S.Karthikeyen & Saachi Awate
Student of law at School of Law Christ University
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Student of law at School of Law Christ University
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The main objective behind the establishment of an International Criminal Court is to replace the practice of impunity for the commission of heinous crimes, with the practice of accountability for the said crime committed. The emergence of an international criminal court is most definitely a series of ongoing international efforts. However, these efforts have often been neglected for various reasons, one being high selectiveness.
After the World War II, the Nuremberg and Tokyo Tribunals endorsed the culture of accountability, but this was not very affirmative as the effects of the cold war started to settle into the society. The notion that those violating the most serious laws of humanity must be punished faded, and a culture of impunity re-emerged.
Eventually, the effects of the Cold war started to gradually fade away, not only because the major powers could begin to come together and cooperate on multiple issues, but also because there was a continuing need to take certain measures to attempt to put an end to the inhumane crimes that continued to be committed.
The idea of a permanent international criminal court continued to develop, because of what came to be known as “tribunal fatigue”, and because various states wished to eradicate the Security Council’s monopoly over international tribunals as it was seen to be selective in awarding justice.
Despite what was previously identified as a common objective – shifting from the practice of impunity to the practice of accountability – there still are various differences with respect to the ideologies of such practices.
The ongoing arguments about the effectiveness of an international criminal court must be seen from a long-term perspective. The work and impact of new institutions, such as the ICCs, cannot justifiably be compared to that of the longstanding institutions such as the Security Council and the International Court of Justice (the “ICJ”). The newer institutions like the ICC, must be granted some time to be included as a part and parcel of the whole international scenarios, at par with the older institutions, making it equally evident and necessary; a role played in compliance with the existing institutions.
The ICC must be a part of the framework to sustain the practice of accountability, including stricter punishment for heinous crimes and domestic prosecution of such crimes, wide spread use of universal jurisdiction so as to ensure that there is complete and fair awarding of justice and also greater international cooperation in curbing international crimes. To ensure that the culture of impunity is completely eradicated and to encourage the practice of the culture of accountability, a consistent and ready effort must be made in the long run.
The Rome Conference and the ICC Statute
- The Rome Conference
The draft statute submitted by the Preparatory Commission could not fully serve as a substantial basis for negotiations with respect to International Criminal Courts. The draft statute was too complex, including a number of options and sub-options.
To initiate the negotiations, the draft statute was divided into various parts, which were allotted to coordinators and sub-coordinators. At the head of the negotiations process was the Bureau of the Committee of the Whole, which put together the findings and results of the negotiations. The Bureau consisted of five elected officials, one chairperson, three vice-chairpersons and a rapporteur, belonging to all regional groups, and working with the help of advisers who themselves were the coordinators in charge of the negotiations relating to the draft statute.
Problems started to arise when there were repeated appeals for genuine negotiations and discussions on fundamental problems and they remained unanswered. The only alternative, an adjournment of the conclusion of the conference, was not accepted because most states were adamant that a statute should be in place in Rome. Their contention was that if conclusions would be deferred, states would be subject to a lot of pressure after the Rome Conference to either not resume the process, or a future statute would be much weaker than what is possible in Rome. Eventually, the Bureau formulated a package that was deemed to be the best balance in the circumstances, and submitted it to the Conference.
- The Statute
Since the Rome Conference negotiations, there had been multiple opportunities to implement the outcome of the conference i.e. to implement the Statute; some wished that the ICC Statute should be stronger, and others were worried that the statute was overpowering in its very nature.
However, the statute reflected a balanced effort to create a strong court, deriving its powers from the provisions of its statute and from the cooperated support of states for the new institution. It was crucial to get the support of a large number of states that were concerned about various factors relating to the institution such as, fair proceedings, political influences, and undue influence upon national jurisdiction. On the contrary, putting exclusive emphasis on these concerns would mean that the court would lose its independence.
Arguments in favour of the deterrence effect of ICC
- ICC does not have a direct implication on the particular actors in specific situations
Many of the earlier literature of documents talking about the impact of ICC placed emphasis on the ‘deterrence theory’, that stated that the threat of an ICC prosecution would deter both leaders and officials from committing atrocities across the globe.
In the recent years, studies have shifted the discussion relating to the impact of ICC, to a conditional deterrence theory, that suggests that the ICC’s capacity to deter will depend solely upon the type of actor, the context, and the level of ICC involvement in the situation country.
- Ratification of the ICC exerts a positive effect on domestic laws and practices, and is correlated with a reduction in hostilities and human rights violations
Studies have found that ratification of the ICC stature tends to be related with a halt in war hostilities and in a reduction in human rights violations, which is in effect due to one of the ICC’s provisions, which provides Member States with an incentive to strengthen domestic justice systems in order to include ICC jurisdiction.
Simmons and Danner found through an empirical analysis that the “the least accountable governments – the least democratic, with the weakest reputations for respecting the rule of law, the least politically constrained – with a recent past of civil violence,” were among the earliest to ratify the Rome Statute. They attribute this finding to something they call “credible commitment theory,” which explains why governments with such low accountability voluntarily chose to subject themselves to ICC jurisdiction.
