How Would War Crimes Prosecutors Classify the Syrian Conflict(s)?

Over the past few weeks, a great number of excellent scholars have debated how to classify the contemporary armed conflict(s) in Syria. In particular, Ryan Goodman (here, and here), Adil Haque (see here, here), Oona Hathaway (on Twitter), Deborah Pearlstein (see here and here), Gabor Rona (see here), Terry Gill (see excellent article here, and blog here), and Dapo Akande (see excellent article here and blog here) have all debated the trigger points of non-international armed conflict (“NIAC”) and whether the Syrian conflict(s) are now rendered international armed conflicts (“IAC”) by American, Turkish and Russian military intervention. I join the discussion to ask how war crimes prosecutors are likely to see these issues, then to raise the possibility (born of working in this capacity myself) that an analytically satisfying solution to these debates about internationalized armed conflict might be structurally unavailable. I begin by introducing these perspectives, then plot a set of doctrinal points that arise from ICL’s encounter with the phenomenon of conflict classification. I end by reiterating my earlier normative critique of the international/non-international bifurcation in the laws of armed conflict (see here), which emerged from my own intellectual dissatisfaction as a war crimes prosecutor over a decade ago.

To begin, let me flesh out why inquiring about war crimes prosecutors’ perspectives might be a helpful supplement to the debates about conflict classification in Syria thus far. Most obviously, if the reason for insisting on qualifying the armed conflict in Syria is to promote the prosecution of war crimes, it could be helpful to understand how courts tasked with trying war crimes are likely to undertake that classification process if these trials ever come to pass. But perhaps more importantly, war crimes prosecutors have confronted more or less exactly the same difficulties that animate these debates for over twenty years now, albeit in the context of the multiple, changing and overlapping international/non-international conflicts in the former Yugoslavia and the Democratic Republic of Congo rather than Syria. Much of the resulting caselaw is exceptionally detailed, and as a body of experience, it is useful as a tool to help mediate between competing arguments here. In fact, ICL’s long history of classifying armed conflicts is also of assistance in that it shows these institutions attempting to avoid the classification process wherever possible. As I explain below, revealing their attempts to bypass the classification conundrum is an important aspect of the added value a war crimes prosecutor’s perspective may provide.

This brings us to my second initial perspective. If ICL has done its best to pull away from the riddle of classifying internationalized conflicts like that in Syria, it is somewhat peculiar that when faced with Terry Gill’s harrowing revelation that “[t]here are reportedly hundreds (by some accounts approximately 1,500) of armed groups and militias active in the Syrian conflict” that no one has yet objected that this distinction between IACs and NIACs cannot be meaningfully made. The closest we get thus far is Professor Gill’s admission that “[it] would be well-nigh impossible to draw a coherent picture of the entire mosaic of armed groups and their aims, actions and alignments.” (see here, p. 355). In addition, we have not heard that even where the application of these tests for internationalization is more clear cut, the ability of armed groups to comply with standards we ourselves cannot agree upon in the heat of battle, in the context of changing military relationships, based on closely guarded information seems marginal. I am reminded, for instance, of Marco Sassòli and Laura Olsen’s argument that “there is no reason to think that, during a conflict, one could convince a military commander to respect certain rules by arguing that he is an agent of a foreign country.”[1]

Admittedly, I am reiterating here an argument I first made over a decade ago after first working on these issues at two different war crimes tribunals, in which I pointed out the unavoidable dangers of analytical incoherence in qualifying internationalized armed conflict, then posited the possibility of a unified system of IHL that would be applicable to all types of armed conflict (see here). I made this argument in order to circumvent the otherwise insurmountable analytical difficulty I had experienced in practice. As I explain in that article, the way out I propose was not new even then: the ICRC had advanced this argument at every stage in the codification of major IHL instruments, various luminaries such as George Aldrich had endorsed it in light of the Vietnam experience, and the history of ICL is replete with judicial statements like “it is only natural that the aforementioned dichotomy [between IAC and NIAC] should gradually lose its weight.”[2] As I will explain shortly, ICL not only offers a set of lessons about the classification process that have not fully informed the various online debates about Syria thus far, it also reveals a pattern of deliberate attempts to avoid the problem wherever possible. This reality speaks to an ongoing concern about the practicality of the tests in discussion presently and the availability of third approaches that might be appealing to prosecutors if cases from Syria are ever heard.

I move, then, to my five doctrinal observations about the history of conflict classification in ICL and its salience to these debates:

First, although it is probably technically correct to say that Tadić is the leading judicial decision in this area, to leave matters at that risks undervaluing over two decades of judicial experience classifying armed conflicts post Tadić before a wide variety of courts and tribunals (national and otherwise). In fact, a number of initiatives within these institutions deliberately sought to build upon the initial foundations set by Tadić. In 2007, for instance, I was asked (ironically given my earlier article calling for the abandonment of the distinction) to lead a process for the Office of the Prosecutor of the ICTY that developed a more comprehensive matrix of factors that go to making up a non-international armed conflict. This project led to far more detailed sets of factors that would establish both limbs of the test for a non-international armed conflict—intensity and military organization—in a trilogy of cases involving the Kosovo Liberation Army and the Albanian National Liberation Army in Macedonia.[3] The painstaking depth these and other cases go to in applying the tests may be helpful to friends and colleagues engaged in these debates, beyond just the foundational importance of Tadić itself. They may also act as templates for prosecutors asked to prosecute war crimes arising out of modern-day Syria.

Second, let me add one problem from this history to the current debate about Syria in order to point to a sub-issue that adds further complexity, in ways that might also militate in favour of a simpler unified approach moving forward. As all the experts engaged in this debate will know, Additional Protocol II (“APII”) entails a different test for NIAC that arguably lifts the intensity requirement above that applicable to Common Article 3 conflicts and that also appends the requirement that the armed group enjoy territorial control. Some courts, like the ICC, have rejected the territorial control element for purposes of determining a NIAC under its statute,[4] but the Special Court for Sierra Leone has insisted on it as a requisite element of war crimes that derive from APII.[5] So, in the same way that Ryan Goodman has pointed out that Russia is a signatory to API for the purposes of determining the applicable law in Syria (see here), war crimes prosecutors are also likely to be confronted by the reality that: (a) Russia is party to APII too; (b) that APII requires territorial control in addition to the intensity and military organization elements for armed conflicts in Common Article 3 NIACs; and (c) that the question of classifying the law applicable in the Syrian context may be even thornier than our debates to date have revealed.

Third, once these issues are viewed through the eyes of war crimes prosecutors, it will likely become apparent that the first prong of the test for internationalization in ICL appears to have escaped close scrutiny in the debates about Syria thus far. Before now, my friends and colleagues who have engaged in this debate have largely focused on the absence of consent on the part of the Syrian government to the various manifestations of US military force in Syria, arguing about whether the absence of Syrian consent means that the United States is presently engaged in an IAC with Syria and/or Russia. And yet, the test for internationalization in ICL is appreciably wider in scope, and although controversial, a number of ICL cases will act as precedents for war crimes prosecutors focused on Syria who are eager to establish their jurisdiction over the full panoply of war crimes applicable in IAC. To recall, in the famed Tadić Appeal Judgement, the Appeals Chamber of the ICTY stipulated that:

“It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.”[6] (emphasis added)

Importantly, a number of international courts and tribunals have interpreted the reference to “another State interven[ing] in that conflict through its troops” as extending beyond actual armed force between States Parties. To be precise, a number of decisions apply the body of law applicable to IACs to all state and non-state actors within a conflict zone where a foreign military intervention only indirectly affects independent internal conflict(s). I provide several examples of this reality from ICL caselaw in my earlier article (see here, pages 328-333), but to cite just one here, the Kordić & Čerkez Judgement found that the Croatian government’s intervention in the conflict against Serb forces in Bosnia internationalized a separate conflict in which the Croatian government had no direct military involvement, namely the conflict between Bosnian Croats and Bosnian Muslims.[7] According to the Trial Chamber, it did this “by enabling the Bosnian Croats to deploy additional forces in their struggle against the Bosnian Muslims.”[8] Thus, the Tribunal applied the laws applicable to IACs to all actors discussed, including non-state armed groups. Our debates about the absence of state consent—certainly a vitally important issue—played no part in this classification. Depending on the war crimes involved, war crimes prosecutors considering trials arising out of Syria may well take inspiration from these precedents.

Fourth, the debate up until now has only tacitly referenced “Mixed” versus “Global” theories of conflict classification, which polarized scholars and practitioners in the early years of ICL’s encounter with this problem. The mixed approach—what Terry Gill calls “parallel conflicts”—is reflected in the refrain from Tadić that the violence in the former Yugoslavia could be characterized “at different times and places as either internal or international armed conflicts, or as a mixed internal-international conflict”[9] and that “depending upon the circumstances, [the conflict may] be international in character alongside an internal armed conflict.”[10] And yet, an alternative “global” approach pre and post-dates these tests; many experts have acknowledged that distinguishing between IACs and NIACs is practically impossible in many modern armed conflicts given the indecipherably complex and constantly dynamic interaction between state and non-state actors in internationalized warfare. According to this global approach, the full body of IHL applicable to IACs apply to all armed groups, state and non-state, in an entire territory that contains multiple conflicts of international and internal origin. As I show in the article (see here, pp. 334-335), the US government, Theodore Meron, various ICTY judges and even the ICRC appear to have endorsed this approach in certain circumstances.

