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.