This theory posits that ratification of the ICC can be used as a form of self-binding by states that are most vulnerable to ICC prosecution and least able to commit credibly to domestic alternatives, by essentially tying their hands as they work toward conflict resolution.
- The ICC exerts a normative influence by making prosecution for human rights violations a primary tool for justice, which is associated with improvements in the protection of human rights
The ICC has the capability to communicate norms for the protection of human rights at a very high level, that could have a worldwide effect. By investigating and punishing human rights violations, the ICC exerts a normative effect, addressing the importance and value of prosecutions as a mechanism for justice; prosecutions being one of the most prominent forms of delivering justice. Moreover, prosecutions can help advance peace by emphasising on notions of collective guilt and highlighting individual responsibility for the commission of such heinous crimes.
While there has been some debate about the correctness of using prosecutions as a tool for imparting justice, various studies lay importance on the value of human rights trials. For example, it was found that transitional countries with more human rights trials are less exploitative than countries with fewer trials.
The ICC may also be able to exert normative effect on the victim’s involvement in trials. If the ICC is looked up to as a model to prosecute human rights abuses, it may have an impact of the decisions of other countries to increase victim’s role within a prosecution.
Although many advocate for the emergence and usage of prosecutions and trials as a new form of seeking justice, there were also many sceptics and opponents. They suggest that prosecutions threaten to monopolize global justice efforts, reducing or completely eradicating other concepts of justice as a whole. They suggest that the ICC has a major impact on the justice system both because, it legitimizes prosecution as the only acceptable form of imparting justice, and because it could work to force states to choose prosecutions in order to avoid jurisdiction.
Arguments against the deterrence effect of the ICC
- ICC prosecutions may have a negative effect on the peace processes by instigating parties to conflict with threats of prosecution, preventing them from negotiating peace agreements.
This is a theoretical argument that arises from a wider discussion relating to peace versus justice, and whether one must come at the cost of another. The general argument is that ICC trials have a negative impact on the peace processes by inflaming opposing parties with threats of prosecution, therefore preventing them from coming to any conclusive negotiations.
Various opponents state that prosecutions can be against the basic concept of peace and harmony. They suggest that since the ICC is unable to enforce its decisions with arrests and prosecutions, offenders have no reason to relinquish power and stop violating human rights. Furthermore, they contend that trials can actually instigate peace and make attempts to prosecute offenders “likely to increase the risk of violent conflict and further abuses, and therefore hinder the institutionalization of the rule of law”.
- ICC prosecution may amount to justice at the domestic level, and outcomes are often so severe that any deterrence effect is overshadowed by the threat of more severe conviction in the domestic system
By looking into traditional criminological theory, it can be understood that deterrence depends on two aspects, namely – the severity of the sentence and the certainty of the punishment.
With respect to the severity of the sentence, it is seen that the punishments the ICC awards are less stringent than those that would be imposed by the laws laid down under the domestic justice system. The ICC cannot impose a death penalty. This reduces its deterrent effect. Furthermore, the location of any prison sentence may also reduce any deterrent effect that it may have. Sometimes it even so happens that the alternatives to the ICC trials may be so harsh that the deterrent effect of those trials may overshadow any deterrent effect of the ICC, with respect to the overall severity of the punishment available.
- The probability of an ICC conviction may be too low to exert a deterrent effect due to the minimal number of prosecutions and convictions to this date, along with the potential to elude arrest in the first place
The second aspect to be looked into with respect to the traditional criminological theories on deterrence is the certainty of punishment, which may also be against the deterrent effect of the ICC.
The ICC lacks enforcement mechanisms, which is why they are forced to rely solely on member sates to arrest and turn over suspects. Studies show that out of the approximate 40 individuals that have been indicted in the ICC’s history, only three have been convicted, and two have been sentenced; a number of suspects remain for trial. This may negatively impact any deterrence effect that the ICC may have.
Even though the theoretical arguments carry a lot of weightage, emerging empirical evidence shows that the ICC does in fact have a deterrent effect under certain conditions. Therefore, it seems more likely that the deterrent effect of the ICC can be minimised by its reduced probability of prosecution, but cannot altogether be eliminated.
There are four conclusions that may be drawn from the contents of this paper. To begin with, the ratification of the ICC statute alone exerts a deterrent effect on both the government officials, as well as opponents of the ICC. Secondly, the increase on ICC involvement in a country can have a deterrent effect, even on the skeptics that are otherwise hard to deter, but may be considerate of local conditions and politics. Third, the ICC has a positive impact on the domestic government and its practices, especially with regards to vulnerable governments that use the ratification of the ICC as a way to self-bind. Lastly, the peace versus justice argument against the ICC is most likely a false contradiction, and is not supported by in studies or researches.
Thus, there are a number of questions that need to be answered in order to understand when the ICC can have a positive deterrence effect. This is a challenge for the future.
 Simmons and Danner, at 252.
 Id., at 227.
 Sarah Nouwen and Wouter Werner, Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity, Journal of International Criminal Diversity (2014): 1-20.
 Jack Snyder and Leslie Vinjamurri, Trials and Errors: Principle and Pragmatism in Strategies of International Justice, International Security 28(3) (2004): 5-44, at 15.