There are many reasons to be skeptical about the ICC’s deterrent effect.The ICC has no police force.Indicted individuals such as Sudan’s Omar Al-Bashir have been free for years. Some trials take years. James Fearon recently posted to this blogthat there is a good “possibility that the ICC will have no effect on reducing abuses or, worse, might even increase them.” Erik Voeten is similarly skeptical, although he acknowledges a possible upside. He wrote that the “ICC likely has little meaningful effect on deterring or encouraging the worst forms of human rights abuses but may have a marginally positive effect at reducing abuses in countries where ‘mid-level’ human rights abuses occur.”
We believe there are reasons to be more optimistic. In a paper (which Aloyo presented at ISA) we examinewhether the ICC deters torture. Why do we focus on torture? Torture is one underlying element of a war crime, crime against humanity, and genocide, as those crimes are defined in the Rome Statute creating the ICC. We find thattorture is markedly less likely in countries that have ratified the ICC, and that this finding is robust.
We argue that the ICC’s strong (although imperfect) enforcement mechanisms deter potential perpetrators. But, as skeptics might suspect, deterrence is nuanced in a number of very interesting ways. First, Voeten may be right to speculate that the ICC is effective at “reducing abuses in countries where ‘mid-level’ human rights abuses occur.” Our findings suggest that the ICC appears to have little if any impact on curbing torture in states with the worst torture track records. There may be a number of reasons for this. Perhaps individuals in these states (correctly) estimate that the likelihood of ICC prosecution is low. Or they may face conditions where committing torture is worth the risk of prosecution.
Second, deterrence requires more than an international agreement. Torture has been illegal according to international law for some time under the Convention Against Torture and OtherCruel, Inhuman, or Degrading Punishment or Treatment (CAT for short).The CAT’s enforcement mechanisms are, however, quite limited. For instance, there is no judicial mechanism for punishing individuals who violate the CAT with arrest and jail time. We find that even amongst CAT signatories, the ICC has a deterrent effect. This suggests that the stronger enforcement power of the ICC, not the prohibition of torture by international law, is the important causal factor. That enforcement mechanisms matter is not surprising. However, these findings point out thatin this regard the ICC seemsto be different and better than other human rights instruments.
Although our analysis suggests a somewhat sanguine view of the ICC, especially for the “middling” levels of abuse, there are still reasons for caution. First, the empirical record does not indicate the ICC deters extreme offenders, so the ICC should not be seen a replacement for other types of enforcement mechanisms. Voeten argues that the costs of the court may outweigh the benefits in such cases, which may leave the institution not “socially desirable.”
Second, there is little empirical evidence on whether ICC prosecutions may undermine peace. Although Akhavan has argued that ICC indictments have not worsened human rights abuses, there is not yet systematic evidence to support this claim. Because the ICC’s prosecutor can decide to not prosecute individuals if she decides refraining from prosecution is not in the “interests of justice” taking into account the gravity of offenses and the “interests of victims” (Rome Statute, Article 53), in rare cases the prosecutor could offer amnesty in exchange for halting human rights violations. This clause gives the prosecutor wide leeway because neither the interest of justice nor the interests of victims are defined. Nor does the Rome Statute define who victims are. It could, for instance, include potential victims.This could go two ways. The ICC may have a further deterrent effect because individuals could decide that avoiding possible jail time is more important than committing a crime. Alternatively, individuals may ratchet up abuse to the point where the court is compelled to offer amnesty to stop the brutality.
Several key questions must be addressed further. First, how can and which enforcement mechanisms should be appropriately leveraged against the worst offenders? Second, how ought the ICC navigate enforcement in (mostly) failed states or conflict zones, where reliance on local authorities for policing is unrealistic? Third, which crimes in the Rome Statute does the ICC deter and why?
Such studies are intellectually interesting and practically important because they would provide policy makers a rich understanding of which institutional characteristics are likely to create effective global governance institutions.