In a recent BBC HardTalk episode, the British journalist Stephen Sackur interviewed President Theodor Meron, the first President of the International Criminal Tribunal for the Former Yugoslavia. Sackur was swift to raise the criticism that those currently committing atrocities in Syria are hardly deterred by the threat of international criminal justice. In light of this, any expectations for the progress of international accountability for serious crimes ought to be qualified. It is the existence of such questions in the dialogue of international criminal justice that reveals our idealised expectations of what we want the International Criminal Court to achieve.
The ambition of the ICC to act as a deterrent is highly rhetorical and aspirational. Using the persistence of conflict as a standard to criticise the ICC is fundamentally problematic and over-exaggerates the ICC’s potential reach, and our expectations of international criminal justice at large. We need to be aware of the diverse limitations that deterrence draws, exposing its weaknesses as an ambition and therefore highlighting the need for a more measured barometer of critique, when we assess the effectiveness of the ICC. From the outset, Sackur’s question leads to what is often a dangerous falsity in the debate surrounding the justification of international criminal tribunals and courts. That is the creation of an assumption that their very existence leads to the reduction of conflict and a reduction in violence.
Paradoxically, courts exist on the assumption that crimes do occur and will continue to do so. Their raison d’être rests within the capacity to be responsive to international crimes, with any deterrent effect in the prevention of violence being incidental to this pursuit and reflecting its record on completed trials. Indeed the conflation between individual and general deterrence is similarly a feature of the debate. Where the ICC is arguably most effective is in its capacity to act retrospectively on an individual that is already in custody and brought to trial. In this regard, the court therefore functions to deter those already on trial, such as the likes of Katanga or Lubanga, from repeating offences, rather than as a broader public deterrent effect.
Even if it were the case that the ICC did have a broader deterrent effect, a challenge arises from a methodological perspective. Whilst it is possible to determine those who are not deterred by international criminal prosecution owing simply to the situation of continuing atrocities, it is not possible to determine let alone quantify those who are in fact deterred. This is due to the blend of structural social, economic, political and security causes of conflict, which could lead to a strategic decision in showing restraint in the commission of crimes. The impact of the ICC in this blend is challenging to measure.
There are many other problems with the idea of deterrence. Knowledge and rational behaviour are two critical pre-conditions to the idea of deterrence. Once knowledge of the law exists, there is the assumption that individuals are rational actors capable of making calculations about the benefits of perpetrating crimes against the cost of future accountability and punishment. For perpetrators to be deterred they must have adequate knowledge of international criminal and humanitarian law. Whereas this can be assumed especially in the worst cases of atrocities, it is more likely that they nonetheless perceive such knowledge to be inapplicable, irrelevant or patently wrong.
In the case of internal security conflicts such as Syria, the effect of legal knowledge is diluted due to the strength of strong political and ideological motivations. Indeed in such situations there may be the belief that the law is in fact “on their side” in the name of security. Thus actions are likely to be framed in the language of self-defence and necessity, unmarked by criminal intent and therefore presented as legal. One element in such decision making may be the knowledge that in the case of continuing conflicts, repression appears temporary until the victory which always appears as impending. Therefore the contemplation of defeat and capture becomes negligible, and deterrence is thus undermined.
Even if a perpetrator could think rationally and judged prosecution as being unfavourable, the extent of prosecutions compared to the prevalence of international crimes makes deterrence rather limited. The probability that perpetrators will face justice can be judged by the record of the ICC which, 11 years on, has presided over eight investigations, six arrests from a possible 23 and, to date, one completed trial and conviction, which is subject to appeal. To add to this, the continuing high profile defiance of arrest warrants such as that of Sudanese President Bashir or Joseph Kony do little to improve confidence in the pursuit of broad deterrence as an ambition.
Surely the crucial factor in deterrence is the probability and likelihood that the Court’s punishments will actually be imposed. It therefore relies on actual individuals being arrested and since the Rome Statute has few effective enforcement measures such as its own police force, it must rely on the will of state parties to carry out the arrest warrants. Unfortunately, in the context of the perceived politicised selectivity of cases, arrest warrants have repeatedly not been executed by ICC member states in Africa. The idea of the ICC as a universal and global deterrent is also undermined, as there are still non-signatories and non-ratified members to the Statute including high profile countries such as Israel, the United States, Sudan, India, China, Pakistan, Russia, Syria, Iran and Egypt, to name a few.
If the perpetrator is a national of a non-member state, and all the crimes have been committed domestically, they are in effect beyond the reach of the law. The only method available for ICC investigation would be through a referral by the UN Security Council in the highest profile cases. Despite protestations, as Syria is a non-signatory to the Rome Statute and for reasons of global geo-politics (the use of a veto from the permanent members of the Council), no ICC investigation is as yet possible. These are all serious limitations in the ICC’s pursuit of deterrence.
The ICC can no doubt contribute to the prevention of crimes but it is unrealistic to expect and trace causality between the presence of the ICC and the threat of punishment to the incidence of violence. A more measured and proportionate standard needs to occupy the gap. The ideal of deterrence is too easily overly inflated. No international court can independently prevent the rise of a Hitler or a Pol Pot, and no threat of sanction would be enough to deter those beyond the reach of arrest from carrying out egregious human rights abuses. Whilst no one should doubt the goal, achieving it will prove to be far more challenging than the rhetoric.