Abstract
Over the last decade, theorists have persistently criticised the assumption that the International Criminal Court (ICC) can produce a noteworthy deterrent effect. Consequently, consensus has emerged that we should probably look for different ways to justify the ICC or else abandon the prestigious project entirely. In this paper, I argue that these claims are ill founded and rest primarily on misunderstandings as to the idea of deterrence through punishment. They tend to overstate both the epistemic certainty as to and the size of the deterrent effect necessary in order to thus justify punishment. I argue that we should in general expect reasonably humane punitive institutions to lead to better consequences than if we abolish punishment entirely, and I show that, contrary to widespread assumption among critics of the ICC, we should not expect the conditions characteristically surrounding mass atrocity to undermine this presumption. Properly understood, the ICC equals adding another “slice of cheese” to our comprehensive crime preventive system modelled along the lines of James Reason’s Swiss cheese model of accident causation and risk management. Undoubtedly, some future perpetrators will elope through the holes in this layer too, but others will be deterred.
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Notes
“And it ought to be remembered that there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things. Because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new.”
“Yes; but you must wager. It is not optional. You are embarked. Which will you choose then? Let us see. Since you must choose, let us see which interests you least.”
For a thoughtful and convincing argument to that effect, see Brudholm (2008).
She suggests instead a rather conspiratorial genealogical explanation as to why the ICC has nevertheless come into existence:
“Perhaps its task is to naturalize, to exclude from the political battle, certain phenomena which are in fact pre-conditions for the maintenance of the existing governance; by the North, by the wealthy states, by wealthy individuals, by strong states, by strong individuals, by men, especially white men, and so forth.” (Tallgren 2002, pp. 594–595)
This point was explicitly conceded by Tallgren in the first of the above quotes. Admittedly, criticism of preventive theories of punishment has occasionally been launched under the motto “nothing works” (cf. Lipton et al. 1975). Interpreted in this sense, the criticism does form a positive proposition (though formulated in the negative) as to the likely consequences of punishment. As indicated by the title, however, this conclusion is primarily aimed at the perhaps overly ambitious rehabilitation programmes of the 1960s and 1970s. Interpreted as a general claim that punishment does not, all else equal, tend to reduce crime, however, most commentators agree—as I will get back to below—that the evidence does not warrant this conclusion.
Ancient sceptics make an analogue point. Thus, e.g. Sextus Empiricus rejects the claim that his epistemological views should lead to a life of inaction. Our epistemological limitations only influence the modus of our so-called knowledge claims. Thus, Pyrrhonian scepticism, he claims, is perfectly consistent with having beliefs about appearances as long as we do not dogmatise: “Adhering, then, to appearances we live in accordance with the normal rules of life, undogmatically, seeing that we cannot remain wholly inactive.” (Empiricus 1933, book I, p. 23)
This could perhaps be challenged on a version of the principle of double effect according to which the unjustified punishments would be intended and hence worse than the excess crimes that would only be foreseen. This, however, is a retributivist rationale and therefore inapplicable here as the criticism presently under consideration claims that the preventivist line of argument fails even on its own terms.
Which of course is not to say that people always know what is good for them, nor that they cannot have mutually exclusive desires, it is not even to say that people cannot want something to happen that they consider bad in itself. But when they do so, it is usually because they consider it instrumentally good, i.e. expedient.
In Ellis’ words: “Without such a presumption, it would be impossible to understand human affairs at all.” (Ellis 2009).
Of course there are exceptions to this general rule. Dostoyevsky’s portrait of the painter Mikolai in Crime and Punishment provides one famous example of an inversion of traditional human sensibilities. More generally, such inversion is found, e.g. in the phenomenon of voluntary penance. Gang members that consider, e.g. prison convictions marks of honour provide yet another example of such inversion.
Though Davis finds this deterrent effect to be “conceptual” rather than empirical, it is doubtful if this distinction makes any sense. For an extended discussion, see Holtermann (2009, unpublished manuscript).
Although game theorists have done extensive work explicating the role of sanctions and the consequences of their absence in relations to the achievement of socially desirable ends. Here, mathematical modelling (cf., e.g. Axelrod 2006) as well as experimental research (cf., e.g. Camerer 2003) seems to suggest that the presence of informal or formal sanctions is necessary for the kind of cooperative institutions fundamental to social organisation to be viable. Davis appears, however, to dismiss any such evidence, and I shall for sake of argument not build my case on it (I am grateful to Pelle Guldborg Hansen for bringing this to my attention).
This universal agreement indicates that perhaps political philosophers since Hobbes have not been entirely wrong in their depiction of the state of nature as an intolerable and ultimately untenable situation. One reasonable explanation for the universal use of sanctions for wrongdoing could easily be that the absence of punishment implies the absence of a local monopoly of violence that in turn implies the breakdown of social institutions and norms and finally a descent into a state of nature.
To illustrate, the earlier mentioned detention of the Danish police force during WWII was immediately countered by the creation of municipal corps of watchmen that in spite of limited means and powers managed to take the edge of the exploding crime (Christensen 2001).
Restorative justice ordinarily refers to a theory of criminal justice that emphasises repairing the harm caused by crime rather than administering “hard treatment” on the offender and that couples this general aim with a heavy presumption in favour of reaching it through informal deliberative stakeholder processes (i.e. victim–offender mediation, conferencing, circles). For a discussion, see, e.g. Holtermann (2009b).
