During an interview with the Ottawa Law Review, Louise Arbour, the Chief Prosecutor for the ICTY and ICTR, explained why she focused her prosecution efforts on a few senior officials, like Slobodon Milošević, instead of a larger number of lower-level perpetrators. More specifically, she pointed out that even though the low-level perpetrators were the ones who “actually killed hundreds of people,” logistical problems like the capacity of the courts, as well as political issues, forced the courts to focus their resources on the leaders and deem them “most responsible.”14 In all, it is clear that the focus on senior leadership as those most responsible has a long history in international criminal courts and that its justifications are varied. What is not clear, however, is that this self-imposed limitation on the gravity criteria is working for the ICC.

III. Argument

In order to increase the ICC’s perceived and actual effectiveness, the OTP should prosecute anyone the Court can actually capture. This might mean that the OTP would have to devote more resources towards prosecuting lower—and middle-level perpetrators instead of limiting the Court’s efforts to senior perpetrators. Necessarily, this requires an assumption at the outset that the difficulties posed by the arrest question will resolve themselves. And while senior perpetrators should be held accountable, the OTP should shift some of its focus to include so-called “little fish” for two main reasons:

1. it could lead to an increased deterrent effect on the rank and file who physically commit atrocities, and

2. it may improve the public perception of the ICC as a larger number of perpetrators are convicted.

By expanding the “most responsible” criteria to include rank-and-file perpetrators the Court could alleviate two major problems facing the Court today.

A. Prosecuting Everyone the Court Can Apprehend Could Increase the Prosecutorial and Social Deterrent Power of the Court

As enumerated in the Preamble of the Rome Statute, one of the foundational goals of the ICC, as an institution, is to “contribute to the prevention of” atrocities.15 In other words, one of the primary aims of the States Parties, through the Court, is to deter these crimes from happening in the first place. The notion of deterrence, as it is commonly understood, is an umbrella term for several preventative forces. For this comment, however, I will focus on the effectiveness of the ICC as a prosecutorial and social deterrent. Prosecutorial deterrence is the idea that the threat of formal punishment will prevent would-be perpetrators from committing crimes in the first place.16 Social deterrence, meanwhile, “occurs when potential perpetrators calculate the informal [social] consequences of law breaking.”17

According to a 2017 study by Geoff Dancy, the ICC’s current ability to deter violence comes from its “role as a ‘stigmatizer’ in the international community,” not from “its ability to sanction abusive actors.”18 In other words, people are more responsive to the ICC’s social deterrent power than its prosecutorial deterrent power. This is unsurprising given that “ICC attention brings with it a kind of international opprobrium that is virtually unparalleled in the field of human rights” even though the ICC has only sentenced a total of nine perpetrators to prison since the Court’s foundation.19 It is understandable, then, when some ICC critics conclude that the Court’s ability to deter atrocity crimes through prosecutions is mere “wishful thinking.”20

In general, the effectiveness of a prosecutorial deterrent is dependent on a kind of internal calculus where a would-be perpetrator weighs the perceived costs of committing a crime against the perceived benefit. To oversimplify, the cost portion of that calculus may be: (perceived severity of punishment) x (perceived probability of punishment). For example, suppose a person believes that the likelihood of being punished is high and that the punishment they would face is severe for a given crime. In that case, they are less likely to commit that crime, assuming that the perceived benefit remains constant. This means that a prosecutorial deterrence’s effectiveness can be enhanced either by making the punishment more severe or by increasing the likelihood of prosecution. Right now, multiple factors decrease the perceived possibility of prosecution for perpetrators. At least one of those factors is self-inflicted. The ICC effectively chooses not to prosecute low—and middle-level perpetrators even when it could because it dedicates its resources almost exclusively to the prosecution of high-ranking perpetrators.

