The Argument of Deterrence and the International Criminal Court: Substantiated or Not?

The International Criminal Court has repeatedly emphasized its objective to deter mass atrocities in its outward-facing communication of purpose. In its early days, both its President and Prosecutor acknowledged the goal as they spoke publicly about their hopes for the role that the ICC would come to play on the international stage. That said, the word deterrence does not appear a single time in the operative clauses of the Rome Statute—the treaty that established the ICC—and is only expressed as a hoped byproduct of the fulfillment of the ICC’s task in the preambulatory clauses. Using deterrence as a metric for measuring the success of the International Criminal Court, despite the ICC never being formally charged with such, falsely equates the contractual occasion for the Court’s existence with its hoped outcome. By extension, the false appropriation of its fundamental objective—largely self-constructed—problematically undermines the perception of the ICC as a successful institution. 

Though the preambulatory clauses of the Rome Statute indicate that, amongst many hoped outcomes, it aspired to contribute to the “prevention of such crimes,” the work officially charges the International Criminal Court with the task of exercising its jurisdiction “over persons for the most serious crimes of international concern.” [1] A simple evaluation of this phrase suggests that the ICC exists as a punitive institution, much like the International Military Tribunal and the International Criminal Tribunals for the former Yugoslavia and Rwanda which preceded it and catalyzed its creation. [2] This interpretation of the purpose of the ICC is supplemented by the fact that the Statute includes no operative clauses to establish systems directly responsible for addressing the issue of deterrence. As Kate Cronin-Furman highlights in her piece, “Managing Expectations,” the ideal of deterrence has long been wielded as a mechanism for garnering international support for the ICC: “Deterrence claims have remained a major feature of the conversation about the ICC’s role.” [3] Deterrence was mentioned by the first President of the ICC in his speech commemorating the opening of the ICC and by Louis Moreno-Ocampo, the former lead prosecutor, in speeches often. [4] The choice of ICC officials to tout the ideal has counterintuitive effects on its reputation. The Court’s success is now largely gauged on the frequency at which mass atrocities are being committed after its establishment, rather than the extent to which they properly prosecute those who have committed the most grave of war crimes in any specific locale. 

The focus on deterrence prevents recognition of the nuances within each success and failure the International Criminal Court has. Cronin-Furman, a scholar researching the effectiveness of the ICC, acknowledges some of these nuances, claiming that, “The punishments the ICC can impose are less stringent than those that would be imposed by domestic jurisdictions…” [5] Using the metric established by the operative clauses of the Rome Statute, the issue should be viewed through a lens of sentencing. Critics of the ICC should be frustrated with the severity of individual punishments for war criminals, and success for the ICC would appear as judges began to hand out more severe sentences. That said, using deterrence as the metric, the issue becomes much broader. Critics would be concerned about how the court’s overall appearance of leniency may impact the future, rather than how it impacts the immediate circumstance. Using this example, what may be considered a success to the court in properly achieving custody of and conviction for a war criminal, and perhaps a success to the people of the region, may be thought of by those who misunderstand the purpose of the court to be a failure. 

Many members of the general international public hold the perception of the International Criminal Court as insufficiently performing. Arguably, the Court is to blame for much of this: “It is often said that the ICC suffers from an expectations gap—one partly of its own making.” [6] The problem at hand is the outward-facing rhetoric used by Court officials, offering high promises that seem to concretize hopes that the ICC could and would take command of the world order and establish reigning international justice, none of which it has the ability to manage. By creating such an image of what the ICC should be, its few successfully completed trials seem meager. Instead of adhering to the realistic scope of its explicitly charged objective, especially given the retrospective benefit of understanding the costs and time it would take for each case following the ICTR AND ICTY, the Court mistakenly told the international public that it would benefit them in “unprecedented” ways. [7] 

In consideration of its volatile reputation, the ICC has become an architect of its own nightmares by inflating its purpose. The ICC has been unable to stop mass atrocities from occurring, research is minimal at best to suggest that they are occurring less frequently than before, and thus, the ICC should instead level with the international community about its true capabilities. 

Grace Posorske is a junior at Brown University concentrating in International & Public Affairs and Classics. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at grace_posorske@brown.edu.