II. Application of Coercive Diplomacy to the ICC

When applying the coercive diplomacy framework to the ICC, a turning of the screw approach would most likely be used. Often times, when the ultimatum approach has been used in the past, it has been a failure because the demander’s threat appeared so strong and obstinate that the target did not perceive any negotiating room and was pushed into war. For an example of this contention, see the case of U.S. foreign policy toward Japan leading up to Pearl Harbor. As I suggest, it is imperative to save lives by refraining from backing the opponent into a corner or appearing to have a retribution focus. Instead, we need to give the perpetrator time and an opportunity to negotiate by gradually stepping up pressure with our request to stop committing crimes. How then can we apply this gradual cranking up the pressure variant of coercive diplomacy to the ICC?

A. Specific Demand

First, there must be a specific demand. The demand should be clear and concise with no room for misconception as to what is being asked of the perpetrator. The ICC’s demand to the criminal is to stop perpetrating crimes. This element is easy to satisfy.

B. Time to Consider

Second, the ICC must contemplate a timeframe to allow the perpetrator to decide whether he will comply with the demand. The ICC must determine the appropriate sense of urgency to create and it should give the perpetrator an opportunity to disengage before resorting to military operations with the aid of any states that are willing to intervene.5 If for instance domestic courts are corrupt or ineffective, then the ICC must give strong recommendations before using the ICC to indict and prosecute. The ICC should only step in after adequate time has been given to the nation or domestic court, by resorting to positive complementarity, to settle the internal conflict. However, though the perpetrator needs time to consider his next move, the ICC must balance the allowable time with the risk that mass atrocities are being continued and innocent civilians are losing their lives. This balancing approach therefore must be taken with respect to the appropriate timeframe on a case-by-case basis.

C. Credible Threat

The third element, the credible threat or credible threat of punishment, is the most complex and at some points, problematic. What matters here is the perpetrator’s perception of the credibility or potency of the threat.6 The credible threat consists of four basic elements: (1) the perpetrator believes that the ICC will engage in escalation that would result in unacceptable costs, (2) an effective means to physically capture or arrest the criminal, (3) reliable evidence, and (4) a location where criminals can be housed.

1. Unacceptable Costs to Perpetrator

There are different ways that a threat may provide unacceptable costs to the perpetrator. Unacceptable costs can be in the form of a damaged international reputation, loss of credibility, or often times physical capture, endangerment, or prosecution, which will be further discussed in the next element. If any of these occurrences exist and lead the perpetrator to alter his behavior, then this element has been met.

For instance, the threat of prosecution or arrest warrants issued may induce the internal government to implement serious reforms to the existing state of affairs. A credible threat must provide an incentive for constructive political behavior.7 This type of threat has arguably impacted the turmoil in Sudan. The Executive Summary of the Crisis Group article advises that the ICC must leverage and persuade the National Congress Party that it will only secure a one-year deferral of Omar al-Bashir’s case, using the United Nations Security Council’s power by way of the Article 16 procedure of the Rome Statute, with serious judicial reforms and by attaining an adequate Darfur peace settlement.8 In Uganda, the ICC’s threat of prosecution induced an internal change of approach by granting the perpetrators amnesty after their step-down from power. The amnesty ceremony, known as “mato oput,” must have “teeth” in the perpetrator’s eyes. That is, the perpetrator, Joseph Kony for instance, must perceive a suffering of some sort.9 The ICC’s warrants motivated the Lord’s Resistance Army (“LRA”) to negotiate for peace. After the ICC indicted five LRA leaders in 2003 and later issued arrest warrants for them in 2005, the government and the LRA both agreed in 2007 that the leaders would undergo trials in Ugandan courts. Similarly, international warrants politically undermined perpetrators such as Slobodan Milosevic and Charles Taylor. The important benefit of warrants is that it isolates perpetrators politically.10

