Until recently, the literature on whether the ICC deters potential war criminals has been more theoretical than empirical. Beth Simmons and Hyeran Jo noted that their study “marks the first quantitative evidence” that the ICC deters under certain conditions. While they make a significant contribution to the topic, we echo one of the concerns that Jack Snyder and Leslie Vinjamuri raised: quantitative studies can only tell us so much about how deterrence works. In-depth case studies are critical for teasing out the circumstances under which deterrence may occur.
As part of The Hague Institute for Global Justice’s Peace-Justice Nexus project, we conducted a case study of Kenya and its relationship with the ICC over time. Unique to this study is that it includes novel data from interviews conducted in Nairobi during 2015 with former government officials, journalists, academics, leaders in civil society and think tanks. Our evidence reveals the complexities of gauging the ICC’s deterrent power and shows that not all actors are deterred in all situations or in the same ways—or even permanently.
We do not embrace the notion of “all or nothing” deterrence. We do not embrace the notion of “all or nothing” deterrence. While the ICC may deter in some circumstances, we do not expect that it can deter all actors all the time. We hypothesized that several factors will influence the ICC’s ability to deter: (1) the domestic political context, (2) the type of actor the ICC is targeting, and (3) the level of the ICC’s intervention. First, we distinguish between democracies and non-democracies (or unconsolidated democracies). The latter are states where the executive is not fully independent from other branches of government and that may not fully respect the rule of law. Existing research suggests that such states typically have poorer human rights practices and/or weaker domestic legal institutions than democracies. Should these states nevertheless join the ICC, they face an increased risk of prosecution than states with better practices.
