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The International Criminal Court and the Deterrence of Human Rights Atrocities
Abstract
Research on human rights treaties has mostly reached depressingly similar conclusions – that such treaties and their resulting institutions have little or no impact on human rights. The International Criminal Court, however, possesses significant power to investigate and prosecute violations of international law that equip it with potentially more influence than previous human rights regimes. I suggest, however, that the impact of the ICC on human rights is conditioned by signatory governments’ commitment to good governance and acceptance of the role of the ICC in addressing violations of international law. I develop a two-stage model of ICC ratification and human rights abuse that shows that while many states have ratified the ICC Treaty, not all are committed to stopping the crimes under its jurisdiction. Rather, state commitment to human rights depends first on its commitment to the rule of law within its own borders. Second, commitment to human rights depends on states’ willingness to grant the ICC the powers necessary to carry out its mission. Through a number of statistical tests, I find strong support for these hypotheses on states’ human rights and propensity for violence.
... 13. See Meernik (2015) for an analysis of potential strategies for the ICC to hasten arrest or surrender of alleged criminals. ...
... Finally, the ICC may also generate deterrence through other, more indirect channels, as noted by Dancy (2018). First, the existence of the ICC may force regimes to increase their domestic enforcement of ICC-prosecutable cases in order to avoid the Court's intervention (Sang-Hyun, 2013;Meernik, 2015). Therefore, governments may be pressured to increase either p n , f n or both, so that they get close enough to the ICC threshold (s n ≈ s). ...
This thesis is a contribution to the Law and Economics literature. It focuses on the phenomenon of deterrence in an international crime setting. Each chapter explores, theoretically or empirically, a question on this topic that has received little attention so far in the literature. The first chapter is a theoretical contribution, focusing on the organized nature of international crime. This organized feature raises an issue of allocation of law enforcement policy resources among members of the organization. The central finding of this chapter suggests that above a certain level of harm caused by international crime, the optimal law enforcement policy for the policymaker involves investing resources in detecting all criminals of the organization. The second chapter is an empirical contribution, focusing on the deterrent effect of the International Criminal Court (ICC). The inclusion of interactive fixed effects in the models provides a more credible estimate of the deterrent effect of the ICC than the estimates provided by the literature so far. It is shown that the ICC provides a deterrent effect on non-governmental groups in countries with high levels of international crime and weak institutions. In countries with low levels of international crime and strong institutions, the ICC does not generate a deterrent effect. The third chapter is a theoretical contribution, focusing on the contribution of non-governmental organizations (NGOs) to the deterrence of international crime. In a context where the government has common interests with international criminals, the presence of an NGO that monitors and reports international crimes is socially beneficial if the cost of its activity on the government is high enough. NGO radicalism in this context is counterproductive.
... Moreover, the ICC's complementarity regime requires state parties to the Rome Statute to try those who commit atrocities domestically (Jo et al, 2018). Therefore, we should expect prosecutorial deterrence to be stronger for ICC members than for non-ratifying states because perpetrators would have to fear prosecution in either the national or international arena (Meernik, 2015). ...
... However, the author's analysis of ICC deterrence effects is not limited to crimes within the ICC's jurisdiction and for example includes political imprisonment; which unless undertaken in a systematic and widespread manner, would not fall within the subject-matter jurisdiction of the court (see Cryer et al, 2019). Meernik's (2015) findings on deterrence effects from ICC treaty ratification are similarly affirmative. However, the author's results that 'those nations that are committed to the rule of law at home and abroad are much less likely to become subject to an ICC investigation' (Meernik, 2015, p. 335) are hardly surprising and of little analytical value given the ICC's complementarity regime where the court only prosecutes individuals not adequately tried in domestic systems. ...
The International Criminal Court (ICC), among other international organisations, has come under criticism for performing badly or even aggravating the situation on the ground where it intervenes. But empirical studies measuring the court's performance are still scarce, the expectations too high, and the evidence inconclusive.
This dissertation studies the ICC's performance empirically based on one performance indicator, deterrence. Deterrence refers to a reduction in civilian fatalities by action of the court. The dissertation also proposes a new theory of international support by which the strength of ICC deterrence is influenced by the level of international support for the court at that time of the investigations.
