II. Approaches That Can Effectively Harness The ICC’s Institutional Uniqueness

A. Global Economic Sanctions that Deter Atrocities

The first, and ultimately most important strategy presented here actually requires little effort on the part of the ICC. That observation stems what I find is the most fundamentally important quality of a judicial institution: legitimacy.9 Unlike the respect that the rule of law receives in many westernized countries, the international community clearly lacks that same high esteem in regards to the mandate of the ICC.10 Consequently, the international community must properly establish the institutional respect necessary to realize, most effectively, the prevention of war crimes.11 While the ICC will serve as the greatest institutional beneficiary should the international community rally behind bringing in recipients of its arrest warrants (as it clearly has not done thus far), this approach will provide the ICC with little, if any, role.

With that perspective in mind, the question becomes how can the international community support the ICC, which relies upon it to detain those individuals that it issues arrest warrants for. The answer to this inquiry, unlike many on this subject, is actually quite simple: the international community must fervently support the apprehension of all those to whom the ICC issues an arrest warrant. That conclusion begs a much more difficult, and politically fraught, inquiry: what does an international effort look like, and by what means is it nurtured, for successfully beckoning those indicted to surrender to the ICC?12

1. The Role of Economic Sanctions in Allowing ICC Trials to Proceed (and in Preventing Crime).

The ICC’s inability to bring in defendants for trial largely stands as the obstacle preventing the ICC from fully functioning within its current mandate.13 What most commentators will generally acknowledge, though, is that maximizing the crime prevention impact of the ICC, as it is currently structured, cannot be accomplished without a strong infusion of international assistance.14 Put differently, maximization of the ICC’s crime prevention impact cannot occur within anything resembling the status quo and without broad international advocacy. To bring in perpetrators and reinforce (or develop) the international norm that “crime doesn’t pay,” the ICC must rely upon international pressure. That leaves the obvious question of what type of international pressure.

Generally speaking, three forms of international pressure exist. These range from diplomacy to economic sanctions to military engagement. Relying on diplomatic pressure serves as the least costly alternative, with a full scale military invasion possessing the highest budgetary price tag. Beyond considerations of line-item expenditures, economic sanctions can cost the United States economy large amounts in the form of lost business opportunities.15 As a practical matter, then, only diplomacy serves as a low-cost option.

When diplomacy fails, as it typically does in these circumstances, an uncomfortable question remains: is trying war criminals worth the high cost associated with bringing them in? From a militaristic perspective, up to this point, that answer is almost always no. With a couple of notable exceptions, few countries willingly risk their own blood and treasure to see perpetrators of mass murder in a distant land brought to justice. In other words, while they readily issue diplomatic statements condemning such actions, they remain far less willing to go any further.

Economic sanctions, then, appear as a third way to balance costs and moral outrage. Quite significantly, this cost does not exist on the federal budget, so the political headwinds remain significantly weaker than, say, when a Prime Minister proposes military action. But, by any measure, the costs can be quite substantial to every country that participates.16 Thus the challenge: convince individual countries to join a costly march that may, in the end, accomplish little beyond causing a country to suffer while its elite continue to prosper and live in impunity. On the other hand, no one wants to stand by and watch another Rwandan massacre occur. Consequently, economic sanctions emerge time and again as an acceptable, if not preferred, response to moral outrage. Even still, how would economic sanctions operate in bolstering the ICC’s lack of legitimacy on the world stage?

In this context, economic sanctions send two particular messages in line with specific and general deterrence principles. First, if the ICC an arrest warrant for an individual for war crimes, they will have to come to The Hague or face extensive, personal economic penalties—assuming an effective sanctions regime. Second, other individuals who may consider committing these same kinds of atrocities will realize the significant penalties associated with this conduct. The aspiration is that those future perpetrators may come to view the costs of such reprehensible behavior as much too high. That, while setting a fantastically high bar, remains the goal.

Economic sanctions along these lines have a number of necessary characteristics. These descriptors will be listed below before further explication will follow.

