin. Our evidence suggests that rebels are not impressed with international law and organizations that exist only on paper. But when the ICC signals a determination to prosecute, it’s another matter.13

Given this evidence that case selection has a deterrent effect on perpetrators, the Prosecutor should prioritize selecting cases and situations that further this effect. This cannot be accomplished if the Prosecutor utilizes too narrow a definition of gravity or a narrow aperture in case selection and investigation.

II. The Definition of Gravity in The Policy Does Not Support the ICC’s Goal of Deterrence

If the goal of the Prosecutor in selecting cases and situations for further investigation and prosecution is deterrence, then the definition of gravity in The Policy does not support this goal. Gravity is at the heart of the Prosecutor’s discretion in case selection. The Prosecutor is “required to consider the gravity of actual or potential cases in deciding whether to act in particular situations and cases.”14 The Policy defines gravity as “the most serious crimes within a given situation that are of concern to the international community as a whole.”15 However, this definition of gravity “is uncertain in the way that most efforts to expound gravity are uncertain,”16 as it is unclear as to what constitutes “the most serious crimes” and what crimes are “of concern to this international community.” As the international community has provided “virtually no guidance about what goals [the ICC] should seek to achieve through the cases it selects, beyond the vague mandate to strive to end impunity”17 for crimes deemed most serious, it is unclear what crimes are of “concern to the international community as a whole.” The Rome Statute itself provides no guidance, as it intentionally left the “concept of gravity ambiguous, allowing states with divergent visions of the Court’s role to believe, or at least hope, that their vision will prevail.”18 This also suggests that there may not, in fact, be a consensus as to what crimes are “of concern to this international community.” This lack of a clear definition or definitional guidelines is problematic as:

It could undermine the legitimacy of the court, especially if there seems to be a driving logic or bias (intentional on behalf of the office of the prosecutor or not) behind the investigations opened as opposed to those which are not.19

Without some type of clarity or consensus, the definition of gravity contained within The Policy is essentially meaningless.

As the definition is ambiguous, one can only look to the plain meaning of the phrase. Under this reading, it appears that the definition of gravity would encourage the Prosecutor to focus only on the most serious acts and the most serious perpetrators in a given situation, to the detriment of other less serious crimes that may be admissible to the ICC’s jurisdiction. If the plain reading is truly the intent of the OTP’s definition, then it narrows the scope of the Prosecutor’s discretion in a way that will lead to the failure to prosecute cases, which in turn could affect the ICC’s deterrent effect on the international community. If the Prosecutor declines to prosecute cases other than those of the most responsible perpetrators, “proceeding under such circumstances may undermine the ICC’s goals, in particular the principal goal of crime prevention.”20 As evidence from Uganda reveals, the Prosecutor’s decision to prosecute in a given situation has a deterrent effect not only on the most responsible perpetrators, but also on those who may have committed lesser crimes or who may be considering future crimes. A narrow definition of gravity that removes these cases from the Prosecutor’s selection criteria will necessarily affect the ICC’s overall goal of deterrence. This, in turn, could diminish the legitimacy of the ICC in the international community. The Appeals Chamber, in the situation in Democratic Republic of Congo, also questioned the logic of focusing only on the most responsible perpetrators to the detriment of focusing on other perpetrators.

It may indeed have a deterrent effect if high-ranking leaders who are suspected of being responsible for having committed crimes within the jurisdiction of the Court are brought before the International Criminal Court. But that the deterrent effect is highest if all other categories of perpetrators cannot be brought before the Court is difficult to understand. It seems more logical to assume that the deterrent effect of the Court is highest if no categories of perpetrators is per se excluded from potentially being brought before the Court.21

Given this, the OTP’s current definition of gravity is too narrow to promote the ICC’s goal of deterrence.

While the other two criteria for consideration in The Policy provide some clarification to the Prosecutor in case selection, they are also part of determining gravity, which further adds to the ambiguity of the definition of gravity adopted by The Policy.

While gravity is an elusive concept, as already discussed, commentators generally agree that the gravity of a case, or cases within a situation, requires some kind of evaluation of the harms inflicted and the culpability of perpetrators—a task that is both quantitative and qualitative. The notion of harm thus includes consideration of such factors as the number of victims affected, the nature of the crimes, the way they were committed and their impact beyond the immediate victims. Culpability relates to the mental state of the defendant, including his or her role in the crimes.22

The “degree of responsibility of the perpetrators” and the “charges themselves” are essentially evaluating the culpability of the perpetrators and the harms inflicted. As these are part of a gravity analysis, they point to the importance of a clear definition of gravity. The definition of gravity adopted by the OTP should not limit the ability of the Prosecutor to select cases that may not be the most serious, but provide a deterrent effect in a particular situation. As the definition stands, it would force the Prosecutor to adopt a narrow aperture. Such a narrow aperture would significantly diminish the ICC’s ability to deter future perpetrators as their potential risk of prosecution is significantly lowered. The OTP should adopt a broad, unambiguous definition of gravity that allows the Prosecutor to exercise discretion in case selection that maximizes the deterrent effect of the ICC for all perpetrators, not only those that are most responsible for crimes committed in a given situation.

