Sunday, July 10, 2005

Does International Criminal Justice Deter Criminals?

UVA lawprof Rosa Brooks has a measured op-ed in Sunday's LA Times surveying the progress of efforts to prosecute serious violations of international human rights on the 10th anniversary of the massacre at Srebenica. Unlike some advocates of international criminal justice, Prof. Brooks is restrained in her claims for the benefits of international tribunals like the International Criminal Court. Even so, her justification for expanding the scope and powers of international criminal courts has some problems. She writes:

But though it's only a distant second-best to preventing atrocities, punishing perpetrators is still important. It acknowledges the suffering of the victims and in the long run could help deter future abuses by forcing the bad guys to ask themselves if the abuses are worth it, given the increasing likelihood of ending up in jail somewhere down the line.

I don't doubt there are many good reasons to punish perpetrators
who have committed serious abuses and that, in some cases, international institutions are necessary to carry out this punishment. But I don't think Prof. Brooks, or any other scholarly supporter of the ICC, has bothered to offer support for her claim that international punishments create a "deterrent" to future abuses by other potential perpetrators.

The strength of the deterrence effect of certain kinds of criminal punishment is very difficult to determine. But, as many of the same human rights advocates have pointed out in battles over the use of the death penalty, it is possible, and even probable, that the threat of capital punishment does not deter many criminals from committing murders or other serious crimes. So isn't it plausible that potential war criminals will not be deterred in any meaningful way by international courts? This is not to say we shouldn't punish war criminals or execute murderers. It just means that it is possible, or even likely, that such punishments will have little if any deterrence effect.
Why does this matter? Because much of the argument between the U.S. and supporters of the ICC rests on the deterrence rather than the retribution rationale. The U.S. supports international criminal courts set up to punish specific sets of crimes occurring in a particular place. The ICC is a permanent court with wide jurisdiction. The main superiority of the ICC is that it supposedly creates a deterrence effect that ad hoc courts set up after the fact (as in Yugoslavia and Rwanda) cannot.
But if there is not much of a deterrence effect, why shouldn't we rely on ad hoc criminal tribunals, as the U.S. has suggested?


Blogger Nema said...

I'm not sure the main objective for proponents of the ICC is deterrence. At least not the primary objective. From my own conversations with various ICC framers, including Professor Bassiouni, the object of the Rome Statute is to prevent impunity by motivating States of nationality and territoriality to prosecute international criminals in their borders. That is to say, the framers of the Rome Statute envisioned success in terms strenghtening international resolve to combat perpetrators of war crimes, genocide, etc.

In that sense, adhoc tribunals are ineffective in that they depend on the resolve of nation-states to create such a tribunal. The very resolve which the Rome Statute framers believe to be lacking. Why is there no UN human rights tribunal in Sudan? Because political will is proven to be insufficient in those areas. For the same reason, the Cambodian government has been able to manipulate the Khmer Rouge tribunal and place judges with significant records of corruption.

Therefore, while deterrence may be an ancilliary effect of re-enforcing national institutions, it is not the primary one. Personally, I actually think the Artile 98 agreements the US has been signing with various countries could be a positive one if it means that it will indeed prosecute their nationals. Such consequence does look possible in light of the willingness of the US to extend extra-territorial jurisdiction to sex crimes committed abroad pursuant to the 2002 Protect Act.

Framing it in terms of enhancing political will, I think, will dramatically change the way we value the ICC. But it is the correct way to view the court, I believe.

7/10/2005 11:04 PM  
Blogger A.R. said...

First, Nema is mistaken, and should look at the Preamble to the Rome Statute: the assumption of the ICC, and all prior tribunals since Nuremberg, is that all war crimes require accountability. That being said, the Rome Statute, particularly in the finer points of its jurisdictional aspects, reflects an ambiguity on how strongly accountability should be pursued.