• [i] Multi-lateral, with a few narrow exceptions.
• [ii] As specific as possible, focusing first on travel bans and asset freezes.
• [iii] Arm embargos for large-scale and advanced weaponry.
• [iv] Avoid general bans on economic activities.
• [v] Provide for suspension of sanctions given a specific exigency.

i. Multi-lateral, with a few narrow exceptions.

The first quality serves as a general litmus test of a sanction’s effectiveness. Unless a specific country wields an inordinate amount of influence over the sanctions target, chances are that unilateral sanctions, while politically pleasing, will be economically ineffective.17 After all, how unilateral sanctions can press an elite into turning him—or her-self in to the ICC, when other global competitors stand ready to fill the gaps left by the sanctioning country’s disappearing enterprise, is unknown.18 For that reason alone, barring the special influence exception articulated previously, unilateral sanctions are discouraged.

ii. As specific as possible, focusing first on travel bans and finance freezes.

Within the economic sanctions discourse, the modifier “smart” is used to describe sanctions that seek a very particular ends while avoiding unnecessary collateral damage.19 That adjective doesn’t seem too useful here because, inter alia, it doesn’t specifically describe the means by which the sanctions act. Precise sanctions as a term, whether the targeted activity is large or small, seems to better capture this notion.

In delineating precise sanctions, the focus should begin with the kinds of sanctions that exact the lowest costs on those carrying out the sanctions. Naturally, then, these should include travel bans and freezes of financial assets.20 Travel bans offer a relatively costless, symbolic gesture that begins what will hopefully consist of a series of efforts to isolate a leader. If properly carried out, freezes of financial assets can effectively cripple a regime because unpaid foot soldiers tend not to fight willingly. Because speed and secrecy are of the utmost importance for carrying forth this prerogative, enacting these sanctions might qualify as the kind a country could, on its own, enact before seeking international support. To the extent that secrecy is no longer important, and the nation issuing unilateral sanctions does not possess an inordinate amount of influence over the sanctions target, a concerted effort should be made to proceed only with broad international support to ensure that the sanctions regime is effective.

iii. Arms embargos on large-scale and advanced weaponry.

Counter-intuitively, general arms embargos can cause more bloodshed. This occurred during the Balkans conflict when, upon a cessation of outside arms supplies to the area, the Serbs, who now solely possessed almost all of the munitions factories throughout the conflict area, immediately had a superior military position to carry out their campaign of horror.21 The massive, unintended consequences that resulted from that general arms embargo should cause one to pause before reinstituting that same kind of regime elsewhere.

Those events have not led me to conclude that arms embargos should never occur, but rather that arms embargos, unless all sides in a conflict have similar weapons inventories and production capabilities, should only be levied in regards to large-scale and advanced weaponry. While some risks remain that any embargo could tilt the playing field towards one opponent, stopping the flow of these weapons classes reaches a proper balance between legitimate arms and those that can destroy hundreds, if not thousands, of lives. And generally speaking, only advanced economies can produce many of those tools of destruction efficiently,22 so pulling them out of a conflict zone, unless one side already has a large inventory of and production capability for these weapons, will only tilt a conflict in the direction of peace.

iv. Avoid general bans on economic activities.

Beyond travel bans, asset freezes, and arms embargos, individual sovereigns and the international community have utilized a number of varying techniques in enacting economic sanctions. These include whole scale trade embargos,23 to prohibited trade with entities associated with a particular group—in one case, the Revolutionary Guard Corps of Iran.24 What is clear from history is that broad trade embargos inflict large amounts of pain on everyday citizens while the elite continues to live in relative prosperity.25 The economic suffering of everyday people creates two, significant unintended consequences. First, it allows the elite to consolidate control over the distribution of goods.26 That has important implications for the political opposition’s ability to sustain its movement. Second, and equally as significant, the scarcity of goods allows an indicted political leader to foster a siege-like mentality among the people of his or her nation.27 Both of those consequences suggests that precise sanctions are, as a general matter, superior to general trade embargos meant to persuade leaders to accept a demand.

Further, a group of people that can barley manage fulfilling the basic necessities of life may have little interest in sending their leader to the ICC while quite fixated on finding the next meal. Correspondingly, a well-nourished populace is better positioned to organize opposition.