Prosecuting everyone that the ICC can apprehend, regardless of their level of seniority, could go a long way in deterring violence. It is critical to keep in mind that it is triggermen, and not leaders, who are usually the ones that physically commit the atrocity crimes. They are, in a very real sense, the ones most responsible. And until now, their low status in the power hierarchy has given them a kind of de facto immunity from ICC prosecution. This is because the ICC is not pursuing rank-and-file perpetrators with the same effort as it pursues senior perpetrators. Additionally, at least in the ICTY and ICTR, little fish were often flipped and given immunity to procure evidence on high-ranking officials.21 This implies that the threat of ICC prosecution is not deterring small and mid-sized fish because the possibility of punishment is so low for them. However, if the OTP dedicated more resources to prosecuting the rank-and-file, this should increase the probability of their incarceration. This could, in turn, increase the ICC’s deterrent effect on those who physically commit the crimes. More specifically, the ICC should prosecute anyone it can get its hands on instead of creating a self-imposed limitation on the Court’s prosecutorial deterrent power.

Additionally, if the ICC is following the sentencing practices of the ICTY and the ICTR,22 the Court is likely not maximizing its deterrent effect on low—and mid-level perpetrators even when the Court does prosecute them. According to Doherty and Steinberg’s empirical analysis of sentencing at the ICTY and ICTR:

[T]he descriptive statistics suggest that the higher the defendant’s authority or the more central the defendant’s role in the crime (as personally ordering or personally the committing the underlying offense, the longer the sentence.

23

In general, however, “the higher the rank or political authority of the perpetrator, the longer the sentence.”24 Two conclusions can be drawn from this for the purposes of this comment. First, the punishments for low-level perpetrators were lower than the punishments for mid-level and high-level perpetrators.25 Second, it illustrates that perpetrators in the middle of the criminal hierarchy received lower sentences than those who personally committed or directly ordered crimes.26 Taken together, both the “middle-managers” and low-ranking perpetrators received shorter sentences than leaders. This implies that the “severity of punishment” portion of the deterrent calculus is also lighter for low—and mid-level criminals when they are actually prosecuted. Therefore, the Court can increase its prosecutorial deterrent effect first by prosecuting everyone it can and then by increasing the sentence lengths for the low—and mid-level criminals that it does prosecute.

Increasing the total number of convictions and sentencing lengths for low and mid-ranking criminals could also increase the Court’s social deterrent power. As the Court becomes more efficient, it could become even more legitimate. This increase in the Court’s legitimacy could heighten the “opprobrium” that comes from an investigation by the Court. This brings us to the next matter: the legitimacy of the Court.

B. Casting a Wider Net Could Increase the Court’s Effectiveness and Therefore Its Perceived Legitimacy

Like virtually every public institution, the Court’s legitimacy largely depends on the public’s perception of it. Actively pursuing all levels of the criminal hierarchy could improve the public perception of the Court in two ways. First, it could lead to a larger number of arrests and convictions, which could improve the perceived effectiveness of the Court at holding perpetrators accountable. Second, it would align the Court’s actions with the idea of individual criminal responsibility, which is one of the Court’s foundational principles.

The Preamble of the Rome Statute declares that the States Parties, through the Court, will be “[d]etermined to put an end to impunity for the perpetrators of” atrocity crimes.27 So far, the Court has at best only lessened the impunity for high-level perpetrators. Since the foundation of the ICC, the Court has indicted fifty-two people.28 Of those fifty-two indictments, there have been forty arrest warrants issued, resulting in twenty-one people being detained and a total of ten convictions.29 This is the result of investigations into seventeen different situations involving the murder, torture, and rape of millions of victims.30 No matter the seniority level of the convicted, ten convictions is not enough. It is time for the Court to change course. Attempting to prosecute everyone who commits these atrocities is one way that the Court could create a level of proportionality between the magnitude of the crime and the breadth of the punishment. Accordingly, trying and convicting a larger number of low—and mid-level perpetrators, instead of just a small number of senior actors, could bring the ICC back in line with its stated goals. This could, in turn, improve its public perception and legitimacy.