Another consideration is that the behavior of some perpetrators may be affected by loss of respect or reputation internationally, which is why a threat backed by international support is more credible than one that is not. Although the support of non-signatories of the Rome Statute, such as the United States, Russia, and China is not imperative, it could be influential. For instance, for the threat of arrest to be credible to Al Bashir and other top leaders in Sudan, the ICC needs more international backing of the warrant. This includes all signatories of the Rome Statute as well as non-signatories. The more international backing there is for both the arrest warrant and the ICC, the less likely it is that Al Bashir or his loyalists will continue to allow him to escape from the hands of justice and perpetrate crimes.11 In referring to the United States, Russia, and China refusing to ratify the Rome Statute, Kofi Annan warned, “The opposition of those hostile to the ICC, combined with the inertia or distraction of those who support it, could mean the balance could easily tip away from justice.”12 As another example of the potential power of international arrest warrants, the threat of embarrassment due to an investigation by the ICC may have started the split between warlord Laurent Nkunda and the government of Rwanda.13 This model is more effective in situations where perpetrators are aware of and are influenced by their reputation; thus, the credible threat of prosecution will induce them to stop perpetrating crimes. Cooperation of States Parties and NGOs also remains imperative. Another method of creating unacceptable costs to the perpetrator could be the ICC seeking alliances with well-respected leaders or thinkers of the perpetrator’s nationality to make public statements condemning and discrediting his acts. For instance, this occurred with Milorad Dodik, the Prime Minister of Republic Srpska, who pledged cooperation with the ICTY, called for the arrest of Radovan Karadzic and Ratko Mladic, and promoted and called for the return of Muslim and Croat refugees.14

2. Physical Capture

This element of the credible threat is the toughest to realize. Thus, resources need to be focused on this area. It is often difficult to effectively sustain a threat of prosecution or an arrest warrant without military backing. For example, arrest warrants proved to be futile for the LRA. As William Burke-White writes in his opinion, diplomacy is essential. He says, “Getting states to arrest and thereby incapacitate criminals and/or convincing them to undertake their own investigations and prosecutions requires astute diplomacy that recognizes context, political realities, and state interests.”15

Thus, in order to assert a credible threat, the ICC needs as much support as it can receive in order to physically capture the criminal. This includes accepting support from any and all States Parties, non-States Parties, and agencies that are willing to offer support for this area, including NATO. In employing the gradual turning of the screw approach, the ICC should be willing to accept military support from all sources that could provide the necessary pressure to induce the perpetrator to disengage and negotiate.

Various means have been used to arrest the criminal in the past. Allies have been created with local military to capture the target. For instance, Mladic’s captors consisted of Serb forces. Burke-White refers to the shortcomings of the ICC’s efforts in which such diplomacy was lacking. I endorse his suggestion to use the “tough politics required to persuade states and effectuate arrests.” He argues that the Court “must become better at making astute political calculations utilizing hard-nosed diplomacy when necessary.”16 The ICC must be more aggressive in forming these alliances and using a type of diplomatic approach in attaining this goal. Another way to accomplish this end in transitional-state scenarios where the anti-perpetrator faction is the prevailing party is to direct this faction to seize the perpetrator.

I suggest employing full-scale intelligence, spies and alliances with local military or the perpetrator’s military in order to capture the perpetrator. More resources should be allocated for this purpose. I also endorse David Scheffer’s approach to this problem of creating a well-trained special enforcement team to carry out this function.17 One effective way to seize the perpetrator is to gain the cooperation of neighboring States Parties’ governments to provide assistance, especially when the target is travelling or entering States Parties’ territories.

However, this approach has unfortunately been problematic at times. Under Article VI of the Genocide Convention, contracting parties to the Genocide Convention are obliged to execute the arrest warrants for genocide issued by the ICC, provided that they have accepted its jurisdiction.18 Nevertheless, some States Parties have chosen to disregard their duties in this arena. For instance, Al Bashir of Sudan, for whom there is currently an outstanding arrest warrant, has moved through various African States Parties’ lands and has been welcomed by those nations instead of being arrested. This behavior of States Parties neglecting to enforce warrants not only undermines the credibility of the ICC’s threat but it is also illegal because these nations are signatories of the Rome Treaty. It is absolutely imperative, as a starting point, for signatories to the Rome Statute to abide by the mandate of the Treaty and cooperate with the ICC in executing these arrest warrants. Full support in the handing over of criminals by all countries will prevent assuring perpetrators that human rights abuses can be fledged at home while having the later opportunity to live comfortably abroad in a host nation, as has occurred with many criminals. This happened with Idi Amin of Uganda who was taken in by Saudi Arabia where he continued to live well until he died of natural causes, without undergoing prosecution. It is imperative that all nations come together to prevent this type of occurrence, which in turn will strengthen the credibility of the ICC.