Charles S. Peirce makes a similar albeit more general criticism against the entire idea of building philosophy on a Cartesian concept of methodological doubt: “Let us not pretend to doubt in philosophy what we do not doubt in our hearts.” (Peirce 1868, p. 140)
In fact, Brown recounts that in all known human cultures, the use of sanctions “include[s] removal of offenders from the social unit—whether by expulsion, incarceration, ostracism, or execution” (Brown 1991, p. 138)
Or hardly ever. But when we do, it is usually not due to our epistemological limitations but, rather, to the lack of political courage or to the political process reaching a deadlock.
Other examples abound of such highly detailed, but ultimately arbitrary regulations, which can nevertheless only be justified, fundamentally, on empirical grounds. Consider, for instance, the so-called Eurocode regulation: “a set of common standards containing the European calculation methods to assess the mechanical resistance of structures or parts thereof” (European Commission 2009). Surely, the only available justification of such regulation is empirical rather than conceptual (this, of course, is not to say that there is no morally relevant difference between dealing with crime and punishment and, e.g. chemicals and building construction. It is only to say that any difference there might be is not principally epistemological).
Tallgren mentions roughly analogue factors in her discussion of the possibilities of establishing general prevention through an international criminal justice system (Tallgren 2002, pp. 570–576). But in fact she explicitly admits that they have no bearing on the possible deterrent effect of punishment (p. 576).
Duff obviously does not think so (cf. Duff 2009).
The Ring of Gyges grants the one who wears it the power to become invisible, and Glaucon uses it in order to discuss whether ordinary people would act in accordance with the precepts of morality if they did not have to fear the consequences of their actions.
Wright attributes the concept to Hart and Honore (1959).
Or unless the threat of punishment has been annulled by a more immediate threat of force. The distinction is not important here.
Though independently developed and structured, the following argument is fundamentally congenial to Ellis’ convincing discussion in (Ellis 2009).
Which of course is not to say that such studies cannot disagree internally as to their specific theories of perpetrator motivation.
Cf. also Minow: “[I]t is not irrational to ignore the improbable prospect of punishment given the track of record of international law thus far.” (Minow 1998, p. 50).
Ellis refers to analogue behaviour on behalf of operators of Nazi concentration camps as allied victory approached (Ellis 2001, p. 111, n13).
For those entirely sceptical as to the possibility of the international community eventually bringing perpetrators of mass atrocities to justice, the numbers of the ICTY and ICTR should give some reason to pause. Of the 161 indicted by the ICTY only two remain at large as of May 2009 (ICTY 2009). Of the 90 indicted by the ICTR, 13 remain at large (ICTR 2009).
In fact, the ICTY initially even indicted some foot soldiers too. A strategy later to be abandoned on grounds analogue to those presented here (Akhavan 2001, p. 19).
Even Saddam Hussein was deterrable. Thus, as testified by Hans Blix (2004), leader of the UN arms inspectors in Iraq, Saddam did indeed cooperate once he faced an immediate and credible threat. Unfortunately for him, it appears the war had already been decided on other grounds.
Or almost anything. As mentioned in the introduction punishment is likely to serve a displacement function too.
And this, of course, is what is generally unacceptable about the thought of deterrence to philosophers of a Kantian bent.
For an extended discussion on this point, see Holtermann (2009a).
Pertinent to determining whether or not the ICC can ultimately be justified on grounds of deterrence is of course also the issue of the financial cost involved and in particular whether resources spent on the ICC could otherwise have been allocated to the other “slices of cheese” in our comprehensive atrocity preventive system, e.g. to debt reduction or economic aid programmes.
This is a difficult question involving notoriously tricky counterfactual reasoning and dealing with it in great detail is beyond the scope of this work. But I will add a few comments in order to keep the worry in perspective. The 2009 budget appropriations for the ICC alone amounted to €101,229,900 (International Criminal Court 2008). In absolute figures, this is no doubt a large amount but it pales in comparison with the amount spent globally on economic aid programmes etc. each year (for instance, Denmark alone spent 20 times that amount in official development assistance in 2008 (OECD 2009)). In other words, even if we imagine, counterfactually, that all the money currently spent on the ICC would otherwise have been invested in various ways in sustaining the other “slices of cheese” (which by no means should be taken for granted), then we may safely assume any additional preventive effect resulting from this allocation to be only infinitesimal. Spending the money on the ICC, on the other hand, introduces a whole new “slice of cheese” to the many already in existence. A slice which, for the reasons presented in this article, we should expect to produce a more significant deterrent effect (I am grateful to an anonymous reviewer for bringing this to my attention).
Whether or not then ultimately to label such deterrent effect a deterrent effect of punishment seems merely a matter of words. In any case, it would plainly be impossible for the ICC to be the cause of such nuisance did it not at least occasionally manage to actually carry out punishment. Hence, punishment is ultimately a necessary condition for any such deterrent effect resulting from the ICC. See also Ellis (2009).
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Acknowledgments
I would like to thank Martin Vinding, Mikkel Munch-Fals, Thomas Søbirk Petersen, Pelle Guldborg Hansen, Kira Vrist Rønn, Inge Schiermacher, Stig Andur Pedersen and, in particular, Frej Klem Thomsen, Jesper Ryberg and two anonymous reviewers at Human Rights Review for discussion and valuable comments on earlier versions of this paper.
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Holtermann, J.v.H. A “Slice of Cheese”—a Deterrence-Based Argument for the International Criminal Court. Hum Rights Rev 11, 289–315 (2010). https://doi.org/10.1007/s12142-009-0139-x
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DOI: https://doi.org/10.1007/s12142-009-0139-x