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Debate: The role of international criminal justice in fostering compliance with international humanitarian law

Published online by Cambridge University Press:  11 August 2015

Abstract

Much has been written about the “deterrent” role of international courts and tribunals in preventing potential atrocities. Since the establishment of the ad hoc tribunals and the International Criminal Court, the international community has sought to anchor the legitimacy of international justice in the “fight against impunity”. Yet recent studies have suggested that an overly broad characterization of international courts and tribunals as “actors of deterrence” might misplace expectations and fail to adequately capture how deterrence works – namely, at different stages, within a net of institutions, and affecting different actors at different times.1

The Review invited two practitioners to share their perspectives on the concrete effects of international criminal justice on fostering compliance with international humanitarian law. Chris Jenks questions the “general deterrence” role of international criminal justice, contending that the influence of complicated and often prolonged judicial proceedings on the ultimate behaviour of military commanders and soldiers is limited. Guido Acquaviva agrees that “general deterrence”, if interpreted narrowly, is the wrong lens through which to be looking at international criminal justice. However, he disagrees that judicial decisions are not considered by military commanders, and argues that it is not the individual role of each court or tribunal that matters; rather, it is their overall contribution to an ever more comprehensive system of accountability that can ultimately foster better compliance with international humanitarian law.

Type
Triggering behavioural and structural change – analysis of assumptions
Copyright
Copyright © icrc 2015 

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References

1 See e.g. Cronin-Furman, Kate, “Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity”, International Journal of Transitional Justice, 2013, pp. 121Google Scholar; Michael Broache, “The International Criminal Court and Atrocities in DRC: A Case Study of the RCD-Goma (Nkunda Faction)/CNDP/M23 Rebel Group”, September 2014, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434703; Geoff Dancy, Bridget Marchesi, Florencia Montal and Kathryn Sikkink, “The ICC's Deterrent Impact – What the Evidence Shows”, Open Democracy, 3 February 2015, available at: www.opendemocracy.net/openglobalrights/geoff-dancy-bridget-marchesi-florencia-montal-kathryn-sikkink/icc%E2%80%99s-deterrent-impac (all internet references were accessed in June 2015).