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Comment on the Prevention Question: “What measures should be taken to maximize the crime prevention impact of the International Criminal Court?”

Introduction

The ICC has been established with jurisdiction over various types of crimes, including: genocide, war crimes and crimes against humanity. These crimes affect “international peace and security.”1 The main purpose of the Court is to end impunity for these crimes and bring individuals who have committed such crimes to justice.2 At the most basic level, the function of the ICC is to promote accountability.

There is no doubt that the Court will fulfill this function. It will “try and sanction some number of individuals for crimes within its jurisdiction.”3 Moreover, the Court will play an instrumental role in further developing and refining norms of behavior that are acceptable within international criminal law.4 However, despite its promise, there are limits to the Court’s ability to build peaceful societies and deter—i.e. to discourage or prevent—the commission of future crimes.

In this essay, I will consider why collective violence takes place. To fully understand the capacity of the ICC to deter violence we must understand the factors that lead to violence. I will argue that a deadly conflict is an “event with a structure, a process and a character.”5 Deadly conflicts do not merely arise spontaneously, but generally evolve as a result of historical, social, political, economic and cultural factors.6 The ICC has a limited capacity to respond to such complex phenomena and undo the legacies of complex violence.

Deadly Conflicts and Political Violence

Ethnic conflicts and riots come in many guises, and many are deadly. Professor Horowitz defines a “deadly ethnic riot” as an “intense, sudden, though not necessarily wholly unplanned, lethal attack by civilian members of one ethnic group on civil members of another ethnic group, the victims chosen because of their group membership.”7 Deadly ethnic riots are the most common form of collective violence.8 Types of riots differ in two crucial respects: the scale and brutality of killings.9 While a few are killed in some conflicts; other types of ethnic violence result in a high number of casualties. The degree of brutality with which the killings are committed usually varies from conflict to conflict.

In deeply divided societies, ethnic riots can occur at any moment. In the presence of certain political and social conditions riots or isolated acts of violence often turn into protected civil wars.10 The fact that the government supports violence against a certain group is in many circumstances crucial for deadly conflict to develop. This is perhaps “the most significant facilitator”11 of violence. Governmental encouragement or more broadly, social support, can make a difference between “at most a series of isolated assaults and large-scale collective violence.”12 In pursuit of broader political, social and economic objectives, states may authorize the commission of crimes which violate the state’s own domestic law and international laws.13

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There are a variety of precipitating events which generally precede riots and ethnic conflicts. These events trigger the transition from peace to violence. To be effective, the events must convince the core participants in the conflict that violence is warranted. Violence must be seen as an appropriate response against the members of a select group. It usually develops as a result of an ongoing relationship between groups.14

The intended victims of the violence are not chosen by chance.15 A group may be regarded as a long-standing enemy, or a political threat which justifies violent action against the group. Ancient enmities tend to play a role in directing violence at a particular group.16 Thus, there is commonly a tendency to single out traditional ethnic enemies.17 Moreover, groups that are perceived as having the capacity to attain control over the state and achieve political dominance are more likely to be isolated as victims of violence than other groups. “[N]umerical majorities can behave as if they were minorities—by magnifying threats from minorities and underestimating their own capacity to deal with those threats.”18 Minorities are often described as “agents” of foreign powers that are considered politically threatening.19 “The perception of the target group’s political power tends to include power ascribed to the group’s external affiliates.”20

There is generally a hostility of atmosphere between the groups that provokes the violence. This hostility, in turn, breeds ethnic polarization and dehumanization of the ‘other’ to legitimate the ensuing violence, destruction and subordination of the group. The potential for violence is greatest in periods of transition and uncertainty that bring about changes in pre-existing ethnic relations or intensify already existing tensions between groups.21

The Role of the ICC

The ICC serves several important post-conflict intervention functions: it investigates war crimes; intervenes in situations where effective domestic legal institutions may be absent; and holds individuals responsible for their actions or inactions in times of conflict. The extent to which individuals are held responsible depends on the degree of their knowledge, involvement and capability.22 The Court addresses important questions of justice and allocates “responsibilities in contexts where it is often unclear who”23 has committed the crimes in question. This is an important function, because misunderstandings as to what happened during a conflict, can often lead to new conflicts.

The value of the ICC must, therefore, not be understated. There is no doubt that the ICC has an important role to play in the prosecution of war criminals in war-torn societies. The ICC, however, is only able to act, where the crime in question falls within the ambit of the Rome Statute. Prosecution can only occur where the ICC has jurisdiction over both the suspect and the crime. This is an important limitation on ICC’s ability to intervene. Moreover, the ICC is reliant on Member States for its effective and efficient functioning.

Conclusion

An important goal of this essay has been to shed light on the causes that lead to deadly conflicts and the potential of the ICC to deter such conflicts. Collective violence tends to take place within a socially accepted context. I have argued that the ICC plays an important role in highlighting the responsibility of those directly or indirectly involved in war crimes and other crimes against humanity. Most importantly, the Rome Statute grants the Court power to investigate violations of international criminal law and to proceed with prosecutions where jurisdiction can be found.

However, prosecutions alone are insufficient to end impunity. Bringing about systematic shifts in ethnically divided societies is difficult and requires the design of institutions that safeguard basic freedoms and human rights. The international community must assist the ICC in its deterrence function and efforts to induce certain actors to comply with internationally accepted norms. It is crucial to end cycles of violence and break up genocidal patterns.

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

  1. 1.

    Machteld Boot, Genocide, Crimes Against Humanity, War Crimes (2002) 610. ↩

  2. 2.

    Id. ↩

  3. 3.

    Joanna Harrington, Michael Milde and Richard Vernon (eds), Bringing Power to Justice? (2006) 101. ↩

  4. 4.

    Id. ↩

  5. 5.

    Donald Horowitz, The Deadly Ethnic Riot (2001) 71. ↩

  6. 6.

    Boot, supra note 1, at 143. ↩

  7. 7.

    Horowitz, supra note 5, at 1. ↩

  8. 8.

    Id. ↩

  9. 9.

    Id. at 6. ↩

  10. 10.

    Id. at 3-4. ↩

  11. 11.

    Id. at 343. ↩

  12. 12.

    Id. at 344. ↩

  13. 13.

    Alette Smeulers and Roelof Haveman (eds), Supranational Criminology; Towards a Criminology of International Crime (2008) 136. ↩

  14. 14.

    Horowitz, supra note 5, at 151. ↩

  15. 15.

    Id. at 194. ↩

  16. 16.

    Id. at 155. ↩

  17. 17.

    Id. at 157. ↩

  18. 18.

    Id. at 172. ↩

  19. 19.

    Id. at 174 ↩

  20. 20.

    Id. at 177. ↩

  21. 21.

    Id. at 331. ↩

  22. 22.

    Toni Erskine (ed), Can Institutions Have Responsibilities? (2000) 176. ↩

  23. 23.

    Id. at 234. ↩

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