The Approach to Deterrence in the Practice of the International Criminal Court

 

Introduction

Scholarship has been extensively exploring the theme of the capability of international justice to deter international crimes. At first, studies concerned the ad hoc tribunals,[1] then they focused on the International Criminal Court[2] (hereinafter ICC, or the Court).  The ICC is considered to be a major tool by which the international community can deter international crimes.  With “potentially unlimited geographic jurisdiction”,[3] the ICC raised higher expectations related to its power to deter atrocities worldwide.

Among scholars of different views, a general consensus can be identified, that is, despite skeptical or more optimistic approaches and findings, it is not possible, at the moment, to reach definitive conclusions about the deterrent power of the ICC, or of international justice in general. The reasons are to be found in the scarcity of data, given the relatively recent establishment of the Court, and in research methodology itself.[4]

This post will try to present the main aspects of the debate on the deterrent power of the ICC, and to offer an analysis of the use of the concept of deterrence in the ICC’s case law. It will show that the Court has consistently relied on deterrence as a key principle to determine sentences. In so doing, it has attempted to respond to the general expectations, even in the absence of certainty about the existence of a deterrent effect.

The deterrent effect of international justice: the main issues

The entire deterrence theory is based on the notion that the perpetrator is a rational actor who decides to perpetrate crimes following a cost-benefit analysis.[5] This is particularly questionable in the context of international crimes, where it is disputed whether the perpetration of atrocities implies the need to consider “the risk of prosecution against the personal and political gain of continued participation in ethnic cleansing and similar acts.”[6]

Deterrence is usually categorised as specific (dissuading the condemned individual to repeat the crime) or general (discouraging other people from engaging in the same conduct).[7] The particular nature of international crimes might raise a further aspect: “expressive”[8] or “social”[9] deterrence, which is possibly more effective than the “classic” or “prosecutorial” one. This angle, which can vary in the analysis of the authors but generally reflects the theory of positive general prevention, focuses on the “secondary stigmatising effects of the punishment”,[10] as “a consequence of the broader social milieu in which actors operate: it occurs when potential perpetrators calculate the informal consequences of law-breaking.”[11]

Jo and Simmons, focusing on the social angle and on certain categories of mens rea, submit that the deterrent effect of international justice varies according to the degree of accountability of the perpetrator and his/her interest in obtaining legitimacy. Consequently, state actors would be more deterrable than non-state actors.[12]

Furthermore, authors generally recognise that it is not the severity of the punishment which creates a deterrent effect but, rather, the likelihood of being prosecuted and condemned.[13] The issue is particularly relevant in international criminal law, in which uncertainty of punishment is inevitably higher than in it is in average national judicial systems. In Furundjiza, the International Criminal Tribunal for the former Yugoslavia plainly enunciated this aspect, together with the “expressive” value of an international judgment:

It is the infallibility of punishment, rather than the severity of the sanction, which is the tool for retribution, stigmatization and deterrence. This is particularly the case for the International Tribunal; penalties are made more onerous by its international stature, moral authority and impact upon world public opinion.[14]

Deterrence in the practice of the International Criminal Court

Deterrence is not specifically mentioned in the Rome Statute which, instead, makes reference, in the Preamble, to the prevention of international crimes, as a consequence of putting an end to impunity. Prevention and deterrence are sometimes used as synonyms, but their meaning is not completely interchangeable. The former is indeed wider and encompasses the latter, as there are forms of preventing crimes that are not related to judicial deterrence. It is fair to assume, nevertheless, that the aim “to put an end to impunity” and, consequently, “to contribute to the prevention” of international crimes, comprises the concept of deterrence.

The approach to deterrence in the practice of the Court may be analysed from two aspects. First, is whether deterrence ought to be considered as a criterion in the selection of cases to prosecute. Second, is whether deterrence is a key factor to be taken into account in determining sentences. While the former assumption appears to have been dismissed by both the Appeals Chamber and the Office of the Prosecutor, the latter constitutes a consistent practice of the Court.

In Lubanga,[15] the Pre-Trial Chamber affirmed that, to strengthen the effect of deterrence, the Court should focus only on high-ranking perpetrators, as individuals who can “prevent or stop the commission” of international crimes. The Appeals Chamber rejected this view, observing that the deterrent effect of the Court would be guaranteed only by avoiding any a priori exclusion of certain categories of perpetrators “from potentially being brought before the Court”.[16] The Prosecutor’s policy paper on case selection and prioritisation, issued in September 2016, seems to confirm the approach of the Appeals Chamber, i.e., that the deterrent function of targeting high ranking perpetrators is questionable, and lower-ranking perpetrators should not be excluded from prosecution in virtue of a contested deterrent effect.

