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- SusanKnisely: I work with a good number complex crime victims. The population is those who are victims of terrorism and human trafficking; women, children and their families. My commentary is based on experience with these victims rather than theory. Sadly, in America, our legal system fails especially in complex cases. One reason I discovered is that many attorneys don't want to take on a complex case as they could earn the same income from a "easy," case. Second is a resistance by the private legal system... (more)
- Cowdery: It is to be hoped that the ICC, like other courts, would be able to play a crime prevention role in respect of the offences with which it deals; but a few basic points need to be made in the interests of realism. First it is not like other courts. Domestic criminal courts have jurisdiction over a geographical area covered by law enforcement officials who feed offences into those courts. There is reach, permanence and consistency of action. There is a real risk of detection and... (more)
- Kimia: Coercive Diplomacy: An ICC Approach to Minimize Human Rights Atrocities Argument Instead of focusing on a retribution approach, the ICC should think about using a coercive diplomacy framework in some cases. At a time when perpetrators have committed crimes and are able to wage ongoing human rights abuses, this approach may induce short-term deterrence. Introduction... (more)
- elio: Argument To achieve long-term deterrence and prevention of crimes, the ICC must first be seen as a legitimate and credible threat. To be seen as a credible threat, the ICC should employ two methods. First, the ICC should take a broad view of the “complementarity” principle. Second, when the ICC decides to issue an arrest warrant, it should resolutely... (more)
- Patrick S Wegner: Interesting post Jonathan. I think the idea of proactive complementarity goes into the right direction, but there are also some dangers in trying to rush domestic prosecutions. The International Crimes Division (ICD) of the Ugandan High Court would be a good example for the type of domestic prosecutions furthered by the ICC that you suggest. The Court was set up in the scope of the accountability discussions during the Juba negotiations with the Lord's Resistance Army. The need to talk about... (more)
- grant2012: ICC Should Plea-Bargain to Prevent Crime and Bring Restorative Justice to Victims Argument The International Criminal Court (ICC) should utilize plea bargaining with criminal leaders prior to trial to remove criminal leaders who enflame hostilities from their positions of power. By removing criminal leaders, the ICC can serve its mission by preventing future crimes emanating from that conflict and... (more)
- Sean.Lowe: Economic Sanctions & Capacity Building: Two Approaches to Prevent Atrocities Most Effectively Argument Because the ICC does not address crime with all of the traditional tools of punishment, it follows that the ICC must look to creative, non-traditional approaches for it to maximize its crime prevention impact. The ICC, then, should focus on two specific priorities, the first of... (more)
- nmoley: Argument The ICC’s overall effectiveness would be improved if it undertook a clear rule delineating when a state is “unwilling or unable” to prosecute on its own. In order to achieve the aims of preventing crime, promoting justice, and ending impunity for perpetrators of serious crimes, the ICC must continually legitimize itself in the eyes of the international community. At the same time, the... (more)
- jonathan.tobin: Argument The International Criminal Court can increase its legitimacy by focusing upon a strategy of complementarity. Such a strategy would mean that the ICC works closely with member states to develop and act upon agreed-upon standards of prosecution in cases of war crimes and other results of widespread violence. This strategy would also increase the visibility of the ICC such that it would not be seen as a... (more)
- davidlee211: Positive Complementarity: Prospects and Limits Argument In order to maximize its effectiveness in the prevention of crimes, the ICC should continue to encourage and assist States Parties in undertaking national prosecutions of international crimes through what is called “positive complementarity.” While there are significant obstacles to positive complementarity, there are several ways to overcome them and to... (more)
Comment on the Prevention Question: “What measures should be taken to maximize the crime prevention impact of the International Criminal Court?”
It is to be hoped that the ICC, like other courts, would be able to play a crime prevention role in respect of the offences with which it deals; but a few basic points need to be made in the interests of realism.
First it is not like other courts. Domestic criminal courts have jurisdiction over a geographical area covered by law enforcement officials who feed offences into those courts. There is reach, permanence and consistency of action. There is a real risk of detection and adjudication and outcomes are broadly predictable. The ICC has been given the world—but only in respect of some uncommon offences and only when the domestic courts are unable or unwilling to act. It is a backstop. It is not “on the job” in any one place at any time, even for its particular offences.
Secondly, crime prevention is not really the work of the courts, in any event. Crime prevention is done by a wide range of measures affecting persons, places, activities, security, etc—education of people, design concepts for buildings and neighbourhoods, methods of handling valuable goods, control of intoxicating substances, preventive policing and so on. Those measures do not really work for ICC crimes and, other than awareness and action by strong and fearless domestic actors and their allies, it is difficult to think of measures that might.
Thirdly, if crime prevention is meant to be effected by the sentencing function of criminal courts, through individual and general deterrence, then we need to think again. Punishment (and the prospect of punishment) does not deter serious offenders, as countless reputable studies continue to show. And the ICC deals with the most serious. Perpetrators of war crimes, genocide and crimes against humanity do not think about getting caught, let alone punished.
Fourthly, any deterrent effect of the criminal justice system (that there is) is achieved through the certainty of detection. Psychological studies show that while punishment can modify behaviour, it is most effective when it is: immediate (ie within seconds of the behaviour); inevitable; severe; understood to be a consequence of the behaviour; AND alternative behaviours are understood by the recipient of the punishment to be available. Try fitting that into the ICC’s model.
If the certainty of detection and inevitability of punishment are to be assured for ICC crimes, then more must be done than tinkering with the operations of the Court or its structural framework. This is a job for the domestic politicians and courts and the UN. What are the chances? In the meantime, however, the ICC does have an important role to play in cleaning up after the most horrific of events and carrying out international revenge on our behalf in a principled and broadly acceptable way.