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Punishing Genocidaires: A Deterrent Effect or Not?

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More than sixty years after the seminal Nuremberg trials, different forms of transitional justice mechanisms abound around the world. Above all, the International Criminal Court started recently the hearings in its very first case. Reading the document containing the charges against Thomas Lubanga Dyilo, a militia leader accused of horrendous war crimes committed in the Democratic Republic of Congo, the question of why to punish perpetrators of atrocity crimes seems almost ludicrous. However, concerns that international prosecutions inadvertently prolong or even exacerbate conflicts do require a response. Most proponents of international criminal tribunals argue that prosecutions have a deterrent effect. This article reviews the deterrence argument, highlights its inherent complexities, and proposes a refined approach to meet both the realities of atrocity crimes and international prosecutions.

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Notes

  1. For a survey of the most common criticisms, see Mennecke and Markusen 2003, pp. 297ff. Most of the current critics of the Genocide Convention, however, have not taken note of the evolving case–law of the International Criminal Tribunals for Rwanda and Former Yugoslavia and how this reflects significant new interpretations of the legal definition of genocide, addressing many long-standing criticisms. In regard to these developments in the law, for example, see Schabas 2005, and Bjørnlund et al. 2005, pp. 17–48.

  2. The other main objective behind punishment, retribution, is based on the notion punitur, quia peccatum est (punishment because there has been a crime); the deterrence argument is utilitarian in its nature and characterized by the idea of punitur, ne peccetur (punishment so there will be no crime). ICTY, Prosecutor v. Tadic, 11 November 1999, paragraph 9. For further examples from the ICTY and ICTR use of deterrence, see ICTY, Prosecutor v. Erdemovic, 19 November 1996, paragraph 64; ICTR, Prosecutor v. Kayishema and Ruzindana, 21 May 1999, paragraph 2; ICTR, Prosecutor v. Serushago, 5 February 1999, paragraph 20; ICTR, Prosecutor v. Akayesu, 2 October 1998, paragraph 19. See for the ICTY also Sayers 2003, p. 759 with further references.

  3. See, for example, the responses of UN member states to a report by the UN Secretary General outlining different options concerning the establishment of a war crimes tribunal in UN Doc. S/3175 (22 February 1993). See also Schabas, 2006, pp. 13ff.

  4. This quote stems from a speech delivered by Juan E. Mendez (2005). A similarly broad remark can be found in a report by the UN Secretary General on transitional justice (UNSG 2004b, paragraph 39).

  5. On the link between the deterrence argument and the founding of the international criminal tribunals, see for example UNSC Resolution 827, 25 May 1993, paragraphs 4–7, that speaks of establishing the ICTY to “put an end to such crimes.”

  6. A joint statement signed by the chief prosecutors of the ICC, ICTR, ICTY and Special Court for Sierra Leone on 27 November 2004 asserts that international criminal justice institutions “contribute to the prevention of future crimes” and that “a sustained commitment to accountability will deter these atrocities” (Crane et al. 2004).

  7. For a similar view of the effect of a Security Council referral to the ICC, see “Report of the High-Level Panel on Threats, Challenges and Change,” 2004, paragraph 90.

  8. An informal survey, conducted by the author in spring 2005, among relevant international institutions and NGOs such as Human Rights Watch, Amnesty International, the ICC Outreach Office, the Coalition for the International Criminal Court, the ICTY Office of the Registrar, the Max Planck Institute for Comparative Public Law and International Law, the International Center for Transitional Justice, the Special Court for Sierra Leone, the ICTR and the Coalition for International Justice confirmed the assumption that there is a lack of empirical data.

  9. For a similar account, see Power (2005).

  10. For the Rwandan genocide of 1994, the exact number of perpetrators is unknown, but NGO experts monitoring local efforts to hold genocidaires accountable estimate that there are some 400,000–500,000 perpetrators. Cf. Penal Reform International 2004, pp. 12–13. Concerning the massacres committed during the Bosnian conflict at Srebrenica in July 1995, a Bosnian commission of experts published in October 2005 a list with 19,000 names of personnel implicated in the killings. See Nicholas Wood 2005.

