A. Consequentialist Argument

From a consequentialist perspective, the ICC should select the course of action that will produce the best outcome.4 Under this theory, the ICC should carefully assess various courses of action, given limited information, and choose the action that will produce the most beneficial result. This would largely entail pursuing the course of action that produces a net social benefit in excess of opportunity costs.5 If the total consequences of prosecuting an individual would ultimately be dire rather than beneficial, prosecution should not be pursued.6 Accordingly, the ICC should base its decision to prosecute on the effects of prosecution, including whether it would result in further violence and atrocities or contribute to peace. Thus, one important consideration the ICC must weigh in making a calculated decision to prosecute is whether the course of action would result in less or more violence.

The costs of prosecution not only encompass administrative and judicial costs, but it also includes delaying peace efforts and contributing to long-term instability and violence.7 Under the consequentialist theory, the ICC should defer to alternative justice mechanisms in lieu of prosecution where there is a serious threat of increased violence and the costs of prosecution outweigh the benefits.

A critical restraint on effectively deciding whether to prosecute is the difficulty in accurately predicting the costs and benefits of such a decision. Consideration must be given to both short-term and long-term consequences. Prosecuting a war criminal may produce immediate dire consequences though this may be outweighed by its long-term benefits, such as securing peace. In other circumstances, prosecution may result in serious adverse consequences that may potentially lead to long-term instability and increased violence. Thus, it may be difficult to predict whether an ICC prosecution would deter a future would-be tyrant or incite him or other criminals to commit further atrocities. The paucity of information is one serious obstacle that the ICC Prosecutor must consider in evaluating the ultimate consequences of prosecution.8 Nevertheless, the ICC Prosecutor should defer to non-prosecutorial methods where the negative consequences of prosecution outweigh its benefits.

B. Appropriateness Argument

A countervailing theory to the consequentialist theory is the logic of appropriateness. Decision-makers are driven by rules of appropriate or exemplary behavior and they seek to fulfill the obligations of their role and the ethos, practices and expectations of their institutions.9 Under this theory, actors follow norms because they think it is the right or legitimate thing to do.10 Accordingly, there is an affirmative duty to prosecute because it is morally right. Whether the effects of prosecution negatively outweigh its benefits is immaterial in deciding the proper course of action.

Under this paradigm, achieving justice is essential in the international human rights context. The logic of appropriateness would require the Prosecutor of the ICC to adhere to prosecuting criminals regardless of the outcome or any policy consideration. Whether the outcome contributes to an increase in violence, which results in mass atrocities and bloodshed is inconsequential. The ICC Prosecutor should prosecute those individuals who have allegedly committed human rights violations because it is the legitimate thing to do. Thus, this theory rejects non-prosecutorial methods since it would usurp the functions of the ICC Prosecutor to achieve justice.

In order to maximize crime prevention, the ICC must strategically employ those methods that will contribute to this objective. Because the logic of appropriateness must be rigidly applied and no consideration is given to the effects of prosecution, the logic of appropriateness must be discarded and replaced with the consequentialist theory in deciding whether to prosecute.

II. Positive Complementarity

Positive Complementarity is the idea that the Office of the Prosecutor (OTP) and Chief Prosecutor should encourage states to prosecute domestically.11 The objective of positive complementarity is to strengthen domestic capacity, which arguably will have a long-term preventative impact.12 The ICC can effectively prevent atrocities by encouraging states to establish systems and institutions to try international crimes.

A. Prevention and Complementarity in the International Criminal Court

A criticism of the ICC is that it presumes that the perpetrators of armed conflict are rational decision-makers, and thus are deterred by the threat of prosecution.13 Because mass atrocities occur during a collapse in the public order, assuming perpetrator rationality may be unreasonable.14 Positive complementarity, on the other hand, seems to be a more effective strategy to adopt because of its long-term impact on national judicial systems. The ICC can foster respect for the rule of law both domestically and internationally by adopting positive complementarity and cooperating with states parties to facilitate “ICC-supported transnational networks dedicated to international criminal laws.”15 Over time, strong judicial institutions can stabilize societies by establishing norms that prevent impunity and uphold the idea that no one is above the law. This in turn can strengthen the principles of democracy and the rule of law in a society. Additionally, the ICC can turn to the international community—the UN and other State Parties—to increase diplomatic pressure or encourage individuals to denounce the violations that they might otherwise have ignored.16

B. Positive Complementarity Applied to Uganda

On December 16, 2003, President Museveni referred the matter of the Lord’s Resistance Army (LRA) to the ICC for investigation and prosecution for serious violations of international law.17 In January 2004, Chief Prosecutor Moreno-Ocampo opened an investigation in the region, and after a year-long investigation, the court issued warrants for Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya.18 Although the Ugandan government referred the matter to the ICC, they also promised amnesty for the leaders of the LRA on the condition they disarm and return home.19 The Ugandan government recommended a traditional reconciliation ceremony called “mato oput” in lieu of criminal prosecution.20

The indictments issued by the ICC against the LRA’s leadership have served to bring the LRA to the negotiating table and contributed to the progress of the peace negotiations.21 Since the matter was referred to the ICC, the violence has decreased in Northern Uganda though a peace agreement remains to be signed.22 The Government of Uganda has begun to implement a method to try the perpetrators for international crimes domestically as a result of the ICC’s involvement and demands by the LRA leadership that they not be prosecuted abroad.23 This process has thus far engaged a significant number of leaders in government and civil society whose involvement and outreach efforts can foster respect for the institution and trials that result.24 The “envisioned war crime division of the Ugandan High Court” will reflect Ugandan and international standards of justice and incorporate traditional justice mechanisms.25 Although the impact of this collaborative process between local leaders and international advisors remains to be seen, the OTP’s active engagement of States Parties seems to contribute to the progression of the Ugandan peace process “in both expanding the judicial system and engaging various parts of society in the process.”26 The ICC’s involvement in Uganda will be critical in fostering norms and standards that uphold the rule of law. Moreover, the establishment of a war crimes division will be one step in the right direction for establishing a stable judicial system and eventually a stable government.

III. Non-prosecutorial Methods

Victim communities seek justice in Uganda through traditional reintegration ceremonies whereas the ICC Prosecutor seeks justice through criminal prosecutions.27 Because the Rome Statute is silent on amnesty and truth commissions, the statute might allow sub rosa recognition of amnesty or other alternative justice mechanisms (AJM) in certain circumstances.28 Those circumstances consist of the following: (1) Article 16 deferral resolution, where the Security Council would require the ICC to suspend the Ugandan prosecution as a threat to international peace29; (2) Article 20 ne bis in idem, Ugandan AJM can be treated as prior prosecution blocking subsequent ICC proceedings30; (3) Article 53 prosecutorial discretion, which allows the Prosecutor to decline to prosecute in the interest of justice31; and (4) Article 17 inadmissibility,32 where Ugandan AJM would render the case inadmissible under the principle of complementarity.33

A. Alternative Justice Mechanisms

Through AJM the ICC can foster the rule of law in regions that have been torn by conflict and violence. This can in turn have a tremendous deterrent effect. One-size fits all justice does not seem to work where the threat of prosecution remains illusory. AJM may be a more effective measure in deterring criminal behavior because it would utilize traditional methods of justice, specific to a certain region or culture to accomplish the same objectives of the ICC—advancing justice and punishing criminals. Before deferring to AJM, the ICC must ensure that the AJM in question will accomplish the objective of crime prevention. The AJM must be assessed based on a two-part inquiry: (1) whether the AJM is per se legitimate, and (2) whether the AJM would be necessary to secure peace.

1. Uganda’s AJM

The threshold requirement of legitimacy focuses on whether the agreement is legitimate. Legitimacy requires the agreement to be promulgated by a democratically elected government or international body, rather than a government motivated by covering up its own international crimes.34 The AJM must represent the people and adhere to a principle of nondiscrimination. Additionally, the AJM should hold those culpable of perpetrating crimes responsible regardless of their status or affiliation to the government or a criminal organization.

The decision for Ugandan AJM appears to be legitimate because it was first proposed by Acholi leaders, rather than the government.35 Unlike the truth commission established in Uganda during the 1970s, it does not seem that the Ugandan government will adopt the AJM to protect itself.36 Ugandan AJM would represent the interest of the people, including the most marginalized segments of society which initially called for AJM.37 Additionally, Ugandan AJM seems to be widely supported by the Acholi and victims who desire truth commissions and mato oput.38 At the outset, Ugandan AJM seems to be a legitimate alternative to prosecution under the ICC.

Secondly, the Ugandan AJM is necessary to secure peace within the region. The replacement of ICC prosecution with AJM in the Uganda situation may be critical in furthering peace negotiations between the LRA and the government.39 The LRA maintains that before they can sign any peace deal the warrants against Kony and his top commanders must be dropped.40 Thus, Uganda’s request for the ICC to withdraw its warrants seems necessary to securing peace.

In attempting to secure peace, Uganda may implement various mechanisms. For example, a truth commission process such as that used in South Africa can serve to reveal the perpetrators of crimes and foster condemnation of those crimes and censure the perpetrators. South Africa’s Truth and Reconciliation Commission (TRC) model illustrates how public condemnation and reparations for victims can serve a deterrent effect.41 Accordingly, Uganda should consider a truth commission to morally condemn the crimes and the perpetrators through public disgrace, stigma, and censure, as well as incorporate reparations for the victims.42

Furthermore, Ugandan AJM may come in the form of mato oput, a traditional justice mechanism that combines shaming with a compensatory remedy. The “mato oput” ceremony requires that the perpetrator of the crime admit wrongdoing to the victim, ask forgiveness, and pay compensation.43 Given its communal origins, shaming is traditionally part of the Acholi culture, and is incorporated into mato oput.44 “The local shaming punishment might be as close to proportional punishment as an ICC sentence.”45 Mato oput is not without flaws as it would require perpetrators of crime, many being children soldiers, to pay compensation to the victims. Presumably, these children soldiers would not have any financial resources for victim reparations.

