II. The Actors

In order to effectively utilize the cost-benefit model, we must possess an understanding of the different classes of actors involved in a conflict; without this we cannot analyze the ways that each may be expected to behave within the framework. At the greatest level of abstraction, there are three classes of actors who commit human rights abuses. There is the doer; the foot soldier who commits the rape, murder, abduction, etc. in question. Then there is the planner; the politician who incited ethnic cleansing, the general who implemented it, and the commander who managed it. Finally, there are the aiders and abettors.13 These broad classes provide some guidance on how the cost-benefit model can be applied. However, there are other considerations that will impact how an actor perceives the costs and benefits of an illegal rights-violating strategy.14

Narrowing down these considerations is necessary in order to distill distinct, coherent classes of actors. To do so, one would normally look to a more complete historical record of rights violating behavior; time and resource constraints require a more limited approach in this comment however. Thus, we will look at the cases that the ICC has already become involved in, via indictment or investigation, to provide the classes of actors to be examined in this paper. In addition, OTP provided its perspective on the classes of actors that the Court should focus on its 2003 policy paper:

The global character of the ICC, its statutory provisions and logistical constraints support a preliminary recommendation that, as a general rule, the Office of the Prosecutor should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organization allegedly responsible for those crimes.15

The ICC has followed this policy in the six situations where proceedings have begun thus far.16 Four involve indictments against rebel leaders.17 The Sudan case also involves an indictment against a sitting head of state, as well as indictments against an official in his administration and a leader of a government backed militia.18 The final situation the Court is involved in is brand new: the initiation of an investigation into the ongoing conflict in Libya.19

Thus, ICC practice to date leaves us with three primary classes of actors that the Court is seeking to deter: 1) the Rebel Leader 2) the Head of State and 3) the State-Endorsed Group Leader.20 A conflict context is assumed for each actor, since all of the ICC situations thus far have involved conflict environments.

One class of actors that is missing is that of the foot soldiers. Considering the jurisdictional barrier posed by the Rome Statute and resource constraints cited by OTP in its 2003 Policy paper, this is unsurprising.21 It also makes some sense in light of the cost-benefit model; valuation of both the costs and benefits of rights-violating behavior is more difficult with low level implementers. This is because such actors can have a wider variety of motivations that determine the value of their behavior.22 It is also harder to measure the costs of that behavior as seen by these actors, since they are farther removed from the ICC as an institution. In addition to these difficulties, social psychology provides explanations of the behavior of low level implementers that may divorce them from the cost-benefit model altogether.23 Yet, despite the aforementioned problems, there is a benefit in looking at the possible deterrence of this class of actors that will be explored as well.

III. Applying the Model

Now that we have distilled four classes of actors that the ICC is seeking to deter, we can apply the cost-benefit model to each. In order to do so however, we must first pick an illegal rights violating strategy as an example. Since ethnic violence has been alleged in many of the situations that the ICC is already involved in, we will use this as our across the board example for all four classes. Ethnic violence is a crime under Article 7(1)h of the Rome Statute.24 A variety of explanations have been offered to explain why it is a part of so many protracted civil wars.25 For the purposes of determining the value of systematic murder or extermination of civilians for all four classes of actors, we will focus on three that are the most relevant to this specific subset of ethnic violence. The first argument claims that ethnic violence is used by political elites to increase their power.26 The second explanation deals with the security dilemma posed by signaling problems and threat evaluation between ethnic groups. In domestic systems with a weak (or uninterested or biased) government, ethnic groups become responsible for their own defense. As neighboring groups arm, it is difficult to tell if they are doing so for offensive or defensive purposes, and inter-ethnic tensions increase.27 This model shares some similarities with Fearon’s concept of credibility failures on the part of majority ethnic groups.28 The final explanation is one linked to extremism. This explanation argues that extreme elements of an ethnicity will use violence to undermine the peace process by making it appear that even the moderates of the group lack the will to stop such acts.29

The following sections will first detail the benefits of the illegal rights violating strategy to the actor, and will then explore how the actor will value the costs that the ICC can bring to bear along with possible policy reforms that will maximize those costs.

