A. Deterring Crimes Ex Ante

In the first scenario, the prospective deterrent effect of the ICC assumes that criminals view the ICC as a concrete disincentive to committing crimes. This assumption means that deterrence would only work under certain conditions. First, because the ICC is a “court of last resort,”4 perpetrators are already subject to domestic prosecution where sentencing may well be more severe than at the ICC.5 Fear of ICC prosecution would only be relevant where such domestic prosecution is unlikely to occur.

Secondly, even without the threat of domestic judicial consequences, crimes carry extralegal ramifications as well. Those who commit atrocities expose themselves to possible retribution, such as kidnapping, torture, or execution by rivals. Such risks are far more immediate and more threatening than the vague and distant chance of ICC capture and prosecution.6 Lastly, those who have ideological agendas, as is often the case in genocide, may find that pursuing their ideals through atrocities is worth any risk of punishment. For these latter these latter two reasons, the fear of arrest and punishment alone would be insufficient to incur a deterrent effect. ICC prosecution would only be a deterrent if would-be perpetrators believed that garnering the ICC’s attention would prevent them from achieving their goals. Under this analysis, the ICC’s deterrent effect is limited to situations where criminals are not already subject to effective domestic prosecution and where they perceive the ICC to be a tangible, practical threat.

B. Deterring Crimes In Progress

When considering ongoing crimes, the threat of ICC prosecution can cut both ways. Consider in a domestic context—a cornered criminal may on one hand decide to cut his losses and perhaps even surrender; on the other hand, he may take hostages or fight back harder than ever. This holds true in the international context as well. Advocates of the ICC assert that there are instances when individual actors mitigate their criminal actions in light of prosecutions by an international criminal tribunal.7 Conversely, when a criminal has already committed major atrocities and become subject to ICC prosecution, he has little reason to stop, especially if his past crimes merit a life sentence or more. In fact, in such a case, the ICC prosecution may paradoxically be an incentive to continue committing bad acts. When face with an arrest warrant, a criminal may decide to hold peace-talks hostage,8 retaliate in revenge,9 or even be motivated to intensify violence to ensure he stays in power.10 These mixed results indicate that prosecution as an incentive for stopping ongoing crimes is likely more dependent on the individual actor than it is on any ICC’s actions.

C. Deterring Renewal of Hostilities

Finally, the direct preventative impact of the ICC in the third situation is similarly limited. Ideally, the promise of justice at the ICC would help diminish antagonism when a brutal conflict ceases. However, The Hague is perhaps too far removed from the recovering locales to have such a beneficial effect. This is true on a number of levels. The ICC sits in Western Europe, physically distant from where these crimes occurred. The locals who experienced the hostilities and now live in the aftermath often do not see the trials and convictions due to sheer distance.11 Additionally, the ICC embodies a view of justice that may differ from what the local people have traditionally viewed as justice or conflict resolution. If people do not view the ICC as a legitimate response to the crimes that plagued their country, they may well be motivated to take revenge for themselves. The ICC might even undermine efforts to achieve domestic stability since it allows the state to foist prosecution onto an outside party rather than build up their own judicial system.12

III. Fundamental Basis for Deterrence

While the ICC, as a standalone institution, has limited deterrent effect that is not to say that the ICC has no preventative merit at all. In conjunction with other international actions, the ICC bolsters a movement towards universal censure of the most severe crimes, which will ultimately result in general deterrence of such crimes. This deterrence comes about in two ways: through internalization of moral norms and through external pressures

A. Internalizing Norms

One effect of international condemnation of these atrocities is to nurture the internalization of the rule of law in regards to international criminal law.13 “The real power of law to secure systematic compliance does not rest, primarily on police enforcement […] but, rather, on the general belief of those whom the law is addressed that they have a stake in the rule of law itself: that law is binding because it is the law.”14 Where a society uniformly deems an act to be abhorrent, it becomes less likely that individuals will engage in that act, thus creating a deterrent effect by preventing such crimes from even being seriously considered in the first place. This creates a social bulwark against even ideological motivations. Where crimes have already begun, instilled norms will hamper its spread by making it difficult for the perpetrators to gain support. A related aspect of internalized social mores against crimes is internalized accountability. If actions are generally condemned as criminal, people are more likely to expect its perpetrators to be held accountable—whether by the ICC or by domestic judicial mechanisms.15

