The limited prospects Of deterrence by the International Criminal Court: Lessons from domestic experience.

Author:Dietrich, John

The preamble of the Rome Statute establishing the International Criminal Court (ICC) states that the parties are "[d]etermined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes." (1) Theoretically, there are multiple ways in which the ICC could prevent crimes. It could, for example, incapacitate abusers through imprisonment, or could impose sufficient punishment to lessen the chance of revenge attacks. From the founding of the ICC, though, supporters have also stressed that prevention could come through deterrence of future abuses. (2) The principle of deterrence is that no rational actor will commit an abuse if the perceived costs of that action exceed the perceived gains from the action. The ICC's focus on deterrence is demonstrated in the first Report of the International Criminal Court to the United Nations which states, "By punishing individuals who commit these crimes, the Court is intended to contribute to the deterrence of such crimes." (3) Additionally, the report asserts, "The establishment of the International Criminal Court was a historic development in efforts to hold accountable perpetrators of the most serious international crimes and to deter such crimes." (4) Furthermore, Leslie Vinjamuri has noted that, over time, ICC supporters have put more stress on arguments of deterrence and other such "instrumental purposes of justice," rather than on the "moral obligation or a legal duty to prosecute the perpetrators." (5)

The ICC now has over 120 member states that have accepted ICC jurisdiction over their countries and citizens covering crimes occurring after 2002. This broad jurisdiction should give the ICC a greater deterrent effect than previous ad hoc tribunals whose limited jurisdictions meant violators could gamble that their actions would never come under international review. The deterrent effect should be strongest among member states, but since the UN can refer cases of non-members for investigation, a strong ICC in theory also could deter non-members. Some scholars and experts believe, even with limited specific evidence, that there should be a default assumption that deterrence will work, because humanity's core rationality means that "the more [emphasis in original] reasonable claim surely seems to be that punishment exerts a deterrent effect." (6) Unfortunately, these hopes have not translated into reality. There have been recent massive human rights violations, for example, in Syria, Burma, and Turkmenistan, as well as ongoing violations in Uganda, Sudan, and Libya, despite ICC investigations and indictments in those cases. These facts demonstrate that the ICC has had only a minimal deterrent effect in its first ten years of existence.

This limited deterrent effect is in line with what many academics from a range of backgrounds predicted. These scholars argued that politicians and ICC supporters were optimistically exaggerating the deterrent impact of international courts. (7) These and other scholars fall into two camps: those who feel that the realities of the court and the international system mean that the ICC will never have a significant deterrent effect, and those who argue that deterrence could increase in the future as the court matures (8) or implements specific institutional reforms. (9)

The basic dispute over whether the ICC can have a deterrent effect and the secondary question of whether institutional reforms could significantly increase future deterrence show the importance of further exploring the logic of effective deterrence. Significant insight can be gained by applying the lessons learned from the broad literature in criminology, legal studies, psychology, economics, and other fields that have examined the effectiveness of deterrence in the domestic setting. Most writings and commentaries from all sides of the ICC discussions pay little or no attention to domestic experiences, and assume that deterrence is a fully proven and effective concept that must simply be recreated in the international court system. In fact, several recent reviews of the domestic literature in different disciplines conclude exactly the opposite. As Paul H. Robinson and John M. Darley state, " Rule formulation has a deterrent effect only in those unusual situations in which the preconditions to deterrence exist. Even there, the deterrent effects are quite minor and unpredictable." (10)

Pratt and his co-authors find that "the effects of the variables specified by deterrence theory on crime/deviance are, at best, weak--especially in studies that employ more rigorous research designs." (11) Raymond Paternoster concludes, "We do not have very solid and credible empirical evidence that deterrence through the imposition of criminal sanctions works very well." (12) Finally, Cook and Roesch argue, "'Tough on crime' policies are ... ineffective at deterring individuals from committing crimes. (13)

The studies arguing that domestic deterrence has not been generally effective have been able to establish criteria needed for successful deterrence. Deterrence only works if potential criminals 1) make rational calculations before their actions, 2) know the laws and, ideally, accept them as legitimate limits on their behavior, 3) feel that the benefits of a given crime are relatively low, and 4) believe the costs of the crime are high as influenced by the certainty, swiftness, and severity of punishment. Meeting all four criteria is difficult in domestic settings, so domestic deterrence effects are often low.

There only have been a few studies that have directly attempted to connect the domestic literature and international courts. (14) These studies are useful to show why meeting the criteria for deterrence is even more difficult in the international arena, but they do not fully extrapolate all the possible points from the domestic examples, and they lack evidence from the most recent years of the ICC.

A more complete exploration of the domestic lessons, in conjunction with an examination of the current realities of the international system and a review of the existing experiences and studies of the ICC and of other recent international courts - such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) - yields many insights. This combined approach allows a more in-depth understanding of why ICC deterrence has been minimal so far, answers the challenge of those who say that the default assumption should be that deterrence will work, and suggests why deterrence will continue to be low in the future unless reforms go beyond technical changes to a significant reordering of the international system.

Before proceeding, it is important to clarify a few key ideas. The precise measurement of deterrent effects is impossible in part because it is more difficult to empirically measure the absence of an action rather than its occurrence. Also, multiple variables could contribute to an increase or decrease in abuses, so determining the precise impact of the ICC would require an in-depth examination of how dozens of variables affected thousands of individual decisions. Still, since deterrence is based on individual calculation and different people have different thresholds of cost-benefit, it is logical to conclude that the ICC deterrent impact is more than zero. Those deterred, though, are likely the people least committed to abusive actions and therefore also the ones most susceptible to other forms of preventive action. Thus, the existence of occasional cases of effective deterrence do not justify claims that the ICC is having a major impact or prove that it is the best route to prevention.

In domestic settings, analysts typically draw a distinction between methods of specific deterrence, which seek "to deter individuals already convicted of crimes from committing crimes in the future," and those of general deterrence, which attempt "to deter all members of society from engaging in criminal activity." (15) In the case of international courts, specific deterrence is of less importance, since most human rights violators will not return to positions of power if they are successfully tr ied and punished. The ICC therefore usually focuses on general deterrence, where prosecution of someone from one country seeks to deter crimes being committed in other countries. Additionally, David Bosco has made the useful observation that the ICC may at times seek targeted deterrence where investigating a particular individual or group that has already committed some abuses in a given country seeks to generally deter future abuse in that specific country. (16) For example, indicting Serbians at the ICTY could target deterrence at other Serbians committing violations. General deterrence thus focuses on overall abuse prevention and targeted deterrence focuses on stopping extant abuses. The reasons why both general deterrence and targeted deterrence usually will fail are similar, but some of the following arguments are more applicable to one or the other deterrence type.

To date, the ICC has used its discretion to focus on state leaders, other high-level officials, or prominent rebel leaders, but the ICC Appeals Chamber has argued, in relation to events in the Democratic Republic of Congo that, "It seems more logical to assume that the deterrent effect of the Court is highest if no category of perpetrators is per se excluded from potentially being brought before the Court." (17) Thus, most of the following arguments will focus on leaders, but some attention will be paid to the possible deterrence of lower-level perpetrators.

Rationality of Decision

The principle of deterrence rests on a rational calculation of costs and benefits. The idea that criminal actions come from rational calculations was raised in the eighteenth century by Cesare Beccaria and Jeremy Bentham, whose works...

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