Do you believe that the ICC could serve as a deterrent to international terrorism?
Given the International Criminal Court (ICC)'s current resource situation and the existing understanding of terrorism, I do not believe that the ICC could serve as an effective deterrent to international terrorism.
What is Terrorism?
There are various definitions of terrorism, yet no universally accepted definition exists. This makes it incredibly difficult to prosecute and fight terrorism, presenting an obstacle to global counter-terrorism efforts.
Instead, different nations understand terrorism as it is explained in various conventions and treaties, as well as independent scholars.
The most basic definition addresses three distinct elements.
- Violence
- Non-state actor
- Political purpose
Terrorism is, therefore, the unlawful threat or act of violence committed for a political purpose by a non-state actor.
Both the UN General Assembly and the Security Council have repeatedly condemned international terrorism as "one of the most serious threats to international peace and security."
Why Will the ICC Not Deter International Terrorism?
While some argue that the ICC may effectively deter international terrorism, the following reasons suggest otherwise.
Lack of Definition
First, there is no universally-agreed definition of terrorism which makes it difficult (and near impossible) for the ICC (or any international court or tribunal) to prosecute terrorism as a crime (Wertheim, 2003).
In addition, scholars debate whether international terrorism is a criminal act, thus implicating human rights law, or whether it surpasses the threshold for the violence of armed conflict and should be treated under humanitarian law (UNODC - United Nations Office on Drugs and Crime, 2020).
Possibility of a Political Offence
Second, without a clear definition, certain acts broadly understood as terrorism could be argued as “political offenses” to avoid consequences for terrorist actions. On the opposite end of concerns, it allows alleged offenders to be punished for their political convictions or affiliations rather than alleged behavior (Wertheim, 2003).
With this in mind, introducing terrorism to the ICC jurisdiction makes it difficult to balance fundamental human rights with justice and muddies the waters of the ICC’s safeguards against political charges.
Lack of Resources
Third, the ICC has previously rejected the suggestion that drug trafficking and terrorism be included in its jurisdiction due to its lack of resources which makes it difficult to tackle such a complex crime (Wertheim, 2003). This situation has not changed, and the likelihood of the ICC deterring future terrorists through swift and severe punishment is not an effective reality.
Deterrence and Terrorism
Finally, and perhaps most notable, is that deterrence efforts do not sway the motivation for terrorist acts. When applying the rational choice theory to suicide terrorists, Perry explores a thorough cost-benefit analysis that concludes death offers significant rewards.
The possibility of punishment does not outweigh the benefit of martyrdom, which comes with religious, personal, and social rewards (2015).
What is the Solution to Terrorism?
After addressing the above concerns, there’s a possibility that the ICC could prosecute terrorists and find justice for their crimes. However, I don’t think that the ICC could deter international terrorism. So, what is to be done?
Consider Agnew’s General strain theory which suggests sub-state terrorism is most likely to occur when people experience collective strains that are high in magnitude and affecting civilians, unjust, and inflicted by significantly more powerful “others” (2010). Applying this thought process to international terrorism, it’s possible to deter terrorism by reducing these strains and considering intervening mechanisms between collective strains and crime (Agnew, 2010).
Afghanistan, Iraq, Somalia, Burkina Faso, and Syria are the top five countries with the highest terrorism index in 2021. Consider what these countries have in common — what are the strains, and how can the international community help alleviate these strains?
Another option would be prosecuting select international terrorists under one of the other ICC jurisdictions, such as crimes against humanity. But while this demonstrates an attempt at finding justice, I do not believe it will deter future terrorists.
References
- Agnew, R. (2010). A general strain theory of terrorism. Theoretical Criminology, 14(2), 131-153.
- Perry, S., & Hasisi, B. (2015). Rational choice rewards and the jihadist suicide bomber. Terrorism and Political Violence, 27(1), 53-80.
- UNODC - United Nations Office on Drugs and Crime. (2020, November 13). E4J Global Podcast Series - Episode 6: Counter-Terrorism, Int'l Human Rights and Humanitarian Law. [Video] Youtube. https://youtu.be/J7N59VqwEIQ
- Vision of Humanity. (2022, October 21) Global terrorism index: Countries most impacted by terrorism. Retrieved March 12, 2023, from https://www.visionofhumanity.org/maps/global-terrorism-index/#/
- Wertheim, P. J. (2003). Should “Grave Crimes of International Terrorism” be included in the Jurisdiction of the International Criminal Court? Policy and Society, 22(2), 1-21.