B. External, Material Pressure

The second deterrent effect resulting from universal condemnation is external pressures. These are negative consequences that stem from foreign states rebuking the crimes of a domestic actor. In the most severe example would be invasion and the overthrow of a government committing atrocities. Less extreme examples of using force include the NATO intervention in Kosovo and more recently, in Libya. External pressure can also be subtler, such as economic sanctions or withdrawal of political support. In an increasingly globalized world, foreign relations are vital to maintaining power in a domestic context. An aspiring leader who knows that committing war crimes to amass power locally will alienate him internationally will think twice about taking such actions—not because of a fear of punishment but because of a fear of not achieving his goals. Even to ideologues, “[m]omentary glory and political ascendancy, to be followed by downfall and humiliation, are considerably less attractive than long-term political viability.”16

The ICC is vital to cultivating this environment of uniform condemnation. It reinforces the idea that these crimes are the most severe and most abhorrent acts no matter where they are committed or by whom. By emphasizing accountability for these crimes, the ICC fortifies the norms reviling them. Furthermore, ICC prosecutions convey the message that the international community is paying attention to these atrocities and will take action to punish them.

It should be noted that internalization and external pressures do not operate independently—actions by foreign governments can have a direct impact on the domestic views. Consistent international community denunciation of bad actors may help bolster domestic efforts to foster war crimes trials and prosecute criminals.17

IV. Policy Measures to Maximize Deterrent Effect

This ideal end result of a world where atrocities would be stymied both internally and externally is by no means a foregone conclusion. This is a goal which requires a precise confluence of factors from every realm of international relations, not just judicial. The ICC and the international community need to take additional steps to achieve this result.

A. ICC Actions

The ICC for its part can do a number of things to increase its deterrent effect as part of this international trend. First, ICC prosecutions should focus on the highest level offenders. In order for deterrence to have the greatest impact, the ICC must demonstrate that attaining political status and power does not provide immunity from prosecution for the most severe crimes.

Secondly, to that end, because the ICC has limited resources, it may be wise of the ICC to allow mid-level and lower-level offenders to plea bargain. This provides incentives for the supporting players to surrender, isolating the higher-ups. Moreover, information gained from lower-level offenders can be used to more effectively prosecute their leaders. In that same vein, the ICC should refrain from offering plea bargains or other mitigated measures like amnesties to the highest level offenders. Such an act would undermine the deterrent threat of the ICC as a legal institution and as well as the general movement towards uniform, international condemnation.

Third, the ICC should improve their outreach to the states where it has open cases. Trials, public information learned from the trials, and convictions should be widely published in the local language in the local areas. Where domestic views of justice differ greatly from the ICC’s conception, there should be efforts to not simply explain the ICC’s prosecutions but also reconcile them with local ideals.

Lastly, in coordination with the previous point, the ICC should allow alternative justice mechanisms to be respected in complementarity considerations, particularly for low-level offenders. Domestic mechanisms in general boost the public awareness of the resolution process, leading to a localized deterrent to re-starting hostilities. Alternative justice mechanisms, such as the gacaca courts in Rwanda, are also more familiar and understandable to the people directly affected. When properly carried out, they provide a path to re-integration without complete amnesty which again serves to maintain peace.18

B. International Actions Outside the ICC

As previously stated, the ICC alone is insufficient to be a deterrent; it must have the support of the international community. In order for the ICC to be viewed legitimately and for its goals to be universally accepted, more states need to become State Parties or at least publicly express support the ICC. Arguably, this has been a recent trend in international relations as seen by the Security Council referrals of the Sudan and Libya to the ICC. Three of the five permanent members of the Security Council are not parties to the ICC but have advocated or at least not blocked the referrals.19 Such actions indicate support for the ICC’s authority as well as unified condemnation of the crimes in question. In order for this trend to gain momentum and last, states must continue to make similar political decisions.

Additionally, states who are already states parties to the ICC should actively assist the ICC where possible. The ICC lacks police enforcement and must rely on its states parties to execute arrest warrants and collaborate with investigations. Such cooperation is necessary to the credibility of the ICC as a legal institution and as a deterrent.20

Non-governmental organizations, international and domestic, also have a role to play. Internationally, such groups should publicize ICC efforts to increase understanding of the ICC’s goals and bring to light the violence of the atrocities it is prosecution. Furthermore, groups should increase political pressure on governments by not just condemning offenders but nations who support those offenders politically, socially, or economically.

