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Monday, July 11, 2005

Deterring Genocide

The always-smart Julian Ku (Hofstra) of Opinio Juris complains that advocates of permanent international criminal tribunals rely too much on deterrence rationales in justifying their advocacy of a standing body to punish inveterate human rights abusers without having any evidence to back up the argument that such human rights abusers could be deterred by a standing body.  Since, Ku argues, even the United States favors ad hoc tribunals, the deterrence rationale for the ICC, for example, only works if there is an additional deterrent effect upon abusers that would not already be accounted for by the use and support of ad hoc tribunals. 

It is an interesting question--but I suppose I would think he's got the burden of proof: an entrenched and standing institution should be more able to mete out justice to perpetrators, all things being equal.  To be sure, evidence for the deterrent effect is always to be welcomed.  But theoretically, I think, logic is with the advocates for the ICC on this count.

Posted by Ethan Leib on July 11, 2005 at 07:20 PM in Deliberation and voices | Permalink


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My view is that the ICC largely serves expressive, rather than deterrent or retributive functions.

Posted by: david | Jul 12, 2005 1:32:37 AM

The ICC might actually REDUCE deterrence. Genocide, etc. is only punished after the offenders loose power and fall into the hands of their enemies. The consquences of loosing are usually dreadful enough (for the offenders) to make the marginal contribution of an international court close to zero; bu it might even be negative.

Take the Rwandan example. Genocidaires captured and tried by the Tutsi government were excuted (these were usually the small fish). Those who were lucky enough to turn themselves in to the International Tribunal won't be executed; most won't get life in prison. So obviously if you're a genocidaire (and you're even thinking about what happens if you fall from power) you'd be happier to have an international tribunal around to turn yourself in to. This is a fortiori true of the ICC, whose default maximum punishment is 30 years in prison. And I bet the international tribunal prisons are a lot nicer than those in Rwanda, or Sudan, or Bosnia.

I talk about the forum shopping possibilities created by international tribunals in Implementing Sosa v. Alvarez-Machain: What Piracy Reveals About the Limits of the Alien Tort Statute, 80 Notre Dame Law Review 111, 159-60 (2004).

Posted by: Eugene Kontorovich | Jul 11, 2005 11:35:37 PM

I wonder whether Article 5 of the Rome Statute may mitigate the deterrent effect of the ICC by specifying the crimes under the court's purview (in Article 5). It seems like an advantage to ad hoc tribunals has been that they've had the flexibility innovate responses to horrible acts (eg defining rape as a crime of humanity. Will the ICC have the ability to punish novel forms of depraved violence, much less deter them?

Posted by: K | Jul 11, 2005 10:58:09 PM

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