The analysis is based on the ICC situation in Darfur, Sudan-a region that experienced a particularly bloody, protracted ethnic conflict and the subject of the first UN Security Council referral to the court. This dissertation applies a mixed methods research design. The quantitative analysis uses negative binomial regression to test the effect of six ICC interventions on daily civilian fatalities in Darfur. The qualitative analysis uses process tracing to examine whether international support influenced ICC deterrence effects.
I find that the ICC did exercise deterrence effects at the beginning of the conflict. A strong commitment to the court by the international community, in particular by members of the UN Security Council, enhanced ICC deterrence by raising the perceived likelihood of prosecution. However, the court's deterrence potential is much lower for the first arrest warrants in Darfur, where militia leaders and senior government officials, including President Al-Bashir were indicted. The analysis of the Darfur situation suggests that ICC arrest warrants exercise a negative deterrent effect, increasing civilian fatalities, absent international support for their enforcement. Those findings have, inter alia, practical implications whereby, upon validation by further studies of other ICC situations, they may be used to guide the strategy of the ICC prosecutor.
... 14 Recent research has shown that mass atrocities are less likely to occur in a state that has ratified the Rome Statute and is willing to grant the ICC the powers operate within its country. 15 This finding is, however, likely to be a result of a signalling mechanism, since states generally refrain from referring their situations to the ICC. Nevertheless, the ICC can contribute to justice through signalling that the international community will not let war crimes, crimes against humanity, and genocide go unpunished. ...
The question of how International Criminal Court (ICC) involvement affects civil war peace processes has attracted considerable debate. Systematic assessments of the impact of ICC arrest warrants have begun to emerge, but the evidence is mixed. Based on data from the Uppsala Conflict Data Program (UCDP) on intrastate conflicts between 2002 and 2018, this article presents evidence that suggests that ICC arrest warrants do not inhibit the onset of mediation. Neither do ICC arrest warrants seem to prevent peace agreements from being concluded. Crucially, however, ICC arrest warrants do seem to undermine the prospects for conflict resolution, defined as the termination of a conflict through a negotiated settlement. A closer look at mediation efforts in Uganda, Sudan, and the DRC reveals some of the causal mechanisms that underlie the finding that ICC involvement undermines the prospects for conflict resolution.
... Group members will treat convictions of their co-ethnics with scorn, while celebrating convictions of ethnic rivals. Research in the former Yugoslavia has repeatedly demonstrated that individuals interpreted court operations through the prism of ethnic rivalries (Arzt 2006;Clark 2009;Ford 2012;Klarin 2009;Meernik 2015b;Milanović 2016;Steflja 2018). ...
“The International Criminal has struggled with the perception that it is biased against Africans, especially in relation to its investigation in Kenya. But which Kenyans are most likely to believe the ICC is biased?” Building on pluralistic models of public opinion and psychological studies, we aim to contribute to emerging research on attitudes toward international courts. We expect that group attachments will drive attitudes toward international institutions. Yet, we also theorize that exposure to violence makes individuals more likely to support international justice and reject narratives that would have the effect of insulating those who have committed crimes from being held accountable. Using new survey data from 507 Kenyans in the fall of 2015, we find support for our hypotheses.
... The fact is that the international human rights regime is not a great deterrent when states and other powerful entities are intent upon committing the most egregious crimes. Increasingly, commentators on human rights are reaching depressingly similar conclusionsthat human rights treaties and their resulting institutions have little or no impact on the observance of human rights (Meernik, 2015;Hafner-Burton and Tsutsui, 2007). ...
