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.