Concerning the use of deterrence in determining sanctions, on 22 March 2017, the Trial Chamber in Bemba, consistently with the Court’s previous practice in Katanga[17] and Al Mahdi,[18] recognised deterrence, in both its general and specific effects, as one of the primary purposes of sentencing:

The primary purpose of sentencing […] is rooted […] in retribution and deterrence. With regard, in particular, to deterrence, the Chamber is of the view that a sentence should be adequate to discourage a convicted person from recidivism (specific deterrence) as well as to ensure that those who would consider committing similar offences will be dissuaded from doing so (general deterrence).

Conclusions

The debate on the possible deterrent power of the ICC, and of international justice in general, is open and a growing scholarship has been investigating the issue with various and original methodologies. In the absence of any definitive evidence on the issue, the Court has been maintaining deterrence among the primary purposes of its sentences, but this latter has not, so far, influenced the prosecutorial strategy.

The topic deserves further reflection, as new findings may acquaint the practice of the Court, thus making the ICC an effective tool for the prevention of atrocities.

[1] David Wippman, ‘Atrocities, Deterrence, and the Limits of International Justice’ [1999] 23(2) Fordham International Law Journal 12

[2] David Bosco, ‘The International Criminal Court and Crime Prevention: Byproduct or Conscious Goal?’ [2011] 19(2) Michigan State Journal of International Law 164

[3] Antonio Cassese, International Criminal Law (3rd edn, Oxford University Press 2013) 326

[4] William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) 61

[5] Ronald Akers, ‘Rational Choice, Deterrence, and Social Learning Theory in Criminology: The Path Not Taken’ [1990] 81(3) The Journal of Criminal Law and Criminology 65

[6] David Wippman n. 1

[7] Stephen L. Quackenbush, ‘General Deterrence and International Conflict: Testing Perfect Deterrence Theory’ [2010] 36 International Interactions.

[8] Kate Kronin-Furman, Amanda Taub, ‘Lions, Tigers and Deterrence, Oh My. Evaluating Expectations in International Criminal Justice’ in Yvonne McDermott, William Schabas (eds), The Ashgate Research Companion to International Criminal Law, Critical Perspectives, (Routledge, 2013)

[9] Hyeran Jo and Beth A. Simmons, ‘Can the International Criminal Court Deter Atrocity?’ [2016] 70 International Organization.

[10] Kate Kronin-Furman, Amanda Taub (n.8).

[11] Hyeran Jo and Beth A. Simmons (n.9).

[12] Hyeran Jo and Beth A. Simmons (n.9).

[13] Christopher W. Mullins and Dawn L. Rothe, ‘The Ability of the International Criminal Court to Deter Violations of International Criminal Law: a Theoretical Assessment’ [2010] 10 International Criminal Law Review.

[14] Furundžija (IT-95-17/1-T), Judgment, 10 December 1998, (1999) 38 ILM 317, para. 290.

[15]Lubanga (ICC-01/04–01/06–8), Decision on the Prosecutor’s Application for a Warrant of Arrest, 10 February 2006, paras. 54–5.

[16]Situation in the Democratic Republic of the Congo (ICC-01/04), Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’, 13 July 2006, para. 73.

[17] Trial Chamber II, Prosecutor v. Germain Katanga, Decision on Sentence pursuant to article 76 of the Statute, 23 May 2014, ICC-01/04-01/07-3484-tENG-Corr, paras 37-38;

[18] Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgment and Sentence, 27 September 2016, ICC-01/12-01/15-171, paras 66-67 bensouda

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1 Comment

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One response to “The Approach to Deterrence in the Practice of the International Criminal Court

  1. El roam

    Thanks for the post , the issue is really complicated , just worth to note :

    The Rome statute , refers also , to a situation , where a person or perpetrators , are deterred ” online” while ongoing commission is occurring actually , and so , we deal not with general prevention and deterrence as described in the post , but actually : Stopping commissions of crimes .Here article 58 to the Rome statute , dictating so :

    Article 58
    Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear

    1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that:

    (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.

    End of quotation :

    So , we read clearly : ” to prevent the person from continuing …..” . Another option in this regard , is to trigger the SC ( triggering it by the ICC ) all in accordance with the agreement between the ICC and the UN , or generally speaking ( Since the ICC has standing in this regard , notwithstanding the agreements mentioned ) .

    Thanks

    Like

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