Darfur and the Limits of Legal Deterrence

Abstract

The Darfur referral to the International Criminal Court demonstrates the limits of international criminal justice as an agent of wartime deterrence evident in the experience of the ICTY in Bosnia. First, international tribunals cannot deter criminal violence as long as states and international institutions are unwilling to take enforcement actions against perpetrators. Second, the key to ending impunity in an ongoing war lies less in legal deterrence than in political strategies of diplomacy, coercion, or force. Third, the contribution of criminal justice in aftermath of mass atrocity is dependent on which strategies are used to put it to an end.

The Politics of Leverage in International Relations

“…If lower-level perpetrators have been indicted, the government demonstrates weakness by punishing them or turning them over to the ICC. Moreover, in contexts where conflict is ongoing, indictments target the very same individuals who are needed to negotiate a peace agreement (Rodman 2008;Snyder and Vinjamuri 2003). As a result, there are significant reasons to question the deterrent potential of naming, to say nothing of shaming, through the actions of international courts.…”

Deterrence, Norm Socialization, and the Empirical Reach of Kathryn Sikkink's The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics

“…Her deterrence argument, for example, accepts the same rational assumptions and strategic logic as the "justice skeptics" whom she criticizes, and suffers the same limitations: Both emphasize how prosecutions impose particular political costs on officials that shape their behavior. For skeptics, the threat or act of prosecution imposes costs that-under certain conditions-incentivize autocratic rulers to cling to power or to scuttle peace processes (Snyder andVinjamuri 2003/2004;Rodman 2008). For Sikkink, it imposes costs that incentivize officials to abandon repression.…”

“…2. With some exceptions: Wippman (1999) and Rodman (2008) are both excellent, thoughtful articlelength treatments of the deterrence claim. 3.…”

The ICC and the Security Council: How Much Support is There for Ending Impunity?

“…States whose senior officials are under threat by the ICC are likely to be extremely motivated to obstruct the ICC, while those states that support international criminal justice are likely to be relatively diffuse in that support. 208 There will also be spoilers like China and Russia who see political or economic advantage in providing shelter to states like Sudan. 209 Thus, paralysis may well be the norm for the short to medium term.…”