General trade embargos also have far-reaching consequences on the trading partners of the leader targeted with sanctions. For instance, while the American oil industry lost out on lucrative opportunities in Iraq for many years, all of Iraq’s trading partners, including Turkey, sustained even greater losses at the hand of the United Nations sanctions against Iraq.28 Richard Haas has suggested that those sovereigns that sanction should also set aside a compensatory fund for third-party nations who suffer from the sanctions’ effects.29 This fund would also ensure better compliance with the sanction regime by lowering the urge to cheat.

v. Provide for suspension of sanctions given a specific exigency.

One interesting observation provided by Robin Geiss stems from the proposition that sanctions work best when the citizenry in the country of a particular leader targeted for sanctions does not actually suffer enormously at the hands of the sanctions. While some level of suffering remains inevitable, temporarily halting the sanctions if, for instance, a humanitarian situation spirals out of control, will preclude the sanctions regime from engendering significant levels of collateral damage.30

Sanctions, based upon these guidelines, have a legitimate chance at persuading a leader indicted by the ICC to change course. Clear examples from history, though, show that economic sanctions do not always work. A quintessential example of ineffective sanctions on a country is the continuing effort to convince North Korea to cease its nuclear weapons program. Even as most North Koreans live in abject poverty, Kim Jong Il, North Korea’s leader, spends a massive annual sum on expensive cognac (and many other luxuries).31 But sanctions apparently led Col. Mummar Gaddafi to give up his nuclear weapons program, paving the way for the military campaign that appears to have ousted him from leadership. Whether those same sanctions would have convinced Col. Gaddafi to show up in The Hague, though, is a far different question. What that episode does teach is that sanctions can incentivize leaders to take actions that they previously found unthinkable.32

2. Even if Leaders Won’t Surrender Pursuant to an ICC Arrest Warrant, the Sanctions Levied Have an Important General Deterrent Purpose.

Sanctions probably have their best chance of preventing crime that has not yet occurred. While leaders will probably dig in against economic sanctions with their personal freedom on the line, another leader may view those costs as too high to proceed with actions resembling war crimes. But to impose near-suffocating, personal economic costs, the international community must stand in solidarity behind these sanctions. It goes without saying that isolating a leader, which is essentially what economic sanctions accomplish, does not work if other nations fail to enforce them. In other words, the international community cannot allow justice to leak due to pure economic opportunism. While some leaders wouldn’t mind sipping Hennessey cognac in their isolated nation amidst the great suffering of their people, some leaders might not like that idea and adjust their behavior—once they saw the international community punishing it—accordingly.

B. A Role for the ICC: Useful Assistance to National Judicial Institutions

The second, far more inferior strategy for maximizing the crime prevention impact of the ICC involves coordination with signatory countries to better improve national judicial systems. This approach, largely characterized as positive complementarity,33 relies upon a variety of means to bolster a nation’s judicial system. And unlike economic sanctions, the ICC may take a direct role in carrying forth this goal.

While this seems less helpful given that the targets in these kinds of cases are equivalent to a king or prince of that nation, the International Criminal Tribunals established for Rwanda and the former Yugoslavia demonstrate how important this assistance can be. Principles of specific deterrence would also support this kind of assistance.34

Beneficial forms of ICC-led assistance could include both monetary and judicial aid. In considering monetary assistance, while focusing less on physical structures, unless critical, and focusing more on the necessary elements of a criminal prosecution, such as research materials and advocacy training, will give these nations a foundation to prosecute absent ICC assistance.35 In the meantime, loaning judges, prosecutors, and defense counsel could be useful if national leaders (and those in the legal profession) accepted these services.36 Ideally, some type of clinical education would accompany this legal assistance in the form of simulations and the like. Given the ICC’s superior, albeit limited, resources, as well as its unique platform to champion a judicial cause, it possesses the practical tools to carry forth this goal.

By choosing to channel judicial resources to a country in need, questions of implementation arise. Will civil or common law control? How long will the international footprint last? Who will fund this endeavor if the United States, as a non-signatory to the Rome Statute, offers little monetary aid? It’s also unclear whether the ICC possesses authority under the Rome Statute to spearhead these efforts.37 Perhaps they could send human resources, but passing out monetary aid seems more like a job fit for the United States Agency for International Development (“USAID”).

