10 Jul Does International Criminal Justice Deter Criminals?
UVA lawprof Rosa Brooks has a measured op-ed in Sunday’s LA Times surveying the progress of efforts to prosecute serious violations of international human rights on the 10th anniversary of the massacre at Srebenica. Unlike some advocates of international criminal justice, Prof. Brooks is restrained in her claims for the benefits of international tribunals like the International Criminal Court. Even so, her justification for expanding the scope and powers of international criminal courts has some problems. She writes:
But though it’s only a distant second-best to preventing atrocities, punishing perpetrators is still important. It acknowledges the suffering of the victims and in the long run could help deter future abuses by forcing the bad guys to ask themselves if the abuses are worth it, given the increasing likelihood of ending up in jail somewhere down the line.
I don’t doubt there are many good reasons to punish perpetrators who have committed serious abuses and that, in some cases, international institutions are necessary to carry out this punishment. But I don’t think Prof. Brooks, or any other scholarly supporter of the ICC, has bothered to offer support for her claim that international punishments create a “deterrent” to future abuses by other potential perpetrators.
I’m not sure the main objective for proponents of the ICC is deterrence. At least not the primary objective. From my own conversations with various ICC framers, including Professor Bassiouni, the object of the Rome Statute is to prevent impunity by motivating States of nationality and territoriality to prosecute international criminals in their borders. That is to say, the framers of the Rome Statute envisioned success in terms strenghtening international resolve to combat perpetrators of war crimes, genocide, etc. In that sense, adhoc tribunals are ineffective in that they depend on the resolve of nation-states to create such a tribunal. The very resolve which the Rome Statute framers believe to be lacking. Why is there no UN human rights tribunal in Sudan? Because political will is proven to be insufficient in those areas. For the same reason, the Cambodian government has been able to manipulate the Khmer Rouge tribunal and place judges with significant records of corruption. Therefore, while deterrence may be an ancilliary effect of re-enforcing national institutions, it is not the primary one. Personally, I actually think the Artile 98 agreements the US has been signing with various countries could be a positive one if it means that… Read more »
First, Nema is mistaken, and should look at the Preamble to the Rome Statute: the assumption of the ICC, and all prior tribunals since Nuremberg, is that all war crimes require accountability. That being said, the Rome Statute, particularly in the finer points of its jurisdictional aspects, reflects an ambiguity on how strongly accountability should be pursued. Second, in practice, the problem has been that there really has been an “age of impunity” since Nuremberg – war criminals have not been deterred by the threat of punishment by the international community. Nowhere was this more evident than in the former Yugoslavia, and in pre-Dayton 1994, Prof. Anthony D’Amato of Northwestern University School of Law proposed that perhaps the pursuit of a war crimes tribunal was taking place at the expense of innocent lives and continued genocide. The crux of the matter, according to D’Amato, was whether pursuing a war crimes tribunal was an impediment to the peace, as suspected war criminals who were also leading their respective nations at the neogtiating table were threatened with prosecution by the ICTY after a peace accord would be reached. I take up D’Amato’s query in the upcoming NYU Journal of International Law and… Read more »
Walter, I think we point to the same problem but come to a different conclusion. Your argument, as well as D’Amato’s, rests on drawing similarities between the ICTR/Y and the ICC and that the ineffectiveness of the former means the latter will be similarly as ineffective. However, aside from sharing similar jurisdictional and structural characteristics, the courts are vastly different. The ICTR/Y were developed to directly account for crimes committed during specific scenarios. The ICC allows for a broad jurisdictional with the theoretical power to prosecute crimes committed by nationals or on the territory of State Parties. Unlike the ICTR/Y the ICC doesn’t need the commitment of the Security Council to initiate an investigation. A complaint can be filed by any person and any organization as long as it fulfills the jurisdictional requirements. In that sense, the ICTR/Y and future adhoc tribunals are bound to the failure of the Security Council. All these together posit that the ICC has a completely different effect on global prosecution of war criminals then the ICTR/Y Nuremburg or Tokyo did. A difference which is fundamental to the aim of the ICC to enhance national prosecution of war criminals. The Rome Statute, on the other… Read more »
The ICC might actually REDUCE deterrence. Genocide, etc. is only punished after the offenders loose power and fall into the hands of their enemies. The consquences of loosing are usually dreadful enough (for the offenders) to make the marginal contribution of an international court close to zero; bu it might even be negative.
Take the Rwandan example. Genocidaires captured and tried by the Tutsi government were excuted (these were usually the small fish). Those who were lucky enough to turn themselves in to the International Tribunal won’t be executed; most won’t get life in prison. So obviously if you’re a genocidaire (and you’re even thinking about what happens if you fall from power) you’d be happier to have an international tribunal around to turn yourself in to. This is a fortiori true of the ICC, whose default maximum punishment is 30 years in prison. And I bet the international tribunal prisons are a lot nicer than those in Rwanda, or Sudan, or Bosnia.
I talk about the forum shopping possibilities created by international tribunals in Implementing Sosa v. Alvarez-Machain: What Piracy Reveals About the Limits of the Alien Tort Statute, 80 Notre Dame Law Review 111, 159-60 (2004).
I’ve got to say, that this still doesn’t mean the ICC isn’t worth it. I’ve heard many a justification of it based on the expressive value of the world community objecting to certain kinds of conduct. The problem with expressive theories is that they’re unfalsifiable to a large degree – but I have to say that it’s not implausible re: the court.
irst, to clarify for everyone who has read my post, my name is actually Andrew and not Walter. Long story involving a prior idea for a blog… So should you pick up NYU Journal of International Law and Politics this month, you will see Andrew Rosen as author of the article and not “Walter.” Second, to clarify, D’Amato never made an argument about the ICC in his 1994 essay. It was only about the ICTY. My Note infers what he would have argued based on the structure of the Rome Statute, but even then, you can always ask him what he thinks now. Third, Nema, I think you misunderstood my argument. I am not pointing out the ineffectiveness of either – in fact, “ineffectiveness” is not a theme in my argument or a word used in my post or Note. Nor am I comparing the two. Rather, using D’Amato’s argument, I draw out the loopholes in the ICC’s jurisdiction based on the jurisdictional layout of Articles l6, 17, 20, and 53 of the Rome Statute. These loopholes conflict substantively with the Rome STatute’s stated goal of accountability for all war crimes, as the loopholes provide opportunities for suspected war criminals… Read more »
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