Why do you believe the United States has decided against submitting to the international criminal court’s jurisdiction?
What is the International Criminal Court?
The International Criminal Court (ICC) is an intergovernmental organization and international tribunal that “investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity, and the crime of aggression.”
What Is the Purpose of the ICC?
While the ICC is not without its shortcomings, it introduces global accountability and strives to achieve justice for victims in situations where domestic courts cannot do so.
The ICC strives to uphold the promise of universal justice by investigating, prosecuting, and trying individuals accused of the most serious crimes of concern to the international community on condition that the crime(s) occurred after the Rome Statute took effect in 2002.
The ICC and the United States
Not only has the United States decided against submitting to the International Criminal Court (ICC), but national leaders have vocally opposed the ICC. Perhaps the most poignant reason is the perceived threat the ICC presents to the state's sovereignty (BBC News, 2018), as the ICC asserts itself when a state refuses (or fails) to use the domestic criminal justice system to bring justice to the perpetrator(s) of egregious crimes.
There is also the concern of the US military becoming vulnerable to prosecution for war crimes worldwide, possibly as the target of politically-motivated attacks (Krcmaric, 2022). The effectiveness, efficiency, and reliability of the ICC have also been the topic of criticism, often without considering the significant challenges that the ICC faces, which includes a difficult relationship with the world’s great powers, such as the United States and Russia.
I disagree with the United States’ decision, which can be considered short-sighted and aggressive. For example, the United States has threatened tough action against the ICC if it attempts to prosecute Americans for alleged war crimes in Afghanistan (BBC News, 2018).
In another example, Donald Trump’s attack on the ICC highlighted his contempt for the global rule of law (Evenson, 2020). As a former powerful leader, this sends a very dangerous message.
The United State’s disregard for the ICC does not appear to focus on the alleged lack of efficiency or results but on self-preservation. This siloed approach to global justice is concerning and seemingly unfounded, especially considering that the ICC is a last resort for crimes that can not (or will not) be addressed in domestic courts.
The Need for State Collaboration
Without a police force or army, the ICC relies on state cooperation to detain alleged perpetrators. Essentially, this means that the United States still has control over managing criminal allegations before it is presented to the ICC unless an extradition treaty muddies the waters (IntlCriminalCourt, 2021).
Legally, the ICC’s jurisdiction limits its power. The intergovernmental organization does not develop new international law but only seeks to consolidate established rules of customary international law that cover crimes against humanity, genocide, war crimes, and crimes against humanity (Schloenhardt, 2005).
The ICC process involves lengthy and thorough investigations. When an alleged perpetrator is summoned, there is surmountable evidence and a strong belief that they have committed a crime that shocks the conscience of humanity (IntlCriminalCourt, 2021). If finding justice for egregious crimes is considered a threat, then it suggests something sinister at play. As Schoenhardt continues to point out, countries are quicker to put their sovereignty ahead of criminal justice (2005).
Even with the processes mentioned above and safeguards, it’s not uncommon for powerful international and intergovernmental organizations to be accused of threatening a state's sovereignty. For example, legal scholars tend to view Interpol’s increasing cooperation in police matters as an assault on the sovereignty of states (Calcara, 2021). Unfortunately, the misuse and abuse of tools and processes is an unavoidable risk to global cooperation — but what is the alternative aside from improved accountability?
A Step Toward Global Justice?
Collaboration and solutions are key to managing global problems, and trust and accountability are needed to ensure smooth processes. The ICC is tackling a mammoth task, and there are bound to be teething issues along the way.
However, systems of accountability and fairness are incorporated within the organization. Consider Ohansen’s description of the ICC’s use of its direct, physical power with the Detention Center, which prioritizes different channels for accessibility, participation, and neutrality (2020). The United States’ aggressive opposition to the ICC appears to be founded in an attempt to avoid responsibility for alleged war crimes and hold onto power when it best suits them.
References
- BBC News. (2018, October 3). Why is the International Criminal Court under attack? - BBC News. [Video]. YouTube. https://youtu.be/CxfHYjg6MOU
- Calcara, G. (2021). Balancing International Police Cooperation: INTERPOL and the Undesirable Trade-off Between Rights of Individuals and Global Security. Liverpool Law Review, 42(2), 111-142.