  11. For the policy perspective, see, for example, Amnesty International 2004, and the references given supra page 6 in regards to the UN Security Council referral of the Darfur situation to the ICC (UNSC 2005, pp. 8, 10). For a more skeptical stance by an academic expert, see Akhavan 2001, pp. 10–13.

  12. For a critical account of the Ugandan government (...) see the comprehensive report. “Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda” published by Human Rights Watch, September 23, 2005 (Human Rights Watch 2005b).

  13. On the relationship between the ICC and the UN Security Council and the related US concerns, cf. Sarooshi 2004, pp. 95–122. It is also interesting to note that the UN Security Council resolution that referred the Darfur situation to the ICC provides for a reference to this Article 16 of the ICC treaty, cf. UN Resolution, 2005, paragraph 2.

  14. The example of Sierra Leone is a case in point. Being one of the main players in the civil war in Sierra Leone, former Liberian President Charles Taylor was indicted by the Special Court for Sierra Leone, but for a long while escaped justice by hiding in exile in Nigeria. His continuing influence on the political processes in countries in the region was characterized as destabilizing and dangerous. See, for example, the press release by Human Rights Watch, “UN Security Council: Ensure Justice in West Africa”, 24 May 2005 (Human Rights Watch 2005a). In March of 2006, although, he was captured and flown to Sierra Leone instead in order to be put to trial.

  15. For practical and political reasons, the ICTY’s role during the war in Bosnia remained limited. The indictment against Slobodan Milosevic, for example, was only issued late in the Kosovo war on 24 May 1999. For information on the ICC’s involvement in Darfur visit http://www.iccnow.org/?mod=darfur.

References

  • Akhavan, Payam. 2001. “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?” American Journal of International Law, 95(1): 7–31.

    Article  Google Scholar 

  • Akhavan, Payam. 2005. “The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court.” American Journal of International Law, 99(2): 403–420.

    Article  Google Scholar 

  • Amnesty International. 2004. Justice and the Rule of Law: The Role of the United Nations. Statement by Amnesty International. September 30. Available at http://web.amnesty.org/library/Index/ENGIOR400142004?open&of=ENG-1385 (last visited 10 October 2005).

  • Bjørnlund, Matthias, Eric Markusen, and Martin Mennecke. 2005. “Que es el genocidio? En la busqueda de un denominador comun entre definiciones juridicas y no jurìdicas.” In Daniel Feierstein (ed.) Genocidio: La Administracion de la Muerte en la Modernidad. Blackwell, London. 17–48.

    Google Scholar 

  • Bolton, John R. 2002. “The United Status and the International Criminal Court.” Remarks at the Aspen Institute. Berlin, Germany, September 16. Available at http://www.state.gov/t/us/rm/13538.htm (last visited on 11 October 2005).

  • Crane, David, Luis Moreno Ocampo, Carla Del Ponte, and Hassan Bubacar Jallow. 2004. Joint Statement of the Prosecutors of the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone, November 27. Available at www.iccnow.org/documents/statements/others/JointDeclarationProsecutors26Nov04.pdf.

  • D’Amato, Anthony. 1994. “Peace vs. Accountability in Bosnia.”American Journal of International Law, 88(3): 500–507.

    Article  Google Scholar 

  • Del Ponte, Carla. 2005. “The Dividends of International Criminal Justice.” Address at Goldman Sachs, London, October 6. URL: http://www.un.org/icty/pressreal/2005/speech/cdp-goldmansachs-050610-e.htm.

  • Douglas, Lawrence. 2001. The Memory of Judgment: Making Law and History in the Trials of the Holocaust. New Haven, CT: Yale University Press.

