Professors Hyeran Jo and Beth Simmons have authored what is arguably one of the most important articles in the field of international criminal justice in recent times. Their piece, entitled Can the International Criminal Court Deter Atrocity? (available here), defies almost all previous thinking about deterrence of atrocity by answering the question in the affirmative. Moreover, in rehearsing the previous literature on the topic, Professors Jo and Simmons lament how “[p]ractically no systematic evidence has been produced to date to support such concerns.” To correct for this deficit, they embark on a multi-faceted empirical analysis to measure the deterrent effect of the International Criminal Court, controlling for a whole range of extraneous factors that might explain the trends they observe.
I will not attempt to summarize their reasoning or findings in any great detail, but several aspects are worth emphasizing briefly. The authors begin by rehearsing much of the earlier (skeptical) literature on deterrence in international criminal justice, then offer a theory of the ICC’s “conditional impact.” The theory they develop assesses (a) prosecutorial deterrence (court-ordered punishment) as well as (b) social deterrence (extra-legal social costs associated with law violation). Having set out their theoretical expectations, Professors Jo and Simmons adopt a sampling strategy that involves 101 states and 264 rebel groups. From their ensuing analysis, they conclude that:
- “If hypothetically, 100 civilians were killed by a non-ratifying government [of the ICC Statute], our estimates suggest about 53 civilians are likely to be killed, assuming ratification with all other control variables held constant.” (Page 28)
- “a hypothetical well-organized secessionist movement that would have used tactics intentionally leading to the deaths of 100 civilians in the years prior to the ICC’s entry into force might have ‘only’ killed 82 civilians after entry into force, holding all other variables at their mean.” (Page 35)
Quite apart from the significance of offering a new empiricism that leads to a diametrically opposite conclusion to previous literature on this topic, the paper also adds new layers to debates about the value and legitimacy of international criminal justice as a field (I catch myself here since I am more interested in national trials for international crimes than international and critical of tendencies to lump all institutions capable of enforcing these crimes into a monolithic whole in assessing legitimacy). Even limiting our gaze to just international institutions, however, if the ICC deters meaningfully, perhaps its selectivity is less of a problem than previously imagined? Alternatively, perhaps the institution’s politics are worth tolerating?
This paper is also exciting is that, together with Kathryn Sikkink’s recent work, it marks an important empirical shift in literature on international criminal justice that is supportive of the project. In recent years, much of the discourse around international criminal justice has been critical in orientation (for my own contribution in this spirit with Asad Kiyani, see here). Nevertheless, as this blog’s manifesto intimates, I am enthusiastic about the rise of a different, relatively new, and sympathetic discourse about international criminal justice, which I hope informs a broad intellectualism in the field. Thus, I’m grateful to authors and commentators for sharing their expertise on these immensely important issues over the next fortnight. The commentators’ names and posts are listed here.