Comment on the Deterrence Lecture Question: “To what extent is the deterrence of mass atrocities an attainable goal of the ICC?”
After the principal that citizens of a country have certain human rights was established at the Nuremberg trials, several tribunals have been established dealing with prosecuting those who committed human rights violations in certain specific countries, but it was not until the ICC was established that prosecution of the violation of human rights could be considered to be an ongoing project to diminish the incidence of such violations on a global basis. Whatever the deterrent effect of the previous tribunals may have been, it is fairly clear that the founders of the ICC wanted to deter such conduct in the future. Though the preamble to the Rome Statute establishing the ICC does not contain the word “deterrence,” the statement “Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes” pretty clearly indicates that deterrence was considered to be one of the goals of the court. That said, the question of whether such a goal is attainable depends on how “attainment” is defined. Can the court by deterring such conduct eliminate human rights violations? Almost certainly not. But it may be an attainable goal to use “deterrence” to “contribute to the prevention of such crimes.”
Although domestic criminal law sanctions have not historically provided a high degree of deterrence, the international situation is considerably different. The type of crimes of atrocity that the ICC deals with are not isolated crimes committed by individuals for personal reasons, as in the domestic scenario, but rather a continuing pattern of violations of human rights most often committed by government officials or rebel groups.
I would submit that the majority of the type of human rights violations that the ICC is dealing with occur in attempts to either gain or maintain political power. Examples that have been discussed are Libya, Sudan, and Syria. Whether the human rights violations in these cases are being perpetrated by the established government, or by rebel groups fighting against the government or between themselves, it is clear that the ICC cannot simply go into these countries and arrest the persons responsible for these violations. That does not mean, however, that the actions of the ICC have no effect. Most of us would agree that a lawfully established government has a right, if not a responsibility, to use force to counter an insurrection against it. Many would also agree with the proposition that, if a lawfully established government is overly abusive to the citizens of that country, it loses legitimacy (as the U.S. claimed in the case of Libya) and a rebellion against it is justified. It is only when the conflict results in widespread human rights violations that the ICC would become involved.
Don’t think that the threat of involvement by the ICC has no effect, it does have an effect, whether it is a government or a rebel group that is being investigated. A number of states have called for the ICC to investigate the human rights crisis in Syria, and the Syrian response to that indicates that they are clearly concerned about ICC involvement. No government leader wants to lose legitimacy in the eyes of other nations and end up like Saddam Hussein or Muammar Gaddafi. As for rebel groups, David Scheffer in his book “All the Missing Souls” quotes Patrick Makasi, a former leader of the LRA in Uganda: “In the bush, ICC is always the main discussion.”
In order to provide real deterrence, though, the ICC needs to be visible and to provide a real threat to those who commit these crimes of atrocity. It needs to develop a record of successful prosecutions and sentences to establish that governments and other groups cannot commit such crimes with impunity. It needs to prove that those who commit such crimes will be brought before the court to be tried, and if convicted, sentenced to meaningful terms in prison, and not be able to avoid prosecution simply by agreeing not to commit any more crimes of atrocity. Although this may be attainable in cases involving Party states to the Rome Statute, it is a considerable problem with non-Party states because of the necessity of a U.N. Security Council referral before the Prosecutor can investigate such crimes in a non-Party state. As we have seen in the cases of Sudan and Libya, however, this is not unsurmountable. There are indications that a referral may be possible in the case of Syria, as well.
Perpetrators of crimes of atrocity need to know that the eyes of the world are on them, and the world will not countenance such behavior. While it may not stop them from committing crimes of atrocity, it will certainly make them think twice. This may be as much deterrence as we can expect from the Court.
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