The international criminal justice system has roots that date back to the judgment of the International Military Tribunal (IMT) in October 1946. However, it was not until the 1990s when efforts to enhance and establish new institutions to end impunity for violators of international criminal law really gained momentum with the development of the International Criminal Tribunals for Former Yugoslavia (ICTY) and Rwanda (ICTR), and most notably the International Criminal Court (ICC). Each of these was founded in a deeply seated ideology of and belief in a deterrent effect. This chapter begins by providing several examples of this, followed by a brief overview of the ICC and literature on deterrence. We then provide a discussion of deterrence at the international level and the subsequent obstacles to its potential impact. We conclude by suggesting that, save for major changes in the structure and practices of international criminal justice bodies, the likelihood of ending impunity and being a beacon of deterrence is significantly hindered.
Overview of the Belief in Deterrence
Many actors within the field of international criminal justice have heralded the deterrent power of the international criminal justice system and its ability to remove impunity for violations of international criminal law. Likewise, many practitioners and scholars routinely assume a probable powerful deterrent effect for those that violate international criminal law; some assume such deterrence is a certainty. Consider the following quote:
If [the twentieth century trend of wars, war crimes, misery and hardship] is not to continue into the twenty-first century, then the international community will have to take positive steps to arrest it. One effective deterrent would be an international criminal justice system, sufficiently empowered to cause would-be war criminals to reconsider their ambitions, knowing that they might otherwise be hunted for the rest of their days and eventually be brought to justice. (Goldstone 2000: 135)
Claims such as the one above are a grounded within a broader ideology reflected in international discourse. This ideology, belief in the power, and impact of general and specific deterrence, subsequently undergirds the international criminal justice system. Consider that it is written into the frameworks of the ad hoc tribunals and the ICC. For example, the Preamble to the International Criminal Tribunal for Rwanda (ICTR) states that the “Security Council … Believing that the establishment of an international tribunal for the prosecution of persons responsible for genocide and the other above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed.”1 The utility of the ICTR and ICTY as a deterrent mechanism can be seen by Judge Richard Goldstone, former chief prosecutor of the ICTR and ICTY, who states with an optimistic declaration, “In establishing the tribunals, the Security Council has struck a meaningful blow against impunity. It has sent a message to would-be war criminals that the international community is no longer prepared to allow serious war crimes to be committed without the threat of retribution” (Goldstone 2000: 126).
Likewise, the United Nations Security Council Resolution, creating the Special Court for Sierra Leone states “Recognizing that, in the particular circumstances of Sierra Leone, a credible system of justice and accountability for the very serious crimes committed there would end impunity and would contribute to the process of national reconciliation and to the restoration and maintenance of peace” (UNSC 2000: 1).
During the process of approving the Rome Statute for the International Criminal Court, creating what is now the ICC, the assumption of a deterrent effect was openly touted. For example,2
… We need a new form of deterrence against such forms of behaviour. The establishment of an International Criminal Court (ICC), which makes impunity illegal and which holds individuals directly accountable for their actions, is that deterrent. (H.E. Mr. Lloyd Axworthy, Minister of Foreign Affairs of Canada)
… We are confident that the establishment of the International Criminal Court will be an efficient step undertaken by the international community towards deterring the possible perpetrators from committing such acts. (H.E. Ms. Nadezhda Mihailova, Minister of Foreign Affairs of Bulgaria)
… We believe that the International Criminal Court will play an indispensable role here as a deterrent and preventive remedy as well. (H.E. Mr. Irakli Menagarishvili, Minister of Foreign Affairs of Georgia)
Consequentially, the preamble to the Rome Statute of the ICC included that the “State Parties to this Statute … [are] Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”3 The belief in the relevance and effectiveness of both, general and specific deterrence, is evidenced throughout the Court’s transcripts by the Prosecutor, judges, victims, and their advocates. Consider the following quote from the case, Prosecutor v. Thomas Lubanga Dyilo:
THE WITNESS: Okay. Let me say that from my own experience the Prosecution and trials of the ICC are followed with great interest in the field. The deterrent effect of these proceedings is already being felt with regard to a large number of armed groups engaging with the United Nations to release children from their ranks and to cease all new recruitment.4
Likewise in the case Prosecutor v. Bosco Ntaganda:
In the Chamber’s view, the analysis of the additional gravity threshold provided for in article 17 (1)(d) of the Statute against the backdrop of the preamble of the Statute leads to the conclusion that such an additional gravity threshold is a key tool provided by the drafters to maximise the Court’s deterrent effect. As a result, the Chamber must conclude that any retributory effect of the activities of the Court must be subordinate to the higher purpose of prevention.