The International Criminal Court (ICC) was founded to end impunity for war crimes, such as violence against civilians, but its legitimacy as an impartial institution is often questioned. Previous research has suggested that even though the ICC gets involved in the worst atrocities, investigations and prosecutions are influenced by political interests. We show that member state interests are critical already at the selection stage of initiating preliminary examinations. We theorize that incentives and drivers of ICC involvement move through two pathways. On the one hand, the Prosecutor seeks to maintain public legitimacy through performance; it does so by getting involved in the worst situations and thereby meeting the expectations on the Court as outlined in the Rome Statute. On the other hand, states can refer situations to the ICC as a way of managing their own domestic military challengers; the Prosecutor seeks to maintain cooperation from member states by examining such situations, even if the crimes are less severe. These pathways to examinations matter because state-referrals are more likely to move to investigations. We examine this argument through a global analysis, covering the period 2002–2019, using a multinomial regression model for the two pathways. Our findings support these claims. We also provide additional qualitative descriptions of how domestic challenges have clearly preceded self-referrals by governments in all cases but one. By differentiating the two pathways, we accommodate conflicting claims about the politicization of ICC involvement versus attention to the most severe situations.
Međugeneracijski prijenos stavova prema kažnjavanju ratnih zločina: Vinjetna studija u Bosni i Hercegovini 1 Sažetak Ova studija istražuje međugeneracijsku sličnost (tj. međugeneracijski prijenos) u stavovima pre-ma kažnjavanju ratnih zločina u Bosni i Hercegovini, postkonfliktnom društvu koje se još bori s naslijeđem rata. Koristeći vinjetnu studiju, istraženi su (dis)kontinuiteti o stavovima prema kažnjavanju ratnih zločina između roditelja, koji su iskusili rat, i njihove djece, koja nemaju izravnog iskustva s tim događajima. Podaci su prikupljeni iz prigodnog uzorka. Distribuirane vinjete bile su usredotočene na željenu duljinu kazne u scenariju iskonstruiranog zločina s vari-jacijama u rangu počinitelja, mjestu suđenja i isprikama. Također, prikupljeni su demografski podaci ispitanika, uključujući dob, spol, etničku pripadnost, obiteljske uloge i osobna iskustva sukoba. Studija je otkrila skromnu, ali dosljednu korelaciju između stavova prema kažnjavanju roditelja i djece, s primjetnim kvalitativnim razlikama u njihovu razmišljanju. Ovi nalazi prido-nose razumijevanju nijansi međugeneracijske sličnosti u stavovima prema kažnjavanju u post-konfliktnim okruženjima, ističući potrebu za širim procjenama kako bi se u potpunosti shvatili dugoročni učinci rata i zločina na društvene stavove. Ključne riječi: međugeneracijska transmisija, rat, ratni zločini, stavovi prema kažnjavanju, vinjeta.
Scholars commonly argue that international law and organizations promote democracy by helping dictators to credibly commit to accountability, individual rights, and transparency. Yet dictators routinely join treaties and international organizations without transitioning to democracy. International law and organizations can generate asymmetric costs for domestic actors because international rules often apply to both governments and non-state actors, yet dictators can limit how these rules are upheld at the domestic and international level. We argue that dictators are most likely to join such treaties and international organizations when they face strong domestic political competition. We illustrate our argument using the International Criminal Court (ICC), which has extensive powers to prosecute individuals for international crimes, including crimes against humanity, genocide, and war crimes. We show that ICC investigations and prosecutions have become a tool for incumbent dictators to target their domestic opponents. We examine the implications of our theory for multiple outcome variables, including the decision to join the ICC, violence, and the survival of dictators in power. Our evidence suggests that dictators are most likely to join the ICC when they face strong political opponents and are subsequently less likely to commit violence and more likely to survive in office.
On July 17, 2023, the International Criminal Court (ICC) will mark the 25th anniversary of the adoption of the Rome Statute, its founding treaty. The Statute constituted a remarkable transfer of authority from sovereign states to an international institution: The ICC is the first permanent court charged with prosecuting individuals, including senior political and military leaders, for atrocity crimes. Per the Statute, the ICC was designed with the goals of ending impunity for these crimes, contributing to their prevention, and delivering justice to victims. To what extent has the ICC achieved these and other goals in the Rome Statute? The ICC’s upcoming anniversary provides an opportune moment to examine this question and take stock of the Court’s performance. This special issue of the Journal of Human Rights addresses this question from an empirical perspective, focusing on two themes: (1) the ICC’s relations with states, which critically condition its operations and impact, (2) the Court’s effectiveness in achieving the goals outlined in the Rome Statute, specifically ending impunity and mitigating violence.
