This House believes the ICC is not an effective deterrent

While the ICC has the power to issue arrest warrants, it does not have the coercive powers to ensure that those warrants are followed.  Despite the fact that States that are parties to the Rome Statute are obliged to co-operate with the directions of the Court, there have been many instances where such States have failed to pursue those indicted.  Cases that have been referred to the ICC by the United Nations Security Council allows the Court to extend its jurisdiction to include UN member States that are not parties to the Rome Statute.  This enabled the ICC to issue an international warrant for the arrest of Sudan’s President Al-Bashir. Yet several of these countries obliged to arrest him have refused when the opportunities have arisen.[1]

[1] Rothe & Collins, pp.198-9

The fact that the Sudanese president has been able to travel freely to several countries without being arrested does not indicate that he or other would-be criminals are undeterred by the threat. Though the African Union has strongly advised its member states to ignore the arrest warrant and most have obliged, more recently Malawi and Kenya prevented Al-Bashir from attending summits. Even when Nigeria allowed his attendance at an AU summit last year, Al-Bashir fled within a day of arriving, after local human rights groups filed a court action.

The Democratic Republic of Congo has surrendered several suspects to the ICC and this was enough to induce another suspect to surrender.[1]

[1] Roth, "Africa Attacks the International Criminal Court."

Since becoming operational in March 2003 the ICC has only had one case resulting in a conviction and it is currently being appealed. Despite being found guilty of the war crime of recruiting and forcing child soldiers to fight and kill, Thomas Lubanga was sentenced to just 14 years imprisonment. Lubanga was arrested and sent to the Court in March 2006. This single ICC conviction and the light sentence imposed are hardly sufficient to deter other warlords from using child soldiers. Six years later, in the same country where Lubanga’s crimes occurred, thousands of child soldiers are being recruited by various armed groups.[1]

[1] UN News, "Child recruitment remains endemic."

The Lubanga case took 6 years to reach a verdict owing to problems with the reliability of testimony and the sheer number of witnesses and victims involved in the proceedings. [1]

Although the Prosecutor sought a harsher sentence, these problems with the weight of evidence and difficulties ascertaining the number of child soldiers required the Trial Chamber to impose a more modest sentence.[2]

Therefore, even if the Lubanga conviction might not have a strongly deterrent effect by itself, the ICC is pursuing many other cases and it is these constant and cumulative investigations that deter others from committing similar crimes.

[1] Kammer, "Deconstructing Lubanga"

[2] Human Rights Brief

By prosecuting only those leaders deemed ‘most responsible’ for the crimes in question, the ICC is effectively allowing lower-ranked perpetrators to commit crimes with impunity.  These rank and file troops generally have little awareness or understanding of international criminal laws. Furthermore, just as local domestic laws fail to deter offenders who often commit crimes with little thought of being punished, distant ICC threats are even less likely to deter those whose actions are easily manipulated and controlled by militia leaders. Child soldiers, in particular, have often been drugged before going into combat.[1]

[1] Mullins & Rothe, pp.782-4

Precisely because many rank and file perpetrators are easily controlled or manipulated by group leaders, their criminal responsibility is diminished. While Article 26 of the Rome Statute prevents prosecution of those under 18 years of age, this is designed to prevent injustices towards those who are often themselves victims of those in command.  Article 33 specifically rejects the ‘Nuremberg defence’ that following orders absolves a person from criminal responsibility. But in keeping with International Humanitarian Law (Rule 155 of Customary IHL), child soldiers should not be prosecuted for crimes committed under severe coercion by leaders. Prosecuting those responsible for that coercion is the most powerful deterrent.[1]

[1] IRIN News, "Should child soldiers be prosecuted for their crimes?"

While the ICC has the power to issue arrest warrants, it does not have the coercive powers to ensure that those warrants are followed.  Despite the fact that States that are parties to the Rome Statute are obliged to co-operate with the directions of the Court, there have been many instances where such States have failed to pursue those indicted.  Cases that have been referred to the ICC by the United Nations Security Council allows the Court to extend its jurisdiction to include UN member States that are not parties to the Rome Statute.  This enabled the ICC to issue an international warrant for the arrest of Sudan’s President Al-Bashir. Yet several of these countries obliged to arrest him have refused when the opportunities have arisen.[1]

[1] Rothe & Collins, pp.198-9

The fact that the Sudanese president has been able to travel freely to several countries without being arrested does not indicate that he or other would-be criminals are undeterred by the threat. Though the African Union has strongly advised its member states to ignore the arrest warrant and most have obliged, more recently Malawi and Kenya prevented Al-Bashir from attending summits. Even when Nigeria allowed his attendance at an AU summit last year, Al-Bashir fled within a day of arriving, after local human rights groups filed a court action.

The Democratic Republic of Congo has surrendered several suspects to the ICC and this was enough to induce another suspect to surrender.[1]

[1] Roth, "Africa Attacks the International Criminal Court."