A. The Rebel Leader

Benefits: There are several possible benefits of a decision to systematically murder or exterminate civilians in a rival ethnic group by a rebel leader. The first value of such a strategy is found at the nexus of the second and third explanations of ethnic violence detailed above. The security dilemma model explains why a rebel leader may wish to block peaceful negotiations: if the other ethnic group is armed and mobilized, it will not have enough credibility in the eyes of the rebel leader to respect his group’s rights. Murder and extermination of the rival group’s civilians thereby allows the rebel leader to disrupt negotiations. Thus, the rights violating behavior in this scenario has the benefit of keeping the conflict ongoing, and the rebel leader will place a high value on this as it keeps him in a position of power so that he can continue to pursue his agenda.

Costs: The ICC will have difficulty imposing costs on the rebel leader. The international condemnation and external isolation that can follow ICC interest are only threats to a rebel leader who is supported by those nations that pay attention to the court. Since most rebel leaders are not reliant on outside support, and those that are receive it from nations that disregard the ICC, this is an almost non-existent cost.30 Currently, internal condemnation and isolation are also minimal costs to a rebel leader. In order for rival constituencies within the rebel leader’s group to utilize an ICC indictment as an isolating tool, the ICC would need a high degree of respect on the ground in the region. Amidst accusations that the ICC is a neo-colonial institution fixated on Africa, the necessary standing has not yet been achieved.

Yet there has been a link between ICC involvement and the decreasing intensity of Lord’s Resistance Army violence.31 This means that certainty of punishment, the remaining cost to balance against the benefit of the strategy, may be highly valued by rebel leaders. This makes sense considering that, with the exception of the foot soldier, the rebel leader is the most likely to actually end up in the custody of the ICC.32

Conclusions: While the use of major ethnic violence is likely to be a valuable strategy to the rebel leader, his more precarious strategic position means that he is acutely sensitive to the possibility of ending up in the Hague. Therefore, this class of actor will be increasingly deterred from the use of this strategy as his power weakens and the threat of prosecution increases. Thus, the ICC should focus on strategies that can weaken the strategic position of this class of actors. One way this might be done is by using the international public outrage over rights abuses committed by a Rebel Leader to stir up support (financial, strategic, etc.) for the state in which the leader resides in order to increase their capability to fight and capture him.

B. The Head of State

Benefits: The first model attributing the outbreak of ethnic violence to political incitement provides the clearest indicator of the strategy’s value to a head of state. By playing upon the historical divides that become enshrined in one ethnic group’s perception of another33, politicians can rally their base and shore up their own political power. Once a politician has utilized this strategy, he has effectively ruled out the possibility of reining in the consequences of his rhetoric. To attempt to punish supporters who have begun to perpetrate acts of violence against the rival ethnic group would erode support, so the head of state is incentivized to encourage these acts rather than denounce them. This creates a cycle of escalating violence that can eventually result in systematic murder and extermination.34

However, utilizing ethnic division is only one way to achieve political power. While it may be the easiest path in some circumstances35, the presence of alternative options to rally political support does decrease the value of this benefit somewhat.

Costs: For the head of state, international isolation represents a much greater cost than it does for the rebel leader. An ICC indictment of a head of state on charges related to ethnic violence will likely result in condemnation from many nations in the international system. The consequences of this condemnation can be varied, and can include revocation of foreign aid or membership in vital international organizations, or even possible military action. However, this cost can be mitigated somewhat by the support of nations that disregard the ICC.36

ICC indictments can also rally domestic political dissent against a leader. If an indictment has resulted in major consequences for a nation, like economic sanctions, then political rivals will be able to play upon those costs in order to isolate the head of state. If the ICC has a good standing within the country, the indictment on its own can be used a tool for isolation.

When it comes to certainty of punishment however, the head of state will value this cost less than the rebel leader. The strategic military position of a head of state is generally more secure than that of a rebel leader, and short of a foreign military intervention, since he faces little prospect of being placed into ICC custody. Significant international isolation that leads to domestic consequences can increase the certainty of punishment for a head of state however, by making his political situation more precarious.