The Court has consistently held itself out as an advocate for victims and their claim to justice. The Court has also stated that bringing perpetrators to account for those victims is one of their top priorities.31 Casting a wider proverbial net through the gravity threshold could also bring the Court in line with those foundational principles of individual criminal responsibility and accountability for victims. In fact:

Some might contend that victims and survivors would derive more satisfaction from participation in trials leading to convictions of their actual torturers and rapists; that both groups might find greater catharsis from seeing such persons in the dock than from seeing their commanders—usually strangers to those victimized—who gave impersonal orders or encouraged such crimes generally.32

By artificially narrowing the type of perpetrators that can be prosecuted, and affirmatively choosing not to prosecute triggermen, the Court is not living up to its promises. Triggermen are the ones who actually commit the crimes, and yet they are functionally absolved of accountability because they are not high enough up the ladder. By prosecuting the rank and file, in addition to leaders, the Court can better uphold its promise to bring justice for all victims and increase its perceived legitimacy and effectiveness.

IV. Counterarguments

When dealing with a contentious topic, there are doubtless many arguments that could be made in favor of preserving the status quo. However, three points of contention require specific attention:

1. the Court’s limited resources;

2. the scarcity of evidence on rank-and-file perpetrators, and

3. the potential ineffectiveness of deterrence on low-level perpetrators.

A. The Court’s Limited Resources

The first counterargument that must be addressed is the Court’s limited resources. More concretely, a critic may argue that the Court lacks the financial and logistical resources to prosecute everyone who commits atrocity crimes within its jurisdiction. Therefore, the Court’s limited resources are better spent prosecuting only the top brass traditionally viewed as those “most responsible.”

This counter is unpersuasive for a few reasons. First, it seems highly unlikely that the Court is operating at its maximum efficiency. Between 2003 and 2021, the ICC spent over $2 billion, captured twenty-one suspects, and convicted ten people.33 While it is not totally accurate to say that it costs the ICC a little more than $200 million per conviction, it does not seem plausible that the Court’s resources are being allocated efficiently while it only pursues top-level suspects. Moreover, triggermen, compared to high-level officials, have fewer resources to evade capture and prosecution, which could decrease the cost of prosecution on average for the Court. It has also been argued that a larger docket could increase the efficiency of the Court because it would force the Court to create more efficient policies demanded by a larger docket.34

In a best-case scenario, this could mean that it might be cheaper on a per-suspect basis to pursue low-level perpetrators, which could lead to a larger number of total convictions for the same amount of money. As previously mentioned, this increase in total convictions could increase both the Court’s perceived legitimacy as well as its prosecutorial and social deterrent power. More importantly, though, this counterargument puts the cart before the horse. Before we worry about whether the Court has enough resources to prosecute a full dock, the Court should worry about filling the dock.

B. The Scarcity of Evidence on Rank-and-File Perpetrators

The next potential counterargument is that going after lower-level perpetrators will be less fruitful because it is harder to gather sufficient evidence on low-level perpetrators than high-level ones. One reason it might be harder is because the requisite mens rea is higher for low-level perpetrators than for top-level perpetrators. More specifically, the Prosecutor only needs to show that top-level suspects knew or should have known about the atrocities.35 In contrast, the Prosecutor needs to show that the low-level perpetrators had some level of intent for their own actions.36 Additionally, the acts of low-level perpetrators are imputed to the senior perpetrators, but each individual low-level perpetrator is only responsible for their own actions.37 One may argue, therefore, that the ICC’s resources are better spent when they are focused solely on high-level perpetrators.

While the decreased mens rea requirement for top-level suspects should make it easier to convict them than low-level perpetrators as an evidentiary matter, it does not appear that the Court has leveraged that theoretical advantage into more convictions. Additionally, there can be no atrocity crimes if someone does not commit atrocity crimes. In other words, there must have been evidence of some atrocity attributable to a low-level perpetrator for a high-level perpetrator to be held liable.38 Finally, the Court already has a plethora of evidence-gathering techniques, many of which the Court can repurpose to go after smaller fish.39

C. The Potential Ineffectiveness of Deterrents on Low-Level Perpetrators

The final counter to be addressed relates to the ability of the ICC to deter low-level perpetrators in general. An underlying assumption of deterrence theory is that a perpetrator has the ability to choose whether they commit a crime. This assumption is implicit in the calculus laid out in Section III(A) above because, without the ability to choose whether to commit a crime, the balancing of choices is meaningless. Critics argue that low-level perpetrators lack the choice-making ability required for effective deterrence. More specifically, they argue that in the severe, hierarchical structure that most of these perpetrators operate, triggermen have little to no autonomy regarding whether or not to follow orders.40 This is the case, they argue, because triggermen who refuse to follow orders might be killed for it. Therefore, dedicating more resources to prosecuting low-level perpetrators would be pointless from a deterrence standpoint because the triggermen fundamentally cannot be deterred.

