Prevention Rather than Cure: Deterrence and the International Criminal Court

Abstract

On 14 March 2012, Thomas Lubanga Dyilo was found guilty of war crimes by the International Criminal Court (“ICC”) for conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities in the Democratic Republic of the Congo. This result, three and a half long years since the beginning of the trial, marked the first successful prosecution in the Court since its establishment ten years ago. The result of the Lubanga case offers a moment for reflection. The aftermath of this historic achievement for the ICC and its effect on the development of the international criminal legal system raises certain questions regarding the future of the Court. What will the effect of Lubanga be on the future acts of potential perpetrators of international criminal law? Is it likely, or even possible, for the international criminal legal system to positively affect the frequency and severity of the commission of crimes against humanity, war crimes, aggression and genocide? Will the Court achieve its goal of “putting an end to impunity” for the perpetrators of international criminal atrocities? In an attempt to answer some of these questions, and perhaps to raise further questions, this paper will investigate the nature of the relationship between international criminal law and the concept of criminal deterrence. Today, the ICC and other international criminal tribunals are justified, in part, on their potential to deter humanitarian atrocities. The deterrent effect of these tribunals has, however, quite aptly been described as “enigmatic”. Many question whether international criminal prosecutions have a deterrent effect at all or perhaps even exacerbate already delicate political situations.