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Abstract
Twenty years after the Rome Statute of the International Criminal Court (ICC or Court) entered into force, the ICC’s role in preventing atrocity crimes remains controversial, with skeptics arguing that it is unrealistic, pessimists that it overlooks the potential of the Court to escalate conflicts, and optimists contending that it can work for both government and rebel leaders. I argue that during civil wars the ICC is only likely to deter rebel forces, given that Court officials are likely to have an easier time pursuing their leaders should they commit atrocity crimes. This article systematically evaluates these competing claims by providing the most extended look yet at the ICC’s record in African civil wars, the primary focus of the Court’s efforts to date. I find that existing perspectives do not tell the full story of the ICC’s impact in war zones. The results suggest that the ICC has failed to deter African government forces. However, I uncover highly suggestive evidence that the more actions the ICC takes to pursue suspected war criminals during ongoing conflicts, the more likely it is to deter rebels. Notably, most of these ICC actions have targeted rebels. Importantly, I find no indication that the ICC is associated with increased civilian killings by either government or rebel forces. With the permanent ICC, the shadow of criminal prosecution now extends to modern-day conflicts. This study helps to broaden our understanding of how and when the ICC might contribute to deterrence.
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No potential conflict of interest was reported by the author.
Notes
1 It is worth noting that criminologists draw a distinction between absolute and restrictive deterrence, which are notions that correspond with the words “omission” and “curtailment” in my definition of international criminal deterrence. To the extent that combatants refrain completely from committing an international crime (i.e., the omission of international crime) out of fear of criminal punishment, they are deterred absolutely. However, they may only be deterred restrictively by curtailing or limiting the amount of crime they are in the process of or might commit. Some political scientists view restrictive deterrence as a form of compellence (Mendeloff, Citation2018; Rodman, Citation2008).
2 Recent criminological research suggests that the certainty of punishment, rather than its severity or swiftness, is essential for criminal deterrence (Becker, Citation1968; Gibbs, Citation1975; Nagin & Pogarsky, Citation2001; Paternoster, Citation2010).
3 For details on how the ICC establishes jurisdiction, see American Bar Association (Citation2019) and UN General Assembly (Citation1998).
4 Notably, the Court generally only issues summonses when the PTC is satisfied the suspect will appear (typically implying some form of negotiation/agreement in advance).
5 The remaining 20% of arrest warrants have been for lawyers accused of tampering with the administration of justice at the ICC (ICC, Citation2022).
6 I include countries that have experienced an “internal conflict” or “internationalized internal conflict” (Allansson et al., Citation2017; Gleditsch et al., Citation2002).
7 I used the Uppsala Conflict Data Program’s Armed Conflict Dataset (version 19.1, 2019) to extend the Non-State Actor dataset’s list of rebels, which only extends to 2014. See the Online Appendix for further details.
8 One exception is South Sudan, which became a state in 2011.
9 Scholars continue to debate whether and how the ICC might have undermined the Juba Peace Process; see Wegner (Citation2015, p. 258) and Kersten (Citation2016, p. 108).
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Jacqueline R. McAllister
Jacqueline R. McAllister is an associate professor of political science at Kenyon College. Her work has appeared in leading scholarly journals and foreign policy magazines, as well as received support from the Fulbright US Scholar Program, National Science Foundation, and other organizations. She is currently finishing a book on international criminal tribunals.