A critique of the deterrent effect of international criminal justice in the prevention of mass atrocities

Abstract

The International Criminal Court was established to prevent and deter persons from committing mass atrocities. The Court's founding has marked the start of a new era in international justice. The Statute of the Court, unlike other international legal instruments such as human rights treaties, gives the Court the ability to investigate and prosecute individuals suspected of committing genocide, war crimes, and crimes against humanity. Despite its ability to do so, the issue remains, whether the ICC has helped to prevent gross human rights violations. This is a contentious issue among academics and policymakers. There are several scholars that have written on the International Criminal Courts deterrence effect on the prevention of mass atrocities, however this paper will look at the costs that the court can inflict on perpetrators of mass atrocities as a deterrent impact of the ICC. In so doing, the paper will in turn look at whether the court has carried out its mandate and prevented grave human right violations. Deterrence is based on both normative pressure and material punishment, and the combination is more effective than either one alone. ICC prosecutions may also have a normative effect. One of the classical purposes of criminal punishment is deterrence, severe punishments and certainty of punishment affect deterrence. The deterrent effect of the ICC may therefore be minimized by its reduced probability of prosecution, or confined to certain types of situations and individuals, but not eliminated. The ICC has the potential to become a productive participant in local political interactions. The effect of the Court relies on civil society actors who support accountability and monitoring of ICC interventions in both cases, ceasing hostilities or reducing civilian targeting. State parties should therefore support the ICC prosecution to increase the consistency and credibility of the ICC prosecution so that this potential deterrent impact becomes more real than theoretical.