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.