Conclusion: To prevent crimes committed by heads of state, the ICC must work to expand its influence with nations in the international system so that heads of state do not have support systems to rely upon. Increased international pressure can lead to domestic consequences for a head of state’s political position. Without this kind of domestic isolation, the ICC cannot in turn increase the certainty of punishment for the head of state. Thus far, this has been a problem for the ICC.37 There are no easy answers as to how the ICC can improve its standing in the international system. If the court were to adopt a more consequential perspective, it could be possible for the Court to work out compromises with regional coalitions like the African Union (i.e. We won’t investigate these two lesser allegations of rights violating behavior in Member X and Member Y if you support our efforts against Member Z and the more serious allegations there). While this might seem anathema to a young international body that must build its reputation, it could yield vital strategic partnerships for the ICC that may result in a Head of State being apprehended or pushed out.

The ICC must also develop a strong on-the-ground reputation in order to create internal political costs for Heads of State who are indicted. The Court is already on the right track with its efforts in Sudan, The Central African Republic, Kenya, Democratic Republic of the Congo, and Uganda; where the Court has programs in place for community and media outreach.38 These efforts must be increased, spread proactively to similar states (otherwise the Court will always be in a position of playing catch-up as crimes are committed in states where the ICC has no presence), and expanded in scope. In order to meaningfully improve its reputation, the Court must go beyond outreach directly related to its judicial functions (i.e. raising awareness about procedures, etc.), and consider instituting programs that combat corruption and other tangentially related issues.39 People will not necessarily support the court just because they know more about it, but they will if the court is seen as a force for positive change in their society. This support will in turn result in negative domestic political consequences for a Head of State who chooses to utilize a rights-violating strategy and is indicted by the court.

C. The State Endorsed Group Leader

Benefits: For the State Endorsed Group Leader, ethnic violence represents a low cost way to make economic and security gains for his group. The cost of the strategy is low for this actor for several reasons. One, like the Rebel Leader, he is insulated from international pressure because he is an internal actor. This insulation is not as strong for this class however, since they are still somewhat reliant on government auspices, and the Head of State, as discussed above, is vulnerable to international pressure. In addition, the strategic costs are lower for this class because of that government support, which provides increased resources and protection. While Darfur rebel groups may be able to resist Janjaweed militias to some extent, they are at a huge disadvantage because of the resource inequities.40

Thus, the State Endorsed Group Leader represents a hybrid of sorts; this class possess characteristics of both of the two previous actor archetypes. This makes it more difficult to ascertain motivations (and thereby benefits), since the State Endorsed Group Leader could b using ethnic violence for his own ends, or as a means of pleasing a Head of State, or both. What is certain here is that the costs of such rights-violating behavior are relatively low for this class compared to the other two.

Costs: The hybrid nature of this class also makes it difficult to evaluate the value it will place on the costs that the ICC can bring into play. As mentioned above, this kind of leader may be somewhat affected by international condemnation collaterally, but not to the extent that the Head of State is. This leader will also be less worried about the certainty of punishment, since their relationship with the state offers a degree of protection (they do not have to be concerned about the government finding them and shipping them to the Hague.) These considerations mean that the State Endorsed Group Leader may actually represent the most difficult class of actor for the ICC to effectively reach.

Conclusions: The best way for the Court to extend its reach to this difficult class of actors is to attack their connection with state. Once the State Endorsed aspect of this class disappears, it essentially becomes the same as the Rebel Leader, the class that the ICC has had the most success with thus far. To do this, the Court must once again take a consequential standpoint and choose to only focus its attention of the SEGL. Then the Court can offer an ultimatum to the Head of State in nation: Withdraw your support for this leader and give them up to us, or we will focus our attention on you. At this point, the Head of State will engage in the cost-benefit analysis laid out above (the costs of ICC indictment vs. the costs of turning over a possible key constituent). If the ICC can raise the costs for the Head of State, then that will have an impact here as well.

A final policy change that the Court should consider is going after foot soldiers, since this could raise the costs for all three of the actor classes discussed above. While this class is the most difficult to analyze with the cost-benefit model because the numerous possible motivations an individual solider might have for participating in ethnic violence, successful deterrence of this class will bleed into all the others. A foot soldier who is frightened of facing justice at the ICC will be less inclined to follow obviously illegal orders, and that resistance translates into additional costs for commanders all the way up the chain.