III. Conclusion

Clearly, inherent difficulties exist under either approach for maximizing the crime prevention impact of the ICC. Notably, under the first, foreign polices of “non-intervention” telegraph a general unwillingness to punish most types of repugnant behavior without a close nexus to a national interest. There are also rather large opportunity costs to forgoing business opportunities that sanctions foreclose. A partial solution involves transforming the issue into a poignant moral question, i.e., will country X allow more bloodshed by ignoring sanctions so its large corporations can record higher profits? NGOs certainly have a place in framing this kind of debate.

At bottom, though, persuading leaders to come in may prove impossible. Persuading future leaders to avoid the same sorts of conduct, because of the difficulty that widely-enforced sanctions will visibly impose on current indicted leaders, may prove not only possible but effective. Simultaneously, the ICC can champion improvements in national judicial systems. And by taking steps to shore up national legal systems, these actions could have the unintended consequence of improving its own legitimacy—by showing that administering justice, and not playing politics, remains its foremost priority.

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

1. 1.

   See Preamble of the Rome Statute of the International Criminal Court, 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], (proposing “to put an end to impunity for the perpetrators of [grave] crimes,” by “[r]esolv[ing] to guarantee lasting respect for and the enforcement of international justice”). ↩

2. 2.

   Rome Statute, supra note 1, Preamble (describing the ICC’s mandate to include “jurisdiction over the most serious crimes of concern to the international community”). ↩

3. 3.

   Rome Statute, supra note 1, Preamble (declaring that the ICC should “contribute to the prevention of [grave] crimes”). ↩

4. 4.

   Due to this deficiency, Author prescribes a sort of ICC snatch team as one of two ways to improve the crime prevention impact of the ICC. See David Scheffer, Maximizing Opportunities to Deter Further Atrocity Crimes, ICC Forum, Oct. 6, 2011, available online. ↩

5. 5.

   See Rome Statute, supra note 1, art. 12, 13, & 17. ↩

6. 6.

   See Rome Statute, supra note 1, art. 6, 7(1), & 8(1). ↩

7. 7.

   It’s not clear how, on a general deterrence theory, future perpetrators in other countries would be deterred by judicial improvements in another sovereign. There certainly is an argument that future war crimes will be deterred in the country that receives judicial assistance. ↩

8. 8.

   Just outcomes remain critical for fostering support for the ICC among the international community. An incorrect guilty verdict could seriously undermine the marginal support that currently exists for the ICC, even if a defendant may have been guilty of other, lesser offenses. ↩

9. 9.

   Time and again, commentators extol the necessity of this virtue in preventing crime. See James Alexander, The International Criminal Court and the Prevention of Atrocities, 54 Vill. L. Rev. 1, 26 (2009). ↩

10. 10.

    In an almost mechanical fashion, an ICC indictment tends to precipitate the following sequence: first, the indicted usually issues anti-western tirades before subsequently vowing to avoid the tribunal entirely. See Bashir rattled, but unbowed, BBC News, May 13, 2009, available online. In other words, these alleged perpetrators of war crimes tend to personify the definition of impunity. ↩

11. 11.

    The ICC may be able to slowly develop the respect necessary for it to establish international legitimacy through impartial behavior. The problem here is that it does not have enough partners willing to utilize their police powers. But without another alternative, it must rely upon the unreliable international community to fill this void. See Jack Goldsmith, The Self-Defeating International Criminal Court, 70 U. Chi. L. Rev. 89, 92 (2003). ↩

12. 12.

    Because an indictment represents the Prosecutor’s judgment that a sovereign is “unwilling or unable” to try the alleged perpetrator in question, Rome Statute, supra note 1, art. 17, a national trial is hardly an option here. ↩

13. 13.

    Of course, the ICC could always function on a wider scale if more countries ratified the Rome Statue, but that is not to say that it cannot effectively work within the parameters that currently govern its operation. ↩

14. 14.

    See, e.g., Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 10 (2001). ↩

15. 15.