Since becoming operational in March 2003 the ICC has only had one case resulting in a conviction and it is currently being appealed. Despite being found guilty of the war crime of recruiting and forcing child soldiers to fight and kill, Thomas Lubanga was sentenced to just 14 years imprisonment. Lubanga was arrested and sent to the Court in March 2006. This single ICC conviction and the light sentence imposed are hardly sufficient to deter other warlords from using child soldiers. Six years later, in the same country where Lubanga’s crimes occurred, thousands of child soldiers are being recruited by various armed groups.[1]

[1] UN News, "Child recruitment remains endemic."

The Lubanga case took 6 years to reach a verdict owing to problems with the reliability of testimony and the sheer number of witnesses and victims involved in the proceedings. [1]

Although the Prosecutor sought a harsher sentence, these problems with the weight of evidence and difficulties ascertaining the number of child soldiers required the Trial Chamber to impose a more modest sentence.[2]

Therefore, even if the Lubanga conviction might not have a strongly deterrent effect by itself, the ICC is pursuing many other cases and it is these constant and cumulative investigations that deter others from committing similar crimes.

[1] Kammer, "Deconstructing Lubanga"

[2] Human Rights Brief

By prosecuting only those leaders deemed ‘most responsible’ for the crimes in question, the ICC is effectively allowing lower-ranked perpetrators to commit crimes with impunity.  These rank and file troops generally have little awareness or understanding of international criminal laws. Furthermore, just as local domestic laws fail to deter offenders who often commit crimes with little thought of being punished, distant ICC threats are even less likely to deter those whose actions are easily manipulated and controlled by militia leaders. Child soldiers, in particular, have often been drugged before going into combat.[1]

[1] Mullins & Rothe, pp.782-4

Precisely because many rank and file perpetrators are easily controlled or manipulated by group leaders, their criminal responsibility is diminished. While Article 26 of the Rome Statute prevents prosecution of those under 18 years of age, this is designed to prevent injustices towards those who are often themselves victims of those in command.  Article 33 specifically rejects the ‘Nuremberg defence’ that following orders absolves a person from criminal responsibility. But in keeping with International Humanitarian Law (Rule 155 of Customary IHL), child soldiers should not be prosecuted for crimes committed under severe coercion by leaders. Prosecuting those responsible for that coercion is the most powerful deterrent.[1]

[1] IRIN News, "Should child soldiers be prosecuted for their crimes?"

There is compelling evidence that the ICC’s past or current investigations have caused potential perpetrators as well as those already indicted, to abandon their plans. For example, as the ICC’s first Prosecutor noted, even before the Court had convicted Thomas Lubanga for the recruitment of child soldiers, its African investigations were enough to prompt responses in Columbia and Sri Lanka, resulting in children being released.[1] At the same time, there has been a notable decrease in crimes by those already under investigation, such as the Lord’s Resistance Army in Uganda.[2]

[1] ICC Prosecutor's Address to Council on Foreign Relations, p.9

[2] Bosco, p.176

The actions by Columbia and Sri Lanka do not alter the fact that, as noted earlier, the recruitment of child soldiers in Africa and elsewhere is still endemic in 2013.

And while the Lord’s Resistance Army and its leader Joseph Kony have indeed been muted, that is largely due to the initiative of the U.S. government which has itself refused to ratify the ICC’s Statute.[1]

[1] Schomerus, Allen and Vlassenroot

As an international court of ‘last resort’, the ICC’s very existence serves as a constant reminder of the failings of national and regional governments to effectively curtail crimes against humanity in all their forms. Therefore, the Court exerts a strong deterrent effect by implicitly challenging the adequacy of those governments whose judicial systems allow such crimes to be committed with impunity. Seeking to avoid such international embarrassment has itself been enough to motivate many countries to both join the ICC Assembly and aim to improve their own domestic judicial systems. A clear example of this direct effect was the Kenyan government’s judicial and electoral reforms that followed from the ICC’s indictments over the post-election violence in 2007 which made the judiciary and election commission constitutionally much more independent.[1]

[1] Kimenyi

Even if Kenya’s recent reforms were motivated by the ICC’s indictments, the 2013 elections were still marked by violence which “as of February 2013, had claimed more than 477 lives and displaced another 118,000 people.”[1]

Despite many African governments’ initial enthusiasm for the ICC, the African Union has since openly challenged the Court’s investigations and Kenyan authorities have been doing their utmost to obstruct the ICC’s investigations.[2]

[1] Human Rights Watch

[2] Evenson

The ICC’s investigative and prosecutorial powers are endorsed by 122 States Parties to the Rome Statute. This broad reach and agreement not only provides a strong disincentive for individuals and groups who would attempt to evade prosecution, but also has the effect of deterring states that might otherwise ignore the Court’s authority. Furthermore, even non-member states have recognised the importance of co-operating with the Court’s investigations. In 2013, one of the most wanted war criminals, Bosco Ntaganda was forced to surrender to the ICC while hiding in Rwanda. Though a non-member state, “Rwanda's aid-dependent economy was damaged by the allegations of links to Mr Ntaganda's rebels.”[1]

[1] The Economist

Many of those 122 States Parties have repeatedly shown their reluctance to co-operate with the ICC. Among the African Union states, only Botswana has shown its complete commitment to the Rome Statute. It appears that even South Africa may ultimately be more supportive of the AU than the ICC.[1]

[1] Miruthi, p.4