International Justice

CJ354 Endicott College

Tag Archives: Deterrence

Deterrence: The Story in the Central African Republic

According to an article in Reuters, 650,000 people have been internally displaced so far by violence in the Central African Republic (CAR), and 300,000 people have fled to neighboring countries. The International Criminal Court (ICC) announced that is deploying a mission to the Central African Republic on Monday to interview suspected victims of violence and draw up a preliminary list of suspects to be prosecuted. Bernard Acho Muna the chair of the inquiry set up by the U.N. Security Council in December says that he hopes to “head off the prospect of a campaign of genocide.” He went on to say: “We don’t wait until genocide is committed and then we call for prosecution. I think it is in our mandate to see how one can stop any advances toward genocide.” Muna’s experience with the Rwandan genocide in the 1990’s and the international community’s delayed response has definitely colored the ICC and Muna’s response to the current situation in the CAR. But I wonder if this case will in fact prove a deterrent to genocide. Akhavan in his work argues that trials raise the stakes for committing atrocities and thus deter future atrocities from being committed, but there is little good news in the media today to support the ICC. The Rwandan government has recently criticized the ineffective and incompetent international tribunal that was assembled to prosecute the Rwandan genocide, and in Kenya the government has not only been increasingly difficult to work with it has purposefully hindered the process. Will the threat of prosecutions end the violence in the CAR or will it continue despite the ICC’s intervention?


Cost-Benefit Calculations: The Case of Bosco Ntaganda

Last week, the “confirmation of charges” hearing for Bosco Ntaganda, former Congolese rebel leader of the FPLC and the M23, for war crimes concluded at the ICC. The purpose of the hearing was to determine if the Prosecutor’s office, headed by Fatou Bensouda, has enough evidence against Ntaganda to continue to trial.

The case made headlines last year when Ntaganda turned himself in at the American Embassy in Kigali, nearly four years after his indictment was unsealed, and requested to be transferred to the ICC in The Hague. His self-surrender is an interesting data point for considering whether the ICC could act as an effective deterrence mechanism. Ntaganda evidently decided that participating in his trial and being transferred to The Hague was preferable to his options in the Congo, although his reasoning for surrender was a topic of much discussion. The M23 was fracturing, eleven African countries had just signed an accord signaling their commitment to defeating the organization, and UN forces would by the end of 2013 drive the group to surrender.

Ntaganda had lost, militarily and politically, so his surrender meant that he was choosing detention and trial at the ICC over…death at the hands of other M23 factions? Certainly he stood to lose a great deal of power as the M23 split. His claim of indigence at the ICC, despite his rumored wealth, could suggest that he was set to lose financially as well. (Or, it could suggest that he would like to try to hide his wealth in favor of receiving free and high-quality legal representation, which is probably more likely.) Some have also suggested that Ntaganda was pressured by the Rwandan government, which seems credible especially because of the necessary involvement (or at least complicity) of the Rwandan government in allowing him to reach Kigali. Ultimately, however, Ntaganda’s surrender indicates that trial at the ICC is not necessarily considered a significant punishment. Joseph Kony has of course protested his indictment vociferously, but in Ntaganda’s case, transfer to the ICC removed him from a volatile and dangerous environment in which he was on the losing side. If trial at the ICC is viewed as a step above military defeat, rather than as the ultimate humiliation, its deterrent effects are likely minimal

ICC to Open Investigation into Central African Republic (Again)

CAR violenceICC Prosecutor Fatou Bensouda announced this weekend that her office will be opening an investigation into the violence occurring in the Central African Republic. The investigation will be looking into the conflict that began in late 2012 between the Central African Republic government and the rebel group Seleka. The situation escalated in March of this past year when the rebel group ousted president François Bozizé in a coup. Since then, the violence has continued, as violence and pillaging from rebel groups has prompted the formation of local militias. The violence is occurring largely on religious lines, as the rebel groups are primarily Muslims, and the local militias primarily Christian. Bensouda has cited claims of killings, sexual violence, and other acts of war crimes and brutalities as reason to investigate. The CAR is a member state of the Rome Statute, therefore this falls under the ICC’s jurisdiction, and Bensouda has not specified if there is a particular side of the conflict that will be investigated. Bensouda has also said that, in following the principle of complementarity, the ICC will be working with the CAR to look into domestic solutions to bring perpetrators to justice.

What makes this case particularly interesting is the fact that this is not the first ICC investigation into the Central African Republic. In 2007, the ICC also opened investigation into the CAR. At that time, it was a self-referral by the CAR government, which deemed itself unable to properly prosecute offenders of the violence that happened in 2002 and 2003 between Christian and Muslim militia groups. The investigation drew international attention, as it was the first ICC investigation to focus on sexual violence as the primary crime. The investigation resulted in the arrest of former CAR Vice President Jean-Pierre Bamba, who was arrested and is currently awaiting trial in the Hague.