Human rights activists, international organizations, and certain governments have championed prosecutions as a strategy to prevent conflict-related sexual violence, and the International Criminal Court (ICC) has focused extensively on prosecuting sexual violence crimes during its first two decades of operations. However, even as a growing body of empirical evidence suggests that the ICC contributes to improved human rights practices and the prevention of other atrocity crimes, such as violence against civilians, claims concerning the preventive effects of prosecutions on sexual violence remain largely untested. The purpose of this article is to test these claims. To this end, we analyzed the effects of ICC jurisdiction, interventions, and cross-case actions on sexual violence by government forces in intrastate conflicts from 1989 to 2018, using the Sexual Violence in Armed Conflict (SVAC) dataset. Contrary to the optimistic claims of proponents of prosecutions, we found that ICC jurisdiction and cross-case actions have negligible effects for this category of actors. We also found that ICC interventions are associated with increased sexual violence by government forces in intrastate conflicts. These findings suggest that prevention might require alternative—and, in some cases, potentially costlier—interventions.
Twenty years after the Rome Statute of the International Criminal Court (ICC or Court) entered into force, the ICC’s role in preventing atrocity crimes remains controversial, with skeptics arguing that it is unrealistic, pessimists that it overlooks the potential of the Court to escalate conflicts, and optimists contending that it can work for both government and rebel leaders. I argue that during civil wars the ICC is only likely to deter rebel forces, given that Court officials are likely to have an easier time pursuing their leaders should they commit atrocity crimes. This article systematically evaluates these competing claims by providing the most extended look yet at the ICC’s record in African civil wars, the primary focus of the Court’s efforts to date. I find that existing perspectives do not tell the full story of the ICC’s impact in war zones. The results suggest that the ICC has failed to deter African government forces. However, I uncover highly suggestive evidence that the more actions the ICC takes to pursue suspected war criminals during ongoing conflicts, the more likely it is to deter rebels. Notably, most of these ICC actions have targeted rebels. Importantly, I find no indication that the ICC is associated with increased civilian killings by either government or rebel forces. With the permanent ICC, the shadow of criminal prosecution now extends to modern-day conflicts. This study helps to broaden our understanding of how and when the ICC might contribute to deterrence.
In states emerging from mass violence and human rights abuses, do individuals prefer retributive punishment of perpetrators through trials, or do they wish to be compensated with land or monetary reparations for their injuries? How does the concrete option of prosecutions by the International Criminal Court (ICC) moderate these preferences? Using unique survey data from 507 Kenyans collected in 2015, we build on and add nuance to the empirical literature that interrogates the link between exposure to mass violence and post-conflict justice preferences. We find that while some individuals prefer reparative justice, victims and witnesses generally want perpetrators to be prosecuted. Even for those who are co-ethnics of government leaders – who allegedly instigated widespread killing, sexual assaults and displacements – direct exposure to those acts leads to greater desire for prosecutions. We further find that one’s personal experience with violence also leads one to reject domestic justice in favor of international justice: victims and witnesses who favored retributive justice are highly likely to believe that the ICC is the best option for prosecuting perpetrators.
What will be the consequences of the criminalization of aggression? In 2010, the International Criminal Court made aggression a crime for which individuals can be prosecuted. But questions around what constitutes aggression, who decides, and, most important, how effective this legal change will be in reducing the incidence of war remain. This essay considers these questions in light of two recent books on the criminalization of aggression: Noah Weisbord's The Crime of Aggression: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats and Tom Dannenbaum's The Crime of Aggression, Humanity, and the Soldier . While the authors argue in favor of the efficacy of the criminalization of aggression as a means to reduce future war, it is also likely that the criminalization of aggression will reshape war in potentially profound ways.