The problem with this argument is that it is equally applicable to everyone in a hierarchy aside from the person at the very top of it. Imagine a ladder where each rung represents a person who can punish any rung below them for insubordination. It would be true that the lowest rung has the highest absolute number of people they can be punished by. But it is not clear that a middle—or high-level rung faces any less pressure from those above them than the lowest rung does. Additionally, in many Western legal systems, defenses of necessity, coercion, and duress are not defenses to murder. One of the policies behind that rule is that no matter the pressure exerted on someone, the legal system does not accept that it justifies murder.41 A similar principle is at work here.

V. Conclusion

For the preceding reasons, the deterrent power and legitimacy of the ICC could be increased if the OTP cast a wider net and prosecuted both little and big fish. By reevaluating the factors the Court uses to determine who is “most responsible” through the gravity criteria to include rank-and-file perpetrators, the Court might be able to better deter those committing atrocities and simultaneously increase its legitimacy. The deterrent power of the Court could be increased by changing the cost-benefit calculus of rank-and-file perpetrators before committing atrocity crimes. First, this can be done by increasing the perceived possibility of prosecution for these criminals by casting a wider net and prosecuting everyone the Court can apprehend. Second, the Court can increase the “severity of punishment” factor of the deterrent calculus by increasing the sentences of low—and mid-level perpetrators when they actually do get prosecuted. As the Court’s perceived effectiveness rises and creates a level of proportionality between the magnitude of the crimes committed and the breadth of the punishment, the Court and its legitimacy will benefit.

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

1. 1.

   About the Court, Int’l Crim. Ct., available online (last visited Nov. 26, 2023). ↩

2. 2.

   Ward Ferdinandusse & Alex Whiting, Prosecute Little Fish at the ICC, 19 J. Int’l Crim. Just. 759, 759 (Sep. 2021), paywall, doi. ↩

3. 3.

   Id. ↩

4. 4.

   Id. at 760. ↩

5. 5.

   Id. at 762. ↩

6. 6.

   Id. ↩

7. 7.

   United Nations Security Council, Statute of the Special Court for Sierra Leone, Arts. 1, 6 (Jan. 16, 2002) [hereinafter SCSL Statute], available online. ↩

8. 8.

   Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 2329 U.N.T.S. 117, Art. 1 (Jun. 6, 2003) [hereinafter ECCC Statute], available online, archived

   (listing specifically “tribal senior leaders” as the target of prosecution). ↩

9. 9.

   Office of the Prosecutor, ICC, Paper on Some Policy Issues Before the Office of the Prosecutor, 7 (Sep. 2003), available online. ↩

10. 10.

    Press Release, ICTY, The Judges of the Tribunal for the Former Yugoslavia Express Their Concern Regarding the Substance of Their Programme of Judicial Work for 1995 (Nov. 1, 1995), available online. ↩

11. 11.

    Julian Davis Mortenson, Book Review: This Very Human Institution: A Biography of the Yugoslavia Tribunal, 13 CJEL 471, 478 (Jan. 2007), available online. ↩

12. 12.

    Alette Smeulers, A Criminological Approach to the ICC’s Control Theory in The Oxford Handbook of International Criminal Law 379, 380 (Kevin Jon Heller, Frédéric Mégret, Sarah MH Nouwen, Jens David Ohlin & Darryl Robinson eds., 2020), available online, doi

    (arguing for “control theory” of international justice, namely that the “political leaders and criminal masterminds” should be the ones held primarily responsible for “creating [the] context, which instigates and induces others to commit such crimes.”). ↩

13. 13.

    International Criminal Tribunal for the Former Yugoslavia, Rules of Procedure and Evidence, R. 28(A) (Feb. 11, 1994, as amended Jul. 8, 2015), available online. ↩

14. 14.