These ideas have featured only tacitly in the recent online debate about conflict classification in Syria. Terry Gill’s excellent article, for instance, starts off assuming a mixed approach to classification (he calls “parallel”), but when faced with the tremendous complexity of the task in certain scenarios he shifts to the global alternative, before he later shifts back. A variant of the global approach seems evident, for example, where he concedes that “[t]he fact that these parties have different objectives and have clashed with one another on occasion (or in the case of ISIS and the Kurdish YPG on an ongoing basis) does not change the fact that there is one overall conflict of a non-international character within Syria with a number of different parties. The alternative of looking at each conflict as a separate conflict makes no factual or legal sense.”[11] To my mind, this quite understandable oscillation between mixed and global approaches emulates that in earlier ICTY caselaw. Moreover, it is also interesting to see the same oscillation play out at the ICC in a conflict strikingly similar to Syria legally speaking; a conflict Madeline Albright once dubbed “Africa’s First World War.”

In recent years, a Pre-Trial Chamber at the ICC in the case against Thomas Lubanga cited the two prong test from Tadić I quote above, then indicated that, “where a State does not intervene directly on the territory of another State through its own troops, the overall control test will be used to determine whether armed forces are acting on behalf of the first State.” (emphasis in original).[12] By implication, the overall control test is not relevant where there is direct military intervention, which will operate to internationalize all conflict in a globalizing fashion in line with cases like Kordić & Čerkez I referenced above. Again, the important topic of State consent we have debated did not feature in this analysis. Thus, the Pre-Trial Chamber concluded that the armed conflicts between various non-state actors in the region were subject to the law governing IAC because Uganda was an occupying power in the region. In the Pre-Trial Chamber’s own words: “as a result of the presence of the Republic of Uganda as an occupying Power, the armed conflict which occurred in Ituri [between various non-state actors] can be characterised as an armed conflict on an international character from July 2002 to 2 June 2003, the date of the effective withdrawal of the Ugandan army.”[13]

At trial, a differently constituted bench disagreed with the Pre-Trial Chamber’s characterization by effectively adopting a more stringent mixed approach. Instead of citing the Tadić two limbed test, which entailed both direct and indirect intervention as bases for internationalization, the Chamber ignored the first element based on direct foreign intervention and the line of cases like Kordić & Čerkez applying it, then discredited evidence about Rwandan and Ugandan control over various armed groups fighting in the region in assessing the second. As a result of this shift in technique, the ICC Trial Chamber in one and the same case revised the Pre-Trial’s position by concluding that the conflict between these various non-state groups “was non-international in nature.”[14] This mixed approach has gained ascendancy at the ICC ever since so is likely to be especially influential to war crimes prosecutors contemplating the terrible conflagration in Syria. Nevertheless, it is also notable that aside from marking a repetition of the oscillation between mixed and global approaches, in a passage I am tempted to read as conveying regret, the Court remarked that “some academics, practitioners, and a line of jurisprudence from ad hoc tribunals have questioned the usefulness of the distinction between international and non-international armed conflicts… The Chamber does not have the power to reformulate the Court’s statutory framework.”[15]

From an analytical standpoint, the problem is that both of the approaches are difficult to justify, which perhaps explains the seemingly constant oscillation between them. The great difficulty is that the metrics for explaining when to prefer the mixed and when to favour the global are extraneous to the legal tests and go unannounced. More broadly, in my earlier piece, I argued that the relative strengths and weaknesses of the “mixed” and “global” views indicate that reaching any sort of agreement about the classification of complex internationalized conflicts like Syria within the present framework will inevitably involve choosing between a theory that cannot work (the mixed approach) and a practice that is not justified (the global approach). (see here, p. 335). The challenge, therefore, is very much to the structure of IHL generally. For present purposes, I wonder if our debates about classification could benefit from keeping these arguments in mind, although as I hint at throughout, the better way of promoting accountability may lie in convincing war crimes prosecutors that they need not try to resolve issues we cannot.

Fifth, avenues exist that allow us to do just this. Because these issues are so factually complex, analytically unsatisfying, enormously time consuming to prove, and ultimately, often morally irrelevant, courts have attempted legal run-arounds wherever possible. A number of the scholars in this online debate have rightly pointed out the areas of substantive disparity between IAC and NIAC, but if war crimes are the emphasis in general, and murder, rape and torture the central pre-occupations in particular, it might be possible to dispense with the characterization process all together. At a certain point in its maturation, the ICTY and various national criminal courts adopted just this approach as a response to the sorts of classification quandaries we are debating (for examples, see here, p. 864). They did this by relying on the ICJ’s dicta in the Nuclear Weapons case that Common Article 3 is an “elementary consideration of humanity” applicable in both variety of armed conflict (an approach later echoed by the US Supreme Court in Hamdan). Armed with this blanket principle, prosecutors might look at a conflict like that in Syria, banish grave breaches immediately because of the difficult technicalities they entail, then opt for Common Article 3 prosecutions to avoid the intractable complexities we are presently engaged with. I have pointed to the problems this approach can give rise to elsewhere (see here, p. 875), but for present purposes, this strategy may be the best way of incentivizing war crimes prosecutors to take up these cases despite our understandably protracted disagreement.

This brings us to a fork in the road, where I move away from a perspective grounded in ICL doctrine into a purely normative mode, which originally developed as a response to my experiences with these problems as a practitioner. I have four normative points:

First, I believe that the idea of single body of IHL applicable in all types of conflicts deserves far greater intellectual engagement. Admittedly, as my earlier article readily conceded, that project is conceptually challenging and politically unlikely because it has to address the absence of combatant status or a law of occupation in NIACs, two issues not likely to be readily resolved. I will not attempt to broach these conceptual issues here, other than to offer up the notion that it is hard to incentivize compliance with IHL by non-state groups without offering something akin to combatant status and to observe how these difficulties already arise in internationalized non-international armed conflicts (see here, p. 345). In addition, I respect the reality that opening up the Geneva Conventions for renegotiation in a post Sept 11 world would likely lead to a net diminution of humanitarian protections, but regardless of whether a unified body of law that is not regressive can ever be politically realized in even the long-term, I reiterate my now dated calls for greater engagement with the unification project as a normative agenda, perhaps as part of or an appendage to Columbia’s project on harmonizing standards for armed conflict (see here). One upside is that it stands to make war crimes prosecutions in places like Syria easier.

Second, the engagement with what Adil Haque eloquently calls “triggers and thresholds” (see here) is exceptionally interesting. I was particularly struck by Adil’s very insightful conclusion that “we should accept a unilateral trigger and nominal threshold for both IAC and NIAC.” If this approach is defensible, he has found a solution to a key problem for a unified body of norms that dispenses with the IAC/NIAC classification altogether. To address this problem of disparate trigger mechanisms in my earlier proposal, I borrowed from a proposition by the Brazilian government during the negotiation of APII, which suggested that the application of IHL in all types of conflict could be triggered by armed violence between “organized armed forces or other organized armed groups under a responsible and identifiable authority, and clearly distinguished from the civilian population.” (see here, p. 345). I am less sure that this is much of a solution now, so I am particularly enthusiastic for creative new thinking like that Adil Haque offers as well as the intentionality approach Michael Adams and Ryan Goodman have suggested (see here). In the same breadth, my enthusiasm is strictly conditional on the need for these innovative new standards to avoid watering down pre-existing IHL protections and prevent against a new field of application that makes departures from human rights standards easier, more frequent, or simply more justifiable.

Third, I sense that the law of armed conflict is caught between its aspirations for humanitarian protection and an anxiety about its own complicity in violence. On the one hand, I certainly understand and appreciate the argument by Adil Haque and others that IHL does not authorize anything; it merely restrains. So when Gabor Rona complains (see here) that qualifying the armed conflict as international might trigger “the same targeting and detention rules that would apply between the US and Syria.. wherever US and Russian interests rub up against each other,” the retort is that if the US and Russia do carry out these unthinkable actions, it will be for altogether different political reasons that are entirely seperable from the body of IHL that will apply to them as they do so. Conversely, one does not have to tax one’s memory too hard to recall the Bush Administration’s use of the laws of war to publicly justify important excess. The laws of war rhetoric helped enable indefinite detention of detainees at Guantánamo (without conferred them with corresponding protections) and had a quite terrible trickle-down effect in Uganda, Liberia, Chechnya and beyond, where conflicts were quickly re-imagined as “Wars on Terror.” The reality is that historically speaking, the laws of armed conflict are often used to justify violence.[16] To my mind, thinking through ways of undermining this complicity should also be a first order task for IHL scholars.

Fourth, a unified body of IHL could help do just this by depoliticizing the significance of a conflict’s classification one way or the other. Much of the resistance to Ryan Goodman’s argument (see here) that the US is already in an IAC stems from a concern that this recognition would be politically provocative, thereby entailing a weak variant of the complicity-in-violence-anxiety I reference immediately above. Gabor Rona, for example, mentions his concern about the classification “upping the ante” (see here); Deborah Pearlstein reasonably worries that “Syria and Russia would view such a statement as provocatively signaling a U.S. intention to embark upon a new and different course of hostilities” (see here); and Terry Gill’s very helpful article ends with a series of warnings about “drawing conclusions which open the door to a widening of the conflict.” (see here, p. 380). Ironically, in my earlier article, I used Russian intervention in Afghanistan several decades ago to highlight equivalent concerns for politicization then (see here, pp. 342). I also suggested that a unified body of armed conflict that stripped away the IAC/NIAC distinction might offer a way out that minimizes these tensions, at least partially, by allowing us to insist that all parties are bound by IHL in their military actions without saying more.

The foregoing does not offer obvious solutions for the Syrian classification, but I hope that some of the terrain I traverse is useful for further discussions of these important issues.


[1] M. Sassòli and L. M. Olson, “International decision: Prosecutor v. Tadić (Judgement)”, American Journal of International Law, Vol. 94, July 2000, p.