- Evenson, E. (2020, October 28). Donald Trump's attack on the ICC shows his contempt for the global rule of law. Human Rights Watch. Retrieved March 5, 2023, from https://www.hrw.org/news/2020/07/06/donald-trumps-attack-icc-shows-his-contempt-global-rule-law
- IntlCriminalCourt. (2021, January 27). The ICC Process. [Video]. YouTube. https://youtu.be/ydtgSB9jROw.
- Krcmaric, D. (2022, May 16). Does the International Criminal Court target the American military?: American Political Science Review. Cambridge Core. Retrieved March 5, 2023, from https://www.cambridge.org/core/journals/american-political-science-review/article/does-the-international-criminal-court-target-the-american-military/C05172E34444A01BFEC7BD09436D2B9D
- Ohansen, S. (2020). Case Study: The ICC Detention Centre. In The Human Rights Accountability Mechanisms of International Organizations (pp. 232-284). Cambridge: Cambridge University Press.
- Schloenhardt, A. (2005). Transnational organized crime and the International Criminal Court developments and debates. University of Queensland Law Journal, 24(1), 93-122.
Do you believe that the rule of law, transitional justice, and the international criminal court will prevent or reduce crime against humanity?
In theory, the rule of law, transitional justice, and the international criminal court (ICC) have the best intentions to prevent or reduce crime against humanity. Practically, their purpose is better described as holding accountability for atrocities after the event(s).
Rule of Law
At its most basic level, the rule of law is the concept that both the government and citizens know the law and obey it. The rule of law implies that the law is respected and understood by those involved.
However, when an individual commits and incites crimes against humanity, it indicates that the law is not a priority nor a concern for them.
The International Criminal Court (ICC)
The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity, and the crime of aggression.
The fact that the ICC prosecutes an individual for a culture of criminality leaves the majority of the perpetrators unaccounted for with regard to the ICC. The individual that does go on trial may live with a “dark cloud” over their head, but there is a community of followers that support their ethos and instruction. In many ways, these prosecuted individuals have served as a martyr to their ill-intended mission of atrocity. This is under the assumption that the individual even faces judgment from the ICC due to the highly selective, costly, and time-consuming process.
There are additional points worth considering, such as certain countries refusing to become a state party to the Rome Statute, such as the United States, and the rumors of prejudice against developing states, prompting countries to leave the statute, such as Burundi and the Philippines.
Transnational Justice
Transitional justice refers to how societies respond to the legacies of massive and serious human rights violations. It asks some of the most difficult questions in law, politics, and the social sciences and grapples with innumerable dilemmas. Above all, transitional justice is about victims.
In contrast, the Truth and Reconciliation model as a method of transitional justice does play a role in the prevention and reduction of crimes against humanity, at least within a specific setting where the community welcomes the opportunity. For example, the TRC played a critical role in South Africa’s transitional justice after apartheid, as the social transition was already underway after the abolishment of apartheid.
Justice Systems and Crimes Against Humanity
However, without adequate follow-up and proactive accountability for the new leaders in power, there are limitations to success. In South Africa, corrupt government, ineffective governance, and sustained economic inequality hinder the nation’s development and contribute to increased racial and political tension. One could argue that continued guidance and support for a fragile country post-conflict could have better facilitated the transition of power and assisted leadership.
In this example, the TRC fulfilled a single role in a highly complex process. Some research, such as Sebake’s work on the social perception of public service corruption in South Africa, suggests that crimes against humanity continue to be prevalent in the country, albeit to a different degree.
Perhaps the potential for the rule of law, transitional justice, and the ICC to prevent atrocities will grow in scale as the ICC plays the long game, the political world becomes more intertwined, and history reveals different lessons for the international community to adapt and apply. However, as it stands, the role is more of accountability than prevention.
References
- Gideon Boas, William A. Schabas, & Michael P. Scharf. (2012). International Criminal Justice : Legitimacy and Coherence. Edward Elgar Publishing, (15)
- Sebake, B. K. (2020). Crime Against Humanity: Social Perception of Public Service Corruption in South Africa. African Journal of Development Studies, 10(3), 167-167–188. doi: https://doi.org/10.31920/2634-3649/2020/10n3a9
- Republic of the Philippines. (n.d.). International Criminal Court. Retrieved January 29, 2023, from https://www.icc-cpi.int/philippines
- What’s Next for Africa and the International Criminal Court | Africa Center for Strategic Studies. (2017, December 7). Africa Center for Strategic Studies. Retrieved January 29, 2023, from https://africacenter.org/spotlight/whats-next-africa-international-criminal-court-icc/