V. Conclusion

Preventing major international crimes is a hugely complicated matter. Deterrence is difficult to quantify or even necessarily identify in reality. It is tempting to view long-term, ongoing crimes like the crimes in Darfur or recent atrocities like Gaddafi’s recent violent suppression of protests in Libya as evidence that international criminal tribunals have no deterrent effect. While it may be true that the ICC is greatly limited in its ability to stop crimes in the short-term, its existence and function herald a development in international law where not just the ICC holds bad actors accountable, but the entire international community participates in preventing and punishing major crimes. This result is not an inevitability to be taken for granted but rather a possibility to be pursued. In order to achieve this goal, the ICC and the international community will need to take affirmative steps to bolster international law and nurture support for its underlying norms.

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

1. 1.

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

2. 2.

   Gary Jonathan Bass, Stay the Hand of Vengeance 291 (Princeton 2000). See also Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7 (2001) (asserting that the ICTY and ICTR had a helped prevent hostilities from re-emerging or worsening in their respective areas). Cf. Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 777 (2006) (analyzing data regarding African coup participants and contending that ICTs may not have deterrent effects and might even worsen conflicts). ↩

3. 3.

   For the purposes of this comment, criminals (or potential criminals) are assumed to be rational actors since deterrence, from any source, only works with rational actors. ↩

4. 4.

   Kofi Annan, Africa and the International Criminal Court, N.Y. Times, June 29, 2009, available online. ↩

5. 5.

   Rome Statute, supra note 1, at art. 77 (limiting penalties to imprisonment or property forfeiture). ↩

6. 6.

   See generally Ku & Nzelibe, supra note 2. ↩

7. 7.

   David Wippman, Atrocities, Defence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473 (1999). See also Bass, supra note 2, at 290 (citing various commentators asserting the deterrence effect of the Nuremberg Trials). ↩

8. 8.

   Uganda Rebels in Fresh Truce Call, BBC News, Jan. 12, 2009, available online (“The LRA insists the International Criminal Court must drop warrants of arrest for Mr Kony and his top commanders before they can sign the peace deal.”). ↩

9. 9.

   Sudan Expels Aid Groups in Response to Warrant, MSNBC, Mar. 4, 2009, available online. ↩

10. 10.

    Max Boot, Qaddafi Exile Unlikely, Commentary, Mar. 23, 2011, available online, (“Qaddafi has every incentive to fight to the death and take a lot of people down with him”). ↩

11. 11.

    Kenya For and Against ICC, IRIN, Jan. 20, 2011, available online. ↩

12. 12.

    Mahnoush H. Arsanjani & W. Michael Reisman, Developments at the International Criminal Court, 99 Am. J. Int’l L. 385, 392 (cautioning that Uganda’s referral to the ICC may be a move to defer a politically risky and resource-consuming problem to the international sphere). ↩

13. 13.

    Payam Akhavan, Are International Criminal Tribunals a Disincentive to Peace?, 31 Hum. Rts. Q. 624, 641 (2009). ↩

14. 14.

    Thomas M. Franck, Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium, 100 Am. J. Int’l L. 88, 91 (2006). ↩

15. 15.

    Akhavan, supra note 13. ↩

16. 16.

    Akhavan, supra note 2, at 12. ↩

17. 17.

    Rebecca Evans, Pinochet in London—Pinochet in Chile: International and Domestic Politics in Human Rights Policy, 28 Hum. Rts. Q. 207 (2006) (noting how the confluence of domestic development in human rights law and attempted international prosecutions of Pinochet ultimately led to Pinochet’s domestic arrest and prosecution despite initially receiving amnesty). ↩

18. 18.

    Linda M. Keller, Achieving Peace With Justice the International Criminal Court and Uganda Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209 (arguing that the ICC could accept alternative justice mechanisms in Uganda in order to balancing considerations of justice and peace). ↩

19. 19.

    Philippe Sands, The ICC Arrest Warrants Will Make Colonel Gaddafi Dig in His Heels, guardian.co.uk, May 4, 2001, available online. ↩

20. 20.

    Kofi Annan, Justice vs. Impunity, N.Y. Times, May 30, 2010 available online (“There must be no going back or lessening of momentum. Our challenge is to protect the innocent by building a court so strong, universal and effective that it will deter even the most determined of despots”). ↩