Second, in practice, the problem has been that there really has been an "age of impunity" since Nuremberg - war criminals have not been deterred by the threat of punishment by the international community. Nowhere was this more evident than in the former Yugoslavia, and in pre-Dayton 1994, Prof. Anthony D'Amato of Northwestern University School of Law proposed that perhaps the pursuit of a war crimes tribunal was taking place at the expense of innocent lives and continued genocide. The crux of the matter, according to D'Amato, was whether pursuing a war crimes tribunal was an impediment to the peace, as suspected war criminals who were also leading their respective nations at the neogtiating table were threatened with prosecution by the ICTY after a peace accord would be reached.

I take up D'Amato's query in the upcoming NYU Journal of International Law and Politics, Vol. 37, Issue 1 in my Note "D'Amato's Equilibrium...." My Note uses Game Theory and the context of the Balkan Wars to illustrate this dilemma of whether there is an absolute duty to prosecute all war crimes ( meaning all war crimes must be punished), and whether this threat of prosecution is in fact credible to a suspected war criminal. I conclude that it cannot be absolute, and is not credible if it is absolute.

I found in my game theory anlayses, based upon assumptions that reflect as closely as possible the aspects of the negotiations prior to Dayton, that not only are suspected war criminals not deterred by the threat of prosecution by a war crimes tribunal, they are empowered at peace negotations because they can say no to any peace agreement that requires their prosecution.

I also find that based on the results of these games, the structure of the ICC under the Rome Statute also encourages similar situations in the future. Leaders could arguably say no to any prosecution when a peace agreement is being pursued, and worse, even if a peace agreement is reached, there is no guarantee of prosecution by a tribunal, much less the ICC.

Last, a note on Prof. Brooks' piece - I wonder whether she uses too broad a brush in lumping Guantanamo with Srebenica and Rwanda. The goal of protecting a population from unprecedented and incongruous threats like terrorism is very different from arguments that another set of people must be eliminated and wiped from the earth because of their fictional tag of ethnicity.

7/11/2005 3:07 PM  
Blogger A.R. said...

This comment has been removed by a blog administrator.

7/11/2005 3:08 PM  
Blogger Nema said...

Walter, I think we point to the same problem but come to a different conclusion. Your argument, as well as D'Amato's, rests on drawing similarities between the ICTR/Y and the ICC and that the ineffectiveness of the former means the latter will be similarly as ineffective. However, aside from sharing similar jurisdictional and structural characteristics, the courts are vastly different.

The ICTR/Y were developed to directly account for crimes committed during specific scenarios. The ICC allows for a broad jurisdictional with the theoretical power to prosecute crimes committed by nationals or on the territory of State Parties. Unlike the ICTR/Y the ICC doesn’t need the commitment of the Security Council to initiate an investigation. A complaint can be filed by any person and any organization as long as it fulfills the jurisdictional requirements. In that sense, the ICTR/Y and future adhoc tribunals are bound to the failure of the Security Council. All these together posit that the ICC has a completely different effect on global prosecution of war criminals then the ICTR/Y Nuremburg or Tokyo did. A difference which is fundamental to the aim of the ICC to enhance national prosecution of war criminals.

The Rome Statute, on the other hand, attempts to achieve accountability by creating a safety net. A net, which I would argue, was never meant to be used except in situations where it is clear that the offender is gaining from impunity. There's a reason all roads lead to article 17 (concerning admissibility). The framers understood that the only way to true hold perpetrators accountable is by pushing national systems to prosecute or extradite. It was under the understanding that the ICC has no police powers, the state maintains all power to really enforce punishments, and that national prosecutions are more suitable for reconciliation. I somewhat explained this before but without as much detail.

Whether or not leaders can curb prosecutions by delaying peace agreements is debatable. However, I think its notable that the Darfur issue has been referred to the OTP despite objections by both Sudanese factions and currently peace overtures.

7/11/2005 8:42 PM  
Anonymous Eugene Kontorovich said...

The ICC might actually REDUCE deterrence. Genocide, etc. is only punished after the offenders loose power and fall into the hands of their enemies. The consquences of loosing are usually dreadful enough (for the offenders) to make the marginal contribution of an international court close to zero; bu it might even be negative.