[2] Tadić Jurisdiction Appeal, para. 97

[3] The principle case was Prosecutor v. Boškoski, but the same principles are also evident in the Prosecutor v. Limaj and Prosecutor v. Haradinaj cases.

[4] Prosecutor v Lubanga Trial Judgment, para. 536.

[5] Prosecutor v Sesay et al, SCSL-04-15-T, Judgement, 2 March 2009, para. 966. (“the Prosecution must also prove the elements of Article 1 of Additional Protocol II, namely that the dissident armed forces or other organised groups participating in the conflict: […] (ii) Were able to exercise such control over a part of their territory as to enable them to carry out sustained and concerted military operations.”)

[6] Prosecutor v. Tadić, T-94-1-A, Judgement, 15 July 1999, para. 84

[7] Prosecutor v. Kordić & Čerkez, IT-95-14/2-T, Judgement, 26 February 2001

[8] Ibid., para. 108(2).

[9] Tadić Appeal Judgement, para. 73

[10] Id.

[11] Gill, p. 375.

[12] Prosecutor v Lubanga, Decision on Confirmation of Charges, 29 Jan 2007, para. 220

[13] Prosecutor v Lubanga, Decision on Confirmation of Charges, 29 Jan 2007, para. 220.

[14] Lubanga Trial Judgment, 14 March 2012, para. 567.

[15] Ibid, para 539.

[16] In my view, one of the best arguments to this effect is still Chris Jochnick & Roger Normand  “The Legitimation of Violence: A Critical History of the Laws of War” (1994) 35 Harvard Int’l LJ  49-95; 387-416.

« Une Ville ou Une Localité, Même prise d’Assaut » : Les Mots Juridiquement Redondants, Archaïques, Inutiles et Déroutants dans la Définition du Pillage du CPI

Le pillage signifie le vol pendant la guerre. Curieusement, les articles, 8(2)(b)(xvi) et 8(2)(e)(v) du Statut de la CPI interdisent: « Le pillage d’une ville ou d’une localité, même prise d’assaut » Seul le premier de ces termes a une signification juridique. Les neufs autres commencent à causer énormément de confusion risquant de porter atteinte à la justice.

Voici quelques preuves de cette confusion:

  • Le mois dernier, je participais à une conférence à Kinshasa, en République démocratique du Congo sur les crimes économiques en temps de guerre, où un procureur, pour lequel j’ai beaucoup de respect, a soulevé que l’inclusion « d’une ville ou d’une localité, même prise d’assaut » dans cette infraction, constitue un obstacle possible à l’application du pillage dans la lutte contre l’exploitation illégale des ressources naturelles
  • Un certain nombre d’universitaires qui écrivent sur le pillage ont signalé cette formulation pour suggérer que cette infraction ne pourrait pas s’appliquer aux acteurs commerciaux impliqués dans l’exploitation illégale des produits issus du conflit ou pour indiquer que le crime de guerre de pillage dans le Statut de la CPI envisage clairement d’autres situations ; et
  • Peut-être le plus étrange, dans le récent jugement contre l’homme politique congolais Jean-Pierre Bemba, la Cour pénale internationale a elle-même interprété les termes « une ville ou une localité, même prise d’assaut » comme signifiant que le pillage doit se produire à une certaine échelle pour être considéré comme tel.[1]

Après avoir passé un certain nombre d’années de recherches et après avoir rédigé un grand nombre d’écrits sur le pillage appliqué aux ressources naturelles (voir les fruits de ces travaux ici et un résumé d’une conférence ), je suis particulièrement en désaccord avec ce point de vue. Dans ce qui suit, je vous explique pourquoi je considère ces neufs mots supplémentaires comme juridiquement redondants, archaïques, inutiles et déroutants. En particulier, je donne cinq raisons pour lesquelles je suis de cet avis, dans le but de clarifier ce que je perçois comme une mauvaise interprétation regrettable, mais compréhensible.

Tout d’abord, les « Eléments des crimes » de la CPI, qui énonce les éléments juridiques requis pour chaque infraction dans le Statut de la CPI, ne fait aucune mention de la « ville », la « localité » ou l’ « assaut », ce qui implique que ces mots supplémentaires sont juridiquement redondants. Les Eléments des crimes se lisent comme suit:

  1. L’auteur s’est approprié certains biens ;
  2. L’auteur avait l’intention de spolier le propriétaire des biens et de se les approprier à des fins privées ou personnelles ; [*]
  3. L’appropriation s’est faite sans le consentement du propriétaire ;
  4. Le comportement a eu lieu dans le contexte de et était associé à un conflit armé international ou non international ; et
  5. L’auteur avait connaissance des circonstances de fait établissant l’existence d’un conflit armé.

[*]  Comme l’indiquent les termes « à des fins privées ou personnelles », les appropriations justifiées par les nécessités militaires ne constituent pas un crime de pillage.

J’ai exprimé mon désaccord sur un aspect particulier de cette définition, à savoir, les termes « pour usage privé ou personnel » (Voir ici, par. 16-17). Cependant, ce point n’est pas pertinent pour le sujet qui nous intéresse. Indépendamment de ce désaccord, il reste encore à noter que la définition des Eléments des crimes la CPI ne fait aucune mention de la « ville », la « localité » ou de l’« assaut ».

Deuxièmement, d’autres cours et tribunaux ayant poursuivi le pillage (sous les termes « pillage », « vol » ou « spoliation ») ne font jamais référence à la « ville », la « localité » ou l’ « assaut ». Les Statuts du Tribunal pénal international pour le Rwanda (TPIR) et le Tribunal spécial pour la Sierra Leone (TSSL), par exemple, ne fait que lister le « pillage » parmi les crimes de guerre applicables dans leur juridiction.[2] Le fait que l’utilisation du terme de pillage par ces instances faisant autorité, n’inclut aucune référence à la « ville », la « localité » ou à l’« assaut » confirme que ce terme dans le Statut de la CPI est juridiquement vide de sens.

Troisièmement, la référence à « une ville ou une localité, même prise d’assaut » est archaïque et pratiquement obsolète. Cette formulation provient de l’article 28 du Règlement de La Haye de 1907 qui stipule que « le pillage d’une ville ou d’une localité, même prise d’assaut, est interdite ». Mais l’histoire derrière la disposition révèle que le libellé n’a pas de signification contemporaine – il couvre uniquement une ancienne exception qui n’a pas de pertinence pour la guerre moderne. En d’autres termes, il n’a pas de rôle normatif.

Aussi récemment qu’au 18ème siècle, le pillage était parfaitement légal.[3] L’interdiction subséquente est venue par étapes. Dans un premier temps, le pillage a été interdit, mais soumis à une exception importante. Comme l’explique Bentworth «  l’ancienne coutume de pillage… était encore maintenue lorsqu’une ville fut assiégée après avoir été prise d’assaut; mais ce fut à titre de condamnation pour l’acharnement ».[4] Bien que le pillage était interdit, si une population locale réclamait une force d’invasion pour partir assiéger une ville, leur ville pourrait être pillée, si l’attaque s’avérait être un succès.

Dans un second temps, cependant, les lois de la guerre ont cherché à également abroger cette exception et interdire le pillage catégoriquement.

Ainsi, le Règlement de la Haye de 1907 met l’accent sur le fait que « le pillage d’une ville ou d’une localité, même prise d’assaut, est interdite ». Comme cette histoire le révèle, la formulation archaïque dans cette disposition était uniquement destinée à insister pour que l’interdiction, désormais étendue, englobe également l’exception; elle n’a jamais été destinée à limiter la proposition de base que le pillage signifie le vol pendant la guerre.

Quatrièmement, l’inclusion des références « ville », « localité » et « assaut » dans le Statut de la CPI était inutile, même si nous voulions rester fidèles au Règlement de La Haye de 1907. Un fait révélateur, est qu’une disposition différente dans le même Règlement de La Haye prévoit aussi de manière plus simplifiée que « le pillage est formellement interdit ».[5] La décision d’inclure la plus obscure, archaïque disposition est malheureuse. Faisant référence à la « ville », la « localité » et l’« assaut » dans le Statut de la CPI était donc un mauvais choix.

Cinquièmement et finalement, cette formulation est particulièrement déroutante. A première vue, elle semble incertaine, obsolète et basée uniquement sur une réflexion des expériences européennes de la guerre. Cette formulation a déjà naturellement induit en erreur certains des meilleurs procureurs, juges et universitaires travaillant dans le domaine. Mon seul espoir est que la mauvaise rédaction de cette composante du Statut de la CPI, qui est sans effet juridique, n’inhibe pas les applications de principe de la règle dans des cas appropriés.

[1] Voir Bemba Trial Judgement, par. 117 (indiquant que l’« Article 8(2)(e)(v) se rapporte au « pillage d’une ville ou d’une localité », et donc que le pillage d’une maison individuelle ne suffirait pas. »)

[2] Statut du Tribunal pénal international pour le Rwanda, art. 4 (f); Statut du Tribunal spécial pour la Sierra Leone, art. 3 (f).

[3] En 1718, par exemple, Vattel pense que « ce n’est pas, en général, contraire aux lois de la guerre de piller et dévaster un pays ». Vattel, The Law of Nations, (1797), p. 291-292. Pour d’autres exemples, voir Grotius, Rights of War and Peace, pp- 332-334. Voir aussi, Takahashi, Cases on International Law During the Chino-Japanese War, 1899, pp.155-156.