The Chamber considers that the application of these three factors results from the fact that those persons who, in addition to being at the top of the State entities, organisations or armed groups allegedly responsible for the systematic or large-scale commission of crimes within the jurisdiction of the Court, play a major role by acts or omissions in the commission of such crimes are the ones who can most effectively prevent or stop the commission of those crimes. … In the Chamber’s opinion, only by concentrating on this type of individual can the deterrent effects of the activities of the Court be maximised because other senior leaders in similar circumstances will know that solely by doing what they can to prevent the systematic or large-scale commission of crimes within the jurisdiction of the Court can they be sure that they will not be prosecuted by the Court.5
This includes the belief that a specific deterrent will then carry over to serve as a general deterrent as noted by Mr. Akinibote, representing witnesses in The Prosecutor v. Bahar Idriss Abu Garda:
And they’ve also asked me to convey to this Court that if justice is not done, if conviction is not the final verdict of this Court, how would future perpetrators of these heinous crimes be deterred from their intention; that this case should serve as a deterrence to others that the world is no longer prepared to tolerate this kind of massacres of peacekeepers.6
As can be seen by these few examples, a general belief in deterrence is present within the institutional framework and subsequent proceedings. Prior to addressing the overall potential and/or “real” effectiveness of deterrence, a brief overview of the ICC is provided in relation to issues associated with the potential, or lack thereof, for deterrence.
The International Criminal Court
As of 1 June 2002 the Rome Statute of the International Criminal Court went into effect, creating a court whose purpose is the prosecution of those most responsible for the commission of war crimes, genocide, and crimes against humanity. As of 2017, the ICC will also have jurisdiction over crimes of aggression. As established, the Court is a complementary court designed to investigate and prosecute cases when states are unwilling or unable to do so themselves. It can only try cases dealing with crimes that have occurred since the Rome Statute’s entry into force on 1 July 2002 and after a state’s ratification of said statute. Further, in order for a case to fall under its jurisdiction, one of three conditions must be met in terms of location of the crimes (Rome Statute of the International Criminal Court, art. 12, art. 13). The first geographic criterion is that the crimes in question must have occurred within the territory (or territory controlled by), vessel, or aircraft of a State Party, or have been committed by nationals of a State Party (i.e., uniformed military). Secondly, a state may agree to accept the jurisdiction of the Court, without being a state party. Thirdly, the United Nations Security Council can recommend a case to the Court and authorise the Court’s jurisdiction in the matter if neither of the above conditions is met (e.g., the situation in the Sudan-Darfur case) (Mullins and Rothe 2010).
Once a case or situation comes to the Prosecutorial branch’s attention, an investigation is carried out to see the viability of the situation as a crime covered under the jurisdiction of the Court and subsequent successful prosecution (art. 17). While the Court may request a warrant for or subpoena an individual, the Prosecutor and the Court lack an empowered policing agency to ensure the fulfilment of either request (arts. 54–58). The Prosecutor is limited to requesting the presence of persons being investigated, victims, and witnesses. It must rely on the compliance of a state or state party to relinquish any evidence, suspects, or witnesses that are relevant to the ongoing investigations carried out by the prosecutorial branch. For all practical purposes this means that it is completely dependent upon States Parties and allied organisations to bring fugitives into custody (Mullins and Rothe 2010; Rothe and Mullins 2010). Additionally, given the infancy of the Court, the structure of the international system that remains grounded in sovereign state rule, the ICC continues to promote and be attentive to its perceived legitimacy. Unlike domestic criminal justice systems that are not created on a principle of complementarity, the ICC continues to strive to legitimise itself amongst states, especially those that remain non-party members.
As the following discussion of deterrence will highlight, the institutionalised restrictions noted above are significant to any deterrent power the Court may hold as they relate to issues of the certainty, perceived, and real legitimacy of the law and authority.
The Foundations of Deterrence
Nearly all extant criminological research on deterrence has been at national levels and on “street” crime in general. This body of research has shown mixed results, at best, for a deterrent effect. One of the major issues highlighted in the literature is the assumption that actors are rational (including bounded rationality) in their decision-making prior to and during crime commission. It assumes that human nature, and thus humans, are rational, which is subject to debate, especially in the context of certain crimes such as homicide that have been shown empirically to be committed more emotive than calculating, thus, failing to allow for consideration of irrational decision-making. Considering that social theorists and philosophers have long contemplated the nature of man, as both rational and irrational, any underlying assumption as an a priori starting point fails to consider the alternative. For example, Vilfredo Pareto (1991) suggests that humans are not rational beings producing action. However, humans have a need to espouse their actions as logical and rational so they invent a posteriori logical reasons to justify their acts. They “wish to represent involuntary acts as voluntary and non-logical actions as logical ones, conjure up strangely imaginary reasons, which they try to use to deceive themselves as well as others about the true motives of their actions” (Pareto 1991: 35). In other words, humans rationalise their behaviours after irrational action. Additionally, such a strict assumption of human nature as rational beings ignores the structural and contextual factors of individual decision-making (e.g., organisational or cultural pressures) (Kramer and Michalowski 2006; Michalowski and Kramer 2006; Smeulers 2008; Marshall 2010; Mullins and Rothe 2010; Rothe and Mullins 2010).