Despite these challenges, mato oput and the truth commission seem to be the best alternative for securing peace in Uganda while also advancing the principle of justice. For such mechanisms to have a deterrent effect, the truth commission report and the outcome of mato oput must be widely publicized. Similar to prosecution, it may be difficult to measure the actual deterrent effect of Ugandan AJM. Nevertheless, AJM achieves two important objectives: securing peace and advancing justice.

IV. Conclusion

In conclusion, the ICC should employ positive complementarity or defer to alternative justice mechanisms in order to maximize crime prevention. Under positive complementarity, the ICC can effectively prevent atrocities by encouraging states to establish systems and institutions to try international crimes. This in turn can foster a respect for the rule of law that will likely have positive long-term reinforcing effects. Furthermore, when prosecution would result in increased violence and bloodshed, the ICC should defer to alternative justice mechanisms. Consequently, both peace and justice can be achieved under these two methods.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 419 (2008). ↩

2. 2.

   Rome Statute of the International Criminal Court, Preamble, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]. ↩

3. 3.

   Eric Blumenson, The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court, 44 Colum. J. Transnat’l L. 801, 819 (2006). ↩

4. 4.

   Id. at 823. ↩

5. 5.

   Id. ↩

6. 6.

   Id. at 824. ↩

7. 7.

   See Eric S. Fish, Peace Through Complementarity: Solving the Ex Post Problem in the International Criminal Court Prosecutions, 119 Yale L.J.1703, 1708 (2010). ↩

8. 8.

   Blumenson, supra note 3, at 828. ↩

9. 9.

   See James G. March and Johan P. Olsen, The Logic of Appropriateness 3-14 (Center for European Studies University of Oslo Arena Working Paper 2004), available online. ↩

10. 10.

    See James Fearon and Alexander Wendt, Handbook of International Relations, 60-63 (Sage Publications, 2002). ↩

11. 11.

    Katherine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 Hum. Rts. Br. 21, 22 (Winter 2010). ↩

12. 12.

    Id. ↩

13. 13.

    Id. at 24. ↩

14. 14.

    Tom Farer, Restraining the Barbarians: Can International Criminal Law Help?, 22 Hum. Rts. Q. 90, 98 (2000). ↩

15. 15.

    Marshall, supra note 11, at 25. ↩

16. 16.

    Id. ↩

17. 17.

    Kimberly Hanlon, Peace or Justice: Now that Peace is being Negotiated in Uganda, Will the ICC Still Pursue Justice?, 14 Tulsa J. Comp. & Int’l L. 295, 304 (2007). ↩

18. 18.

    Id. at 304-305. ↩

19. 19.

    Hanlon, supra note 17, at 295; see also Manisuli Ssenyonjo, Accountability of Non-State Actors in Uganda For War Crimes and Human Rights Violations: Between Amnesty and the International Criminal Court, 10 J. Conflict & Security L. 405, 419 (2005). ↩

20. 20.

    Tristan McConnell, Uganda Sees Local Justice as Key to Peace, Christian Science Monitor, Sept. 8, 2006, available online (during the “mato oput” ceremony, “the perpetrator of a crime meets the victim, admits wrongdoing, asks for forgiveness, and pays compensation. The ritual ends with perpetrator and victim sharing a cup of sheep’s blood mixed with a bitter root.”) ↩

21. 21.

    See, e.g. International Crisis Group, Africa Report No. 124: Northern Uganda: Seizing the Opportunity for Peace (Apr. 2007), available online. ↩

22. 22.

    Uganda Violence: One of the World’s Most Neglected Crises, Reuters Alertnet, Sept. 17, 2009, available online (last visited May 11, 2011). ↩

23. 23.

    Michael A. Newton, The Complementarity Conundrum: Are We Watching Evolution or Evisceration?, 8 Santa Clara J. Int’l L. 115 (2009). ↩

24. 24.

    Marshall, supra note 11, at 26. ↩

25. 25.

    Id. ↩

26. 26.

    Id. ↩

27. 27.

    Jeffrey Gettleman, Uganda Peace Hinges on Amnesty for Brutality, N.Y. Times, Sept. 15, 2006, available online (last visited May 11, 2011). ↩

28. 28.

    Keller, supra note 1, at 238. ↩

29. 29.

    See Rome Statute, supra note 3, art. 16 (Deferral of investigation or prosecution: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect: that request may be renewed by the Council under the same conditions.”). ↩

30. 30.

    See Rome Statute, supra note 3, art. 20(Ne bis in idem: “3. No person who has been tried by another court for conduct also proscribed under article 6, 7, 8, or 8 bis shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”). ↩

31. 31.

    See Rome Statute, supra note 3, art. 53 (“Initiation of an investigation […] 2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because: […] (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims, and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime.”). ↩

32. 32.

    See Rome Statute, supra note 3, art. 17 (“Issues of admissibility 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”); see also William W. Burke-White, Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation, 7 J. Int’l Crim. Just. 257, 268-275 (2009). ↩

33. 33.

    Keller, supra note 1, at 238. ↩

34. 34.

    Mahnoush H. Arsanjani and W. Michael Reisman, Developments at the International Criminal Court: The Law-in-Action of the International Criminal Court, Am. J. Int’l L. 385, 393 (2005). ↩

35. 35.

    Keller, supra note 1, at 238. ↩

36. 36.

    Id. ↩

37. 37.

    Adam Branch, International Justice, Local Injustice: The International Criminal Court in Northern Uganda Disssent, Summer 2004, at 22, 24. ↩

38. 38.

    Kasaija Phillip Apuuli, The ICC Arrest Warrants for the Lord’s Resistance Army Leaders and Peace Prospects for Northern Uganda, 4. J. Int’l Crim. Just. 179, 183-185 (2006). ↩

39. 39.

    Julian Ku and Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 777, 820 (2006); see also Reuters, Uganda Aide Criticizes Court over Warrants, N.Y. Times, Oct. 9. 2005, available online, (last visited May 11, 2011). ↩

40. 40.

    Uganda rebels in fresh truce, BBC, Jan. 12, 2009, available online, (last visited May 11, 2011). ↩

41. 41.

    Blumenson, supra note 4, at 865. ↩

42. 42.

    Alexander K.A. Greenawalt, Justice Without Politics? Prosecutorial Discretion And the International Criminal Court, 39 N.Y.U. J. Int’l L. & Pol. 583, 614 (2007). ↩

43. 43.

    Hanlon, supra note 17, at 306. ↩

44. 44.

    Keller, supra note 1, at 269. ↩

45. 45.

    Id. ↩

II. The Actors

In order to effectively utilize the cost-benefit model, we must possess an understanding of the different classes of actors involved in a conflict; without this we cannot analyze the ways that each may be expected to behave within the framework. At the greatest level of abstraction, there are three classes of actors who commit human rights abuses. There is the doer; the foot soldier who commits the rape, murder, abduction, etc. in question. Then there is the planner; the politician who incited ethnic cleansing, the general who implemented it, and the commander who managed it. Finally, there are the aiders and abettors.13 These broad classes provide some guidance on how the cost-benefit model can be applied. However, there are other considerations that will impact how an actor perceives the costs and benefits of an illegal rights-violating strategy.14

Narrowing down these considerations is necessary in order to distill distinct, coherent classes of actors. To do so, one would normally look to a more complete historical record of rights violating behavior; time and resource constraints require a more limited approach in this comment however. Thus, we will look at the cases that the ICC has already become involved in, via indictment or investigation, to provide the classes of actors to be examined in this paper. In addition, OTP provided its perspective on the classes of actors that the Court should focus on its 2003 policy paper:

The global character of the ICC, its statutory provisions and logistical constraints support a preliminary recommendation that, as a general rule, the Office of the Prosecutor should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organization allegedly responsible for those crimes.15

The ICC has followed this policy in the six situations where proceedings have begun thus far.16 Four involve indictments against rebel leaders.17 The Sudan case also involves an indictment against a sitting head of state, as well as indictments against an official in his administration and a leader of a government backed militia.18 The final situation the Court is involved in is brand new: the initiation of an investigation into the ongoing conflict in Libya.19

Thus, ICC practice to date leaves us with three primary classes of actors that the Court is seeking to deter: 1) the Rebel Leader 2) the Head of State and 3) the State-Endorsed Group Leader.20 A conflict context is assumed for each actor, since all of the ICC situations thus far have involved conflict environments.

One class of actors that is missing is that of the foot soldiers. Considering the jurisdictional barrier posed by the Rome Statute and resource constraints cited by OTP in its 2003 Policy paper, this is unsurprising.21 It also makes some sense in light of the cost-benefit model; valuation of both the costs and benefits of rights-violating behavior is more difficult with low level implementers. This is because such actors can have a wider variety of motivations that determine the value of their behavior.22 It is also harder to measure the costs of that behavior as seen by these actors, since they are farther removed from the ICC as an institution. In addition to these difficulties, social psychology provides explanations of the behavior of low level implementers that may divorce them from the cost-benefit model altogether.23 Yet, despite the aforementioned problems, there is a benefit in looking at the possible deterrence of this class of actors that will be explored as well.