[4] Norman Bentworth, The Law of Private Property in War, (1907), p.8. De même, Lawrence explique que pendant le Moyen Age, « lorsqu’un lieu a été pris d’assaut, il fut livré au pillage et au vol, sans aucune tentative pour empêcher les passions des soldats victorieux menés par leurs commandants » Lawrence, Principles of International Law (1899), p.38.

[5] Hague Regulations 1907, art. 47.

“A Town or Place, Even When Taken by Assault”: The Legally Redundant, Archaic, Unnecessary, and Confusing Wording in the ICC’s Definition of Pillage

Pillage means theft during war. Curiously, Articles 8(2)(b)(xvi) and 8(2)(e)(v) of the ICC Statute prohibit: “Pillaging a town or place, even when taken by assault.” Only the first of these words has any legal significance. The remaining nine are beginning to cause a great deal of confusion that risks undermining justice.

Here is some evidence of that confusion:

  • This past month, I attended a conference in Kinshasa, Democratic Republic of Congo on Economic Crimes in Times of War where a prosecutor I very much respect raised the inclusion of “a town or place, even when taken by assault” in this offense as a possible barrier to using pillage to address the illegal exploitation of natural resources;
  • A number of academics writing about pillage have pointed to this language to suggest that this offense might not apply to commercial actors involved in the illegal exploitation of conflict commodities or that the war crime of pillage in the ICC Statute clearly contemplates other situations; and
  • Perhaps most strangely, in the recent judgment against Congolese politician Jean-Pierre Bemba, the International Criminal Court itself has interpreted the words “a town or place, even when taken by assault” as implying that the pillage of a single house would not suffice.[1]

Having spent a number of years researching and writing about pillage as applied to natural resources (see the fruits of these labors here and a conference summary here), I very much disagree with these views. In what follows, I explain why I view these additional nine words as legally redundant, archaic, unnecessary and confusing. In particular, I provide five reasons why I am of this opinion in a bid to clarify what I perceive to be an unfortunate but understandable misreading.

First, the ICC’s Element of Crimes, which set out requisite legal elements for each crime in the ICC Statute, make no mention of “town”, “place” or “assault” at all, implying that these additional words are legally redundant. The Elements of Crimes read as follows:

  1. The perpetrator appropriated certain property.
  2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.[*]
  3. The appropriation was without the consent of the owner.
  4. The conduct took place in the context of and was associated with an international or non-international armed conflict.
  5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

[*]     As indicated by the use of the term “private or personal use”, appropriations justified by military necessity cannot constitute the crime of pillaging

I have expressed disagreement with one particular aspect of this definition, namely “for private or personal use” (See here, paras. 16 – 17). My misgivings are, however, beside the point for present purposes. Regardless of this particular disagreement, it is still noteworthy that the definition in the ICC Elements makes no mention of “town”, “place” or assault.”

Second, other courts and tribunals that have prosecuted pillage (under the labels plunder, looting and spoliation) never refer to “town”, “place” or “assault” either. The Statutes of the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), for instance, simply list “pillage” among war crimes applicable within their jurisdiction.[2] The fact that these and other authoritative applications of pillage make no reference to “town”, “place” or “assault” confirms that this language in the ICC Statute is legally vacuous.

Third, the reference to “a town or place, even when taken by assault” is archaic and practically obsolete. This wording comes from The Hague Regulations of 1907, Article 28 of which states that “[t]he pillage of a town or place, even when taken by assault, is prohibited.” But the history behind the provision reveals that the wording has no contemporary significance – it merely covers over an old exception that has no relevance to modern warfare. In other words, it does no normative work.

As late as the eighteenth century, pillage was perfectly legal.[3] It’s subsequent prohibition came in stages. In the first instance, pillage was prohibited but subject to one important exception. As Bentworth explains “the old custom of pillage… was still retained where a besieged town was taken after having been stormed; but this was by way of penalty for obstinacy.”[4] Although pillage was prohibited, if a local population required an invading force to go to the great trouble of laying a siege, their town could be pillaged if the siege proved successful.

In the second stage, however, the laws of war sought to repeal even this exception and outlaw pillage categorically. Thus, the Hague Regulations of 1907 emphasis that “the pillage of a town or place, even when taken by assault, is prohibited.” As this history reveals, the archaic language in this provision was only meant to insist that the prohibition now extended to and encompassed the exception too; it was never meant to restrict the basic, broad proposition that pillage means theft during war.

Fourth, the inclusion of the references to “town”, “place” and “assault” in the ICC Statute was unnecessary, even if one did want to remain faithful to The Hague Regulations of 1907. Tellingly, a different provision in the very same Hague Regulations also stipulates more simply that “[p]illage is formally prohibited.”[5] The decision to include the more obscure, archaic, legally redundant alternative that referenced “town”, “place” and “assault” in the ICC Statute was therefore a poor choice.

Fifth and finally, this language is especially confusing. On its face, it appears unclear, outdated and a reflection of only European experiences of warfare. Already, it has understandably misled some of the very best prosecutors, judges, and academics who work in this field. My only hope is that the poor drafting of this component of the ICC Statute, which is without legal effect, does not inhibit principled applications of the rule in appropriate cases.


[1] See Bemba Trial Judgement, para 117 (stating that “Article 8(2)(e)(v) relates to ‘pillaging a town or place’, and therefore the pillaging of a single house would not suffice.”)

[2] Statute of the International Criminal Tribunal for Rwanda, Article 4(f); Statute of the Special Court for Sierra Leone, Article 3(f ).

[3] In 1718, for example, Vattel reflected that “it is not, generally speaking, contrary to the laws of war to plunder and lay waste to a country.” Vattel, The Law of Nations, (1797), p. 291-292. For other examples, see Grotius, Rights of War and Peace, pp. 332-334. See also, Takahashi, Cases on International Law During the Chino-Japanese War, 1899, pp. 155-156.

[4] Norman Bentworth, The Law of Private Property in War, (1907), p. 8. Similarly, Lawrence explains that during the Middle Ages, “[w]hen a place was taken by storm it was given up to pillage and rapine, no attempt to restrain the passions of the victorious soldiery being made by their commanders.” Lawrence, The Principles of International Law, (1899) p. 38.

[5] Hague Regulations 1907, Article 47.

Quo Vadimus? A Response to Critics

Hyeran Jo is an Assistant Professor of Political Science at Texas A&M University. She is the author of Compliant Rebels: Rebel Groups and International Law in World Politics (CUP, 2015)

Beth Simmons is Clarence Dillon Professor of International Affairs at Harvard University. She is the author of Mobilizing for Human Rights: International Law in Domestic Politics (CUP, 2009).

Together, they are the authors of Can the International Criminal Court Deter Atrocity?

We thank Professors Mark Drumbl, Kate Cronin-Furman, Julian Ku, Jide Nzelibe, James Stewart, Alette Smeulers, and Joachim Savelsberg for engaging with the finding that the ICC may have some capacity to deter government agents, and in some cases even rebel groups.

Since we have already defended our research here, we draw on their comments and critiques to look ahead and lay out a number of avenues for future research on the ICC. This blog post is a welcome opportunity to bring these ideas together in one place—for our benefit (as we plan our future research) and for the field’s consideration.

First, we agree it would be great to know more about how perpetrators actually think and behave (per Ku and Nzelibe; per Cronin-Furman). We see promise in cross-fertilization among criminology, sociology and psychology (per Savelsberg) on these issues. In the meantime, compare our mention of Colombian rebel groups with that of the Lord’s Resistance Army by Ku and Nzelibe. Our premise is that action by the ICC is among the factors that are consequential to the decisions of atrocity perpetrators. Kony, for example, demanded during the Juba peace negotiation that the ICC prosecution be revoked, which suggests that the ICC is not inconsequential in the decision calculus of LRA leadership. Professors Ku and Nzelibe think otherwise. Certainly this is an area in which knowledge is thin, and just how alleged perpetrators think about international prosecution should be further researched. This might be done through survey experiments, interviews, and a collection of case studies.

Second, it is useful to push hard on the causality issue, as studies of deterrence at the domestic level have been doing for decades. Although we have used a range of different quantitative methodological approaches to establish causality between ICC-related events and institutional milestones (see our forthcoming paper in International Organization), more can be done to parse out possible vectors of causality (per Savelsberg). We are currently collaborating with Mitchell Radtke, on a time-series intervention analysis of fine-grained event data from the three salient ICC situations in Uganda, Colombia, and the Democratic Republic of Congo. These analyses will, we believe, shed even more light on the ICC’s deterrent effects. We also plan to extend our study beyond 2011 (per Drumbl). These studies will provide additional evidence on which factors do the heavy lifting in atrocity prevention.

Third, as our discussion of social deterrence suggests, the normative environment is critical to deterrence (per Cronin-Furman and also per Savelsberg). The ICC has stimulated normative change within civil society through its justice outreach. It has promoted domestic criminal statute reforms, if for no other reason than states now have strong incentives to show they are capable and serious about punishing offenders. Of course, none of this can happen in a normative vacuum. More research to characterize the nature of said normative change would support our point.

Fourth, in future studies of the ICC, the roster of actors should be expanded (per Stewart, Ku and Nzelibe; Smeulers). We are the first to study how the ICC influences government forces and rebel groups on average, but more individual-level and network analysis would be useful. The nexus among corporations, criminals, government actors, and victims is an important matter we know very little about (per Stewart). Ruthless dictators and mid-level soldiers committing obedience crimes (per Smeulers) should also be added to the list of actors deserving future study. How these actors react to the ICC? It seems that even the North Korean leadership does not dismiss the possibility of ICC prosecution altogether. We also applaud detailed case study research on state actors (per Cronin-Furman), such as Sarah Nouwen’s research on Uganda.

