While I was off making my semi-annual offering to the gods of poorly-attended-panel-presentations, the political science blogosphere got interested in the ICC.
Taking on the ecstatic reaction to Bosco Ntaganda’s unexpected surrender last month, Fearon wonders whether this is truly a “victory for justice.” He identifies two possible reasons we might actually see perverse effects whereby the operation of the ICC could actually lead to increased human rights violations. The first is the classic argument espoused by Team Peace in the Peace vs. Justice debate: If you’re an atrocity committing potential ICC indictee, the possibility of facing accountability provides a profound disincentive against laying down your arms.
The second is what Fearon refers to as a liability limiting mechanism. He suggests that, all else equal, your ICC-indicted atrocity committer is in a better position than your unindicted atrocity committer, because if things start to go south, the former always has the option of an all expenses paid trip to The Hague.
This is an interesting argument, and one whose implications are worth teasing out. There are a couple of ways that The-Hague-as-escape-route could result in an increase in violations. We can think of them as mirror images to “general” and “specific” deterrence claims. (Note: This is the distinction between deterring potential future offenders vs. deterring future offenses by the individual being punished.)
First, in an exact reversal of arguments about the ICC’s possible “general deterrent” effect, the existence of the ICC might encourage potential perpetrators who wouldn’t otherwise commit atrocities to do so. In order for this to follow, some class of potential perpetrator would have to be interested in committing atrocities, but deterred by the risk of being killed in retaliation. These potential perpetrators would also have to be aware of the ICC and reasonably able to predict what will attract its attention, such that they could commit atrocities in a manner well-targeted to producing protective ICC warrants. This may be logically plausible for some marginal cases, but it seems practically improbable for many of the same reasons that a strong general deterrent effect is unlikely: ICC intervention is never certain, and is heavily constrained by both resource and political considerations.
The more likely scenario, and the one that I think Fearon likely has in mind, is something I’ve worried about for a while. For those specific perpetrators who have already attracted the attention of the ICC, the issuance of a warrant may operate as a license to kill. Once you know that you have the escape route to The Hague in place, whatever restraint was provided by the risk of suffering politically (including, but not limited to, retaliatory killing) for your actions will vanish. This raises the possibility that rather than producing specific deterrence, the ICC could in fact be producing the opposite (specific anti-deterrence?).
I agree with Fearon that the prospects for the ICC to directly deter the commission of mass atrocities are dim. However, this does not mean that the ICC cannot contribute to reducing the occurrence of these crimes through other mechanisms. For more on this, check out two other responses to Fearon’s post: Erik Voeten’s, suggesting that the ICC may encourage domestic level enforcement that will ultimately have the capacity to deter, especially in “countries where ‘mid-level’ human rights abuses occur,” and Heger, Aloyo, & Dutton’s, discussing their findings that ICC membership is correlated with significantly less torture.