III. Applying the Model

Now that we have distilled four classes of actors that the ICC is seeking to deter, we can apply the cost-benefit model to each. In order to do so however, we must first pick an illegal rights violating strategy as an example. Since ethnic violence has been alleged in many of the situations that the ICC is already involved in, we will use this as our across the board example for all four classes. Ethnic violence is a crime under Article 7(1)h of the Rome Statute.24 A variety of explanations have been offered to explain why it is a part of so many protracted civil wars.25 For the purposes of determining the value of systematic murder or extermination of civilians for all four classes of actors, we will focus on three that are the most relevant to this specific subset of ethnic violence. The first argument claims that ethnic violence is used by political elites to increase their power.26 The second explanation deals with the security dilemma posed by signaling problems and threat evaluation between ethnic groups. In domestic systems with a weak (or uninterested or biased) government, ethnic groups become responsible for their own defense. As neighboring groups arm, it is difficult to tell if they are doing so for offensive or defensive purposes, and inter-ethnic tensions increase.27 This model shares some similarities with Fearon’s concept of credibility failures on the part of majority ethnic groups.28 The final explanation is one linked to extremism. This explanation argues that extreme elements of an ethnicity will use violence to undermine the peace process by making it appear that even the moderates of the group lack the will to stop such acts.29

The following sections will first detail the benefits of the illegal rights violating strategy to the actor, and will then explore how the actor will value the costs that the ICC can bring to bear along with possible policy reforms that will maximize those costs.

A. The Rebel Leader

Benefits: There are several possible benefits of a decision to systematically murder or exterminate civilians in a rival ethnic group by a rebel leader. The first value of such a strategy is found at the nexus of the second and third explanations of ethnic violence detailed above. The security dilemma model explains why a rebel leader may wish to block peaceful negotiations: if the other ethnic group is armed and mobilized, it will not have enough credibility in the eyes of the rebel leader to respect his group’s rights. Murder and extermination of the rival group’s civilians thereby allows the rebel leader to disrupt negotiations. Thus, the rights violating behavior in this scenario has the benefit of keeping the conflict ongoing, and the rebel leader will place a high value on this as it keeps him in a position of power so that he can continue to pursue his agenda.

Costs: The ICC will have difficulty imposing costs on the rebel leader. The international condemnation and external isolation that can follow ICC interest are only threats to a rebel leader who is supported by those nations that pay attention to the court. Since most rebel leaders are not reliant on outside support, and those that are receive it from nations that disregard the ICC, this is an almost non-existent cost.30 Currently, internal condemnation and isolation are also minimal costs to a rebel leader. In order for rival constituencies within the rebel leader’s group to utilize an ICC indictment as an isolating tool, the ICC would need a high degree of respect on the ground in the region. Amidst accusations that the ICC is a neo-colonial institution fixated on Africa, the necessary standing has not yet been achieved.

Yet there has been a link between ICC involvement and the decreasing intensity of Lord’s Resistance Army violence.31 This means that certainty of punishment, the remaining cost to balance against the benefit of the strategy, may be highly valued by rebel leaders. This makes sense considering that, with the exception of the foot soldier, the rebel leader is the most likely to actually end up in the custody of the ICC.32

Conclusions: While the use of major ethnic violence is likely to be a valuable strategy to the rebel leader, his more precarious strategic position means that he is acutely sensitive to the possibility of ending up in the Hague. Therefore, this class of actor will be increasingly deterred from the use of this strategy as his power weakens and the threat of prosecution increases. Thus, the ICC should focus on strategies that can weaken the strategic position of this class of actors. One way this might be done is by using the international public outrage over rights abuses committed by a Rebel Leader to stir up support (financial, strategic, etc.) for the state in which the leader resides in order to increase their capability to fight and capture him.

B. The Head of State

Benefits: The first model attributing the outbreak of ethnic violence to political incitement provides the clearest indicator of the strategy’s value to a head of state. By playing upon the historical divides that become enshrined in one ethnic group’s perception of another33, politicians can rally their base and shore up their own political power. Once a politician has utilized this strategy, he has effectively ruled out the possibility of reining in the consequences of his rhetoric. To attempt to punish supporters who have begun to perpetrate acts of violence against the rival ethnic group would erode support, so the head of state is incentivized to encourage these acts rather than denounce them. This creates a cycle of escalating violence that can eventually result in systematic murder and extermination.34

However, utilizing ethnic division is only one way to achieve political power. While it may be the easiest path in some circumstances35, the presence of alternative options to rally political support does decrease the value of this benefit somewhat.

Costs: For the head of state, international isolation represents a much greater cost than it does for the rebel leader. An ICC indictment of a head of state on charges related to ethnic violence will likely result in condemnation from many nations in the international system. The consequences of this condemnation can be varied, and can include revocation of foreign aid or membership in vital international organizations, or even possible military action. However, this cost can be mitigated somewhat by the support of nations that disregard the ICC.36

ICC indictments can also rally domestic political dissent against a leader. If an indictment has resulted in major consequences for a nation, like economic sanctions, then political rivals will be able to play upon those costs in order to isolate the head of state. If the ICC has a good standing within the country, the indictment on its own can be used a tool for isolation.

When it comes to certainty of punishment however, the head of state will value this cost less than the rebel leader. The strategic military position of a head of state is generally more secure than that of a rebel leader, and short of a foreign military intervention, since he faces little prospect of being placed into ICC custody. Significant international isolation that leads to domestic consequences can increase the certainty of punishment for a head of state however, by making his political situation more precarious.

Conclusion: To prevent crimes committed by heads of state, the ICC must work to expand its influence with nations in the international system so that heads of state do not have support systems to rely upon. Increased international pressure can lead to domestic consequences for a head of state’s political position. Without this kind of domestic isolation, the ICC cannot in turn increase the certainty of punishment for the head of state. Thus far, this has been a problem for the ICC.37 There are no easy answers as to how the ICC can improve its standing in the international system. If the court were to adopt a more consequential perspective, it could be possible for the Court to work out compromises with regional coalitions like the African Union (i.e. We won’t investigate these two lesser allegations of rights violating behavior in Member X and Member Y if you support our efforts against Member Z and the more serious allegations there). While this might seem anathema to a young international body that must build its reputation, it could yield vital strategic partnerships for the ICC that may result in a Head of State being apprehended or pushed out.

The ICC must also develop a strong on-the-ground reputation in order to create internal political costs for Heads of State who are indicted. The Court is already on the right track with its efforts in Sudan, The Central African Republic, Kenya, Democratic Republic of the Congo, and Uganda; where the Court has programs in place for community and media outreach.38 These efforts must be increased, spread proactively to similar states (otherwise the Court will always be in a position of playing catch-up as crimes are committed in states where the ICC has no presence), and expanded in scope. In order to meaningfully improve its reputation, the Court must go beyond outreach directly related to its judicial functions (i.e. raising awareness about procedures, etc.), and consider instituting programs that combat corruption and other tangentially related issues.39 People will not necessarily support the court just because they know more about it, but they will if the court is seen as a force for positive change in their society. This support will in turn result in negative domestic political consequences for a Head of State who chooses to utilize a rights-violating strategy and is indicted by the court.

C. The State Endorsed Group Leader

Benefits: For the State Endorsed Group Leader, ethnic violence represents a low cost way to make economic and security gains for his group. The cost of the strategy is low for this actor for several reasons. One, like the Rebel Leader, he is insulated from international pressure because he is an internal actor. This insulation is not as strong for this class however, since they are still somewhat reliant on government auspices, and the Head of State, as discussed above, is vulnerable to international pressure. In addition, the strategic costs are lower for this class because of that government support, which provides increased resources and protection. While Darfur rebel groups may be able to resist Janjaweed militias to some extent, they are at a huge disadvantage because of the resource inequities.40

Thus, the State Endorsed Group Leader represents a hybrid of sorts; this class possess characteristics of both of the two previous actor archetypes. This makes it more difficult to ascertain motivations (and thereby benefits), since the State Endorsed Group Leader could b using ethnic violence for his own ends, or as a means of pleasing a Head of State, or both. What is certain here is that the costs of such rights-violating behavior are relatively low for this class compared to the other two.

Costs: The hybrid nature of this class also makes it difficult to evaluate the value it will place on the costs that the ICC can bring into play. As mentioned above, this kind of leader may be somewhat affected by international condemnation collaterally, but not to the extent that the Head of State is. This leader will also be less worried about the certainty of punishment, since their relationship with the state offers a degree of protection (they do not have to be concerned about the government finding them and shipping them to the Hague.) These considerations mean that the State Endorsed Group Leader may actually represent the most difficult class of actor for the ICC to effectively reach.

Conclusions: The best way for the Court to extend its reach to this difficult class of actors is to attack their connection with state. Once the State Endorsed aspect of this class disappears, it essentially becomes the same as the Rebel Leader, the class that the ICC has had the most success with thus far. To do this, the Court must once again take a consequential standpoint and choose to only focus its attention of the SEGL. Then the Court can offer an ultimatum to the Head of State in nation: Withdraw your support for this leader and give them up to us, or we will focus our attention on you. At this point, the Head of State will engage in the cost-benefit analysis laid out above (the costs of ICC indictment vs. the costs of turning over a possible key constituent). If the ICC can raise the costs for the Head of State, then that will have an impact here as well.

A final policy change that the Court should consider is going after foot soldiers, since this could raise the costs for all three of the actor classes discussed above. While this class is the most difficult to analyze with the cost-benefit model because the numerous possible motivations an individual solider might have for participating in ethnic violence, successful deterrence of this class will bleed into all the others. A foot soldier who is frightened of facing justice at the ICC will be less inclined to follow obviously illegal orders, and that resistance translates into additional costs for commanders all the way up the chain.

Ultimately, many of the recommendations made in this comment may not be feasible at this point. Resource constraints, and the interests of justice, represent two substantial barriers to many of these ideas. Nevertheless, OTP and the Court as a whole must incorporate the cost-benefit model of analysis into their policy decisions, considering that crime prevention is a major goal of the institution.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   It is important to note that this comment is focused on the deterrence of individuals; thus, classes of actors refers to commonalities among individuals engaging in rights violating behavior. ↩

2. 2.