Ultimately, many of the recommendations made in this comment may not be feasible at this point. Resource constraints, and the interests of justice, represent two substantial barriers to many of these ideas. Nevertheless, OTP and the Court as a whole must incorporate the cost-benefit model of analysis into their policy decisions, considering that crime prevention is a major goal of the institution.

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

1. 1.

   It is important to note that this comment is focused on the deterrence of individuals; thus, classes of actors refers to commonalities among individuals engaging in rights violating behavior. ↩

2. 2.

   This paper is written from a consequential perspective, though the author understands that OTP and the ICC have interests other than crime prevention to balance as well. ↩

3. 3.

   Each model is only loosely economic in nature. Specifically, the cost-benefit model utilized here is not a traditional in the sense that it is not strictly tied to an analogy with the market mechanism. For a discussion of the benefits of more relaxed model that allows for greater freedom of valuation to legal study and the social sciences, see Amartya Sen, The Discipline of Cost-Benefit Analysis, 29 J. Legal Stud. 931 (2000). ↩

4. 4.

   See Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 777 (2006). ↩

5. 5.

   Id. ↩

6. 6.

   See Payam Akhavan, Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7 (2001). See also Akhavan, Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism, 31 Hum. Rts. Q. 624 (2009). ↩

7. 7.

   Ku, supra note 4, at 778. ↩

8. 8.

   Akhavan, supra note 6, at 12. ↩

9. 9.

   The ICC indictments of Joseph Kony and other Lord’s Resistance Army Leaders serves as an example of both kinds of pressure. See Robert C. Johansen, Peace and Justice? The Contribution of International Judicial Process to Peacebuilding, in Strategies of Peace: Transforming Conflict in a Violent World 196 (Daniel Philpott & Gerard Powers ed. 2010) (highlighting that the international community’s awareness of the LRA’s activities was raised following the indictments and that the organizations behavior changed following the indictments.) ↩

10. 10.

    Internal and external isolation should be considered as distinct costs and not lumped into the certainty of punishment factor, which Akhavan leans towards doing at points. See Akhavan, Are International Criminal Tribunals a Disincentive to Peace?, 641. Ku and Nzelibe also argue that. ↩

11. 11.

    See Stathis N. Kalyvas, The Ontology of “Political Violence”: Action and Identity in Civil Wars, 1 Perspectives on Politics 475 (2003) (pointing out that civil wars provide many actors, from the local to the national leader, an opportunity to use violence in pursuit of a variety of ends.) ↩

12. 12.

    For example, ethnic violence can be seen as method of achieving political power through terror, by making a specific group easier to govern, or by eliminating them altogether in the case of genocide. See Stathis N. Kalyvas, The Logic of Violence in Civil War, 3-4 (2000). ↩

13. 13.

    Unsurprisingly, these classes of individual actors reflect the modes of responsibility that have developed in international criminal law jurisprudence. See Antonio Cassese et al., International Criminal Law, (2010). (Part III-Modes of Criminal Responsibility: 1. Commission; 2. Co-perpertratorship; 3. Planning; 4. Ordering; 5. Aiding and Abetting; 6. Incitement to commit genocide; 7. Joint Criminal Enterprise; 8. Superior Responsibility.) ↩

14. 14.

    For example, audience costs, traditionally applied in the study of international disputes, may have a place in the cost-benefit analysis related to the ICC’s ability to prevent crime. See James Fearon, Domestic Political Audiences and the Escalation of International Disputes, 88 Amer. Pol. Sci. Rev. 577 (1994) (arguing that type of government plays a key role in determining audience costs for a leader who backs down). ↩

15. 15.

    International Criminal Court Office of the Prosecutor, Paper on some policy issues before the Office of the Prosecutor, (2003) available online (last visited on April 16th, 2011). ↩

16. 16.

    International Criminal Court, Situations and Cases, available online (last visited on April 15th, 2011). ↩

17. 17.