This second ICC investigation into the CAR brings up questions regarding the effectiveness of the ICC, particularly in regards to its goal of providing deterrence. The 2007 investigation and the arrest of Jean-Pierre Bamba failed to stop the violence in the region, and the crimes being investigated this time around are more or less the same that were the center of the previous investigation. While the arrest of Bamba does make it seem as though the ICC is succeeding on the front of providing justice and preventing impunity for atrocities that have occurred, the CAR’s relapse into violence is a clear marker of how it is failing to deter future atrocities.

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.

Application of Discretion and No Discretion Game for Deterrence


As we saw in our last class, the mechanism and the effect of deterrence is very hard to measure. In my Introduction to Public Finance class, Professor Casey Mulligan showed us this “Discretion vs. No discretion Game,” which I think could help us think about deterrence. I wanted to share the game with everyone and modified it so that it directly fits our discussion.

There are two players in the game: warlord and ICC. The warlord values his freedom at $100 million and the gains from his crimes at $100 million. The ICC values people’s lives (although it is not a political institution) at more than $100 million and values the political cost of negotiating at $100 million. The warlord acts first, deciding whether to commit crimes or not, and the ICC acts next, deciding whether to prosecute the warlord or to negotiate with him if the warlord decides to commit crimes. When the ICC decides to negotiate, the warlord keeps his gains, but the ICC loses $100 million for negotiating. When the ICC decides to prosecute, the warlord continues to kill more people, which costs the ICC more than $100 million, while the warlord is captured and also loses his freedom of $100 million. When the warlord doesn’t commit crimes, no one loses or wins (at least no immediate gains or losses). Once the warlord commits crimes, it is in the ICC’s interest to negotiate because the loss of life would be more costly than negotiating. Knowing this, the warlord would commit crimes according to the game.

This game shows that when the ICC has the choice of negotiating or prosecuting, given a certain cost set-up, the ICC may choose negotiating (imagine a case where 1 million would die if there is no negotiation). This is the equilibrium of the discretion game, because the ICC has a choice to make. However, when the ICC has no option/discretion but prosecution, the warlord, by committing crimes, would lose his freedom when he commits crimes, and would choose not to commit the crimes (this is “the equilibrium of no discretion game”).

Obviously this is a simplified game. It doesn’t address those who have already committed crimes and their calculations. The calculations that goes through the warlord and ICC’s head are also much more complicated in reality. Pursuing prosecution does not guarantee arrest and incarceration; this game assumes that the warlord will be captured and lose his freedom. Finally, the cost on the ICC part is much more complicated in reality because it is a judicial institution, not a political institution like a state government that values its citizens’ lives in a certain way.

However, these are real choices that the ICC and warlords face, and maybe having the option of negotiating does change the warlord’s expectation and action. Perhaps a record of negotiation may signal such option to the warlord, leading the warlords to act in a certain way. Based on the insight from this game, it may be a good idea for the ICC to hold up its arrest warrants and prosecution, although it may not immediately contribute to the peace-making process. The actions of the ICC are watched by the world. They may have a lasting impact on its ability to have positive effects — whether they are promotion of international justice or deterrence of future human rights violations and conflicts — by changing the expectations of the relevant actors.

P.S. the original game that Professor Mulligan showed us has terrorist and the government as two actors. The terrorist takes hostages, and the government is left to give ransom or kill the terrorist, who would then kill everyone as he dies.

Deterrence a Possibility?

This video highlights possible peace deals between the Eastern Democratic Republic of Congo and military warlord “Cobra” Matata. This group is now requesting amnesty as well as the promise to keep their weapons and military ranks when or if they join the DRC military. In the wake of the ICC’s verdict finding Thomas Lubanga guilty of using child soldiers, many military leaders are now worried and looking to avoid possible punishment in the future.

The group is also threatening a return to violence if they are not granted amnesty.

We have often discussed whether or not the ICC is legitimate and if it does indeed have the ability to deter future possible war criminals from committing heinous acts. Here we can see that this deterrence is indeed possible as a fear has been stricken within the warlords of areas like the DRC and that could be argued as the first step to deterring future crimes from occuring. Without the fear of consequence, those who commit war crimes do so without hesitation but with the ICC handing down its guilty verdict against Lubanga this past Wednesday, the court has gained legitimacy in its ability to accuse, try, and prosecute individuals who commit crimes agains the international community. Could this Lubanga verdict be the first step in establishing a more powerful and effective International Court?