    Google Scholar 

  • Hamann, Louis, Warren Hoge, and Tom Jenkins. 2004. “Preventing Genocide: Interview with Juan E. Mendez.” World Chronicle, September 7, No. 947. Available at http://www.un.org/webcast/worldchron/trans947.pdf.

  • Human Rights Watch. 2005a. “UN Security Council: Ensure Justice in West Africa.” Press release, May 24. Available at http://hrw.org/english/docs/2005/05/24/sierra11004.htm.

  • Human Rights Watch. 2005b. Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda. Human Rights Watch Report. New York: September 23. Available at http://hrw.org/reports/2005/uganda0905.

  • International Criminal Court. 2005. Report of the International Criminal Court to the United Nations. (UN Doc. GA/60/177, 1 August 2005).

  • International Criminal Tribunal for the Former Yugoslavia. 1996. The Prosecutor v. Erdemovic, Case No. IT-96-22-T, Sentencing Judgement. (29 November).

  • International Criminal Tribunal for the Former Yugoslavia. 1999. The Prosecutor v. Dusko Tadic, Case No. IT-94-1. Sentencing Judgement (11 November).

  • International Criminal Tribunal for Rwanda. 1998. The Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-S. Judgement (Trial Chamber). (4 September).

  • International Criminal Tribunal for Rwanda.1998. The Prosecutor v. Jean–Paul Akayesu, Case No. ICTR-96-4-T. Sentence. (2 October).

  • International Criminal Tribunal for Rwanda. 1999. The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T. Sentence (Trial Chamber). (21 May).

  • International Criminal Tribunal for Rwanda. 1999b. The Prosecutor v. Omar Serushago, Case No. ICTR-98-39-S. Sentence. (5 February).

  • Klabbers, Jan. 2001. “Just Revenge? The Deterrence Argument in International Criminal Law.” Finnish Yearbook of International Law, 12:249–267.

    Google Scholar 

  • Markusen, Eric. 2003. “The Genocidal Mentality at the Dawn of the Twenty-First Century.” The Aegis Review on Genocide, 1:11–14.

    Google Scholar 

  • McGoldrick, Dominic. 1999. “The Permanent International Criminal Court: An End to the Culture of Impunity?” Criminal Law Review, August, 627–655.

  • McGoldrick, Dominic. 2004. “Legal and Political Significance of a Permanent ICC.” In Dominic McGoldrick, Peter Rowe and Eric Donnelly (eds.), The Permanent International Criminal Court: Legal and Policy Issues. Studies in International Law, Volume 5. Oxford: Hart Publishing. 453–478.

    Google Scholar 

  • Mendez, Juan E. 2005. “Opening Address.” Ultimate Crime, Ultimate Challenge–Human Rights and Genocide: International Conference. Yerevan, Armenia, April 20, 2005. Available at http://www.armeniaforeignministry.com/conference/juan_e_mendez.pdf.

  • Mennecke, Martin and Eric Markusen. 2003. “The International Criminal Tribunal for the Former Yugoslavia and the Crime of Genocide.” In Steven L. B. Jensen (ed.), Genocide: Cases, Comparisons and Contemporary Debates. Copenhagen: Danish Institute for International Studies. 293–359.

    Google Scholar 

  • “Moscow Declaration on Atrocities, issued on 1 November 1943. Signed by President Roosevelt, Prime Minister Churchill and Premier Stalin.” Available at http://www.yale.edu/lawweb/avalon/wwii/moscow.htm.

  • Penal Reform International. 2004. From Camp to Hill: The Reintegration of Released Prisoners. Research Report on the Gacaca. Report VI. Available at http://www.penalreform.org/download/Gacaca/Rapport%20VI_AG.pdf.

  • Power, Samantha. 2005. “Court of First Resort.” The New York Times, February 10, A23.

  • Report of the High–level Panel on Threats, Challenges and Change. 2004. A More Secure World: Our Shared Responsibility. Report to the Secretary–General Kofi Annan. December. Available at http://www.un.org/tosecureworld/.