III. A Narrow Aperture Will Diminish the Deterrent Effect of the ICC

The utilization of a narrow aperture by the Prosecutor in deciding which cases to investigate and prosecute would lead to a failure to prosecute many crimes within the jurisdiction of the ICC. This would diminish the deterrent effect of the ICC.

A narrow approach to the Court’s mandate would limit the institution’s ability to achieve the important goals to which it aspires, in particular, the prevention of serious crimes.23

The Prosecutor should utilize a wide aperture to ensure that the most perpetrators are deterred.

Accountability for perpetrators is the bedrock of deterrence in international criminal law. “General deterrence is only possible if the Court’s existence and actions raise the perceived likelihood that an individual will be tried and punished.”24 Without the risk of prosecution and punishment, perpetrators will act with impunity.

Practical experiences […] indicate that incentives alone are not enough to stop recalcitrant actors from continuing their misdeeds. Promises and rewards must be backed up by threats and, if they fail, even by punishments […] Successful preventive action requires that one makes threats of sufficient credibility and sufficient potency to persuade an adversary to cease or desist from an objectionable course of action.25

Perpetrators must believe that they will be held accountable for their actions if the ICC becomes involved. This idea was extended by the International Criminal Tribunal for the Former Yugoslavia, indicating that “[i]t is the infallibility of punishment, rather than the severity of the sanction, which is the tool for retribution, stigmatization and deterrence.”26 Only a wide aperture in case selection would create the possibility that any and all perpetrators could be subject to investigation or prosecutions by the ICC. A narrow aperture would result in fewer prosecutions for perpetrators of less serious crimes falling under ICC jurisdiction. This would, in turn, diminish the deterrent effect of the ICC. As such, the Prosecutor should utilize the widest universe of cases possible, essentially a wide aperture, in determining cases for investigation and prosecution.

Deterrence relies on the assumption that perpetrators are rational actors who engage in a cost-benefit analysis when deciding whether or not to engage in criminal behavior.27 Part of this cost-benefit analysis is the likelihood of being held accountable for their conduct. Scholarship in the area of deterrence generally recognizes “that it is not the severity of the punishment which creates a deterrent effect but, rather, the likelihood of being prosecuted and condemned.”28 However, if there is no potential risk to perpetrators that they may be investigated or prosecuted, this cost-benefit analysis becomes unbalanced in favor of the benefits of criminal acts as the costs are significantly reduced. “[W]hen offenders do not perceive a punishment as likely to be imposed, then there will be little disincentive toward offending.”29 The Prosecutor’s adoption of a narrow aperture in case selection would shift the cost-benefit analysis for perpetrators as the risk of prosecution affects the cost-benefit analysis of perpetrators.

ICC investigations, indictments and convictions […] are likely to encourage actual or potential perpetrators to reassess the risks of punishment—relative to the status quo, which is often impunity—and to moderate their behavior.30

The situation in Uganda reveals how the Prosecutor’s case selection and investigation affect the cost-benefit analysis of potential perpetrators as data suggests that the ICC’s involvement in Uganda “discouraged rebels from intentionally killing civilians.”31 With this type of data, it is challenging to see why the Prosecutor should adopt a narrow aperture in case selection. Potential perpetrators must be forced to engage in a cost-benefit analysis that includes a real risk of investigation or prosecution by the ICC. The adoption of a narrow aperture would place an unnecessary limitation on this cost-benefit analysis and could encourage perpetrators to engage in criminal behavior. A wide aperture has been shown to affect all perpetrators and, as such, has already shown that it can promote the deterrent effect of the ICC. The adoption of a narrow aperture would certainly diminish this effect of the ICC.

Conclusion

Since its inception, the ICC has been intent on deterring perpetrators from engaging in the worst crimes. This goal is identified in the Preamble to the Rome Statute, as well as in statements from the ICC itself. The OTP’s recent effort to clarify its case selection and prioritization strategy has led to more questions than answers. Some have argued that the Prosecutor should adopt a more limited view of gravity and thus engage in a narrow aperture when it comes to selection of cases for investigation and prosecution. However, this would significantly impair the ICC’s ability to deter perpetrators.