   This paper is written from a consequential perspective, though the author understands that OTP and the ICC have interests other than crime prevention to balance as well. ↩

3. 3.

   Each model is only loosely economic in nature. Specifically, the cost-benefit model utilized here is not a traditional in the sense that it is not strictly tied to an analogy with the market mechanism. For a discussion of the benefits of more relaxed model that allows for greater freedom of valuation to legal study and the social sciences, see Amartya Sen, The Discipline of Cost-Benefit Analysis, 29 J. Legal Stud. 931 (2000). ↩

4. 4.

   See Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 777 (2006). ↩

5. 5.

   Id. ↩

6. 6.

   See Payam Akhavan, Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7 (2001). See also Akhavan, Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism, 31 Hum. Rts. Q. 624 (2009). ↩

7. 7.

   Ku, supra note 4, at 778. ↩

8. 8.

   Akhavan, supra note 6, at 12. ↩

9. 9.

   The ICC indictments of Joseph Kony and other Lord’s Resistance Army Leaders serves as an example of both kinds of pressure. See Robert C. Johansen, Peace and Justice? The Contribution of International Judicial Process to Peacebuilding, in Strategies of Peace: Transforming Conflict in a Violent World 196 (Daniel Philpott & Gerard Powers ed. 2010) (highlighting that the international community’s awareness of the LRA’s activities was raised following the indictments and that the organizations behavior changed following the indictments.) ↩

10. 10.

    Internal and external isolation should be considered as distinct costs and not lumped into the certainty of punishment factor, which Akhavan leans towards doing at points. See Akhavan, Are International Criminal Tribunals a Disincentive to Peace?, 641. Ku and Nzelibe also argue that. ↩

11. 11.

    See Stathis N. Kalyvas, The Ontology of “Political Violence”: Action and Identity in Civil Wars, 1 Perspectives on Politics 475 (2003) (pointing out that civil wars provide many actors, from the local to the national leader, an opportunity to use violence in pursuit of a variety of ends.) ↩

12. 12.

    For example, ethnic violence can be seen as method of achieving political power through terror, by making a specific group easier to govern, or by eliminating them altogether in the case of genocide. See Stathis N. Kalyvas, The Logic of Violence in Civil War, 3-4 (2000). ↩

13. 13.

    Unsurprisingly, these classes of individual actors reflect the modes of responsibility that have developed in international criminal law jurisprudence. See Antonio Cassese et al., International Criminal Law, (2010). (Part III-Modes of Criminal Responsibility: 1. Commission; 2. Co-perpertratorship; 3. Planning; 4. Ordering; 5. Aiding and Abetting; 6. Incitement to commit genocide; 7. Joint Criminal Enterprise; 8. Superior Responsibility.) ↩

14. 14.

    For example, audience costs, traditionally applied in the study of international disputes, may have a place in the cost-benefit analysis related to the ICC’s ability to prevent crime. See James Fearon, Domestic Political Audiences and the Escalation of International Disputes, 88 Amer. Pol. Sci. Rev. 577 (1994) (arguing that type of government plays a key role in determining audience costs for a leader who backs down). ↩

15. 15.

    International Criminal Court Office of the Prosecutor, Paper on some policy issues before the Office of the Prosecutor, (2003) available online (last visited on April 16th, 2011). ↩

16. 16.

    International Criminal Court, Situations and Cases, available online (last visited on April 15th, 2011). ↩

17. 17.

    See International Criminal Court, The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odiambo, and Dominic Ongwen, available online (last visited on April 15th, 2011) (ICC case against Lord’s Resistance Army leaders in Uganda). See also The Prosecutor v. Thomas Lubanga Dyilo; The Prosecutor v. Bosco Ntaganda; The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, and The Prosecutor v. Callixte Mbarushimana, (Cases against rebel leaders in the Democratic Republic of the Congo). See also The Prosecutor v. Bahar Idriss Abu Garda and The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus (Cases against rebel leaders in Darfur region of Sudan). See also The Prosecutor v. Jean-Pierre Bemba Gombo (case against Central African Republic Rebel Leader). ↩

18. 18.

    See The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) ; The Prosecutor v. Omar Hassan Ahmad Al Bashir available online (last visited on April 15th, 2011). ↩

19. 19.

    We will ignore this situation for the purposes of this comment, because it is still in its infancy as far as the ICC is concerned. ↩

20. 20.

    The limited nature of this comment has led the author to include subordinate actors in each of these respective classes. ↩

21. 21.

    Rome Statute, art. 5. ↩

22. 22.

    See Kalyvas. For example, individuals taking part in genocide may be doing so with economic opportunism in mind. The amount of property theft in Bosnia and Rwanda following each genocide would lend credence to this idea. ↩

23. 23.

    Donald G. Dutton, The Psychology of Genocide, Massacres, and Extreme Violence: Why “Normal” People Come to Commit Atrocities, (2007). ↩

24. 24.

    Rome Statute, art. 7(1)h (stating that “Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.) For the purpose of this analysis, we will assume that act in connection is extermination, illegal under Rome Statute art. 7(1)b. ↩

25. 25.

    See James Fearon, Ethnic Mobilization and Ethnic Violence, 10 (2004) available online (last accessed April 17th, 2011). ↩

26. 26.

    V.P. Gagnon, Ethnic Nationalism and International Conflict: The Case of Serbia, 19 International Security 130-166 (1995). See also Michael E. Brown, Causes and Implications of Ethnic Conflict, 92, 97-98, in The Ethnicity Reader: Nationalism, Multiculturalism and Migration (Montserrat Guibernau and John Rex, ed.). (arguing that leaders appeal to nationalism and ethnicity in order to rally supporters, and in doing so, also blame the group’s problems on other ethnicities in the area). ↩

27. 27.

    Barry Posen, The Security Dilemma and Ethnic Conflict, 35 Survival 27-47, (1993). ↩

28. 28.

    Fearon, supra note 25, at 9. ↩

29. 29.

    Andrew Kydd and Barbara F. Walter, Sabotaging the Peace: The Politics of Religious Violence, 56 International Organizations 263 (2002). ↩

30. 30.

    Abdalla Burja, African Conflicts: Their Causes and their Political and Social Environment, Development Policy Management Forum Occasional Paper 4, available online, (last accessed May 3rd, 2011). ↩

31. 31.

    Akhavan, supra note 6, at 642. ↩

32. 32.

    Ku, supra note 4, (arguing that rebel leaders are more likely to be removed from positions of power and thereby face ICC jurisdiction). ↩

33. 33.

    Brown, supra note 26, at 99. ↩

34. 34.

    Gagnon, supra note 26, at 130. ↩

35. 35.

    For example, among communities with long traditions of strong ethnic identity and enmity for neighboring groups. ↩

36. 36.

    The case of Sudan represents such an example. The support of African neighbors and China has given Sudan a greater capability to ignore the indictment of al-Bashir for genocide. ↩

37. 37.

    The Court’s difficulties with the African Union stand out. ↩

38. 38.

    International Criminal Court Public Documentation Section, Outreach Report 2010, (2010), available online, (last accessed May 3, 2011). ↩

39. 39.

    Such programs could be considered part of a pro-active complementarity campaign. See William Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome system of International Justice, 49 Harv. Int’l L.J. (2008). ↩

40. 40.

    Peter Verney, Darfur’s Manmade Disaster, Middle East Research and Information Project (2004), available online, (last accessed May 5th, 2011) (discussing early accounts of the Sudanese government supplying the Janjaweed and coordinating operations with helicopters.) ↩

II. Positive Complementarity and Prevention

Positive complementarity may help advance the goals of the ICC for a number of reasons. First, given the ICC’s nearly global mandate and its limited resources, it will often not be possible for it to prosecute a majority of those most responsible for international crimes.10 Hence, there is a strong possibility that the Court will become overburdened with cases and need to off-load its burden to national criminal jurisdictions.11

Second, since Article 1 of the Rome Statute declares that the ICC “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern,” the Court is unable to prosecute lesser offenders; this has been called the “impunity gap.”12 In order to help close this gap, positive complementarity encourages “domestic prosecutions of international crimes, including those that may not meet the gravity threshold for prosecution by the ICC.”13 As a result, while the ICC concentrates on more serious international crimes, national governments can prosecute those responsible for lesser crimes so that a larger portion of international crimes are held accountable.

Third, national courts are more cost-effective and efficient than international criminal tribunals for “evidence collection, protection of witnesses, and transportation of those who are facing charges.”14 This is because international criminal tribunals are often “far away from the crime scene, in both geographic and cultural terms,” and because national courts can utilize local personnel, need less translations, and have more judges who are available.15 Thus, in certain cases, national courts are simply better suited for prosecutions of many international crimes.16 Moreover, by unloading potential cases to domestic prosecution and utilizing the resources of national criminal courts, the ICC can focus on the most serious international crimes where it would be most effective or where national governments are unwilling to prosecute themselves.17

In addition, the duty of domestic prosecution of international crimes is found in existing state obligations under various international treaties, including the Geneva Conventions of 1949 and the Genocide Convention, and the Preamble to the Rome Statute itself.18 Also, positive complementarity is part of the OTP’s strategy.19 In a statement, the OTP stated, “[T]he Office has adopted a positive approach to complementarity, meaning that it encourages national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.”20

Thus, not only will the continuation of positive complementarity maximize the ICC’s impact on crime prevention, but it will reinforce existing international duties of states to prosecute domestically and help foster the OTP’s explicit desire to cooperate with national criminal jurisdictions.