Finally, we acknowledge the need for future work that looks at how the ICC interacts with other interventions and institutions. Certainly it would be policy relevant to figure out how well the ICC performs relative to other possible responses (per Drumbl); we should all be thinking hard about “how to optimize deterrence” (Stewart). How does the threat of ICC action compare with humanitarian interventions, or other transnational/national/local justice mechanisms? Prioritizing certain atrocity prevention methods over others is an important matter for scholars and practitioners alike to consider, as recent articles by Savelsberg and Kurt Mills nicely illustrate. A holistic picture of atrocity prevention should be the ultimate goal.

Our paper represents a first step to detect possible deterrent effects of the ICC on the behavior of government forces and rebel groups, and to investigate the mechanisms through which these deterrent effects may operate. Thanks to our commentators for helping us chart out future lines of research regarding the question of atrocity prevention, ways to deal with international crimes, and the legitimacy of international criminal law. These important questions about international crime and punishment should be a key focus of research and discussion as long as atrocities continue to occur. New and important institutions do not always have predictable or straightforward consequences, and the ICC is no exception. The Court’s effects are worth studying, especially as circumstances change and the ICC evolves over time.

ICC’s Effectiveness and the Explanatory Black Box: Deterrence or Cultural Prevention?

Joachim J. Savelsberg is a Professor of Sociology and Law and Arsham and Charlotte Ohanessian Chair at the University of Minnesota. He has authored several books on the representation and collective memory of atrocity, bridging the gap between criminology and genocide studies. His most recent book is Representing Mass Violence: Conflicting Responses to Human Rights Violations in Darfur (University of California Press).

“In the past rebel leaders would have directed me to nearby villages where they had left piles of corpses behind. They would have shown off their child soldiers. Now they know they may be held accountable. They have become more cautious.” These words, paraphrased from an interview I conducted with an Africa correspondent of a prominent European newspaper in 2011, resonate with empirical patterns revealed in Hyeran Jo and Beth A. Simmons’ paper (“Can the International Criminal Court Deter Atrocity”)? But they constitute anecdotal evidence, while Jo and Simmons fill a void of knowledge through systematic empirical investigation. The need for such data is urgent because the institutions of international criminal justice, specifically the ICC, are so new, and because we strongly desire effective intervention against those crimes over which the ICC has jurisdiction: war crimes, crimes against humanity, and genocide.

Jo and Simmons argue that the ICC and its prosecutions have a deterrent effect on both state actors and rebel leaders; that deterrence works along two lines: “prosecutorial deterrence” and “social deterrence;” and that these effects are contingent. These theses, and the evidence the authors provide, must be taken seriously. They are thorough and well presented. Also, their work is courageous: it steps beyond the traditional division of academic labor between scholars of criminal justice versus foreign policy and international relations. Doing so is an appropriate response to changing institutional realities, as Kathryn Sikkink (2011) made clear when, for good reasons, she subtitled her book on The Justice Cascade with How Human Rights Prosecutions are Changing World Politics. Appropriately, Jo and Simmons are less concerned with law on the books than with law in action, following Roscoe Pound’s early 20th century imperative and a century of law and society scholarship. Approaching the issue from the other side, law and society scholars and sociological criminologists have begun to address international relations (e.g., Hagan 2003; Savelsberg 2015).

Jo and Simmon’s paper yields crucial insights, but limits to their argument demand a reformulation of their central thesis. The authors show that the time following the introduction of the Rome Statute and the ICC and the onset of prosecution witnesses a reduction in killings by state actors, especially those who have supported the ICC and who depend on the world community. Also, rebel leaders kill less, especially those who lead secessionist movements that strive for recognition by the world community. These are important findings.

My critical commentary focuses on one issue: the causal interpretation of the statistical patterns Jo and Simmons identify. Even if the patterns observed can be attributed to ICC intervention, there is little evidence that they can be attributed to a deterrence mechanism. The authors fill the black box between court intervention and trends in violent deaths with the magic formula of “deterrence,” but they do not prove that this is indeed the causal mechanism at work.

The notion of deterrence is, of course, the first modern utilitarian justification of punishment, beyond the Kantian notion of retribution. Jeremy Bentham proposed the idea in his rational actor model, suggesting that criminal offenders weigh crime’s benefits against the costs of punishment (multiplied by the risk of detection). We know today that deterrence does work for certain offenders and under specific circumstances. More specifically, Jo and Simmons correctly cite criminological literature that attributes its effectiveness more to the certainty than to the severity of punishment. And indeed, they provide suggestive evidence that at least part of the effect they measure may result from deterrence experienced by rational actors (e.g., more reduction of killings in aid-dependent countries).

Yet, the logic of the argument is insufficient as the black box Jo and Simmons fill with “deterrence” contains at least one other, possibly more powerful, mechanism: a cultural effect of criminal justice intervention, the radical delegitimization of atrocious violence. Sikkink acknowledges this mechanism in The Justice Cascade (pp. 173f). While she takes exception to a too limited focus on collective memory, one aspect of culture, her finding that human rights records improve especially when trials are combined with truth commissions provides support for the cultural effect. Importantly, cultural transmission is – while potentially effective per se – also a precondition for deterrence to work: rational actors must know about past and current punishment before they can consider them. Prosecutions must have become part of the collective conscience, possibly of the memory, of political and military elites. Then, strategies involving mass atrocities may have disappeared from the decision tree of political and military leaders.

The cultural effectiveness of criminal justice intervention is suggested by a powerful line of neo-Durkheimian thought, and recent empirical work has demonstrated it for the ICC (Savelsberg 2015; Savelsberg and Nyseth Brehm 2015). Analyses of a comprehensive data set on Darfur resulting from content analysis of 3,400 media reports, and of interviews with experts in foreign ministries, human rights and humanitarian NGOs and Africa correspondents from eight Western countries, show that criminal justice intervention – from the International Commission of Inquiry on Darfur via UNSC decisions to ICC prosecution – produce a powerful public representation of those as criminal perpetrators who bear responsibility for the violence. Interventions keep the violence in public view, and they enhance its framing as human rights crimes and genocide. Qualitative analyses illustrate and multi-level, multivariate analyses confirm this effect for each of the eight countries, even if levels of receptivity for the criminal justice frame vary among them. Following ICC intervention (and the cumulative cultural effect of the ad hoc courts of the 1990s), powerful state leaders with responsibility for mass atrocity certainly no longer appear as heroes (as they did for much of human history), and their deeds may be less likely to be denied.

Does it matter if reduction of violence results from deterrence or cultural mechanisms? It certainly does in scholarly terms as we seek to avoid misinterpretations of empirical reality. It also matters for practice as the concern with consequences should inform how international justice institutions communicate their decisions and reasoning to the world public.

In conclusion, Jo and Simmons’ contribution is important and timely. The authors, however, do not prove deterrence to be the central causal mechanism. It would serve future scholarship (and practice) well to take seriously the cultural effect of new interventions in grave human rights crimes by criminal law and justice.


Hagan, John. 2003. Justice in the Balkans. Chicago: University of Chicago Press.

Savelsberg, Joachim J. 2015. Representing Mass Violence: Conflicting Responses to Human Rights Violations in Darfur. Oakland: University of California Press (open access online at: <>.

Savelsberg, Joachim J. and Hollie Nyseth Brehm. “Representing Human Rights Violations in Darfur: Global Responses, National Distinctions.” American Journal of Sociology 121(2):564-603.

Sikkink, Kathryn. 2011. The Justice Cascade: How Human Rights Prosecutions are Changing World Politics. New York: W.W. Norton.

The ICC Fails to Deter When Deterrence is Needed Most

Alette Smeulers is Professor in International Criminology at the Universities of Tilburg and Groningen. She has co-authored: International Crimes and Other Gross Human Rights Violations: a Multi- and Interdisciplinary Approach. Her other publications can be found via her website here.

The article of Jo and Simmons deserves praise: they not only address one of the most important issues in the field of international criminal justice – the alleged violence-reducing role of pursuing justice in international affairs – but more importantly they do so by conducting empirical research. On the basis of their empirical results they conclude that the ICC can potentially deter “governments and those rebel groups that seek legitimacy.” This is an important finding. In this comment I will explain what I believe the exact meaning of their finding is and whether this really means that the ICC can deter mass atrocities

Can the ICC really deter mass atrocities?

The authors suggest that the ratification of the ICC statute and the actions of the ICC have a potential deterrent effect on actors such as heads of states and to a lesser extent heads of rebel groups. Crucial is that within their analysis the authors distinguish between actors who ‘seek legitimacy’ and ‘are sensitive to social pressure’ and those who are not. The first type of actor can potentially be deterred the latter is much harder. Their conclusion seems fair and I fully agree with their analysis. I however do not believe that ICC ratification by itself can deter mass atrocities. The point is that such atrocities are the resultant of a complex combination of factors which interrelate and interact and make mass violence escalate into mass atrocities. The interrelationship between these factors is extremely complex and although it is possible to identify factors which play a role within this dynamic it is impossible to pinpoint one single deterministic cause of mass atrocities or -for that matter- pinpoint one factor which could prevent mass atrocities from being committed.

Heads of states who believe in the importance of international law and aim to become a fully accepted member of the international community will seek legitimacy by showing their adherence to the international legal framework and it can be expected that they will take several measures: ratify human rights treaties, become a party to the ICC and in the meantime they will try to refrain from violating international norms and values. The conclusion would then be that both the reduction in civilian deaths and the ratification of the ICC statute is initiated by a head of state who (starts to) take abidance by international norms seriously. In other words: I believe that the ratification of the ICC statute as well as the implementation of these norms in their own penal system are outcomes of this stance rather than the cause thereof. These actors are much more deterred by the fact that committing mass atrocities is prohibited in international law than by their ratification of the ICC statute. I would suggest that ratification of the ICC statute is a sign of their adherence to international law. I do agree however that the deterrence following from the ratification adds to the deterrence which results from the existence of these norms and values within international law but would suggest that the role of the ICC is secondary rather than a prime deterrent.

