Presentation prepared by Nick Grono, Deputy President and COO, and Anna de Courcy Wheeler, Research Analyst, International Crisis Group, for the conference “The Law and Practice of the International Criminal Court: Achievements, Impact and Challenges”at the Peace Palace, the Hague on 26 September 2012.
The ICC’s first decade has seen broad claims made about the Court’s ability to deter the commission of international crimes by government leaders.
At one end, enthusiasts have claimed it has the ability to deter future crimes, and to cause abusive leaders to end their ongoing campaigns of violence against their own people. So the ICC has regularly been posited as a tool capable of ending the commission of international crimes in Sudan, Uganda, Libya, Syria, Myanmar, the Democratic Republic of the Congo and elsewhere.
Such claims are not surprising given that the Court’s founders themselves highlighted the ICC’s deterrent potential, claiming in the preamble of the Rome Statute that ending impunity for perpetrators of atrocity crimes would contribute to the prevention of such crimes.
Sceptics of the Court’s deterrent impact, however, have no shortage of examples to back their case that the court has failed to prevent horrendous crimes, even in cases where it is actively investigating or prosecuting. And again, many of the same situations – such as Libya, Sudan, Uganda, the Congo – are cited as examples.
These sceptics argue that the very nature of the crimes prosecuted by the International Criminal Court – war crimes, crimes against humanity and genocide – make them resistant to deterrence through prosecution, and that the record so far suggests that not only do international prosecutions offer little hope of preventing future atrocities, they in fact risk prolonging conflicts.
There is, however, a much-overlooked middle ground.
What we want to explore is the possibility that the risk of ICC prosecution may be one of a range of factors taken into account in the calculations made by government leaders determining how to respond to a challenge to their authority – be it a nascent rebellion, or proposed secession, or simply a vigorous political opposition.
Our proposition is that where a regime still perceives room for manoeuvre then the prospect of such prosecution may be one of a range of domestic and international factors – such as the possibility of internal opposition, financial consequences, likelihood of military success, international disapproval short of prosecutions, and the possibility of sanctions and other coercive measures – that could impact upon its strategic calculations.
There is some evidence that suggests national leaders are increasingly aware of the possibility of ICC prosecution, and that this can influence their decision-making calculus, for better or worse. And if ICC prosecution factors into a regime or leader’s determination to cling to power, it is not unreasonable to conclude that such a fear may also, in certain circumstances, act to curtail abuses and shift the calculus in favour of avoiding war crimes or crimes against humanity.
Though there are plenty of examples in which the threat of criminal prosecution has failed to deter perpetrators of crimes against humanity or atrocities, this does not mean that deterrence has not worked or could not work. Those who argue against deterrence often focus on “specific deterrence”, that is, the possibility that prosecutions can deter leaders who have already committed war crimes or crimes against humanity from committing them in the future.
But these are, in fact, the very situations where prosecutions are most unlikely to deter. In such situations, prosecution by the International Criminal Court will more likely represent an existential threat to a ruler, or ruling party, and is thus more likely to cause national leaders to seek to entrench themselves, and hence maintain or even escalate an abusive or criminal campaign. We have seen this in Sudan, where President Bashir’s indictment by the ICC has done little to halt attacks on civilians in both Darfur and, more recently, South Kordofan.
Instead our focus should be on longer-term legal deterrence and the entrenchment of human rights norms. Over the longer term prosecutions can act to dissuade future generations of leaders from the commission of such crimes.
A central difficulty for those seeking to establish a deterrent effect for criminal prosecutions is that while it is easy enough to list cases where deterrence hasn’t worked, its very difficult to identify cases in which it has – a difficulty magnified in an international setting. It is of course a difficulty we face in conflict prevention more broadly. Successful conflict prevention, like successful deterrence, means, in effect, that nothing happens. And it is difficult to prove a counterfactual. But there is significant anecdotal evidence to suggest that the risk of prosecution by the ICC – which today is one of the few credible threats faced by leaders of warring parties – may influence their calculations and policy choices.