The Prosecutor should prioritize the goal of deterrence in selecting cases for investigation and selection. With deterrence a clear goal of the ICC, the Prosecutor should be charged with supporting this goal. This is particularly true given the evidence that the ICC has, in fact, been shown to deter perpetrators from continuing to engage or engaging in the future in bad acts. As the goal has been met, at least somewhat, the Prosecutor should not engage in a case selection strategy that could potentially diminish this effect.

As it stands, the OTP’s definition of gravity continues to be ambiguous and, as such, does not support the ICC’s goal of deterrence. The ambiguity in the definition forces a plain reading, which seems to indicate that only the most significant perpetrators and the most significant cases will be investigated and prosecuted by the ICC. This reading would diminish the potential for lower-level perpetrators to be investigated and prosecuted. The lack of potential accountability would diminish the ICC’s deterrent effect and would act in opposition to the ICC’s goal of deterrence.

As deterrence relies on the potential for the accountability of perpetrators, any strategy that would limit accountability would directly affect deterrence. The adoption of a narrow aperture by the Prosecutor would have such effect as it would change the calculus of a perpetrator’s cost-benefit analysis. With a narrow aperture, the likelihood of being brought before the ICC would be significantly reduced. This may lead to perpetrators feeling more empowered to act with impunity.

A strategy that adopts both a narrow definition of gravity and a narrow aperture would act in opposition the ICC’s goal of deterrence. As such, the Prosecutor should adopt a case selection strategy that is broad, inclusive, and promotes deterrence.

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

1. 1.

   Interview with Chile Eboe-Osuji, UN News, Oct. 1, 2020, available online. ↩

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

3. 3.

   Margaret M. deGuzman, Gravity and the Legitimacy of the International Criminal Court, 32 Fordham Int’l L.J. 1400, 1401 (2008), available online. ↩

4. 4.

   Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation (Sep. 15, 2016), available online. ↩

5. 5.

   Id. at 12–15. ↩

6. 6.

   Id. at 12. ↩

7. 7.

   Rome Statute, supra note 2, at Preamble. ↩

8. 8.

   Interview with Chile Eboe-Osuji, supra note 1. ↩

9. 9.

   Mark Kersten, Lubanga and the Trouble with ICC Deterrence, Just. in Conflict (Mar. 20, 2012), available online. ↩

10. 10.

    Hyeran Jo, Mitchell Radke & Beth A. Simmons, Assessing the International Criminal Court (Jan. 25, 2016), available online. ↩

11. 11.

    Id. at 16. ↩

12. 12.

    Id. at 20. ↩

13. 13.

    Hyeran Jo & Beth A. Simmons, Running the Numbers on ICC Deterrence: When Does It Actually Work?, Open Democracy (Mar. 22, 2016), available online. ↩

14. 14.

    deGuzman, supra note 3, at 1408. ↩

15. 15.

    Policy Paper on Case Selection and Prioritisation, supra note 4, at 12–13. ↩

16. 16.

    Margaret M. deGuzman, How Serious Are International Crimes? The Gravity Problem in International Criminal Law, 15 Colum. J. Transnat’l L. 18 (2012), available online. ↩

17. 17.

    Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265 (2012), available online. ↩

18. 18.

    Margaret M. deGuzman, The International Criminal Court’s Gravity Jurisprudence at Ten, 12 Wash. U. Global Stud. L. Rev. 475 (2013), available online. ↩

19. 19.

    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, 781 (Oct. 2010), available online. ↩

20. 20.

    deGuzman, supra note 18, at 485. ↩

21. 21.

    Situation in the Democratic Republic of the Congo, ICC-01/04-169, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58” ¶ 73 (AC, Jul. 13, 2006), available online. ↩

22. 22.

    deGuzman, supra note 16, at 37. ↩

23. 23.

    deGuzman, supra note 18. ↩

24. 24.

    Jo, Radke & Simmons, supra note 10, at 10. ↩

25. 25.

    Jennifer Schense & Linda Carter eds., Int’l Nuremberg Principles Acad., Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals 38–39 (2016), available online. ↩

26. 26.

    The Prosecutor v. Anto Furundžija, IT-95-17/1-T, Judgement ¶ 290 (ICTY TC, Dec. 10, 1998), available online. ↩

27. 27.

    Stefano Marinelli, The Approach to Deterrence in the Practice of the International Criminal Court, Int’l L. Blog (Apr. 6, 2017), available online. ↩

28. 28.

    Id. ↩

29. 29.

    Mullins & Rothe, supra note 19, at 773. ↩

30. 30.

    Jo, Radke & Simmons, supra note 10, at 14. ↩

31. 31.

    Id. at 28. ↩