    An Interview with the Honourable Madam Justice Louise Arbour, 46 Ottawa L. Rev. 383, 399 (Nov. 21, 2014) [hereinafter Arbour Interview], available online. ↩

15. 15.

    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], Preamble, available online. ↩

16. 16.

    Hyeran Jo & Beth A. Simmons, Can the International Criminal Court Deter Atrocity?, 70 Int’l Org. 443, 443 (Jul. 8, 2016), paywall, doi, earlier version (Mar. 7, 2016) available online. ↩

17. 17.

    Id. at 444. ↩

18. 18.

    Geoff Dancy, Searching for Deterrence at the International Criminal Court, 17 Int’l Crim. L. Rev. 625, 626 (Jun. 2017), paywall, doi. ↩

19. 19.

    Id. at 634; About the Court, supra note 1.

    (The ICC’s website lists a total of ten convictions).

    List of People Indicted in the International Criminal Court, Wikipedia, available online (last visited Dec. 18, 2023).

    (According to a running tally on Wikipedia, nine of the convicted ten have served or are serving prison sentences). ↩

20. 20.

    Jack Goldsmith & Stephen Krasner, The Limits of Idealism, 132 Daedalus 47, 55 (2003), available online. ↩

21. 21.

    Arbour Interview, supra note 14, at 399. ↩

22. 22.

    Because the ICC has only sentenced nine people, it is difficult to draw conclusions about the Court’s sentencing practices. In the absence of demonstrable ICC practices, the ICTY and ICTR can serve as instructive proxies. ↩

23. 23.

    Joseph W. Doherty & Richard H. Steinberg, Punishment and Policy in International Criminal Sentencing: An Empirical Study, 110 Am. J. Int’l L. 49, 70 (2016), paywall, doi. ↩

24. 24.

    Id. at 75. ↩

25. 25.

    Id. at 74.

    (For example, low-level perpetrators were less likely to receive life sentences than mid-level perpetrators, and mid-level perpetrators were less likely to receive life sentences than high-level perpetrators). ↩

26. 26.

    Id. at 70.

    (When comparing mid-ranking perpetrators to those who personally committed crimes, mid-ranking perpetrators had lower sentences at the respective 25th, 50th, and 75th percentiles). ↩

27. 27.

    Rome Statute, supra note 15, at Preamble. ↩

28. 28.

    About the Court, supra note 1. ↩

29. 29.

    Id. ↩

30. 30.

    Situations under Investigation, Int’l Crim. Ct., available online (last visited Nov. 26, 2023). ↩

31. 31.

    See generally Victims, Int’l Crim. Ct., available online (last visited Nov. 26, 2023). ↩

32. 32.

    Jose E. Alvarez, Rush to Closure: Lessons of Tadić Judgment, 96 Mich. L. Rev. 2031, 2092 (Jun. 1998), paywall, doi. ↩

33. 33.

    Budget, ASP, available online (last visited Dec. 18, 2023). ↩

34. 34.

    Dancy, supra note 18, at 626. ↩

35. 35.

    Rome Statute, supra note 15, at Art. 28. ↩

36. 36.

    See id. Arts. 6, 7, 8. ↩

37. 37.

    See id. Art. 28.

    (More concretely, the atrocity crimes of subordinates can be imputed to their superiors, but the atrocity crimes of superiors cannot be imputed to their subordinates). ↩

38. 38.

    See Mark Kersten, Big Fish or Little Fish—Who Should the International Criminal Court Target?, Just. in Conflict (Sep. 1, 2016), available online.

    (The relatively fast capture and conviction of Ahmad al Faqi al Mahdi in 2016, who was perceived as a somewhat “little fish,” demonstrates that the Court has the ability to gather enough evidence on little fish to get convictions). ↩

39. 39.

    See Dia Kayyali, Raja Althaibani & Yvonne Ng, Digital Video Evidence, When Collected, Verified, Stored, and Deployed Properly, Presents New Opportunities for Justice, ICC Forum (Jun. 1, 2020), available online. ↩

40. 40.

    Smeulers, supra note 12, at 387. ↩

41. 41.

    See Regina v. Dudley and Stephens, 14 QB 273 (Dec. 9, 1884), available online. ↩