II. General deterrence

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

A. Lack of rationality

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

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

B. Government complicity

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

C. ICC’s party-based jurisdiction

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

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

III. Specific deterrence

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

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

A. Harsher punishment is an ineffective disincentive

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

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

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

B. Investigations deter negotiations for peace

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

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

IV. Plea bargaining to increase specific deterrence

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

A. Plea bargains as an alternative to amnesty

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

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

B. Pre-arrest plea bargaining prevents crimes

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

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

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

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

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

C. Rome Statute allows plea bargaining

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

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

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

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

V. Conclusion

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

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

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

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

1. 1.

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

2. 2.

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

3. 3.

   See note 1, supra. ↩

4. 4.

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

5. 5.

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

6. 6.

   Id. ↩

7. 7.

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

8. 8.

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

9. 9.

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

10. 10.

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

11. 11.

    See note 10, supra. ↩

12. 12.

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

13. 13.

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

14. 14.

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

15. 15.

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

16. 16.

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

17. 17.

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

18. 18.

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

19. 19.

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

20. 20.

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

21. 21.

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

22. 22.

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

23. 23.

    Id. ↩

24. 24.

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

25. 25.

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

26. 26.

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

27. 27.

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

28. 28.

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

29. 29.

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

30. 30.

    Id. ↩

31. 31.

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

32. 32.

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

33. 33.

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

34. 34.

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

35. 35.

    Scharf, supra note 28, at 340. ↩

36. 36.

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

37. 37.

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

38. 38.

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

39. 39.

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

40. 40.

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

41. 41.

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

42. 42.

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

43. 43.

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

44. 44.

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

45. 45.

    Id. art. 53(3)(b). ↩