As usual, I agree with most of what Jim Fearon has to say on the ICC; most notably that the ICC’s effect on reducing the worst sort of abuses is questionable. Yet, I don’t quite buy his two mechanisms for how the ICC may increase human rights abuses. My own tentative view is 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; not unlike the international human rights regime more generally.
Fearon rightly argues that Ntaganda likely surrendered to the ICC because his most likely alternative was to get killed:
So is that a great victory for the ICC? His surrender ends the embarrassment of having Ntaganda on the loose committing more crimes, but if the general principle is [that] the ICC is a way to save yourself from death if things get too hot, then the institution is potentially encouraging, not deterring, human rights abuses.
I have two comments on this. First, what Kathryn Sikkink has termed the “justice cascade” is not just about deterring human rights abuses but it is also importantly about the idea that punishment for human rights violations should be done through free and fair trials rather than vigilante justice. In that sense the Ntaganda case could be a victory for the ICC.
Second, there is no clear evidence that the death penalty has a deterrent effect over jail time in the U.S. Why then would we believe that jail versus death would much alter the calculus of someone like Ntaganda who has been fighting in murky and bloody conflicts for more than two decades? I suspect that an institution that would affect the probability of getting caught would matter a lot but not whether a perpetrator might face death or life in prison. Should we not prefer a just solution if this is the case?
Fearon’s second argument is that the ICC may lengthen conflict and that this may outweigh whatever deterrence advantages the institution yields. The ICC eliminates the possibility of amnesty. If those propagating violence fear the ICC, then they may prolong human rights abuses because they know they can no longer retire to a seaside villa on the Cote d’Azur when they are done committing crimes against humanity.
But is this argument realistic for the worst types of human rights abusers like Assad or Gaddafi? It presumes that they would voluntarily leave office if a credible resistance movement and a pleasant enough escape condition materialize. If this were the way things worked we would never see oppressive regimes that survive for forty years. Good places to move to have historically not been in short supply and resistance is not all that costly if leaders were to simply vacate their premises a midst threats of removal. Brutal oppressors need to credibly establish that they will do nothing of the sort in order to suppress resistance. Indeed, they build entire organizations around that premise. Assad may well be killed by his own entourage before he can go into exile. I am not sure how the ICC could affect the calculus either way under such conditions.
It is more plausible that the ICC affects the calculations to commit war crimes or crimes against humanity in countries that are more developed, democratizing, and better integrated into the international community. This fits a more general theme that international human rights law often does not matter most where it is needed most. In such countries, Gadaffi/Assad types of repression are unlikely. Yet, war crimes or crimes against humanity may nonetheless be committed, for example in the context of civil wars or fights against terrorism. The internationalization of these crimes makes it less likely that domestic courts rationalize such abuses and make them disappear. Colombia is a case in point where the existence of the ICC may have lessened domestic tolerance for impunity and could potentially help deter future war crimes. In this context, the ICC replaces impunity and thus plausibly increases deterrence.
There are many “ifs” and “buts” I could add to this assertion and I cannot prove it with extensive empirical evidence (certainly not in a blog post). The prolonging repressive government/amnesty trade-off Fearon discusses may well be relevant more for “medium” repressive regimes than for Assad/Gaddafi type repressive regimes ( I hate scare quotes but I use them here to signal that I understand that “medium” abuses are often truly horrific). Moreover, even if it is true that the ICC deters more “medium level” abuses it may not mean that the ICC is socially desirable. For the ICC to be an effective deterrent it must go after the major violators. One issue I worry about is whether the ICC is becoming an expensive and distracting side-show on those cases. This is potentially a third way in which the ICC could increase human rights abuses: If the ICC is unlikely to be effective in contexts like the Congo but subsumes a lot of energy and resources then it may detract from more effective strategies to mitigate the violations. I think there is more reason to worry about this than the ICC’s effect on taking away the amnesty options of Bashir, Kony, or Assad.