3. Evidence

Victims must have an awareness of effective means to preserve and transport reliable evidence to the ICC, and the ICC must be able to organize and quickly process evidence for trial once arrest warrants are issued. Perpetrators must be aware that this effective mechanism is in place. This mechanism is currently in place at the ICC and will not be problematic when waging a credible threat to a perpetrator.

4. Holding Site

Similarly, finding a place to warehouse criminals once they have been convicted is also not problematic. States Parties have an opportunity to volunteer housing the convict, and the Netherlands similarly offers its territories to provide the holding site for criminals.

D. Positive Incentives and Assurances

Often times, the purpose of using this model is to induce the perpetrator to disengage or surrender by using the credible threat as a tool for bargaining or negotiating. Thus, the ICC can couple the threat with positive incentives and assurances to make it easier for the adversary to accept the demand to stop perpetrating crimes.19 Failed attempts at coercive diplomacy between nations in the past have often resulted due to a lack of blending carrots with sticks. Thus, the ICC may be more effective in its effort to use this technique by offering certain accommodations or concessions when asking the criminal to surrender.

Specifically what types of accommodations or concessions may the ICC offer to a perpetrator? One idea is plea-bargaining. In shying away from a full-fledged retribution focus, a threat of increased imprisonment may not induce a criminal to voluntarily dismantle. Thus, the prosecutor may increase the ICC’s preventative impact by negotiating pre-arrest plea bargains with perpetrators.20 Although a lower prison term may be unsettling for some who endorse the western notion of justice, the ICC’s most important focus should be attaining peace as soon as practically possible. Incapacitation will still occur and a plea-bargaining focus in some situations will have a specific deterrence effect.

Another concession that the prosecutor may endorse is for the United Nations (“UN”) to grant immunity to leaders in return for their step-down from power. For instance, the UN having such a mechanism of granting immunity to Muammar al-Qaddafi of Libya may be a more effective pathway to peace and stability in the region. Similarly, retracting arrest warrants or the UN Security Council taking a case away from the ICC can be used as a bargaining or negotiating tool if it is likely to save lives. This may be a viable option in cases where outstanding arrest warrants may in fact increase the crimes being perpetrated in a region. For instance, the ICC’s inability to suspend arrest warrants may have contributed to Kony’s refusal to stop violence in Uganda.21 Sudan provides one example regarding the effect on the peace process due to the Security Council’s power to take away cases from the ICC if violence is increased. Some argue that the impact of the arrest warrant was such that Al Bashir would be a liability for his party and would thus cause his resignation and possible exile.22 However, others argue that the stick of indictment for Al Bashir, combined with the carrot of suspending the warrant, has not induced him to cooperate.23 Nevertheless, this case remains open. The main point here is that the ICC, as in institution of justice, should be, as Kofi Annan says, “a partner to peace, not an impediment.”24

III. Limits to the Model

This model assumes rationality on the part of the actor. The goal of this model is to induce a greater cost-benefit analysis on the part of the actor. In cases of actors who are recalcitrant or unpredictable, this model will not induce a rational negotiating behavior. One such actor is Qaddafi, for example. In 1986, the United States’ use of coercive diplomacy led to Qaddafi perpetrating more terrorist attacks.25 Idi Amin, former president and tyrant of Uganda, similarly failed to display any acknowledgment of rationality in his outlandish perpetration of human rights abuses.