The evidence of behavioural change due to ICC prosecution is twofold. There is evidence to suggest that in some situations, particularly those where conflict is ongoing and where war crimes or crimes against humanity have already occurred, the possibility of international individual criminal prosecution may cause the abusive leader to entrench himself, thereby prolonging the conflict and facilitating the further commission of atrocities. But there are other situations, notably where a leader is not facing an existential threat, where the possibility of an ICC prosecution could tip the cost-benefit scale away from a large scale criminal course of action.
While there was initial criticism of ICC’s prosecution in Uganda from civil society actors and others, there is some limited evidence of the prosecutions having a deterrent impact on the leaders of the rebel Lord’s Resistance Army. The issue of ICC warrants against LRA commanders in 2005 may have contributed in bringing the LRA to the negotiating table, and helped drive along the peace negotiations. By raising awareness and focussing the attention of the international community, which in turn created a crucial broad base of regional and international support for the fledgling peace process, the ICC’s efforts to hold the LRA leadership criminally responsible for its atrocities in northern Uganda not only helped create that momentum but embedded accountability and victims’ interests in the structure and vocabulary of the peace process.
Ultimately however, these prosecutions, or the threat of prosecution, may have been an obstacle to the eventual signing of a peace agreement, though doubts remained throughout the process about the commitment of Joseph Kony to a peaceful settlement.
Democratic Republic of the Congo
In the Democratic Republic of the Congo, home of the ICC’s first convict Thomas Lubang Dyilo, there is some evidence that ICC prosecutions are having some impact on the strategic decisions of troop commanders. Media reports suggest a number of ex-combatants have noticed a modification in the behaviour of rebel commanders designed to avoid the possibility of ICC prosecution, particularly in Ituri which has been the focus of the ICC’s investigative and prosecutorial activities.
Since the Office of the Prosecutor announced its interest in Colombia in 2006, the government has taken a number of measures – most notably promulgating the Peace and Justice Law – arguably designed to avoid the spectacle of high-ranking government officials and army officers appearing at The Hague. The threat of ICC prosecution appears to not only have influenced the calculations of the Colombian government – including former President Pastrana who, according to cables published by Wikileaks, expressed (unwarranted) concern that he may be prosecuted by the ICC for his actions while in power from 1998-2002 – but also by key rebels. And at least one of the leading paramilitary leaders, Vincente Castrano (AUC), was apparently sharply aware and fearful of the possibility of ICC prosecution, a fear that reportedly directly contributed to his demobilisation. Clearly a number of paramilitary commanders in Colombia were aware of the risk of ICC prosecution and took this risk into account when deciding to demobilise.
The 2007-2008 violence in Kenya saw an unprecedented number of civilians killed and displaced. A Commission of Inquiry established in the aftermath, commonly known as the Waki commission, recommended the establishment of a Kenyan special tribunal to try the accused organisers of ethnic and political violence in order to break the cycle of impunity that had long characterised Kenyan elections. Failing that, the Commission recommended the transmission of the names of those allegedly responsible for the violence to the ICC.
On 2 July 2009, Kofi Annan transmitted a sealed envelope of names and evidence gathered by the Waki Commission to the ICC prosecutor who, in December 2010 announced the names of six suspects including Uhuru Kenyatta, the deputy Prime Minister, finance minister and son of Kenya’s first president, and William Ruto, a former government minister. Political leaders who had initially argued that only the ICC could provide the requisite independence and impartiality to ensure a fair trial, quickly backtracked. Prime Minister Odinga, who had initially appeared supportive of ICC prosecutions, has grown increasingly silent on their progression.
