Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals

About the author(s):

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

Jennifer Schense is one of the editors of an important new study on the deterrent effect of international criminal tribunals. She presents a brief summary of its scope and main findings below:-

pages-from-deterrencepublicationOn 4 November 2016 in Nuremberg, at its annual forum commemorating the 70th anniversary of the adoption of the Nuremberg Principles by the UN General Assembly, the International Nuremberg Principles Academy launched its first book, a volume of deterrence studies titled, Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals. This volume comprises ten country studies (Serbia, Kosovo, Rwanda, Sierra Leone, DRC, Uganda, Darfur, Kenya, Cote d’Ivoire and Mali), as well as a chapter on methodology, and conclusions drawing from all the country studies, with recommendations for further action.

Two Steps Forward is notable in a number of respects. While various articles have addressed deterrence in international criminal law in some fashion, it is apparently the first volume that addresses the issue so comprehensively. It also ventures to offer conclusions on the question of deterrence based on quantitative and qualitative research, noting that nearly 20 years have passed since the ICTY and ICTR’s establishment, and nearly 15 since the ICC and Sierra Leone Special Court’s establishment. While the Nuremberg trials themselves arguably took several generations for their effects to be fully felt, enough time has passed that it is fair to begin to examine what has been the deterrent effect so far of international tribunals, and how that effect can be enhanced or improved.

The good news is that in all of the country situations surveyed, at least some deterrent effect was reported. The authors draw on quantitative factors first to assess whether overall criminality has risen or fallen, a fundamental baseline for asking whether crimes have thereafter been deterred. The authors draw on qualitative factors to assess perceptions of deterrence, in particular amongst perpetrators and potentially like-minded individuals, including members of militaries and rebel groups, political actors, diplomats and politicians, as well as academics, civil society members and victims. Perceptions of deterrence are as significant as objectively measurable deterrence; people act on their perceptions, for good or bad, and these actions can help determine whether further crimes will be committed. In all the situation countries surveyed, the authors found that while the international court or tribunal concerned had a deterrent effect, both objective and perceived, it proved difficult to sustain because the factors supporting it often fell apart. This is an important starting point for examining how to ensure that any hard-won deterrent effect is not ultimately lost.

It is worth noting in this context that factors affecting deterrence and perceptions come not only from criminal law (either national or international) but also from other relevant fields, in particular conflict prevention and human rights. They are both court-based and contextual. Further academic work analyzing the origins and commonality of such factors has been conducted through Leiden University and should be available fairly soon. It is hoped that studies such as these can galvanize action across the dividing lines of different fields so that we can effectively address together the global challenges that most concern us, in particular how to help ensure both global accountability and meaningful, sustainable peace. The full deterrence volume is available for free on the Nuremberg Academy’s website here.

Jennifer Schense is the founding director of the House of Nuremberg and of Cat Kung Fu Productions, both dedicated to creating films and other popular, cultural works reflecting on justice. She has also worked with the ICC Office of the Prosecutor in the Jurisdiction, Complementarity and Cooperation Division since 2004, and is currently contributing to the ICC Registry’s external relations and networking strategy. Prior to her work at the ICC, she served as the Legal Adviser for the NGO Coalition for the International Criminal Court (CICC) from September 1998 until September 2004, and served for one year as a fellow at Human Rights Watch. She is currently completing her PhD in international criminal law at Leiden University. She received her Juris Doctorate from Columbia Law School in 1997, and her Bachelors of Science in Russian language and Russian area studies from Georgetown University in 1993.



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