Abstract
One of the founding principles of the International Criminal Court (ICC) is the prevention of atrocities by punishing those most responsible for them. This paper builds on the literature that has both hailed and critiqued the prospects of the ICC’s ability to deter future atrocities, adding insights from criminology and psychology to enhance the understanding of the ICC’s deterrent capabilities. This will allow for a more careful analysis of how the deterrence process exactly works. The paper then uses these insights to examine the ICC’s experiences over the past 14 years with deterring offenders. The main findings are that, although the ICC can constructively contribute to a normative shift toward accountability and a change in international rules of legitimacy, its prospects for the direct and meaningful deterrence of future atrocities are slim. The current practice of relying on the ICC as a crisis management tool is therefore both unwise and unfair.
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Notes
See the Preamble of the Rome Statute for the International Criminal Court (1998). In fact, according to Meernik (2013), all founding documents of the international tribunals established so far stress the belief in the deterrent effect of legal sanctions.
In this article, the term “atrocities” is used to refer to crimes that fall under the ICC’s jurisdiction, namely crimes against humanity, war crimes, and genocide.
On a side note, as Jacobs (2010) explains, the human brain is always seeking to explain the events that occur and the things that we do. Therefore, we tend to rationalize them and seek explanations that justify our actions. However, this “retrospective rationality” does not mean that the decisions that preceded these actions were always based on a rational decision-making process. They “are not necessarily reflective of [the] thought process in situ” (p. 424).
Although even the effect of certainty has been judged to be “modest to negligible” (Lilly et al. 2011, p. 347).
This framework might additionally have some predictive value. I hesitate to make this claim too forcefully, however. More empirical and experimental research would be needed to bear out the applicability of the assumptions and theories stipulated here in real-life conflict situations.
It must be emphasized that these authors do not suggest that all group violence is essentially irrational or that all these perpetrators were “genocidal fanatics.” Rather, they explain the mass participation in atrocities by pointing at factors that affect the considerations of these on-the-ground perpetrators, usually concluding that even a “normal” person is capable of such heinous acts if put in the right circumstances.
According to Tversky and Kahneman (1973)’s availability heuristic, such easily retrievable pieces of information have a disproportionate effect on a decision-making process.
Indeed, Ku and Nzelibe (2006) stress that most of those who order atrocities often face death when they fail to hold on to power. Thus, the disincentive that the ICC delivers to stop committing atrocities is far weaker than the disincentive of abandoning power, which possibly results in death.
In fact, Straus (2008) and Verwimp (2013) argue that the perpetrators of the 1994 genocide in Rwanda were primarily driven by such incentives. Although this research has focused more on the lower and middle-level perpetrators, its points are probably relevant across cases and for a broader category of perpetrators.
A fairly recent strain in the political science literature seems to counter the skepticism about deterrence that criminology elicits. An important representative recent example is the study by Jo and Simmons (2016). They present empirical data to argue for a significant impact of both prosecutorial and social deterrence factors on the number of civilians killed. Although some of their claims are addressed in further detail below, it is worth considering that their study scrutinizes the impact of the ICC on violence levels within civil war-affected countries, not the micro-level dynamics of deterrence (what an individual’s reaction is likely to be), which are the focus of this study. Accordingly, although Jo and Simmons (and the strand in political science they represent) make a praiseworthy contribution to the debate, they do not necessarily contradict the claims made here. The focus of their study is different, and the implications of their conclusions are limited.
The ICC’s complementarity regime, which only allows the ICC to act when states have been found to be either unwilling or unable to hold prosecutions themselves, would have prevented the ICC from intervening if perpetrators were consistently held to account.
This argument is reminiscent of the idea of a “justice cascade,” proposed by Sikkink (2011).
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Acknowledgments
The author would like to thank Dr. Eamon Aloyo, Professor Mark Drumbl, Annelein Koot, Dr. Malini Laxminarayan, and Dr. Peter Malcontent, as well as three anonymous reviewers, for valuable feedback on earlier versions of this paper. The usual disclaimer applies.
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Buitelaar, T. The ICC and the Prevention of Atrocities: Criminological Perspectives. Hum Rights Rev 17, 285–302 (2016). https://doi.org/10.1007/s12142-016-0414-6
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DOI: https://doi.org/10.1007/s12142-016-0414-6