    See International Criminal Court, The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odiambo, and Dominic Ongwen, available online (last visited on April 15th, 2011) (ICC case against Lord’s Resistance Army leaders in Uganda). See also The Prosecutor v. Thomas Lubanga Dyilo; The Prosecutor v. Bosco Ntaganda; The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, and The Prosecutor v. Callixte Mbarushimana, (Cases against rebel leaders in the Democratic Republic of the Congo). See also The Prosecutor v. Bahar Idriss Abu Garda and The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus (Cases against rebel leaders in Darfur region of Sudan). See also The Prosecutor v. Jean-Pierre Bemba Gombo (case against Central African Republic Rebel Leader). ↩

18. 18.

    See The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) ; The Prosecutor v. Omar Hassan Ahmad Al Bashir available online (last visited on April 15th, 2011). ↩

19. 19.

    We will ignore this situation for the purposes of this comment, because it is still in its infancy as far as the ICC is concerned. ↩

20. 20.

    The limited nature of this comment has led the author to include subordinate actors in each of these respective classes. ↩

21. 21.

    Rome Statute, art. 5. ↩

22. 22.

    See Kalyvas. For example, individuals taking part in genocide may be doing so with economic opportunism in mind. The amount of property theft in Bosnia and Rwanda following each genocide would lend credence to this idea. ↩

23. 23.

    Donald G. Dutton, The Psychology of Genocide, Massacres, and Extreme Violence: Why “Normal” People Come to Commit Atrocities, (2007). ↩

24. 24.

    Rome Statute, art. 7(1)h (stating that “Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.) For the purpose of this analysis, we will assume that act in connection is extermination, illegal under Rome Statute art. 7(1)b. ↩

25. 25.

    See James Fearon, Ethnic Mobilization and Ethnic Violence, 10 (2004) available online (last accessed April 17th, 2011). ↩

26. 26.

    V.P. Gagnon, Ethnic Nationalism and International Conflict: The Case of Serbia, 19 International Security 130-166 (1995). See also Michael E. Brown, Causes and Implications of Ethnic Conflict, 92, 97-98, in The Ethnicity Reader: Nationalism, Multiculturalism and Migration (Montserrat Guibernau and John Rex, ed.). (arguing that leaders appeal to nationalism and ethnicity in order to rally supporters, and in doing so, also blame the group’s problems on other ethnicities in the area). ↩

27. 27.

    Barry Posen, The Security Dilemma and Ethnic Conflict, 35 Survival 27-47, (1993). ↩

28. 28.

    Fearon, supra note 25, at 9. ↩

29. 29.

    Andrew Kydd and Barbara F. Walter, Sabotaging the Peace: The Politics of Religious Violence, 56 International Organizations 263 (2002). ↩

30. 30.

    Abdalla Burja, African Conflicts: Their Causes and their Political and Social Environment, Development Policy Management Forum Occasional Paper 4, available online, (last accessed May 3rd, 2011). ↩

31. 31.

    Akhavan, supra note 6, at 642. ↩

32. 32.

    Ku, supra note 4, (arguing that rebel leaders are more likely to be removed from positions of power and thereby face ICC jurisdiction). ↩

33. 33.

    Brown, supra note 26, at 99. ↩

34. 34.

    Gagnon, supra note 26, at 130. ↩

35. 35.

    For example, among communities with long traditions of strong ethnic identity and enmity for neighboring groups. ↩

36. 36.

    The case of Sudan represents such an example. The support of African neighbors and China has given Sudan a greater capability to ignore the indictment of al-Bashir for genocide. ↩

37. 37.

    The Court’s difficulties with the African Union stand out. ↩

38. 38.

    International Criminal Court Public Documentation Section, Outreach Report 2010, (2010), available online, (last accessed May 3, 2011). ↩

39. 39.

    Such programs could be considered part of a pro-active complementarity campaign. See William Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome system of International Justice, 49 Harv. Int’l L.J. (2008). ↩

40. 40.

    Peter Verney, Darfur’s Manmade Disaster, Middle East Research and Information Project (2004), available online, (last accessed May 5th, 2011) (discussing early accounts of the Sudanese government supplying the Janjaweed and coordinating operations with helicopters.) ↩