International Justice

CJ354 Endicott College

Considering Deterrence

The peace versus justice section of the course introduced the debate surrounding judicial deterrence, and whether the ICC and other international tribunals discourage future atrocities. International accountability is a topic controversial in nature, but what stuck out to me, particularly in the Akhavan reading, is that this accountability is not uniform. It seems to me that only certain countries are vulnerable to the accountability of international tribunals.

Of course this would require more research, and Forsythe discusses this more, but international politics always seems to be the manipulator of international justice. Let me clarify – we don’t see the great powers in the ICC or other tribunals. The deterrence debate is debunked because it seems unclear, to me at least, who exactly we’re observing deterrence from? Akhavan’s case studies (Ivory Coast, Uganda, and Darfur) are all States that appeared within the top 21 of the 2011 failed states index. It would seem that this begs the question – is this judicial deterrence argument a glorified way to argue Western leverage over the political calculus of political actors in weak or failed states? If judicial deterrence were a valid argument, it’s affects wouldn’t be only in those states vulnerable to great power politics.

This is a very pessimistic way to look at judicial deterrence, and perhaps the ICC is still too young to capture the full scope of its capacity to deter, but right now the cases illustrate an unfair playing field of international justice.

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One response to “Considering Deterrence

  1. j.a. December 5, 2012 at 6:35 pm

    This post raises interesting questions about the capacity of the ICC and international tribunals to deter future atrocities. The post rightly observes that perpetrators originating from powerful western countries have not faced justice in The Hague, whereas perpetrators from weaker “failed states” have. However, I would not go so far as to say that the “judicial deterrence argument [is] a glorified way to argue Western leverage over the political calculus of political actors in weak or failed states.”

    First of all, this argument is based on the assumption that the ICC does indeed deter future atrocities. The ongoing situation in Syria serves as a reminder that the capacity of the Court, or international justice at all, to deter the commission of atrocities is very much in doubt, to say the least. If the Court does have the capacity to deter atrocities, I would not characterize this in terms of western states coercing third world countries/failed states. If the ICC is able to alter the “political calculus” of state actors and, in doing so, prevent war crimes or crimes against humanity from taking place, then I would argue that the nationality of the actor doesn’t matter. The prevention of atrocities transcends the political objectives of western states, therefore western states cannot ‘wield’ the deterrence capacity of the ICC as a tool to influence policy in other states.

    However, western countries certainly can wield the prosecutorial function of the ICC to advance their own foreign policy objectives. An example of this is the US decision to abstain from the Security Council vote that referred the Sudan situation to the ICC. In this context, the fact that no one from a western power has stood trial in The Hague remains a significant problem for the Court’s legitimacy as an apolitical and independent institution.

    It will be interesting to see whether the new prosecutor, Fatou Bensouda, follows the example of her predecessor by emphasizing the Court’s potential capacity to deter future atrocities as much as her predecessor did. I would argue that the Prosecutor should deemphasize deterrence in her public speeches, and instead focus on the core functions of the Court—investigating, trying and prosecuting the worst offenders in cases of war crimes, crimes against humanity, etc. It appears to me that international justice is, for lack of a better word, too messy for deterrence. The infinite uncertainties and complications that surround arresting perpetrators for trial at The Hague make international justice (at least in its current form) unsuited to deterrence. For deterrence, we have the Security Council, with its capacity to authorize a military intervention. Murderous autocrats like Assad who commit war crimes against their own people might not fear justice from the ICC, but they should fear tanks and warplanes.

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