The Central African Republic (CAR) is “descending into chaos“. In the past few months, violence and instability in the country have proliferated. In November, the French Foreign Minister even used the ‘g-word’ to describe the situation in the CAR, declaring that ”[t]he country is on the verge of genocide”. Jean Ging, of the UN’s Office for the Coordination of Humanitarian Affairs, similarly suggested that the country is sowing the “seeds of genocide“.
In response to the crisis, the international community has immersed itself knee-deep into another military and humanitarian intervention. Last week, the UN Security Council unanimously authorized France and African Union forces to use “all necessary measures” to protect civilians. The African Union and the UN Security Council have their work cut out for them. In endorsing international intervention into the CAR, the International Crisis Group stated:
Over nine months, the weak Central African Republic (CAR) state has collapsed, triggering a serious humanitarian crisis, with 400,000 displaced and nearly half the population in need of assistance. The transition government and the regional security force have failed to prevent a descent into chaos in urban areas, in particular Bangui, as well as in the countryside. After months of “wait-and-see” and following deadly clashes, the international community now realises it cannot afford another collapsed state in Africa. Unfortunately, the situation on the ground is deteriorating at a much faster pace than the international mobilisation, and Bangui is vulnerable to a total breakdown in law and order.
This week, the International Criminal Court’s chief prosecutor, Fatou Bensouda, waded in:
The Office of the Prosecutor expresses its concerns over the unfolding events in the Central African Republic (CAR), and in particular reports of serious on-going crimes. The deteriorating security situation over the past several days has contributed to the escalation of unlawful killings, sexual violence, recruitment of child soldiers and other grave crimes, across the country. The situation worsens daily and thousands of civilians are fleeing the violence.
Bensouda also threatened that those committing crimes under the Court’s jurisdiction risk being prosecuted:
War crimes, crimes against humanity and genocide fall under the subject matter jurisdiction of the International Criminal Court. I hereby call upon all parties involved in the conflict, (including former Séléka elements and other militia groups, such as the anti-Balaka), to stop attacking civilians and committing crimes, or risk being investigated and prosecuted by my Office.
Bensouda’s comments should be understood as an attempt at shooting a warning shot across the bow of potential perpetrators in the CAR in order to deter potential crimes. Such warnings are a regular part of the Prosecutor’s modus operandi. In August the Prosecutor declared that “that crimes that may fall under the jurisdiction of the International Criminal Court continue to be committed in CAR, including attacks against civilians, murder, rape, and recruitment of child soldiers.” Similar statements have been made in the case of Mali and the Ivory Coast in an attempt to deter actors from committing crimes.
But here’s the thing: deterrence hasn’t worked in the Central African Republic – like at all. It has been almost ten years since the CAR government referred itself to the ICC. Former DRC President Jean-Pierre Bemba is on trial for his alleged responsibility for war crimes and crimes against humanity committed in the CAR. But the ICC’s intervention hasn’t prevented – or really had any effect – on the country’s slide into political violence and slaughter. Making matters worse, it is exactly the types of crimes that the ICC has focused on – sexual violence, mass displacement, executions of civilians and the use of child soldiers – that characterize the current violence in the CAR.
Of course, no one can or should place blame on the ICC for the CAR’s current bout of instability. Again, this round of violence has virtually nothing to do with the Court or its work.
But more importantly, the example of the CAR seems to confirm the reality that the Court has little-to-no ability to deter crimes in complex, fragile contexts. The distant possibility that warring parties and potential perpetrators might be sent to The Hague isn’t likely to be high on their minds as they foment chaos and plan political violence. As Kate Cronin-Furman writes in her excellent analysis on the ICC’s mixed record on deterrence,
An analysis of empirical explanations of violence against civilians suggests that the cost-benefit calculations of commanders who affirmatively order mass atrocity are likely already to involve overriding benefits for and strong disincentives against the commission of atrocity crimes. Thus, the risk of prosecution and punishment is not likely to change their decision-making calculus.
Patrick Wegner has similarly argued that there is a need to be cautious with claims about the strength of the ICC’s deterrence effect:
…deterrence relies on at least a bounded rationality of potential perpetrators in order to work. While the commanders of the parties involved in a conflict are arguably taking rational and goal oriented decisions to organise the large scale of atrocities, followers can be intoxicated or motivated by blind hatred or hedonistic urges when committing crimes. In other cases, they might be fighting for bare life and thus not react to deterrence.
I have previously argued – in line with William Schabas’ view – that deterrence is both an impossible and unnecessary argument for the ICC and its champions to make. Deterrence is intuitive but it simply cannot be proven that an alleged perpetrator chose not commit crimes because of the ICC. At the same time, it seems foolish to rely on the argument that the ICC should exist and intervene in conflicts because of its deterrence effect. It is simply too easy to point to cases that demonstrate that the deterrence hypothesis is false. This makes it all too easy for critics of the Court to point out the ICC’s flaws. In other words, the deterrence argument is fundamentally slanted against proponents of trial justice. This reality makes its use by champions of international justice only more curious.
This isn’t to say scholars and proponents of the ICC should ditch the deterrence hypothesis altogether. It should be sufficient to argue that the ICC has a potential deterrence effect and that even if it only works some of the time or only over the long-haul, then international criminal justice is worth pursuing. Moreover, I think there is a good case to suggest that deterrence is most likely to impact the decision-making of non-targeted parties to a conflict rather than on those who are at risk of being prosecuted by the ICC. How the ICC affects non-targeted parties is an area that desperately needs more academic attention and scrutiny.
As is often pointed out, the ICC exists within a cloud of unmanageable expectations. The Court is expected to resolve wars, create peace, deliver justice for all, deter potential criminals from committing atrocities and, all the while, remain a judicial rather than political institution. These heightened expectations are largely of the ICC’s own making. But because they can’t be fulfilled, they risk undermining the perception of the Court.