Kenyan politicians have, since the announcement of suspects, repeatedly attempted to block the ICC prosecutions, lobbying to have the case suspended on the basis that it could derail ongoing domestic prosecutions and warning that the ICC process could reignite violence, and arguing that the ICC does not have the proper jurisdiction. These attempts to block accountability processes, though primarily rooted in the need to secure domestic support, particularly among certain ethnic groups, could also hint at a tendency among senior politicians to see prosecution, whether international or domestic, as a threat to their traditional ability to use violence to retain power during elections.
The case of Sudan represents perhaps the most challenging case to argue for the deterrent impact of the ICC. The government has proven largely immune not only to ICC pressures, but also those of the Security Council whose repeated resolutions calling for a halt to violence in Darfur have been routinely ignored. For some, Sudan represents clear evidence that ICC’s prosecutions do not, and cannot, have a deterrent effect.
Following the Court’s 2009 landmark indictment of President Bashir for war crimes and crimes against humanity in Darfur, the Office of the Prosecutor was almost immediately pilloried for what some saw as not only judicial overreach, but a step that could endanger the fragile peace processes in both Darfur and South Sudan.
The government reacted to Bashir’s indictment by expelling 13 international aid agencies, including Medecins Sans Frontiers (MDF) and Oxfam, and shutting down Sudanese human rights groups. For many these actions acted to bolster the belief that the government of Sudan would not be swayed, let alone deterred, by the threat of ICC prosecution. The government continues to obstruct any ICC attempts at investigation.
Though the leading inner circle of Bashir’s ruling National Congress Party (NCP) proved unresponsive to the threat of prosecution by the ICC and to Security Council ultimatums, there are signs that the government was not entirely immune or indifferent to the international stigmatisation associated with such measures. Following the Prosecutor’s July 2008 application for an arrest warrant for Bashir, there was a flurry of announcements of renewed peace initiatives and yet another ceasefire declaration.
With regard to more concrete measures, the ICC indictment appears to have had little impact, though this could arguably be attributed more to the fact that the regime, confident most of the condemnation from the Security Council and wider international community would amount to nothing more than empty threats, calculated that continued warfare held the promise of best results – the reticence of the United States, for fear of upsetting the hard-won North-South peace deal, China’s continued oil interests, and the lack of decisive sanctioning action by the Security Council arguably fostered conditions where the regime had more to gain by continuing down a path that involved war crimes and crimes against humanity than it did by dialling back and committing to a genuine peace process.
Lessons from country examples
Concrete evidence of immediate or short-term deterrence resulting from ICC prosecutions will by its nature remain scant, and it is currently too early to trace any longer-term deterrent effect. But if there is reason to believe that fear of ICC prosecution factors into a leader’s determination to cling onto power, it is not unreasonable to suggest that such a fear may also, in certain circumstances, factor into the cost-benefit analysis of an authoritarian intent on crushing a secessionist or revolutionary movement, ethnic group or the opposition. Anecdotal evidence from states subject to ICC investigations, indictments or prosecutions indicates cause to be hopeful.
As the ICC becomes more widely known, and its norms deeper entrenched, there appears to be a growing awareness amongst government, and perhaps more surprisingly rebel leaders, that they too could find themselves in the dock.
The wider context, public-policy making
One of the main challenges for international policymakers in their efforts to resolve conflicts or reduce human rights abuses is that they often lack effective incentives or sanctions (diplomatic, legal, military or economic) of sufficient credibility to influence the calculations of the warring parties.
But it is possible to construct a framework for elite decision-making that can elucidate how international pressure, including in the form of ICC prosecution, can most influence the decision-making process of domestic leaders. The starting point is the assumption that leaders – of governments or of rebel groups – wish to either maintain or attain access to domestic power, and that these leaders take rational and goal-oriented decisions.
The important point here is that prosecution of government leaders imposes personal culpability. It poses a threat to power they have already attained, and thus may have greater influence or deterrent impact. If the threat of prosecution for future atrocities is a credible threat, then a government leader will arguably weigh that risk when deciding how to respond to a challenge to their authority, assuming a rational decision-making process.