This is an important finding but none the less we should not be too enthusiastic about this as the research of Jo and Simmons also seems to show that deterrence does not work in those cases in which it is needed most as I will explain in the following.

When the ICC fails to deter…

The ICC aims to focus on the most serious crimes of concern to the international community and it is precisely in these most extreme cases that it is most likely to fail to deter the perpetrators. The most extreme crimes are committed by ruthless dictators who do not care about the international legal order or their own legitimacy and they are much less likely to be deterred by the ICC (or any other international institution for that matter). Their prime focus is to gain or maintain power by whatever means including – if necessary – violent or genocidal policies. They are power hungry and ruthless in their struggle to stay in power and their survival instincts will make them focus merely on the (alleged) danger to their lives rather than the danger to their reputation or the possibility of at some point being prosecuted for their crimes. Besides, quite a few power hungry and ruthless dictators start to suffer from megalomania once in power. They feel they have superior divine-like powers and believe that they have been chosen to lead the people in their country. They often tend to believe their authority is superior to any man-made laws and they often seem to feel that the norms and values of the international community do not apply to them. They consider themselves to be above the law and above state like institutions. They thus do not care about the international legal framework nor do they believe that they have to abide by it. This type of dictator cannot be deterred by some kind of institution such as the ICC which in their eyes is inferior to them anyway. The ICC thus unfortunately fails to deter actors in those situations we would need deterrence most.

Another group of potential perpetrators who will not be deterred by the ICC are the middle and low ranking perpetrators who commit so-called crimes of obedience. They will not be deterred by the ICC for the very simple reason that the social context in which they operate is too overwhelming. There is usually a tremendous pressure to obey orders, to conform to the group and to do as they are told in order to protect their people and country. For these low and middle ranking perpetrators the ICC and whether or not their state has ratified the Rome Statue will not affect them in any useful way simply because the ICC as an international institution is too far outside of their reach to exert any influence on their behaviour. The danger of being punished for not obeying an order is more direct and specific than the far-fetched possibility of being prosecuted by the ICC at some time in the far future.

The deterrent effect of the ICC is thus very limited and in fact only deters actors who already aim to abide by international legal norms and values. This is however still a positive outcome as together with the legal framework it enforces, the ICC does seem to play an important (supporting) role in making sure heads of state abide by the law.


Deterrence of and Through Other Actors

As I mentioned in my earlier introduction to their groundbreaking piece, I believe Professors Jo and Simmon’s article (available here) is exceptionally important. In particular, I very much appreciate their addition of new theoretical nuance and empirical insight to the question of deterrence in international criminal law. My reactions are less a critique and more a set of pointers about other avenues through which empiricists (these or others) might think about measuring the role of international criminal justice in deterring atrocities in the future work they call for.  As with other aspects of my research, I am interested in the role of business in this regard, which is not a topic that is directly broached in this excellent paper. I briefly demonstrate the advantages of reorienting our thinking about deterrence towards economic actors as well as one particular danger this shift could entail.

Professors Jo and Simmons are rightly sensitive to the differences “type of actor” might generate for an assessment of the ICC’s deterrence. Astutely, they disaggregate states from rebel groups, then rebel groups with secessionist aspirations from those without. Likewise, in recognizing that deterrence might not operate uniformly across all international crimes, they wisely limit their project to a single international crime: intentional killing of civilians. In light of these limitations, they “encourage further research into a range of heinous crimes – from sexual violence to trafficking in children to widespread pillaging – that the ICC was meant to address.”

If this further research comes to pass, I would recommend: (a) further disaggregating the types of actors it focuses on beyond just states and armed groups, and (b) moving beyond the single crime model to assess the extent to which deterring some international crimes can ratchet up the deterrence of others.

Before I get to these arguments, I pause to reiterate a fact I hope is widely accepted, namely, that State actors and rebel groups are not the only agents implicated in atrocities—businesspeople and the corporations they represent are often instigators, masterminds and accomplices, too. I insist on these various forms of participation in deliberate opposition to a widespread but I think unfortunate perception that business invariably plays a role that is peripheral or auxiliary to mass violence. As others have shown (see infra), even the Nuremberg Judgment recognized that the most powerful German “industrialists” signed a petition calling on President Hindenburg to appoint Adolf Hitler Chancellor. In fact, Jonathan Bush has argued that a member of the company IG Farben paid a substantial bribe to facilitate that end. More recently, several modern cases in Africa also involve businesses at the helm of terrible bloodshed, not complicit in it.

Given this reality, it is curious that much of the literature on deterrence of atrocity to date has left business out, arguing that any rational incentive generated by criminal law is unlikely to restrain the fierce passion required to perpetrate offenses of this barbarity, particularly when the probability of prosecution is so low. Yet, as I have argued elsewhere, corporations and their representatives dispassionately pursuing profit rather than historical grievances, inter-ethnic rivalries or military control over capital cities also satisfy the formal elements of international crimes in certain circumstances. And importantly, the transnational corporations that sustain bloodshed are more exposed to foreign law enforcement, more prone to rational deliberation through their commitment to profit maximization, and likely to perceive conviction for a war crime as nothing short of a commercial catastrophe. Thus, they may be more easily deterred than the armed groups Jo and Simmons focus on.

Corporate offending should itself be deterred, but focusing on businesses may also have important trickle-down effects for the deterrence of armed groups Jo and Simmons address. In a recent debate about impunity staged by the International Center on Transitional Justice, I argued that prosecuting the arms vendors who provide weapons to notoriously brutal armed groups as accomplices may, in appropriate cases, be a way of incentivizing greater compliance with ICL norms by warring factions themselves. Prosecuting weapons vendors for complicity would say to states and rebel groups alike, “If your men don’t stop these intentional killings of civilians, you won’t get weapons because your suppliers will fear becoming implicated in these crimes, and without weapons, you’ll lose the war.” Tying military objectives to the need to observe law of war precepts may assist in deterring atrocity. Obviously, this basic model is very simplistic, but I wonder if it reveals possibilities that should feature in the future work Professors Jo and Simmons call for.

This brings us to “widespread pillaging.” Uncomfortably, in virtually every situation the ICC is presently addressing, commercial pillage of natural resources has provided a means and motivation for atrocity (I do not claim that it is necessarily the only or even the dominant motivation). Prosecuting commercial actors for pillaging conflict commodities, therefore, reveals another aspect of the new promise for deterring atrocity—the war crime of pillage is a gateway to many other international crimes. On the upside, focusing on commercial pillage of natural resources may deter actors who collectively make counterfactually dependent contributions to intentional killings of civilians in most modern conflicts – without the trade in pillaged diamonds, tin or oil, the perpetrators of mass violence will be less motivated to go to war and less able to bankroll atrocity once conflict erupts. On the downside, there is also a risk of over-deterrence, where the threat of sharp judicial redress deters legitimate commercial actors from operating in volatile political climates, thereby elevating worst actors into positions of authority and penalizing civilians who are dependent on illicit mining for basic sustenance in survival economies. Optimizing deterrence is thus another key question for the future.

In all, I view Professors Jo and Simmons’ article as a wonderful opening contribution to an emerging field. I hope this symposium will foster new scholarship on these critically important issues, and that this new work will also extend to and perhaps center on, the commercial sides of atrocity.

Grounds for Continued Skepticism about the ICC’s Deterrence

Julian Ku is the Maurice A. Deane Distinguished Professor of Constitutional Law at Hofstra Law School. Jide Nzelibe is the Harry R. Horrow Professor in International Law at Northwestern Law School. They are the authors of Do International Courts Deter or Exacerbate Humanitarian Atrocities?

We want to thank Professor Stewart for inviting us to participate in this symposium on the new and very important paper by Professors Jo and Simmons.  The reason that the paper is important is that it fills a very large gap in the literature on international criminal tribunals (ICTs).  This gap is the lack of empirical data that would inform debates over the effectiveness of ICTs. In our 2006 survey of the academic literature on ICTs, we found that many proponents of the International Criminal Court claimed that ratification of the ICC would deter future crimes.  Yet there was, until now, almost no serious empirical study of this question in the academic or policy literature.

So Professors Jo and Simmons have done everyone a great service by establishing that there is some evidence for the claim that joining the ICC will deter the commission of war crimes against civilians.  Their claim is both careful and measured. It does not claim that the effect of joining the ICC is dramatic, but (when controlled for other factors), it makes a more modest claim that the effect is nonetheless non-trivial.

While we welcome the arrival of real empirical data on the deterrent effects of the ICC, we remain skeptical of some of the theoretical assumptions underlying their findings.  We also doubt that the small deterrent effect found by Professors Jo and Simmons will continue in future years.

First, we believe that the Jo-Simmons findings fail to establish the correct, or at least the most plausible, baseline for comparing the deterrent effect of joining the ICC.

As we argued in our 2006 paper, no claim of deterrence effects for criminal punishment can ignore the baseline sanctions that the potential perpetrator likely faces without the ICC.  We drew upon the substantial academic literature that has questioned the deterrent effect of capital punishment on potential murderers since an actual execution is rare given the number of appeals permitted by the U.S. legal system.  Given that the alternative to capital punishment is usually a life sentence, the additional (statistically unlikely) chance of being executed adds very little additional deterrent effect to potential killers.