  • Rone, Jemera. 2005. “Darfur, War Crimes, the International Criminal Court, and the Quest for Justice.” Transcript of a Brookings Briefing on Friday, February 25, 2005. Washington, DC: The Brookings Institution. Available at http://www.brookings.edu/comm/events/20050225.htm.

  • Sarooshi, Dan. 2004. “The Peace and Justice Paradox: The International Criminal Court and the UN Security Council.” In Dominic McGoldrick, Peter Rowe and Eric Donnelly (eds.), The Permanent International Criminal Court: Legal and Policy Issues. Studies in International Law, Volume 5. Oxford: Hart Publishing. 95–122.

    Google Scholar 

  • Sayers, Steven M. 2003. “Defence Perspectives on Sentencing Practice in the International Criminal Tribunal for the Former Yugoslavia.” Leiden Journal of International Law, 16:751–776.

    Article  Google Scholar 

  • Schabas, William A. 2005. “The Odious Scourge: Evolving Interpretations of the Crime of Genocide.” Speech presented at “Ultimate Crime, Ultimate Challenge – Human Rights and Genocide: An International Conference,” Yerevan, Armenia, April 20. Available at http://www.armeniaforeignministry.com/conference/w_schabas.pdf.

  • Schabas, William A. 2006. The UN International Criminal Tribunals – The former Yugoslavia, Rwanda and Sierra Leone. Cambridge: Cambridge University Press.

    Google Scholar 

  • Snyder, Jack and Leslie Vinjamuri. 2003–2004. “Trials and Errors. Principle and Pragmatism in Strategies of International Justice.” International Security, 28(3): 5–44.

    Article  Google Scholar 

  • Trial of the Major War Criminals before the International Military Tribunal, Vol. II. 1947. (November 14–30, 1945), Nuremberg: International Military Tribunal.

  • United Nations General Assembly. 2002. “General Assembly President Says Permanent International Criminal Court Will Provide Much Stronger Deterrence Than Ad Hoc Tribunals.” Press release. (UN Doc. GA/SM/282, L/T/4367, 11 April 2002). Available at http://www.un.org/News/Press/docs/2002/gasm282.doc.htm.

  • United Nations Office of Legal Affairs, Codifications Division. 1998–1999. “Overview of Rome Statute of the International Criminal Court.” Available at http://www.un.org/law/icc/general/overview.htm.

  • United Nations Security Council. 2005. United Nations Resolution 1593. (UN Doc. S/Res/1593, 31 March 2005). Available at http://www.un.org/Docs/sc/unsc_resolutions05.htm.

  • United Nations Secretary General. 2004a. “'Risk of Genocide Remains Frighteningly Real' Secretary–General Tells Human Rights Commission as He Launches Action Plan to Prevent Genocide.” Press release, April 7. (UN Doc. SG/SM/9245, AFR/893, HR/CN/1077). Available at http://www.un.org/News/Press/docs/2004/sgsm9245.doc.htm.

  • United Nations Secretary General. 2004b. The Rule of Law and Transitional Justice in Conflict and Post–conflict Societies: Report of the Secretary–General. (UN Doc. S/2004/616, 23 August 2004).

  • Whitaker, Benjamin. 1985. Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide. UN Doc. E/CN.4/Sub.2/1985/6.

  • Wippman, David. 1999. “Atrocities, Deterrence, and the Limits of International Justice.” Fordham International Law Journal, 23(2): 473–488.

    Google Scholar 

  • Wood, Nicholas. 2005. “From List of 19,000, 90 More Trials.” International Herald Tribune. October 6, n. p.

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    Martin Mennecke

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Mennecke, M. Punishing Genocidaires: A Deterrent Effect or Not?. Hum Rights Rev 8, 319–339 (2007). https://doi.org/10.1007/s12142-007-0017-3

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