Undelivered promise? Assessing effectiveness of the ICC in deterring atrocities and ending impunity
One major reason/justification for the codification of international legal instruments covering international crimes is to generate a deterring effect upon future perpetrators and to prevent commission of international crimes (crime of genocide, crimes against humanity and war crimes). In earlier attempts, prevention and punishment were incorporated in the language of the legal texts, in a way to impose legal obligations upon the states to both prevent and punish the prescribed criminal acts. In addition to the Convention for the Prevention and Punishment of Terrorism and the Convention for the Creation of an International Criminal Court adopted in 1937, the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), adopted in 1948 in response an invitation by the UN General Assembly to “enact the necessary legislation for the prevention and punishment of [the crime of genocide],” resonates with the overall optimism that such attempts will have an impact of deterrence that the International Criminal Court (ICC) would have in the future. This has been one of the broad justifications for the creation of a permanent penal institution to deal with atrocity crimes in early 1990s. Bassiouni, referring to the need for the establishment of an international criminal court that was to address especially such transnational crimes as terrorism, and drug-trafficking, says:
We no longer live in a world where narrow conceptions of jurisdiction and sovereignty can stand in the way of an effective system of international cooperation for the prevention and control of international and transnational criminality. If the United States and the Soviet Union can accept mutual verification of nuclear arms controls, then surely they and other countries can accept a tribunal to prosecute not only drug traffickers and terrorists, but also those whose actions constitute such international crimes as aggression, war crimes, crimes against humanity and torture…The permanency of an international criminal tribunal acting impartially and fairly irrespective of whom the accused may be is the best policy for the advancement of the international rule of law and for the prevention and control of international and transnational criminality…It is unconscionable at this stage of the world's history, and after so much human harm has already occurred, that abstract notions of sovereignty can still shield violators of international criminal law or that the limited views and lack of vision and faith by government officials can prevent the establishment of such an important and needed international institution. The time has come for us to think and act in conformity with the values, ideals and goals we profess.
The sentiment was shared not only among the governments that were strong supporters of such a court, but also among the civil society elements promoting the idea of a global institution of justice:
Either the court will be granted substantial authority to prosecute criminals and deter atrocities – regardless of government opposition. Or this conference will place the court firmly under the control of governments and the UN Security Council.
In a similar vein, the International Commission of Jurists submitted a brief before the initiation of the conference in which it urged that in order for the future court to be “universal, independent, impartial, and effective in combating impunity,” it should be “a full-time, permanent, impartial, and independent body associated,” have jurisdiction over the most serious crimes, namely, genocide, war crimes, and crimes against humanity, and be able to “accept complaints from a broad variety of sources, including States and individuals, and to self-initiate cases.”
The overall goal of creating such an institution was upheld during every stage of the conference as well, with a strong reference to the idea of ending impunity and generating a sense of deterrence:
Above all, an effective court should not be sacrificed to unreasonable demands from the United States or certain other countries. About three-quarters of the countries here support almost every point made above, making clear that a court based on those points would enjoy broad enough support to succeed in promoting international justice and breaking the cycle of impunity. A court not based on those points would be a failure.
High hopes were associated with the ICC, with the anticipation that it would contribute to concerted efforts towards international peace that would be possibly achieved, at least partially, by its deterrent effect. Benjamin Ferencz stated in his address at the conference that
I have come to Rome to speak for those who cannot speak - the silent victims of monstrous deeds. The only authorization I have comes from my heart.
I have come to Rome to plead for a more humane world order
I have come to Rome to speak for peace
I have come to Rome to encourage your noble efforts.
The outcome addresses this anticipation, presenting the ICC as a legal institution “determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” The same has also been voiced during the actual inauguration of the Court when the judges were elected. According to William Pace, this was a very important step taken towards a fair, independent and effective Court:
The inauguration of the judges is a ground-breaking moment in the establishment of the International Criminal Court. The move towards a fully functional Court sets in place a new system international justice to ensure an end to impunity for the worst crimes and justice and reparations for victims. The 18 elected judges have been entrusted with great responsibility – they have an important role to ensure that the Court is just, fair and effective.
