Unpacking the Deterrent Effect of the International Criminal Court: Lessons from Kenya

By Dutton, Yvonne M.; Alleblas, Tessa | St. John's Law Review, April 1, 2017 | Go to article overview

Unpacking the Deterrent Effect of the International Criminal Court: Lessons from Kenya


Dutton, Yvonne M., Alleblas, Tessa, St. John's Law Review


Introduction

Decades in the making,1 the International Criminal Court ("ICC") began operating in The Hague, the Netherlands in 2002.2 The court's creation left many commentators "hopeful"-hopeful that the ICC would positively transform international criminal law and reduce atrocities.3 Those high hopes are reflective of the Preamble to the Rome Statute, the treaty that created the ICC. 4 According to the Preamble, the court aims to ensure that "the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured . . . ."5 Further, the Preamble states the determination to "put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes . . . ."6 In other words, the ICC aims to produce a deterrent effect7 through its prosecutions and the threat of prosecutions.

There is, however, a clear divide amongst commentators as to whether the ICC and the ad hoc international criminal tribunals that were established before the permanent court can hinder international crime. Supporters of international criminal justice advocate for international criminal tribunals precisely because they believe that the tribunals can, and do, deter mass atrocities.8 The ICC is no exception, with supporters emphasizing the court's role in preventing international crime and ending impunity for mass atrocities.9 The remarks of thenU.N. Secretary-General Kofi Annan on the day the Rome Statute entered into force are just one example of such support. He said, "We hope [the ICC] will deter future war criminals and bring nearer the day when no ruler, no state, no junta and no army anywhere will be able to abuse human rights with impunity."10

On the other side of the divide are the skeptics. Critics charge that the people who commit crimes within the ICC's jurisdiction are not rational actors and, therefore, cannot be deterred.11 Other critics focus on the court's institutional design, insisting that discouraging international crime is unlikely because prosecutions are necessarily infrequent, potential punishments are not sufficiently severe, and the path to justice is slow.12 Some scholars are even more pessimistic, stating that insisting on justice through international prosecutions may actually incentivize some perpetrators to continue human rights violations or war crimes, thereby impeding prospects for peace.13

This Article seeks to reframe the debate about the ICC's deterrent effect by presenting a more nuanced understanding of the particular circumstances under which the ICC is more and less likely to deter. As a starting point, deterrence is a complicated concept. To illustrate the need to "unpack" the ICC's deterrent effect, this Article takes a deep dive into a narrativedriven case study of Kenya and its relationship with the ICC over time. Unique to this study is that it includes novel data: information obtained during semi-structured interviews conducted in Nairobi, Kenya during 2015 with high-level subjects, including former government officials, journalists, academics, and leaders in civil society, and think tanks.14

Establishing with certainty a causal role for the ICC is difficult, if not impossible. Nevertheless, these interviews show how informed actors on the ground perceive the ICC's deterrent effect under varying circumstances and over time. Combined with documentary data about what happened in Kenya before and after it ratified the Rome Statute-with a specific focus on those who have been targeted by the ICC-this Article establishes a new model for evaluating and understanding the ICC's deterrent effect.

For several reasons, Kenya is a good case through which to examine the complexities of the ICC's deterrent effect. First, Kenya joined the ICC in 2005 following a history of poor human rights practices, weak domestic legal institutions, and a culture of impunity.15 That poor starting record provides an opportunity to seek evidence of improvements as a result of ICC commitment and interaction. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Unpacking the Deterrent Effect of the International Criminal Court: Lessons from Kenya
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.