I recently attended an event, hosted by the Carr Center at Harvard’s Kennedy School of Government, to hear renowned scholar Beth Simmons and former Chief Prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo discuss the ICC’s ability to deter civilian atrocities.
Simmons — a prolific International Relations (IR) scholar known for her work on international institutions, law, and human rights — presented her theory and findings from an unpublished manuscript (co-authored with Hyeran Jo). Moreno-Ocampo responded with his points of consensus and contention and ended with his proposal for an ICC response to Syria. What follows is a summary of their comments and my own queries.*
The Effects of Prosecutorial and Social Deterrence
Simmons and Jo’s impressive new study takes on the “widespread skepticism” that the ICC is too weak to punish and deter perpetrators of atrocities. The Court is also, for better or worse, an “irritant to peacemaking.” Their goal is to systematically look at the ICC’s ability to deter civilian killings. To do so, they utilize behavioral theories / economic models of deterring crime and look only to general (not specific) deterrence. They isolate three mechanisms that include direct and indirect prosecutorial deterrence and social deterrence in order to measure their effects on government forces and rebels. Their dataset is a sample of states with some civil war experience (1945-2011), including 297 government-rebel dyads (1989-2011). Their findings show that there are positive deterrence effects, i.e. that there is a decline in civilian killings in states under the ICC’s jurisdiction after the Rome Statute came into effect. (I don’t have the details on the specific indicators.)
One of the most interesting parts of Simmons and Jo’s study is their identification of conditions for social deterrence. For government forces, the likelihood of social deterrence depends on whether they are dependent on the international community (particularly for foreign assistance and trade) and whether human rights organizations are mobilized to advocate for justice. Rebel groups will only be susceptible to social deterrence if they have “governance aims.” As Simmons put it, if they don’t care about social capital they are just criminal actors incapable of being deterred by this mechanism.
Moreno-Ocampo offered a response that largely concurred with the study’s assumptions and findings. He argued that the “goal of the ICC is to deter crimes within its jurisdiction.” This is a somewhat blunt and simple statement—one that would irk those who argue that the Court is incapable of changing the calculus of perpetrators or that it is inappropriate for the Court to play a political role in conflict resolution. Moreno-Ocampo didn’t offer much on the role of social deterrence, save for the caveat that those individuals who “intentionally terrorize civilians for personal or political purposes are difficult to deter under any circumstances.” But when advocating for the effects of prosecutorial deterrence, the former Prosecutor lamented that politicians want to deter crimes through negotiations and not in the courtroom, and the ICC’s activities and diplomacy need to be “streamlined.”
Moreno-Ocampo concluded with a proposal for an ICC intervention in Syria. He suggested that the UN Security Council should refer the Syria situation to the ICC but with “delayed jurisdiction” that would begin in January 2015. (Similar to what Mark Kersten and Kip Hale have previously suggested.) This would give all parties to the conflict time to end their commission of atrocities and ensure accountability. This, he argues, would “change behavior without changing the regime.” Moreno-Ocampo offered no comment on whether this proposal would persuade the P5 UNSC members, most of all Russia, who have been relatively silent on the ICC’s potential role in Syria.
But what about…
Rebels and Governance
The “governance aims” of rebels should not be narrowly interpreted to mean that they only seek office in national institutions. Many rebels have local governance aims that can also be affected by social deterrence mechanism of the ICC, particularly if indicting rebels raises the costs of financially and politically supporting them in the territory they control. For example, indictments of rebel leaders could impact defections within their ranks, local support from civilians (if there is any to begin with), their ability to work with and accumulate resources from Multinational Companies, resource networks, and neighboring states, etc.
I think there is a third type of actor that the ICC and threats of judicial intervention could deter: states and individuals who provide proxy support for rebels. I’m thinking here of the likes of Charles Taylor’s support for the RUF in Sierra Leone, Jean-Pierre Bemba’s MLC involvement in the Central African Republic, and President Kagame/RPF regime’s support of the M23 rebels in the DRC. There is some evidence to suggest that increased pressure from the UN Security Council, the ICC’s jurisdiction in the DRC, and the stick of reduced aid from the UK and US was enough to pressure Rwanda to reduce support to the M23. You could possibly make this a subset of government forces, but I think there’s a different dynamic and political calculus to proxy support.
Simmons was keen to note that, beyond prosecutions, part of the ICC’s effects on deterrence depends on its ability to help develop local rule of law capacity. Moreno-Ocampo agreed, citing this as a “peer control” mechanism of deterrence. Indeed he even began with his oft-cited contentious remark that a key indicator of the Court’s success is that it would have no cases to prosecute and domestic institutions would have the capacity and political will for domestic accountability.
I would suggest that there are two important qualifiers for this deterrence mechanism. One, the ICC doesn’t have the mandate or the capacity to provide rule of law assistance to affect positive complementarity. Second, other actors — namely civil society and professional associations — are the primary conduits to provide the technical assistance and advocacy needed for states to upgrade their rule of law institutions and make constitutional reforms (in conformity with their Rome Statute obligations). Perhaps this is politically preferable. Giving the ICC the means to directly influence domestic rule of law reform risks lending more credence to the criticism that the Court is a means of judicial neo-colonialism.
Studies on the ICC’s impact on conflict resolution—whether in terms deterring or preventing civilian killings—are subject to common methodological challenges of causality and counterfactuals. Nevertheless, advocates and scholars of the ICC are determined to counter the skepticism that the ICC is too weak to be effective beyond trial and punishment in the courtroom. If Moreno-Ocampo is right and the ICC’s ultimate success is to do itself out of a job, preventing and deterring perpetrators of atrocities is of parallel importance to accountability.
*The quotations are accurate but I have otherwise paraphrased their comments.