Against this background, this call seeks to incorporate both theoretical and empirical contributions to the literature of international criminal justice, with a particular emphasis upon a critical examination of the Court’s deterrent effect. The editors welcome submissions from relevant disciplines of social and legal sciences, including but not limited to, international law, international relations, political science, and criminal justice. The contributions may also include theoretically informed pieces, as well as case studies focusing on the particular success/failure of the ICC in preventing future atrocities. The potential questions the volume would like to address, inter alia, are as follows:
- How effective is the ICC in deterring and preventing commission of international crimes?
- Do individuals consider the presence of the ICC and its potential involvement as a deterrent when acting to perpetrate atrocities?
- Do states introduce refined legal codes or change attitudes to prevent commission of international crimes by their military servicemen because of being a party to the ICC?
- Do the state parties establish special courts to try international crimes in their judicial systems to fulfill the requirements of the principle of complementarity?
- After the Rome Statute was opened for signature, did the states that did not want to become a party to the Statute make special legal arrangements to try international crimes in their national courts?
- Are there any other national or international criminal mechanisms that prosecute the same international crimes simultaneously with the ICC?
- What were the motivations that led states to initiate the withdrawal process under Article 127 of the Rome Statute?
- What are the contributions of regional and global international organizations to the ICC's aims of deterrence and prevention of impunity?
- What are the motivations for state parties to report international crimes committed in their countries to be investigated by the ICC prosecutor?
- Which factors affect the investigation of crimes by the ICC Prosecutor's Office?
- Are there political or practical obstacles to the investigation of international crimes by a single prosecution authority?
- Do factors such as geographical distance, being disconnected from the context in which the crime was committed, and language barriers have a negative impact on the investigation of crimes by the ICC?
- Do the definitions and elements of international crimes have a direct effect on the states' choice to become a party to the Rome Statute?
- What are the contributions of international non-governmental organizations/global civil society to the ICC's aims of deterrence and prevention of impunity?
- Is it possible to build a theory of deterrence based on the practices of the ICC?
- How political is the ICC in its actions?
- What responses does the ICC offer to address criticisms over the alleged selectivity?
- Is there any novelty in the practices of the ICC in dealing with the victims?
- How does the ICC stand out as a legal institution to address gender crimes?
Both academics and practitioners, particularly young scholars, are welcome to submit a proposal which should typically include a tentative title along with a 300-word abstract, a brief bio and contact information. All inquiries and proposals should be communicated with the editors via the following:
Cenap Çakmak, firstname.lastname@example.org
Müge Dalar, email@example.com
About the editors:
Cenap Çakmak is a professor of international law and politics at Anadolu University, Turkey. Holding a PhD in Global Affairs from Rutgers University, he, most recently, published Institutional Change and the International Criminal Court (Routledge, 2021).
Müge Dalar is a lecturer at Eskişehir Osmangazi University, Turkey. She has a PhD in international law from Ankara University. Her research is focused on international law and African affairs.
 “The Crime of Genocide,” UN General Assembly Resolution No. 96(I), 55th meeting, December 11, 1946.
 M. Cherif Bassiouni, “The Time has Come for an International Criminal Court,” Indiana International and Comparative Law Review, v. 1, n. 1 (1991): 33-35.
 International Commission of Jurists, “Definition of Crimes,” ICJ Brief No. l to the Rome Diplomatic Conference, p. 16.
 “An Appeal from Four Major Human Rights Organizations,” On the Record ICC, Vol. 1, Issue 19, July 13, 1998.
 “Address by Benjamin B. Ferencz at the Rome Conference,” Pace Peace Center, June 16, 1998, Rome, Italy.
 Preamble, Rome Statute.
 William Pace, “Statements from Members of NGO Coalition for the International Criminal Court on the Inauguration of the ICC,” March 11, 2003, CICC Statement, p. 1.