So how does that apply to the Jo-Simmons analysis?  When one develops framework for deterrence, one has to have a plausible empirical baseline against which to make the comparison.  Jo-Simmons concede that prosecution before the ICC is a fairly distant possibility for any individual perpetrator (like the death penalty above), but they maintain it should make a difference because they also assume that the default baseline is impunity.   See Jo and Simmons, at 16 (“The absolute risk of punishment by the ICC remains small, but it is not negligible and is much higher than was the case when impunity was the default.”) & 16  (“ICC investigations, indictments and convictions or those triggered by complementarity are likely to encourage actual or potential perpetrators to reassess the risks of punishment – relative to the status quo, which is often impunity – and to moderate their behavior.”)

But there are good reasons to doubt that complete impunity is often the default.   It simply is not the case that individuals who engage in genocidal violence or ICC level atrocities and then get caught/captured tend to roam freely in the absence of ICC prosecution.   For instance, if Joseph Kony of Uganda’s Lord Resistance’s Army gets captured by the Ugandan army anytime soon, his realistic options will not be prosecution by the ICC or roaming free; in all likelihood, his choices will be to face long imprisonment or a firing squad by the Ugandan army or getting prosecuted by the ICC.  And notice that the ICC indictment does not change the likelihood of his capture because that is pretty much the responsibility of the Ugandan government.

Another more recent illustration is the case of the former President of Ivory Coast, Laurent Gbabgo. He is currently facing charges before the ICC for election-related atrocities; his wife (Simone Gbagbo) is not so fortunate because although she is under indictment by the ICC, she already has been convicted by an Ivorian court for “undermining state security” and is currently serving out her 20-year-sentence in a local prison. If Gbagbo were not before the ICC, he would pretty much being facing the same fate as his wife. As an interesting side note, Amnesty International actually implored the Ivorian government to transfer her case to the ICC rather than prosecute her locally. One can imagine that Amnesty International was more motivated by her welfare than the risk that she will be left to roam free.

One slight nuance that was not captured by much of the Jo-Simmons analysis is that the realistic relevant subsample of individuals who will ever face prosecution by the ICC are individuals who have been forced from power or captured.  If leaders who commit atrocities have not been forced from power, for instance, their chances of getting successfully prosecuted before the ICC are negligible or next to zero.  And when they are forced from powers or captured, the choices they face outside of ICC prosecution are not pretty.

In addition, the reasons why leaders are forced from power or captured has almost nothing to with the ICC.  Gbagbo was not forced from power in Ivory Coast because his political enemies wanted to have him arrested before the ICC; on the contrary, they forced him from power because they thought they were entitled to hold power instead of him.   Paradoxically, the real role of the ICC in such cases might not be to increase the penalty of perpetrators who do get caught, but to decrease and bring it more in line with “civilized” standards.

Thus, we remain doubtful that the Jo-Simmons study establishes the correct baseline from which to measure the ICC’s deterrence effect.

Second, Professors Jo and Simmons do not isolate the deterrent effects of actual ICC prosecutions from the deterrent effects of joining the ICC and adjusting domestic law to conform to the Rome Statute.  Given the comparatively few ICC prosecutions that have actually been brought as well as its very spotty record on obtaining  timely convictions, it is likely that much of the deterrence effect is a result of the changes in domestic law.  As Professors Jo and Simmons point out, the change in domestic law to conform to the Rome Statute, and the principle of complementarity, places the primary burden for prosecuting or investigating Rome Statute violations on state parties to the ICC.   Indeed, as Professors Jo and Simmons suggest in their theoretical framework for analyzing deterrence, it may be that the effect of joining the Rome Statute is to mobilize local groups in favor of criminal punishment for war crimes and that these political forces also operate to deter state actors.

If it is true that conforming domestic law to the Rome Statute is doing much of the deterrence work, it seems possible, or even likely, that the deterrence effect will substantially fade as time passes. 123 states are members of the Rome Statute, but (not surprisingly) the majority of them joined the treaty between 1999 and 2002.    While numerous other states have joined, only two states have joined since 2013, and only 10 since 2011.

Joining the Rome Statute, and adjusting domestic laws, probably provides the most deterrent bang for the buck.  But as time passes, the awareness and significance of the Rome Statute could fade and it is less likely that local groups can mobilize political activity in favor of it.

Finally, we also wonder if the momentum and euphoria generated by joining the ICC can withstand movements to withdraw from it.   In February of 2016, the African Union endorsed a resolution encouraging its members to withdraw from the ICC to protest perceived bias in the ICC.   Indeed, the ICC’s actual record of prosecutions have been both slow and narrow in geographic focus.  Almost every serious investigation has involved Africa.   While not all AU members will necessarily withdraw, the denigration of the ICC’s political reputation domestically will naturally weaken groups that had mobilized around ICC ratification.

In conclusion, while we believe the Jo-Simmons analysis is a much needed and important contribution to the academic literature on ICTs, we remain skeptical as to the significance of its conclusions.  The baseline for many key ICC perpetrators is not impunity, and so the claimed deterrence effect might be too strong.  Morevoer, given the passage of time and the rise of political forces lining up against the ICC in key countries, we think skepticism about the ICC’s ability to maintain whatever small deterrence effect it has remains warranted.

Can We Tell If the ICC Can Deter Atrocity?

Kate Cronin-Furman is a postdoctoral fellow in Law & International Security at Stanford University’s Center for International Security and Cooperation. She is the author of Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocities.

The International Criminal Court opened its first investigations in 2004. In its first 12 years of operation, the court convicted two individuals of war crimes and crimes against humanity, and issued arrest warrants or summonses for 37 others. Today, the ICC is pursuing prosecutions of atrocities on the territory of eight countries and conducting preliminary examinations in seven more.

Most immediately, the goal of these efforts is to punish those responsible for egregious breaches of international law. But the bigger purpose of the court’s existence is to contribute to international peace and security. Underpinning this aim is the hope that by prosecuting the perpetrators of serious international crimes, the ICC can make mass atrocities rarer. In short, that it can deter this type of violence.

“Can the International Criminal Court Deter Atrocity?” by Hyeran Jo and Beth Simmons is one of the first rigorous empirical examinations of this claim. For skeptics (like me) of the ICC’s ability to produce deterrence, the article’s conclusions may come as something of a surprise. The authors find that state actors commit fewer intentional killings of civilians in conflict in the presence of ICC ratification, implementing statutes in domestic criminal law, and action by the court. They find that rebel violence also lessens in the face of ICC action, but not following ratification or legal change.

Even a limited and contingent reduction in violence against civilians would be great news for the ICC’s effectiveness. But the difference in findings across state vs. rebel perpetrators leads me to hesitate before interpreting these results as cause for optimism. The reason for this is that rebel violence seems like the best context in which to test ICC’s impact. The weak results on rebels therefore leave open the possibility that the strong findings on state actors are an artifact of selection effects.

Here is my logic: Analysis of the ICC’s effect on state actors is complicated by the fact that states choose to accept the court’s jurisdiction through ratification of the Rome Statute. For those who have elected to join up, it’s hard to know how the court has affected their behavior. Any reduction in a state’s use of illegal violence that follows accession to the ICC might be caused by the same factors that led the state to ratify—a democratic transition, a commitment to peace and justice, etc.

Jo and Simmons take heroic measures to address this issue, employing controls for dynamics that might explain both ratification and violence reduction in the main regressions and conducting a matching analysis as a robustness check. But the fact remains that selection effects are impossible to rule out. This is a general headache for researchers looking for effects of treaties, because the actors whose behavior we wish to study are the same actors who have chosen to join international legal regimes. The case of the ICC is something of an exception to this rule, though, because there is a set of actors who did not choose to join the treaty, but upon whom its effects might be expected to operate: rebel groups.

It is rebels who experience something closest to “random assignment” of ICC jurisdiction, because they do not participate in decisions to ratify or pass implementing statutes. (Although their behavior may be a causal factor in states’ decisions to join the court.) They therefore most closely approximate a scenario in which we could observe the effect, all else equal, of the ICC’s existence. Jo and Simmons’s results suggest that this effect exists, but is limited to a slight reduction in violence against civilians when the ICC has been more active (conducting preliminary examinations and investigations and issuing arrest warrants).

Could the comparatively weaker effect on rebels vs. state actors be explained by something other than selection effects? Absolutely. Jo and Simmons attribute it to the fact that rebels are “likely to be the most difficult case for ICC deterrence”. They argue that this is because they are difficult to apprehend and because they (particularly non-secessionist rebels) have fewer incentives to conform to international norms.

This may be true, and certainly there may be other characteristics of rebels that make them difficult to deter. They may be particularly likely to face the sort of “overriding interests” in committing atrocities that I identify in my 2013 IJTJ article as obstacles to deterrence. A rebel leader’s set of potential futures may look quite different from, and much shorter than, a high-ranking regime commander’s. The prospect of prosecution and imprisonment in The Hague, while unappealing, may simply be one more entry in a long list of equally unpleasant possible outcomes: death in battle, a domestic treason trial, overthrow and execution by your subordinates. ICC deterrence might therefore require a comparatively higher risk of prosecution. And as recent microfoundational work by Michael Broache on the effects of ICC action on rebel groups in Congo shows, their incentive structures are extremely complex—under certain circumstances, prosecution can even provoke them to escalate conflict.

However, there are countervailing dynamics: Evidence about rebel crimes is easier to gather because investigations proceed with the consent and assistance of the territorial state. Rebels can also be arrested more easily than state actors, who benefit from ingrained diplomatic practices of honoring immunities. This suggests that rebels, once charged, are more likely to be successfully prosecuted than state actors. Furthermore, for the first few years of the court’s existence, most of its targets were rebels, indicating that their risk of facing charges was also higher than state actors’.