Take the Rwandan example. Genocidaires captured and tried by the Tutsi government were excuted (these were usually the small fish). Those who were lucky enough to turn themselves in to the International Tribunal won't be executed; most won't get life in prison. So obviously if you're a genocidaire (and you're even thinking about what happens if you fall from power) you'd be happier to have an international tribunal around to turn yourself in to. This is a fortiori true of the ICC, whose default maximum punishment is 30 years in prison. And I bet the international tribunal prisons are a lot nicer than those in Rwanda, or Sudan, or Bosnia.

I talk about the forum shopping possibilities created by international tribunals in Implementing Sosa v. Alvarez-Machain: What Piracy Reveals About the Limits of the Alien Tort Statute, 80 Notre Dame Law Review 111, 159-60 (2004).

7/11/2005 11:38 PM  
Anonymous David Zaring said...

I've got to say, that this still doesn't mean the ICC isn't worth it. I've heard many a justification of it based on the expressive value of the world community objecting to certain kinds of conduct. The problem with expressive theories is that they're unfalsifiable to a large degree - but I have to say that it's not implausible re: the court.

7/12/2005 1:31 AM  
Blogger A.R. said...

irst, to clarify for everyone who has read my post, my name is actually Andrew and not Walter. Long story involving a prior idea for a blog... So should you pick up NYU Journal of International Law and Politics this month, you will see Andrew Rosen as author of the article and not "Walter."

Second, to clarify, D'Amato never made an argument about the ICC in his 1994 essay. It was only about the ICTY. My Note infers what he would have argued based on the structure of the Rome Statute, but even then, you can always ask him what he thinks now.

Third, Nema, I think you misunderstood my argument. I am not pointing out the ineffectiveness of either - in fact, "ineffectiveness" is not a theme in my argument or a word used in my post or Note. Nor am I comparing the two. Rather, using D'Amato's argument, I draw out the loopholes in the ICC's jurisdiction based on the jurisdictional layout of Articles l6, 17, 20, and 53 of the Rome Statute. These loopholes conflict substantively with the Rome STatute's stated goal of accountability for all war crimes, as the loopholes provide opportunities for suspected war criminals to avoid prosecution via jurisdictional technicalities. In such a situation, not all war crimes are being held accountable. So I agree with you in the sense that the Rome STatute provides a safety net for accountability, but like any net, one with many holes. Obviously, this is a much more technical argument, and you will see in my Note how I approach it. Please note that my analysis of the ICC isn't in terms of the ICTY, but rather in terms of D'Amato's proposal for a peace agreement that involves a punitive trade for the suspected war criminals to avoid prosecution - such a proposal was suggested as an alternative to a peace solution with a tribunal, given the inability of negotiators to reach a peace agreement involving a tribunal in 1994. And please also note that the ICTY required a peace agreement between the Balkan leaders before it could proceed, so leaders can curb prosecutions by delaying peace agreements.

The key to the Rome Statute and Prof. Brooks' argument is the assumption that both the existence of the ICC as a prosecuting entity and the mission of that entity to hold all war criminals accountable for commissions of war crimes under international law is intended to be a deterrent against the commission of such war crimes. And if they do not deter, then to at least hold accountable those who commit those war crimes. I agree about how important national and domestic prosecutions are perceived by the Rome Statute. But still, this net has substantive means for war criminals to avoid prosecution between the intenrational and national levels. Even if our argument began at the question of deterrence, the real question is whether the ICC's stated goal of accountability is accomplished in jurisdicitional structure of the Rome Statute. If accountability stated is not accountability delivered, deterrence is merely an afterthought in this debate. Stated differently, if accountability is stated absolute, but in practice is merely accountability as a net, the real question is just how big are the holes in the net?

In re the Sudan, btw, the question isn't whether the case has been referred to the OTP, the question is when and if the tribunal/ICC can begin prosecuting war crimes. That requires Sudan's consent.

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