Another limit to this model are cases where the perpetrator has ample financial capacity and assets, strong international support, or absolute power. This type of scenario makes it difficult for the ICC to launch a credible threat. For instance Joseph Stalin, other than having several meetings with international leaders such as Churchill and Roosevelt at the Tehran and Yalta Conferences, was largely disconnected from international politics. Due to his ability to identify and rid himself of opposition both in the military and elsewhere, he was able to dominate a solid rule in the Soviet power with fear as an element. This would have made launching a credible threat to him difficult had the ICC and interest in deterring large-scale crimes existed back then. Former President of Egypt, Hosni Mubarak, for example was backed by strong western powers, Dick Cheney repeatedly calling him a friend and ally—this may have made it harder for the ICC to hypothetically launch a credible threat against him as well. Also, as I noted earlier, the biggest obstacle with this coercive diplomacy model is how to assure physical capture of the criminal in launching a credible threat. Again, international cooperation and abidance by the Rome Statute remains imperative.

IV. Conclusion

My proposed framework applied to the ICC is a method the prosecutor may want to consider when viable. Although the ICC’s deterrent effect is often discussed in a broader and more long-term capacity as a body of justice, my goal of proposing this model is more limited. My aim is to bargain to deter and to offset ongoing and imminent perpetration of crimes. Despite the prosecutor’s efforts in the past to adhere solely to the Rome Treaty’s legal mandate and to refrain from engaging the ICC and perpetrators from a political standpoint, the ICC must be more cognizant and accepting of playing a more diplomatic role while immersing itself in the political sphere to achieve its objectives in delivering a credible threat. The key is to implement concrete ways to capture the criminal and receive military backing in our effort to launch a credible threat and, thereby, induce criminals to surrender or negotiate. The starting point is to achieve compliance, by States Parties to the mandate of the Rome Statute by capturing these criminals who enter upon their territories. Overall, it is advisable for the Court to expand its knowledge of coercive diplomacy and find innovative ways to implement it in certain contexts.

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

1. 1.

   Alexander K.A. Greenawalt, Justice Without Politics? Prosecutorial Discretion and the International Criminal Court, 39 N.Y.U. J. Int’l L. & Pol. 583, 606 (2007). ↩

2. 2.

   Alexander L. George, Forceful Persuasion: Coercive Diplomacy as an Alternative to War 68 (February 1992). ↩

3. 3.

   Id. at 4, 7, 75-76. ↩

4. 4.

   Id. at 7-8. ↩

5. 5.

   Id. at 6. ↩

6. 6.

   Id. at 14. ↩

7. 7.

   Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 12 (2001). ↩

8. 8.

   Sudan: Justice, Peace and the ICC, Crisis Group Africa Report no. 152, July 17, 2009 at ii. ↩

9. 9.

   Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 270-71 (2008). ↩

10. 10.

    Eric S. Fish, Peace Through Complementarity: Solving the Ex Post Problem in the International Criminal Court Prosecutions, 119 Yale L.J. 1703 (2010), at 1706, 1713. ↩

11. 11.

    A warrant for Bashir: Can Sudan’s serving head of state really be brought to justice for his alleged crimes in Darfur?, The Economist, Mar 5, 2009, available online. ↩

12. 12.

    Kofi Annan, Justice vs. Impunity, N.Y. Times, May 31, 2010, available online. ↩

13. 13.

    Fish, supra note 10, at 1713. ↩

14. 14.

    Akhavan, supra note 7, at 15. ↩

15. 15.

    William Burke-White, Maximizing the ICC’s Crime Prevention Impact Through Positive Complementarity and Hard-Nosed Diplomacy, ICC Forum, Oct. 5, 2011, available online. ↩

16. 16.

    Id. ↩

17. 17.

    David Scheffer, Maximizing Opportunities to Deter Further Atrocity Crimes, ICC Forum, Oct. 5, 2011, available online. ↩

18. 18.

    Paola Gaeta, Response to Darfur Question, ICC Forum, May 2011, available online. ↩

19. 19.

    George, supra note 2, at 6, 10-11. ↩

20. 20.

    Payam Akhavan, 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 (2005). ↩

21. 21.

    Fish, supra note 10, at 1703. ↩

22. 22.

    Sudan: Justice, Peace and the ICC, supra note 8, at 23, 26, 30. ↩

23. 23.

    A warrant for Bashir, supra note 11. ↩

24. 24.

    Annan, supra note 12. ↩

25. 25.

    George, supra note 2, at 55, 57. ↩