III. Challenges for Positive Complementarity

There are several problems with the notion that positive complementarity will enhance the efficacy of the ICC. One major problem is that many mass atrocities take place in societies and cultures that are steeped in violence and disorder, making domestic prosecutions impractical. For example, in Rwanda, the government was unable to carry out judicial proceedings against the perpetrators of the 1994 genocide because of the “political turmoil, armed conflict, and the resultant damage and destruction to the infrastructure and governmental institutions.”21 These situations are better suited for ICC intervention because a call for positive complementarity would be unrealistic.

However, even in situations of serious international crimes where states have nascent court systems with a certain level of sophistication, it is often the case that national criminal systems are significantly lacking or too culturally distinct to meet ICC standards of investigation and prosecution.22 For example, in Uganda, the Lord’s Resistance Army has targeted an ethnic group called the Acholi and is “responsible for the forced abduction, conscription, and abuse of tens of thousands of [the Acholi] children.”23 But instead of a criminal trial, there is a traditional ritual called “mato oput,” which involves an admission of guilt followed by sanctions.24 Consequently, “the token nature of the sanction, the lack of procedural rigor, and the emphasis on forgiveness and reconciliation reveal something very different from the kind of criminal justice typically associated with serious violent crimes.”25

Article 17 of the Rome Statute provides some guidance as to what constitutes an acceptable “investigation” or “prosecution.” The Statute declares that domestic proceedings must be in accord with “principles of due process recognized by international law” and “conducted independently and impartially…in a manner which, in the circumstances, is [consistent] with an intent to bring the person concerned to justice.”26 If a state fails to investigate or prosecute in accordance with these standards, the Court can decide that the state is either “unwilling” or “unable” to genuinely carry out the investigation or prosecution.27 Accordingly, even with a lax reading of these brief guidelines, it would be difficult to argue that mato oput falls within the rigors of Article 17.

However, this problem extends to highly developed states as well. For example, for certain ICC crimes, it may be difficult to find a matching crime in a domestic criminal system.28 Moreover, even if there is a matching crime, “many states have criminal provisions that penalize the same conduct that would fall under one of the substantive definitions of crimes proscribed by the ICC, but which do so under different legal characterizations.”29 As a result, if a state has a criminal system that does not closely mirror the offenses listed under the Rome Statute, the OTP is free to simply consider that the state is unable to prosecute the crimes.30 In other words, where a domestic criminal system covers a different range of conduct than the Rome Statute, states run the risk of “relinquishing their competence to investigate and prosecute, because the ICC may declare them to be ‘unable.’”31 Consequently, the principle behind positive complementarity of respecting and encouraging national criminal jurisdictions is severely undermined.32

At the same time, even in highly developed states that attempt to prosecute domestically, many national prosecutors may not be familiar with prosecuting mass atrocities or war crimes cases. One reason for this is that it is difficult to construe and apply the elements of international crimes within the Rome Statute, given the complexity of many of the crimes’ definitions.33 A second reason is the high evidentiary demands of international crimes. The problem is that “the huge number of acts committed in the context of international crime” means that “the number of victims and possible witnesses can run into tens of thousands,” and the sheer “magnitude of the mayhem requires examining an immense volume of forensic evidence, witness testimony, expert witness statements, and relevant documents.”34

A third reason is that evidence for international crimes, unlike in domestic cases, is often controlled differently by each government and significantly influenced by international organizations and non-government organizations (“NGOs”). For instance, while a third party state with significant intelligence-gathering capabilities may be willing to cooperate with the Court, a state whose national allegedly committed the crime may not be so willing.35 Such was the case in Croatia, where “important information relating to crimes committed by Croats in Bosnia was held by the Croatian government,” which “denied that it possessed this information and…refused to disclose it despite repeated requests from the ICTY.”36 In addition, international organizations and NGOs play a large role in informing the ICC about the occurrence of potential crimes within the Court’s jurisdiction, investigating and evaluating states’ compliance with international obligations, and pressuring states that fail to comply with requests from the ICC.37 Thus, in order to perform its investigative and evidence-gathering functions, the ICC is particularly dependent on states, international organizations, and NGOs, each of which controls and influences material evidence differently.38 For these reasons, the unfamiliarity of domestic prosecutors with the wide complexity of prosecuting international crimes poses another substantial challenge to positive complementarity.

IV. Implementing Positive Complementarity

Despite the problems discussed above, there are several ways that positive complementarity can be implemented effectively. First, for national criminal jurisdictions with inadequate resources, facilities, and procedural safeguards, the ICC can assist states in prosecuting crimes themselves by providing access to its legal archives and expertise for information relating to serious international crimes. For example, the ICC Legal Tools Project is dedicated to building an online database with an expansive library of legal documents and research that is available to the general public.39 The purpose of the project is:

to level the playing field in the documentation, investigation, prosecution and adjudication of core international crimes and in the defence of persons accused of them, allowing national judicial institutions to process international crimes involving their nationals or committed on their territory that may otherwise have lacked the means to do so.40

Although the Legal Tools Project would be helpful to many states, it needs to go further than providing information that is publicly available. Since much of the Court’s investigative work is carried out in countries where security for investigators, victims, and witnesses is uncertain, an effective program needs to ensure their safety and protection.41 Moreover, because the OTP relies heavily on confidential information and evidence to investigate and prosecute international crimes, the program must also secure the careful safekeeping and proper transfer of confidential materials.42 In addition, the program must provide an effective way to search through the daunting amount of international criminal law material within the ICC so that states can quickly and efficiently find relevant materials. While such a program would be useful for highly developed states as well, it would be particularly useful for underdeveloped states in helping them build national capacity to investigate, prosecute, and adjudicate serious international crimes.43

Second, the ICC can work together with international bodies such as from the United Nations, NGOs, or even other States Parties to draw international attention to a difficult situation.44 In doing so, the ICC may be able to stigmatize the wrongdoer into negotiating with the Court or national governments and thereby facilitate resolution or peace.45 Also, the ICC can increase international pressure on States Parties to follow through with their obligation to undertake criminal prosecutions themselves.46 To take it a step further, the ICC can collaborate with other states, international organizations, and NGOs to help states with underdeveloped criminal systems conduct national prosecutions by training domestic judges and attorneys, providing technical assistance and support, and even working on domestic judicial reform.47 In doing so, the ICC can contribute to creating stronger institutions and in the long run strengthening the rule of law both domestically and internationally.48

Third, Burke-White argues that if the ICC can build a strong track record of prosecuting and investigating serious international crimes in various states, the credible threat of its own intervention into domestic criminal courts may incentivize national governments to pursue prosecutions themselves.49 This is because the failure of national governments to investigate or prosecute involves numerous costs. If the ICC intervened, not only would states “lose prosecutorial freedoms like the ability to determine specific charges, witnesses to be called, and evidence to be presented,” but also “international prosecutions may impose reputation costs on national governments…by indicating that they have failed to meet their legal obligation to prosecute crimes domestically.”50

One current situation exemplifies the very real threat and influence of ICC intervention. One week after the Prosecutor announced that he would begin an investigation in Sudan, the Sudanese government announced that it would “establish special domestic tribunals to prosecute approximately 160 individuals suspected of international crimes in Darfur.”51 While it is debatable whether the Sudanese court planned to genuinely prosecute those individuals, it is clear that the considerable costs of ICC intervention can effectively pressure national courts to accept the political and financial costs of prosecuting international crimes themselves in order to avoid international intervention.52

Lastly, the most robust and powerful form of positive complementarity would be to modify the Rome Statute so that it formally obligates states to exercise national jurisdiction whenever possible.53 While “the complementarity scheme of the Rome Statute is founded on the primary responsibility of national courts, there are no express duties in this regard, let alone a means of enforcement.”54 Without an express obligation in the Rome Statute for states to prosecute international crimes domestically, increasing international pressure on states through threats or negative publicity, or even helping governments build the capacity to prosecute domestically may not be enough to force states to actually do so. A formal obligation would provide the impetus needed to compel adherence by States Parties.55 However, at the same time, even a formal obligation would not resolve several existing challenges to positive complementarity, including the lack of exactly matching international crimes in domestic criminal systems and the unfamiliarity of prosecutors with the complexity and high evidentiary demands of prosecuting international crimes.56

V. Conclusion

In order to maximize its effectiveness in the prevention of crimes, the ICC should continue to encourage and assist States Parties in undertaking national prosecutions of international crimes. While there are significant obstacles to positive complementarity, there are several ways to overcome them and to implement positive complementarity effectively.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Preamble to the Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]. ↩

2. 2.

   Katherine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 No. 2 Hum. Rts. Brief 21, 22 (2010). ↩

3. 3.

   I will be using “deterrence” and “prevention” interchangeably. ↩

4. 4.

   Rome Statute, supra note 1, at Preamble. ↩

5. 5.

   But see Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities, 84 Wash. U. L. Rev. 777, 790 (2006) (“[T]here is almost no scholarship attempting to analyze whether, as an empirical matter, [international criminal tribunals] are likely to have, or actually have had, any deterrence effect on perpetrators of humanitarian atrocities.”). ↩

6. 6.

   Lisa J. Laplante, The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence, 43 J. Marshall L. Rev. 635, 640 (2010) (citing ICC-OTP, Fourth Report of the International Criminal Court to the U.N. Security Council Pursuant to UNSCR 1593, 10 ICC-OTP (Dec. 14, 2006)). ↩

7. 7.

   Id. at 641 (citing Michael L. Smidt, The International Criminal Court: An Effective Means of Deterrence?, 167 Mil. L. Rev. 156, 188 (2001)). Available online. Archived. ↩

8. 8.

   Id. ↩

9. 9.

   William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 54 (2008). ↩

10. 10.

    Id. at 75. ↩

11. 11.

    Jessica Almqvist, Complementarity and Human Rights: A Litmus Test for the International Criminal Court, 30 Loy. L.A. Int’l & Comp. L. Rev. 335. 349 (2008). ↩

12. 12.