It is therefore not clear that rebels are categorically less likely to be deterred by the threat of prosecution than state actors. But Jo and Simmons are theorizing broader deterrent effects of the ICC’s existence than those simply attributable to the increased risk of prosecution. They argue as well for a “social deterrence” mechanism, whereby social pressures impose costs on rule violators. This is a critical insight. The ICC (like many international institutions) has limited formal enforcement capabilities, but exists within a web of interconnected norms, institutions, and actors concerned with fighting impunity and protecting civilians. Treating it as a stand-alone institution and focusing on its independent effects on violence against civilians therefore misses most of the story of its impact on international relations.

Jo and Simmons’s account lends itself to the interpretation that prosecutorial and social deterrence are not separate mechanisms, but mutually reinforcing. Several of their findings demonstrate that extralegal mechanisms benefit from the role of the formalized legal institution as a focal point — evidence that both civil society and foreign aid reliance have stronger effects on reducing violence in the presence of ICC ratification than its absence is suggestive. The reverse should also be true, with prosecutorial deterrence operating more weakly in the absence of social deterrence, and kicking in only at higher levels of risk of prosecution. Empirically, that translates into an expectation that actors who are less integrated into the international community, and less beholden to domestic constituencies, would be less responsive to the presence of the ICC. This is likely to be more often true of (non-secessionist) rebels than state actors, perhaps explaining the varying findings across perpetrator types.

My own view is that the findings on the independent impacts of the International Criminal Court should be interpreted with caution, but that this hardly matters. The ICC is not independent of the broader normative context, and its position highlights what Jo and Simmons describe as “the central importance of extralegal deterrents to law violation”. Debates about the ICC’s impact have been too narrowly focused on the question of prosecutorial deterrence. The account of social deterrence offered here is a more nuanced approach to the question of how international institutions can affect behavior in the absence of robust formal enforcement capabilities, and lays the ground for a more productive research agenda on the ICC going forward.

Hey Look at Me: Deterreo, Ergo Sum

Mark A. Drumbl, Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee School of Law.

“Everything must have a purpose?” asked God.
“Certainly,” said man.
“Then I leave it to you to think of one for all this,” said God.
And He went away.

— Kurt Vonnegut, Cat’s Cradle (1963)

General deterrence is routinely invoked to justify ordinary national criminal law. Intuitively, it seems plausible that would-be perpetrators of common crimes refrain from offending if they fear getting caught and then being sent before a judge. In addition, the existence of an institution that prosecutes and punishes may also deflate crime by inflating the public’s respect for the rule of law.

As a court of law, the ICC investigates, prosecutes, and punishes core international crimes. Unsurprisingly, then, the ICC’s capacity to deter such crimes emerges as a barometer of its effectiveness and legitimacy, as well as a basis upon which to rationalize its existence.

Professors Hyeran Jo and Beth Simmons investigate whether the ICC deters core international crimes. Their methodology begins with a data-set of countries with civil wars between 1989 and 2011. Noting that the Rome Statute entered into force in July 2002 (near the mid-point of the data-set’s lifespan), they attempt to disaggregate the effect of the ICC’s existence upon the number of civilians killed intentionally by government forces or rebel groups in a direct military confrontation. Jo and Simmons control and test for many interceding factors. Their research is comprehensive, meticulous, transparent, elegantly delivered, and expertly presented.

I would like to do two admittedly incongruent things in my comments. The first is to talk more about the ICC’s ability to deter. The second is to suggest that we talk a lot less about the ICC and deterrence. Whether the ICC deters atrocity is difficult to answer, but has become too comfortable and too exigent a question to ask.

Jo and Simmons locate “strong evidence of a reduction in intentional civilian killing by government actors when states implement ICC-consistent statutes in domestic criminal law,” which they indirectly attribute to the ICC’s influence. They conclude that the ICC has stronger positive effects on governments than rebel groups, although they discern an effect on rebels concerned with legitimacy. In the final sentence of their article, they posit that the ICC “has potential to save at least a few lives in some of the most violent settings in recent decades”. After fourteen years of being in operation and four years of becoming fit to begin operating, after the euphoria of Rome, and after well over $1 billion spent – there’s the bottom line.

Might the deterrent effect be even thinner than what the research – however accurate – suggests? The data-set (if I understand it accurately) extends to 2011. The data-set thereby ends early in the game. It ends before the ICC actually convicted anyone. On the one hand, the fact that the ICC has since issued a few convictions could embolden the deterrent effect by revealing the ICC’s punitive muscle to potential human rights abusers. On the other hand, a close look at the ICC’s activities since 2011 reveals the atrophied nature of whatever muscle the ICC may actually have.

The ICC’s two convictions (Lubanga and Katanga) led to prison terms of fourteen and twelve years respectively. Katanga is already free insofar as judges granted his application for sentence reduction last November. By any metric, these are lenient sentences. The ICC has also issued an acquittal. Actually taking cases to trial has exposed the frailty of much of the evidence the OTP relies on to convict and the precariousness of the accessorial liability theories it often submits. High-profile charges have been withdrawn in the Kenyan situation, where the ICC failed to guarantee witness security or testimonial accuracy and was bedeviled by obstruction on the part of the Kenyan government. OTP hibernated the stagnant Sudanese investigations late in 2014: the Security Council lacked assertiveness, Bashir is still in power (perhaps now even more firmly so), and government forces commit ongoing abuses. Happily, two high profile rebel fugitives – Bosco Ntaganda and Dominic Ongwen – are now in ICC custody. But these fugitives turned themselves in willingly. They did so because their other option – staying at large – meant they would probably be killed. They self-arrived at the ICC because it was likely a decent bet – a refuge even – for them.

The ICC may be more influential when it engages in preliminary examinations or initial investigations (i.e. when it threatens to prosecute) than when it actually brings a case to trial and sentences an offender. Colombia might be a case-in-point. This uncorks the fascinating question of the kinds of political conversations and interactivities that the specter of ICC intervention triggers. What are the domestic effects of complementarity? Dancy and Montal link ICC investigations to general domestic human rights prosecutions in Africa in what they call unintended positive complementarity. Nirej Sekhon emphasizes how complementarity reflects Foucault’s governmentality, in which international elites technocratically commune with domestic elites in a process that occludes the marginal (who mostly happen to be the victims of atrocity). Perhaps positive complementarity negates modalities of justice other than criminal trials. Selectivity, too, is a concern: in some situations in which it exercises jurisdiction, for example Uganda, the ICC achieves some justice (for LRA violence) only because it sanitizes an injustice by closing an eye to the violence of the Ugandan government.

Let’s return to the deterrence question. Jo and Simmons focus on the ICC’s ability to deter intentional killing of civilians. This category is capacious. It covers everything from group-based genocide against a defined population (Rwanda, the Yazidis today) to the targeted killing of a few individuals by a small band of specialized armed forces. Meg De Guzman is right to point out that the ICC has a gravity deficit. Although the ICC was created to deliver justice following massive jus cogens ruptures, in practice it has tended – to the frustration of many victims – to prosecute lesser crimes involving less rampant violence, including child soldiering, pillage, and destruction of historic/religious buildings. The ICTY, ICTR, ECCC, and SCSL have to date done heavier lifting when it comes to gravity. I have argued elsewhere that, as violence metastasizes into a collective project, the nature of the criminality shifts. The involvement of the rank-and-file as killers drifts from a deterrable act of deviance towards conformist behavior that normalizes violence in order to eliminate the ‘other’ for the sake of a perceived communal good. It remains unclear to me that criminal law can deter these kinds of killers or that these kinds of atrocity crimes resemble ordinary common crimes upon which deterrence theorists rest their claims. In sum, a refinement to ICC deterrence research might cleave discrimination-based mass violence (genocide and certain crimes against humanity) from other kinds of war crimes. It may be that the ICC’s deterrence capacity grafts better onto the latter category which, in turn, reflects violence that is less widespread.

Why should we talk less about whether the ICC deters? For one, repeatedly asking that very question reinforces a woefully inadequate status quo. This is the status quo in which the ICC is accepted as the best thing we can come up with internationally to deliver justice and prevent violence. There are nevertheless other ways to deter atrocity. These include actuating responsibility to protect and humanitarian intervention, reformatting a more nimble Security Council, and revisiting state sovereignty. These ways are less comforting because they require more skin in the game. Ironically, an ICC with (potential) jurisdiction over a crime of aggression might discourage humanitarian armed intervention because leaders may fear criminal liability when they intervene to help people from tyrants. Non-penal justice mechanisms, moreover, also may excel at building up the social deterrence Jo and Simmons value.

Activists invest greatly in the ICC. Activists do so, however, in a world where it’s unclear that actual atrocity survivors are single-mindedly keen on criminal trials as post-conflict priorities. Victims may wish for things that trials cannot guarantee, such as reparations, apologies, truths, reconciliation, and memorialization.

It is no answer to say: “Just because we have an ICC doesn’t mean we can’t do more!” It is no answer to posit that we live in a world of endless conjunctive permutations of “and,” “ands”, and even more “ands”. As Sarah Nouwen and Wouter Werner have argued, global policy decisions to manage conflict are not made in contexts of endless resources. These decisions entail disjunctive choices and clashes. They sit upon a topography of “ors”. We settle on the ICC as the icon of preventative justice at the expense of other options. The more we foreground the ICC, the more we settle. Yet saddling the ICC with altitudinous expectations – deterreo, ergo sum – just makes it seem weaker and lonelier.

Associate Professor | Allard School of Law, University of British Columbia