Advocates of wartime international criminal tribunals (ICTs) hope that such tribunals can deter combatant atrocities against civilians. Yet, more than twenty-five years after the establishment of the first wartime ICT—the International Criminal Tribunal for the former Yugoslavia (ICTY)—wartime ICTs’ role in deterring such violence remains a matter of debate. Insights from criminology, as well as research on civil conflicts and international legal compliance, suggest that ICTs are most likely to deter government and rebel forces from committing atrocities against civilians when all three of the following conditions are present: (1) ICT officials have secured sufficient prosecutorial support, (2) combatant groups rely on support from liberal constituencies, and (3) combatant groups have centralized structures. Case studies of the ICTY's impact on fourteen combatant groups from the Yugoslav conflicts—combined with hundreds of field interviews with war veterans and others—confirm this prediction. The ICTY's record thus sheds important light on how and when contemporary wartime ICTs—including the International Criminal Court—might succeed in deterring combatant atrocities against civilians.
The impact of the International Criminal Court (ICC) on peace processes has received much scholarly attention. We argue, based on the ICC arrest warrant against Sudanese President Omar al-Bashir, that ICC indictments against government officials not only can be detrimental to the prospects for peace, but can also negatively affect everyday practices of peacekeepers and humanitarian workers. We draw on a combination of quantitative and qualitative data in order to develop our argument. We interrogate some measurable consequences of the indictment in relation to the work of the United Nations – African Union Mission in Darfur (UNAMID) as well as humanitarian actors in Darfur. We do so using a data set compiled to support the work of UNAMID. We also draw on interviews with UN and UNAMID staff, aid workers, and representatives of the conflict parties. Our analysis shows that the indictment of President al-Bashir was perceived by the Sudanese government as the continuation of a confrontational approach pursued by the international community. We further show that the indictment accelerated patterns of obstruction and intimidation of peacekeeping actors, other third-party actors, and local staff associated with these. This complicated the everyday activities of peacekeepers and humanitarian efforts.
The Legacy of Ad Hoc Tribunals in International Criminal Law - edited by Milena Sterio February 2019
States have long employed other actors, including other states and nonstate actors, as fighting forces to help them achieve the national security objectives that they are unwilling or incapable of realizing unilaterally. In the international courts in recent years, however, there has been the increasing willingness to hold individuals accountable for violations of international law committed by those forces to whom they are providing assistance. For example, the Special Court for Sierra Leone found President Charles Taylor of Liberia guilty of aiding and abetting forces in Sierra Leone that repeatedly violated international law and inflicted untold human suffering on the people of that country. After delineating the legal risks facing state leaders that provide support to third party actors, I delve into conflict data to determine just how widespread the problem is. I examine the frequency with which actors commit violations of international law, and in particular the targeting of innocent civilians, and the extent to which such forces are being assisted by external actors. I find that this problem is prevalent and that many major powers have provided assistance to allies that violate international law.
This book provides the most comprehensive and scientific assessment to date of what it means to appear before war crimes tribunals. This ground-breaking analysis, conducted with the cooperation of the International Criminal Tribunal for the former Yugoslavia (ICTY) Victims and Witnesses Section, examines the positive and negative impact that testifying has on those who bear witness to the horrors of war by shedding new light on the process. While most witnesses have positive feelings and believe they contributed to international justice, there is a small but critical segment of witnesses whose security, health, and well-being are adversely affected after testifying. The witness experience is examined holistically, including witness' perceptions of their physical and psychological well-being. Because identity (gender and ethnicity) and war trauma were central to the ICTY's mandate and the conflicts in the former Yugoslavia, the research explores in-depth how they have impacted the most critical stakeholders of any transitional justice mechanism: the witnesses. Provides insight into multiple dimensions of the witness experience Uses the lens of identity (ethnicity and gender) and experience (war trauma) to evaluate the impact of testifying Contributes to a better understanding of the most important legacies of the International Criminal Tribunal for the former Yugoslavia for the ICC and future tribunals. © Kimi Lynn King and James David Meernik 2017. All rights reserved.
The Pilot Study consists of a five part survey instrument involving 220+ questions and 15 - 20 minute interview evaluating witness’ background and reasons for testifying; socio-economic impact of testifying; security concerns; physical and psychological health and well-being; and perceptions about justice and the ICTY. Surveys were administered by VWS staff over a two-year period (2013-2015) to 300 fact witnesses living in Bosnia and Herzegovina, Croatia, Kosovo and Serbia.
