Originally published on the CGS blog on March 2, 2015.
In a time where horrible atrocities continue seemingly unabated in Nigeria, Syria, South Sudan, and beyond, we find ourselves wondering whether our global institutions could be doing more to prevent them. Take, for instance, the International Criminal Court. In the preamble to the Rome Statute in which it was founded, it is said to be both “[d]etermined to put an end to impunity for the perpetrators of these crimes and…to contribute to the prevention of such crimes.” Over ten years after its founding, is the ICC actually deterring crime? Or do these atrocities prove the ICC is failing?
The logic of the international criminal justice system preventing crime works on two prongs. First, there’s prosecutorial deterrence. As the likelihood of prosecution and the associated punishments (e.g., fines, prison sentences, etc.) goes up, crime goes down. The second form of deterrence is social. Those who violate the law may face stigmas associated with their crimes whether they are prosecuted or not; they may be shamed or shunned, and they may be excluded from profitable relationships domestically or internationally.
Is the International Criminal Court actually deterring crime on either of these models? Yes, with some caveats.
With respect to prosecutorial deterrence, a recent study shows that as states ratify the Rome Statute, hostilities in civil wars tend to pause. Additionally, another (early draft) study shows that as ICC prosecution in a state is threatened, violence against civilians decreases. And the ICC has add-on effects: once an ICC investigation starts, domestic prosecutions of lower-level officials are more likely with the international spotlight backing up the domestic legal system.
Research on social deterrence is still developing, but already it has promising indications. One researcher notes a “Lubanga syndrome,” so named for Thomas Lubanga, the first convicted war criminal at the ICC – she found anecdotal evidence of a fear of arrest among his fellow compatriots in the Congolese military. The draft study in which social deterrence has been examined relative to prosecutorial deterrence shows it to be at least as effective as prosecutorial deterrence, though much work remains to be done. It is worth noting that this study shows that government actors are more deterred by ICC involvement than non-state rebel groups, but at least there is still a deterrent effect.
Caveats to these promising results are important. As we have noted here previously, ICC intervention in any case is fraught by the sovereignty of the state it is investigating: it needs cooperation to investigate, as in the Kenyatta case, and cooperation to make arrests, as in the Bashir case. It’s also worth noting that the ICC’s jurisdiction is not universal – many states, including the US, Russia, China, India, and much of the Middle East, are not parties to the Rome Statute.
With wider jurisdiction comes more universal acceptance of ICC norms. With additional resources, and more successful prosecutions, and a wider geographic area of investigations and charges, will come greater legitimacy, thus improving the effects found in these studies and further deterring future criminals. These results are early, and the ICC – and the global community – has much work to do.
And of course, deterrence isn’t the ICC’s sole mission: justice for victims and reconciliation for war-torn countries are among its many priorities.
The International Criminal Court is indeed imperfect. But with each new investigation, each new arrest or conviction, we can see that the incentives are turning against impunity in conflict. With evidence of these sorts of incentives, we can confidently invest more resources in the International Criminal Court as we work toward a more just and peaceful world.