    Id. ↩

13. 13.

    Burke-White, supra note 9, at 74. ↩

14. 14.

    Almqvist, supra note 11, at 349. See Burke-White, supra note 9, at 68. ↩

15. 15.

    Id. See Burke-White, supra note 9, at 68-69. ↩

16. 16.

    Id. ↩

17. 17.

    Burke-White, supra note 9, at 74-75. ↩

18. 18.

    Id. at 57. See Rome Statute, supra note 1, at Preamble (“Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,”). ↩

19. 19.

    Rome Statute, supra note 1, at art. 1 (“[The ICC] shall be complementary to national criminal jurisdictions.”). ↩

20. 20.

    Int’l Crim. Ct., Office of the Prosecutor, Report on Prosecutorial Strategy, at 5 (Sept. 14 2006). ↩

21. 21.

    Jimmy Gurule, United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court’s Jurisdiction Truly Complementary to National Criminal Jurisdictions?, 35 Cornell Int’l L.J. 1, 25 (Feb. 2002). ↩

22. 22.

    See Rome Statute, supra note 1, at art. 17. ↩

23. 23.

    Alexander K.A. Greenwalt, Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court, 50 Va. J. Int’l L. 107, 112 (2009). ↩

24. 24.

    Id. at 125. ↩

25. 25.

    Id. ↩

26. 26.

    See Rome Statute, supra note 1, at art. 17(2). ↩

27. 27.

    Id. at art. 17(1)(a). ↩

28. 28.

    Jann K. Kleffner, The Impact of Complementarity on National Implementation of Substantive International Criminal Law, 1 J. Int’l Crim. Just. 86, 96 (Apr. 2003) (“What, for instance, should be the ordinary crime available for an investigation and prosecution of the grave breach of the Geneva Conventions of compelling a prisoner of war or other protected person to serve in the forces of a hostile power, or of the serious violation of the laws and customs applicable in armed conflicts involved in the declaration that no quarter will be given?”). ↩

29. 29.

    Lieutenant Colonel Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court, 167 Mil. L. Rev. 20, 70 (Mar. 2001). Available online. Archived. ↩

30. 30.

    Id. at 71. ↩

31. 31.

    Kleffner, supra note 28, at 101. ↩

32. 32.

    Newton, supra note 29, at 72. ↩

33. 33.

    Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 Am. J. Int’l L. 510, 542 (July 2003). ↩

34. 34.

    Regina E. Rauxloh, Plea Bargaining: A Necessary Tool for the International Criminal Court Prosecutor, 94 Judicature 178, 183 (Jan.-Feb. 2011). ↩

35. 35.

    Danner, supra note 33, at 528. ↩

36. 36.

    Id. ↩

37. 37.

    Id. at 533. ↩

38. 38.

    Id. at 528. ↩

39. 39.

    International Criminal Court, What are the ICC Legal Tools?, available online (last visited Apr. 17, 2011). ↩

40. 40.

    Morten Bergsmo et al., New Technologies in Criminal Justice for Core International Crimes: The ICC Legal Tools Project, 10 Hum. Rts. L. Rev. 715, 724 (Dec. 2010). ↩

41. 41.

    Rauxloh, supra note 34, at 183. ↩

42. 42.

    Rachel Katzman, The Non-Disclosure of Confidential Exculpatory Evidence and the Lubanga Proceedings: How the ICC Defense System Affects the Accused’s Right to a Fair Trial, 8 Nw. U. J. Int’l Hum. Rts. 77, 81 (2009). ↩

43. 43.

    Bergsmo et al., supra note 40, at 723-724. ↩

44. 44.

    Greenwalt, supra note 23, at 161. ↩

45. 45.

    Id. ↩

46. 46.

    Marshall, supra note 2, at 25. See Rome Statute, supra note 1, at Preamble. ↩

47. 47.

    Elena Baylis, Reassessing the Role of International Criminal Law: Rebuilding National Courts through Transitional Networks, 50 B.C. L. Rev. 1, 23-24 (Jan. 2009). ↩

48. 48.

    Marshall, supra note 2, at 25. ↩

49. 49.

    Burke-White, supra note 9, at 69, 87. ↩

50. 50.

    Id. at 69-70. ↩

51. 51.

    Id. at 71. ↩

52. 52.

    Id. at 70, 72. ↩

53. 53.

    Payam Akhaven, Whither National Courts? The Rome Statute’s Missing Half, 8 J. Int’l Crim. Just. 1245, 1247 (Nov. 2010). Some may argue that this proposal technically falls outside the scope of positive complementarity due to the fact that it is an obligation for states to prosecute domestically rather than an encouragement of states to do so. ↩

54. 54.

    Id. at 1266. ↩

55. 55.

    Id. at 1247-1248 (“While this obligation may be partially extracted from existing conventions and customary law, it requires further law-making to become coherent and complete.” ). ↩

56. 56.

    See supra Part III. ↩

The Office of the Prosecutor (OTP) should use plea bargaining or even amnesty to encourage criminal leaders to accept responsibility and remove themselves from active hostilities. It is important to note that this comment is limited to instances of active hostilities and to criminal leaders who maintain a position of power at the time he or she comes before the ICC. If the conflict has been concluded before the criminal leaders are brought before the court, then the court is not deterring future crimes by removing the criminal leaders from the conflict. Therefore, the justification for plea bargaining as preventing future crimes emanating from that conflict is lacking. In instances where the OTP may encourage a criminal leader to lie down his or her weapons and submit to the jurisdiction of the court, plea bargaining is a powerful tool to prevent future crimes.

At present, during active hostilities it is often near impossible for the ICC to gain control over accused criminal violators. Moreover, criminal leaders will continue to fight until they achieve their objectives or are overwhelmed unless offered a tempting alternative such as a plea agreement. The ICC can insert itself into active hostilities which appear to be swaying against criminal violators, in instances where military pressure, fatigue or international pressure has begun to chip away at popular support for criminal leaders. As opposed to waiting for the pressure to oust criminal leaders—who might then be extradited to the ICC for trial—the ICC may seek to remove criminal leaders from the conflict by offering a lesser sentence or, in some cases, even exchanging a guilty plea for amnesty and exile. Plea bargaining may be a tempting alternative to eventual military defeat or ongoing conflict and could offer criminal violators a “dignified” way to end a destructive campaign. Most importantly, plea bargaining offers the chance to end an active conflict sooner and subsequently to save the lives of future victims.

One example where plea bargaining should have been used by the OTP is in the peace negotiations between Joseph Kony and the government of Uganda following decades of heinous crime by the Lord’s Resistance Army (LRA). The government of Uganda had negotiated with the LRA for amnesty and protection from ICC prosecution in exchange for the end of hostilities.5 However, the OTP refused to withdraw warrants for the arrest of LRA leaders including Kony. The Ugandan government is of the belief that this decision harmed efforts at reconciliation with the rebel group.6 Although there is no clear cause and effect, the OTP could have successfully used plea bargaining to encourage an end to this conflict. Even if the OTP offered LRA leaders amnesty, the LRA leaders would be called to answer before a national tribunal in Uganda and the ICC could claim as a victory the prevention of future crimes by the LRA.

Under the Rome Statute which created the ICC and OTP, the OTP has the power to plea bargain with criminal leaders in the interest of justice. During the framing of the Rome Statue which created the ICC, delegates did not come to an agreement about if national amnesty would preclude prosecution before the ICC. The statute, however, contemplates the OTP forgoing prosecution “in the interest of justice” even where the court has jurisdiction.7 The statute does not expressly prohibit the incorporation of amnesties and other agreements to preclude ICC prosecution in the interest of justice. Moreover, The OTP is empowered under Article 53(4) of the Rome Statute to reconsider the decision to prosecute based new facts and information.8 New facts may include the existence of a peace agreement that has been reached conditionally upon the withdrawal of ICC warrants. It would seem to follow that the power to withdraw prosecution entirely would also include the power to narrow prosecution. Therefore, it may be argued that plea bargaining in the interest of justice is similarly permissible.

The barriers to plea bargaining include threatening the credibility of the ICC and embroiling the OTP in political questions such as when to accept or reject a negotiated settlement to bring peace. First, some will argue that plea bargaining will give the impression that the ICC is negotiating with accused criminal leaders and in some cases will result in criminal leaders receiving lesser sentences than mid—and low-level violators. However, the decision between the appearance of steadfastness coupled with continuing conflict against the appearance of pragmatism and an end to conflict must sway in favor of ending conflict and consequently saving lives. The ICC must not become a stumbling block in the peace process. Second, the OTP must engage in the difficult, diplomatic question of when to accept a negotiated settlement for peace. It must be up to the OTP to decide when a settlement appears to serve justice—in such instances, the OTP must be free to accept a settlement to ensure justice when the alternative will neither bring peace or justice.

To prohibit the OTP from plea bargaining to remove criminal leaders would go against the recent tradition of international law and might actually perpetuate mass atrocities. It is important to note that amnesties have ended two-thirds of the wars since 1989; amnesty is a commonly accepted solution in international law.9 Moreover, by denying the OTP the power to plea bargain to end active conflicts would render null any effort to reach peace that included amnesty or negotiated sentencing. Each conflict would have to end with criminal violators either captured and extradited to the Hague or killed.10 Such could cause the ICC to be a barrier to peace—and would therefore violate the ICC’s mandate to seek restorative justice.

II. Restorative Justice

The mandate of the ICC calls for retributive justice against the worst criminal violators. For the purposes of this comment, retributive justice is defined as utilizing proceedings to seek reprisal and express moral outrage at certain conduct.11 The focus of retributive justice is on striking back at the accused through punishment and, in some circumstances, discouraging similar conduct within the community. The mandate of the ICC certainly includes elements of retributive justice; for example, the ICC seeks to end impunity for the worst violators and calls for punishment of crimes which the international community has recognized as especially heinous. The ICC seeks to hold those accountable for outrageous conduct and is empowered to hand down lengthy terms of imprisonment. The mandate of the ICC, however, is unique in that it also seeks to deliver restorative justice to victims of mass atrocities.