Furthermore, not only are government leaders more likely to have knowledge of the international legal system and the concept of international individual criminal responsibility than an average citizen, they are also arguably more likely to be motivated by rational considerations that allow for the kind of cost-benefit analysis central to any model of deterrence.
Of course, different regime types will react differently to pressure. Certain regimes – those which are heavily reliant on patronage networks and payoffs to a small ruling elite – are generally more vulnerable to external pressure, particularly economic sanctions. Like economic sanctions, ICC prosecutions can erode the power base of leaders who rely on highly personalised systems of government by increasing the costs of supporting that leader
However the degree to which the ICC can hope to deter will always be hostage to the immediate domestic context – autocratic leaders who face an existential threat are unlikely be swayed by the possibility of prosecution, but those with hope of retaining power through non-criminal means are more likely to view the threat of indictment as a disincentive to criminal action.
The normative value of ICC prosecutions
When combined with a rationalist theory of domestic policy decision-making, the theory of incrementalism – which posits that public policy is structurally biased towards incremental changes to a largely stable status quo – gives a more nuanced understanding of how and why national leaders make certain policy decisions with implications for foreign relations, particularly in the context of human rights.
Incrementalism has been observed on a much larger, and longer, scale by philosopher Steven Pinker. Writing on the decline in violence over the millennia, he has emphasised the growing intolerance of human society towards war, torture and other forms of brutality, reflecting a normative shift in what is viewed as acceptable and part of the status quo (Steven Pinker (2011), The Better Angels of Our Nature: The Decline of Violence in History and its Causes (London: Penguin Books).
A similar, more narrowly focussed shift can be seen in international politics and the human rights movement, with a growing focus by the international institutions on the conduct of state leaders within their states, a development that would have been unthinkable in previous centuries where state sovereignty precluded outside interference in the internal affairs of another state.
The fact is that prosecutions for war crimes or crimes against humanity are progressively narrowing the space for criminal courses of action that as recently as 60 years ago were deemed beyond the concern of the international community.
The conviction of former Liberian president Charles Taylor, the indictment of Bashir, and the arrests Slobodan Milosevic and Cote d’Ivoire’s former president Laurent Gbagbo, all demonstrate that even national leaders who would have once been able to claim state immunity are no longer viewed as immune from international criminal prosecution for war crimes or crimes against humanity.
Effective deterrence relies on both normative pressures and material punishment (Hoon Kim and Kathryn Sikkink, “Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries”, International Studies Quarterly, Vol. 54, No. 4, p.942.). The ICC through its prosecutions, has the opportunity to contribute to emerging culpability norms that act to limit future atrocity crimes both by making them more costly in terms of a rational public policy choice analysis, and by establishing such crimes as firmly outside the status quo of behaviour accepted on the international scale.
Of course all of this requires successful ICC prosecutions.
It will only be possible over time to impose a high cost on the use of atrocities to advance political goals when national or international institutions establish a credible and consistent pattern of accountability replacing impunity, and that is the challenge that remains for the Court and its supporters. We’ve explored those challenges in depth over the last couple of days, so we don’t propose to recount them here.
Instead we’ll conclude by asserting the court does have the potential to deter those contemplating future atrocities – not in all cases, and probably not in the midst of conflict – but in those situations where the commission of crimes is one of a series of policy options available to a leader facing a challenge to his authority. The hope is that future leaders, cognisant of the prosecutions of Taylor and Milsoevic and Gbabgo and Bashir, may factor the possibility of his or her own prosecution into policy choices, such as whether to crush a growing opposition with violence, or negotiate, or address the underlying grievances. It will not be a determinative factor, but it will hopefully carry significant and increasing weight.
To ensure that this potential deterrent impact becomes more actual than theoretical, the court through its actions, and state parties through their support, need to enhance the consistency and credibility of ICC prosecution. Only then will the court begin living up to its founders’ expectations that it will contribute to the prevention of international crimes.