    See Gary Clyde Hufbauer & Barbara Oeeg, Economic Sanctions: Public Goals and Private Compensation, 4 Chi. J. Int’l L. 305, 310-11 (2003) (noting the 94-99% reductions in bilateral trade flows, as well as the loss of confidence in American suppliers “out of fear that, in the future, their US Suppliers might be caught up in a sanctions episode.”). ↩

16. 16.

    See id. ↩

17. 17.

    See Richard N. Haas, Sanctioning Madness, 76 Foreign Aff. 74, 77 (1997) (“Unilateral sanctions are particularly ineffective.”). ↩

18. 18.

    See Gary Clyde Hufbauer et al., Economic Sanctions Reconsidered, 12 (2d ed. 1990). ↩

19. 19.

    See generally Smart Sanctions: The Next Steps-The Debate on Arms Embargoes and Travel Restrictions within the Bonn-Berun Process, (Michel Brozoska ed., 2001). ↩

20. 20.

    See Robin Geiss, Humanitarian Safeguards in Economic Sanctions Regimes: A Call for Automatic Suspension Clauses, Periodic Monitoring, and Follow-Up Assessment of Long Term Effects, 18 Harv. Hum. Rts. J. 167, 184 (2005). ↩

21. 21.

    Paul R. Williams & Michael P. Sharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia, 25 (2002). ↩

22. 22.

    See T.S. Jan & C.-G. Jan, Development of Weapons Systems in Developing Countries: A Case Study of Long Range Strategies in Taiwan, 51 J. Oper. Res. Soc’y 1041, 1043 (2000). ↩

23. 23.

    Adam Winkler, Just Sanctions, 21 Hum. Rts. Q. 133, 138 (1999). ↩

24. 24.

    Editorial, Congress, Sanctions, and Iran, N.Y. Times, July 2, 2010, at A18. ↩

25. 25.

    Haas, supra note 17, at 80 (“authoritarian, statist societies are often able to hunker down and withstand the effects of sanctions.”). ↩

26. 26.

    Id. ↩

27. 27.

    Id. (“sanctions can sometimes trigger a ‘rally around the flag’ nationalist reaction”). See also Hufbauer, supra note 18, at 12. ↩

28. 28.

    Douglas Frantz, At Iraq’s Backdoor, Turkey Flouts Sanctions, N.Y. Times, March 30, 2001, at A1 (describing Turkish officials estimates that the sanctions had damaged Turkey’s economy to the tune of $35 billion to $40 billion). ↩

29. 29.

    Haas, supra note 17, at 81. ↩

30. 30.

    Geiss, supra note 20, at 186. ↩

31. 31.

    See Elizabeth Williamson, Hitting Kim Jong Il Right in the Cognac, Wash. Post, Nov. 30, 2006, (citing an estimate putting Kim Jong Il’s “annual cognac budget at up to $800,000 a year.”). ↩

32. 32.

    See Patrick E. Tyler, Blair Visits Qaddafi, Ending Libya’s Long Estrangement, N.Y. Times, March 26, 2004, at A3. ↩

33. 33.

    See generally ICC, OTP, Report on Prosecutorial Strategy, at 5 (September 14, 2006) (“[T]he Office has adopted a positive approach to complementarity, meaning that it encourages national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.”). ↩

34. 34.

    Principles of general deterrence might apply here, allow its unclear why a potential perpetrator would change course because of the ICC’s promise of judicial assistance. Presumably, they would believe themselves capable of refusing such support, thereby rending the offer an ineffective deterrent. ↩

35. 35.

    See Norman Farrell, The Evolution of Capacity Building Through Direct Interaction: A Prosecutor’s Perspective, in Assessing the Legacy of the ICTY 177, 178-79 (Richard H. Steinberg ed., 2011). ↩

36. 36.

    See Bakone Justice Moloto, International Facilitation of the Self-Determined Development of the Legal System of the Former Yugoslavia, in Assessing the Legacy of the ICTY 173, 174-75 (Richard H. Steinberg ed., 2011). ↩

37. 37.

    The Rome Statute does not specify the legality of the ICC’s efforts in this regard. ↩