The ICC has notable unique features which demonstrate that its mandate includes not only retributive justice, but also restorative justice. Restorative justice is defined as utilizing proceedings to enable victims to return to life as it was before a crime.12 The focus of restorative justice therefore is on reconciliation between the victim and the accused and restitution for injuries which the victim has suffered. The mandate of the ICC encourages restorative justice through various mechanisms; for example, the ICC allows for those convicted to be held liable for reparations, compensation and rehabilitation for victims of mass atrocities.13 Moreover, the court seeks reconciliation between victims and the accused through victim participation in proceedings. The ICC is asked to enable victims and the accused to return to a productive life and rebuild their community. Therefore, the mandate of the ICC calls for both retributive and restorative justice.

The Office of the Prosecutor (OTP) should seek to deliver restorative justice to victims of crime through plea bargaining when it is unlikely that the court will be able to deliver retributive justice. As seen in the example of Uganda above, the refusal of the OTP to accept negotiated peace including amnesty for criminal leaders may have caused the peace agreement to fail. In such instances, the choice is not between justice or peace, but between continued conflict or peace. The ICC had little leverage to threaten the arrest of Joseph Kony, yet the OTP would not allow the criminal leaders of the LRA to negotiate for amnesty. Even today, Kony remains at large and the government of Uganda seeks to combat the Lord’s Resistance Army. Only in instances of peace can the ICC offer restorative justice—it is impossible for victims of crime to return to normal life while conflict is ongoing.14 A choice by the OTP which continues conflict cannot be deemed a choice in favor of justice. Rather the OTP must seek to offer restorative justice to victims by allowing for negotiated settlements, and even amnesty, when the alternative is a continuation of conflict and likely additional crimes.

Restorative justice has been preferred by national governments and in some instances may be seen as equivalent to retributive justice. It is hard to argue against those who seek retributive justice against accused criminal leaders for heinous crimes. However, in Uganda the national government sought to offer amnesty to criminal violators because peace and reconciliation were seen as the only hope for justice after decades of crime.15 Some might argue that there can be no justice until criminal violators are brought before a tribunal and sentenced to lengthy terms in prison. However, such retributive justice is often not available and the OTP must show deference to national calculations of justice. A pragmatic decision that creates peace and honors the findings of victims of crime is superior to a principled decision which may continue conflict and create future victims of crime.

Plea bargaining is superior to an offer of simple amnesty. Plea bargaining demonstrates that criminal violators cannot bargain to completely escape punishment and requires an acceptance of guilt by criminal violators. By removing criminal leaders from an active conflict, the OTP offers restorative justice enabling victims to move forward with rebuilding their lives. Even if sentences are short, the ICC allows for restorative justice by removing criminal leaders; not one criminal leader has returned to power after being brought before an international tribunal.16 By bringing criminal leaders before the ICC, the court ensures that victims can return to the task of rebuilding without the fear of criminal leaders returning to spark conflict again. However, in certain circumstances, even negotiated amnesty which brings with it restorative justice is preferable to continued conflict.

In regards to active conflict, the ICC may simply not be the forum through which victims might pursue retributive justice. While the ICC has yet to sentence a convicted criminal leader, other similar criminal tribunals in the former Yugoslavia and Rwanda have meted out seemingly light sentences given the gravity of crimes before the courts. For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have handed down a thirteen year sentence for the crimes of torture, cruel treatment of detainees and personally participating in the murders of nine detainees; an eight year sentence for attacks on civilians; and a fifteen year sentences for crimes of genocide and extermination.17 While it is unclear what sentencing guidelines will be implemented by the ICC, similar criminal tribunals appear to have favored restorative justice as opposed to retributive justice at sentencing. Lastly, the prospect of spending life in prison may cause rebel leaders to simply fight to the death in effect causing even greater harm. In such instances, retributive justice will come at such a cost that victims and the OTP should prefer negotiated peace to prevent future crimes and to begin the process of restoring the community.

Conclusion

Plea bargaining can be effectively used to remove criminal leaders from an active conflict by offering a tempting alternative to continued violence or the prospect of a life-long prison sentence. The OTP is empowered to honor plea agreements between criminal violators and national governments or to negotiate a plea agreement with criminal leaders. Plea bargaining to end an active conflict serves both the interest of crime prevention and restorative justice in that ending conflict prevents future crimes emanating from the conflict and brings victims back to a position where they can begin to rebuild. While a plea agreement may not satisfy the desire for retributive justice, the OTP must prioritize preventing future crimes emanating from a conflict and the possibility of restorative justice over the costly alternative of continued violence.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   James F. Alexander, The International Criminal Court and the Prevention of Atrocities: Predicting the Court’s Impact, 54 Vill. L. Rev. 1, 32 (2009). ↩

2. 2.

   It is not my purpose to address these arguments in this comment, rather I lay out these assumptions to contrast them with the assumptions required to accept peacemaking through plea bargaining as crime prevention. ↩

3. 3.

   Payam Arkhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 11 (2001). ↩

4. 4.

   Id. at 7. ↩

5. 5.

   Manisuli Ssenyonjo, Accountability for Non-State Actors in Uganda for War Crimes and Humanitarian Rights Violations: Between Amnesty and the International Criminal Court, 10 J. Conflict & Security L. 405, 422 (2005). ↩

6. 6.

   Id. at 422. ↩

7. 7.

   Alexander K.A. Greenawalt, Justice Without Politics? Prosecutorial Discretion and the International Criminal Court, 39 N.Y.U. J. Int’l L. & Pol. 583, 617 (2007). ↩

8. 8.

   Ssenyonjo, supra note 5, at 428. ↩

9. 9.

   Kimberly Hanlon, Peace or Justice: Now That Peace is Being Negotiated in Uganda, Will the ICC Still Pursue Justice?, 14 Tulsa J. Comp. & Int’l L. 295, 333 (2007). ↩

10. 10.

    Eric S. Fish, Peace Through Complementarity: Solving the Ex Post Problem in International Criminal Court Prosecutions, 119 Yale L.J. 1703, 1708 (2010). ↩

11. 11.

    Linda Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 266 (2008). ↩

12. 12.

    Id. at 275. ↩

13. 13.

    Id. ↩

14. 14.

    Ssenyonjo, supra note 5, at 428. ↩

15. 15.

    Keller, supra note 11, at 270. ↩

16. 16.

    Alexander, supra note 1, at 23. ↩

17. 17.

    Id. ↩

II. Broad View of Complementarity: Positive Complementarity

A. What is Positive Complementarity?

As originally conceived, complementarity5 was intended to be a narrow instrument that highlighted the ICC’s role as a backstop to national jurisdictions.6 The ICC was supposed to be a substitution of an international forum for a domestic one,7 and the principal intention was to protect national sovereignty.8 This initial idea of the ICC being a complementary judicial institution to domestic judicial institutions has progressed into what some call positive complementarity.

Positive complementarity is the idea that the ICC can participate more directly and in conjunction with national governments by encouraging them to prosecute crimes in their own national courts.9 It involves cooperation between the ICC and the national governments, in which the ICC can use some of its leverage and authority to encourage and aid national governments when mass crimes are being committed in those nations. Since its establishment, the policy of the ICC’s Office of the Prosecutor has been to take a broad view of complementarity as evidenced by a statement made in 2003 by the Chief Prosecutor Luis Moreno-Ocampo.10 Additionally, the ICC continues to employ this policy,11 which continues to emphasize the importance of working together with individual states.

B. How can Positive Complementarity help the ICC become a credible threat?

The ICC can engage in positive complementarity with national governments in varying degrees. For example, at the bare minimum, the ICC could encourage national governments to prosecute by informing them of situations that have come to the attention of the ICC and wait to see how the state responds. If the state fails to investigate or take any interest in the matter, the ICC could then conduct its own investigation and decide whether or not to pursue the situation. This option would be relatively close to the originally conceived idea (sometimes referred to as “passive complementarity”12) and would be a fairly weak form of positive complementarity for the ICC to engage in.

Alternatively, The ICC could go a step further by not only encouraging national governments to prosecute, but also by using its resources and capabilities to reinforce domestic prosecutions. For example, the ICC might provide aid in domestic investigations, evidence production, training, and other practical methods that can help strengthen the infrastructure of national courts. Additionally, the ICC could expand its cooperative strategy by working together with international, intergovernmental, and non-profit organizations to provide services and support to national governments in their pursuit of prosecution. This expansion of collaboration between the ICC, states and other international actors could serve as an impetus for states to pursue prosecution because they would now have international support rather than working alone. This assumes that the state is actually willing to pursue prosecution and that what was stopping them before was the lack of support and collaboration that positive complementarity would help provide.

Utilizing this broad view of positive complementarity would help with long-term deterrence in two ways. First, by fortifying national judicial systems, the ICC would be aiding states to further develop their national courts—a benefit that could potentially outlast whatever current situation the state is dealing with. Second, and more importantly for the ICC, it would help to build international recognition of the ICC as a credible threat. If the ICC is proactively and consistently involved in facilitating domestic prosecutions, it would slowly emerge as an actor that people recognize and connect to justice. Through this recognition, the ICC would slowly develop as an international credible threat by representing itself not only as a court that itself prosecutes, but also as a court that is actively involved with national governments in aiding with prosecution domestically. Paramount to the success of this strategy is consistency in the ICC’s policy for positive complementarity over time. Assuming that the threat of punishment can serve as a general deterrent to criminal behavior,13 the ICC’s consistency in proactively supporting domestic prosecutions would help to gradually increase deterrence and crime prevention.

There are some limitations to this idea of deterrence and crime prevention through positive complementarity and supporting domestic prosecutions. First, positive complementarity may also involve the ICC encouraging non-prosecutorial means, especially if this is what the national government of a state is actually seeking. I will speak more about the dilemma of peace versus justice in Part III of this comment. For now, however, I will emphasize that to achieve credibility and long-term deterrence, the ICC’s involvement with national governments should be restricted to encouraging prosecution rather than non-prosecutorial methods. Another limitation to positive complementarity is the ICC’s limited resources. Depending on how many trials the ICC itself is conducting, it might not have the adequate funding to take a proactive stance on complementarity. As the ICC is funded by states, there is also a possibility that funding will decrease if states do not support a broad view of complementarity. This is probably the biggest hurdle for the ICC to overcome given that states might be reluctant to provide enough funding if the ICC is taking such a proactive position. Finally, some scholars argue that the threat of prosecution and punishment does not actually deter future atrocity crimes.14

It is necessary to understand that the long-term benefits of positive complementarity will not be immediately apparent. States must be willing to engage in the idea of investing now for a future long-term gain of crime prevention in order for positive complementarity to truly help with deterrence. By taking a more proactive stance with regard to complementarity, the ICC can better position itself as a credible threat, which can subsequently lead to the long-term prevention of crimes.

III. Peace or Justice?

A. The Debate Surrounding Peace or Justice

When positive complementarity does not work and national governments are unwilling or unable to prosecute an individual, the ICC can conduct an investigation and depending on the individual circumstances, may seek prosecution or decide that the criminal behavior is not extreme enough to fall within its jurisdiction.15 The ICC has jurisdiction over some of the most serious crimes of international concern, including genocide, crimes against humanity, war crimes, and the crime of aggression.16 Accordingly, the ICC will issue arrest warrants and seek to prosecute individuals only in the most serious and extreme situations that are not being addressed by national governments. Thus, when the ICC issues an arrest warrant, the question becomes whether the ICC should be steadfast in its pursuit of prosecution, or whether it should be willing to negotiate with the perpetrators of crimes. Should the ICC seek justice and remain resolute in prosecuting, or should it be willing to partake in non-prosecutorial methods when those with arrest warrants ask for amnesty? This “peace or justice” question is an extremely complicated one laden with controversy and ethical predicaments. Many strong opinions exist as to whether prosecution is in the best interests of the international community when atrocities are being committed and there is a chance to end the immediate crimes. If one of the principal objectives of the ICC is to generally deter and prevent future criminal activity, however, the difficult answer to this dilemma favors continuous and resolute prosecution of the perpetrators by the ICC as opposed to pursuing non-prosecutorial methods.

B. If the Goal is Long-Term General Deterrence of Atrocity Crimes, the ICC Should Resolutely Pursue Prosecution

Part of becoming a credible threat internationally involves proactive involvement in prosecutions carried out domestically—this can be achieved through positive complementarity. Another part of becoming a credible threat involves the ICC resolutely prosecuting individuals it deems to fall within its jurisdiction. The consistent policy of prosecuting individuals responsible for atrocity crimes may, over time, create an expectation in individuals that punishment is a viable consequence of their choice to commit crimes condemned by the international community. It is argued that the threat of punishment usually serves to deter rational actors, and some of the individuals that the ICC would target for prosecution might not be rational.17 For the purposes of this comment, perpetrators are assumed to be rational actors.18

Assuming that deterrence can be achieved through the threat of prosecution, the biggest question becomes whether the ICC’s goal of deterrence means it should resolutely seek prosecution over non-prosecutorial methods when they become available. Given the ICC’s goals and focus on justice and crime prevention, it should resolutely pursue prosecution. Other actors and domestic courts can always use non-prosecutorial methods, but the ICC is a prosecutorial institution and is not the appropriate forum for these methods.19 There are, however, a number of drawbacks to this position. First, as previously mentioned, the ICC has limited resources and can only have a few trials per year. Second, the ICC lacks an enforcement body that would allow it to not only issue arrest warrants, but also be able to pursue individuals and actually get them to The Hague. Third, by resolutely prosecuting, many believe the ICC would be prolonging conflicts that could potentially be resolved through non-prosecutorial means. Although these drawbacks are ever present, it will do more harm for the ICC to defer to non-prosecutorial methods once it has already issued arrest warrants. For the ICC to sometimes prosecute and other times withdraw its arrest warrants will render it an international body that reinforces the norms against atrocity crimes only sometimes. Additionally, it sends mixed signals to possible perpetrators of crimes. This is particularly troublesome in situations where a country self-refers a matter to the ICC,20 then changes its mind and wants to give amnesty.21

Ultimately, it is not an easy question whether the ICC should resolutely prosecute in order to help with long-term deterrence. There are financial, practical and ethical impediments to resolute prosecution that the ICC must overcome to more effectively be seen as a credible threat to potential perpetrators. If the goal is to prevent deaths now and end current conflicts as soon as possible, then the ICC should sacrifice its endeavor to become a credible threat and prevent future crimes by taking a step back from its pursuit of prosecution. If the goal, however, is deterrence and the prevention of future crimes (which means less atrocity crimes in the future, and thus, less deaths in the long-term), then the ICC should resolutely prosecute in situations where it has become involved.

IV. Conclusion

In conclusion, the ICC should engage in two methods to ultimately become a credible threat and deter crimes in the future. First, it should take a broad view of the “complementarity” principle and proactively work with national governments and other international actors to further domestic prosecutions. This will help the ICC become a more credible institution, which over time, will assist in with the ICC’s focus on crime prevention. Second, in the situations where the ICC itself issues arrest warrants, it should remain resolute in its prosecution and not become involved in non-prosecutorial methods. The ICC is a prosecutorial institution and it would undermine its focus and credibility to send mixed signals on its determination to seek justice. Although there are short-term implications to this strategy, in the long-term, the ICC will become a credible institution and can help prevent the atrocity crimes it is intended to deter.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   The terms “deterrence” and “prevention” will be used interchangeably. ↩

2. 2.

   See Preamble to the Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]; Overview of the Rome Statute of the International Criminal Court (1998-1999), available online (“[e]ffective deterrence is a primary objective of those working to establish the international criminal court”) (last visited Sept. 29, 2011). ↩

3. 3.

   Id. (“Resolved to guarantee lasting respect for and the enforcement of international justice”). ↩

4. 4.

   Id. art. 13. ↩

5. 5.

   Id. art. 17. ↩

6. 6.

   See William W. Burke-White, Implementing a Policy of Positive Complementarity in the Rome System of Justice, 19 Crim. L. Forum 59, 60 (2008). ↩

7. 7.

   Id. ↩

8. 8.

   See Mahnoush H. Arsanjani & W. Michael Reisman, The Law-in-Action of the International Criminal Court, 99 Am. J. Int’l L. 385 (2005). (The idea of complementarity was originally intended as enabling the ICC to step in when states could not or would not prosecute, rather than for the ICC to take a more positive role with national governments.) ↩

9. 9.

   See William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 54 (2008). ↩

10. 10.

    See Luis Moreno Ocampo, Prosecutor of the ICC, Statement Made at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court (June 16, 2003). “As a consequence of complementarity, the number of cases that reach the Court should not be a measure its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.”) Available online (last visited September 29, 2011). ↩

11. 11.

    See Office of the Prosecutor, Report on Prosecutorial Strategy 2009–2012, (February 1, 2010). Available online (last visited September 29, 2011). (Discussing working with States to promote domestic proceedings, as well as contributing to preliminary examinations, investigations, and prosecutions.) ↩

12. 12.

    See Burke-White, supra note 6, at 56. ↩

13. 13.

    See Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7 (2001). (Discussing credible threats of punishment achieving general deterrence of potential perpetrators and the unconscious inhibitions against crime (especially hatred crimes) that develop in a society that could solidify resistance to those seeking to exploit ethnic hostility.) ↩

14. 14.

    This is a highly contested debate where some scholars argue that prosecution does not actually deter potential perpetrators of mass atrocities, while others argue that prosecution or the threat of prosecution do serve as a deterrent. This comment is written under the assumption that the future threat of prosecution will deter criminal behavior. ↩

15. 15.

    See Rome Statute art. 19. ↩

16. 16.

    Id. art. 1 & 5. ↩

17. 17.

    See Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 272 (2008). ↩

18. 18.

    I do not purport to examine the psychological condition of atrocity criminals in this comment. However, even assuming some of these criminals are irrational actors, it is difficult to imagine a perpetrator completely lacking concern with regard to the international community in today’s world. There are many non-prosecutorial disincentives, such as international economic sanctions, that when combined with the threat of prosecution and punishment, can motivate even irrational actors to act in certain ways. ↩

19. 19.

    Non-prosecutorial methods can be very effective in certain situations and can be pursued by other actors, but the ICC is meant to be a prosecutorial institution. At the point in which the ICC becomes involved, the situation is at a stage that warrants prosecution because other actors have not sought any sort of resolution. For the ICC to be involved only in extreme situations reinforces the idea that prosecution at this level is appropriate and can help build the ICC’s credibility as a prosecutorial institution for the most serious crimes. ↩

20. 20.

    See Keller, supra note 17, (discussing the background of Uganda’s referral to the ICC, which it has subsequently sought to withdraw to pursue some form of amnesty.) ↩

21. 21.

    These situations put the ICC in a difficult position because they have issued arrest warrants and the state is willing to grant amnesty. One actor is talking amnesty while the other refuses to give into extortion by withdrawing its arrest warrants. Joseph Kony, the leader of the rebel group the Lord’s Resistance Army, is still at large today. ↩