the effect of international prosecutions on the commission of norm violations

THE EFFECT OF INTERNATIONAL PROSECUTIONS ON THE COMMISSION OF NORM VIOLATIONS: A STUDY OF THE

CONGOLESE AND COLOMBIAN CONTEXTS

Peter GrenzowUniversity of Minnesota Law School

11 December 2015

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I. INTRODUCTION

The theory of deterrence has been one of the primary purposes for the establishment of

criminal law systems since their inception. Supporters of both the International Criminal

Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) called for

their creation on deterrence grounds.1 Moreover, the initial signatories to the Rome Statute

asserted ab initio they were “[d]etermined to put an end to impunity for the perpetrators of these

crimes and thus to contribute to the prevention of such crimes . . . .” 2 However, the deterrent

effect of international criminal prosecutions has been criticized over the years, as human rights

violations continue to proliferate globally.

This paper studies the situations in which international criminal prosecutions may be

successful in deterring the commission of norm violations. It also studies the reasons for why

international prosecutions may have either no effect or actually instigate norm violations.

Finally, it applies the various theories of criminal deterrence to the contexts of the ICC

investigations and prosecutions in the Democratic Republic of the Congo (hereinafter “DRC”)

and Colombia—in an attempt to determine when and if the ICC has had a significant deterrent

effect in such environments.

II. THE THEORIES OF INTERNATIONAL CRIMINAL DETERRENCE

There are four main theories of international criminal deterrence, which include: general

and specific prosecutorial deterrence, social deterrence and indirect deterrence. While there is

strong evidence that international prosecutions produce positive results through each deterrence

mechanism in certain situations, they may have no deterrent effect in others, or even lead to the

instigation of human rights violations.

1 David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473 (1999).

2 Rome Statute of the International Criminal Court preamble, Jul. 1, 2002, 2187 U.N.T.S. 90.

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A. General Prosecutorial Deterrence

Prosecutorial deterrence pertains to the theory that anticipated criminal prosecution and

punishment will deter would-be norm violators from committing crimes.3 General prosecutorial

deterrence refers to the deterrent effect the threat of prosecution and punishment, legitimized by

the prosecution of other norm violators, has on an actor’s commission of a crime. Moreover,

there are two ways in which general prosecutorial deterrence may manifest itself in the

international prosecutorial context, which include: conscious-choice deterrence and unconscious

deterrence.

Conscious-choice general deterrence theory rests on the assumption that human rights

violators are rational actors, who take many factors into consideration when determining whether

or not to violate a human rights norm. One of the factors which such actors take into

consideration pertains to whether the costs of violating a human rights norm outweigh the

benefits.4 The cost to which most political elites ascribe the most weight in this calculus pertains

to their political longevity.5 Accordingly, if the risk of international prosecution and

consequential stigmatization and threat to the political longevity of a leader is credible, such a

threat will weigh against the commission of a human rights violation by such an actor. 6

Additionally, increasing the consistency of criminal prosecution increases the likelihood of such

prosecution, which in turn solidifies the credibility of the threat; and consequently, this increases

the threat’s deterrent effect on a would-be norm violator.7 Finally, such a credible threat may be

3 Hyeran Jo & Beth A. Simmons, Can the International Criminal Court Deter Atrocity?, at 7 (2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2552820.

4 Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, at 8 (2001).

5 Id. at 12.

6 Id. 7 Theodor Meron, From Nuremberg to The Hague, 149 Mil. L. Rev. 107, 110 (1995).

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effective either before a conflict, in dissuading the fomentation of ethnic hatred and the

instigation of the conflict itself,8 or during and after a conflict, in deterring the further violation

of human rights norms.9

Alternatively, unconscious general deterrence theory is initiated by the retrenchment of

norms propagated and legitimized by international prosecutions. Once these norms are

internalized, international prosecutions create unconscious inhibitions in would-be norm

violators to the deviation from such norms.10 Specifically, international prosecutions paint

“crimes as firmly outside the status quo of behaviour accepted on the international scale,”11 and

thus norm violations do not present themselves as alternatives to conformity to such norms.

However, the proliferation of amnesties and consequent impunity for norm violations works

against the retrenchment of international norms and prevents their internalization.12 Finally,

because unconscious general deterrence pertains to situations in which actors unwittingly choose

not to commit norm violations, qualitative evidence in support of its existence is necessarily

scant.

i. Empirical Evidence for General Prosecutorial Deterrence


9 Id.

10 Id. at 13.

11 Nick Grono, The deterrent effect of the ICC on the commission of international crimes by government leaders, International Crisis Group, http://www.crisisgroup.org/en/publication-type/speeches/2012/grono-the-deterrent-effect-of-the-icc.aspx (last visited Oct. 4, 2015).


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There is empirical evidence which suggests actors in the former Yugoslavia, and in

countries facing the possibility of ICC prosecution, considered the threat of international

prosecutions as credible and adjusted their norm-deviant behavior as a consequence. First, after

the creation of the ICTY, there is evidence from Kosovo that Serb forces wore black ski masks

when engaged in ethnic cleansing and intensified their efforts to conceal mass graves and hide

evidence of norm-deviant conduct.13 This evidence indicates that the Serb forces viewed the

threat of ICTY prosecution as credible, especially with the involvement of NATO in Kosovo on

the horizon. Thus, while the Serb forces were not completely deterred from committing atrocities

crimes,14 the perception of the threat of international prosecutions as credible serves as at least a

first step towards general deterrence.

Empirical evidence also indicates that political elites in the former Yugoslavia adjusted

their behavior following the ICTY indictments in Bosnia and Herzegovina. For example,

following the 2000 arrest of Momčilo Krajišnik for crimes committed by his Bosnian Serb forces

in 1992, Republika Srpska Prime Minister Milorad Dodik tried to distance himself from

Krajišnik, his Serb Democratic Party and the other Bosnian Serb leaders arrested by the

Stabilization Force.15Additionally, Dodik pledged full cooperation with the ICTY and called for

those involved in the Srebrenica massacre to be held responsible.16 Further, following the

indictment of Radovan Karadžić by the ICTY, fellow leaders of the Serb Democratic Party

13 David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473, at 480 (1999).

14 The reasons for which are elaborated upon below.

15 Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, at 14-15 (2001).

16 Id.

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asserted he no longer influenced the party.17 This evidence of Bosnian Serb leaders distancing

themselves from norm-deviant actors suggests they viewed the threat of international prosecution

as legitimate. It also shows they are trying to portray themselves as norm adherents in order to

retain their political power, and thus will likely be deterred from committing norm-deviant

behavior in the future.

Furthermore, there is empirical evidence indicating that the threat of ICC prosecutions

has had a general deterrent effect on would-be norm violators in Africa. First, in Côte d'Ivoire,

evidence suggests the 2004 threat of Juan Méndez18 to President Gbagbo, that inciting ethnic

violence could be subject to the jurisdiction of the ICC, led Gbagbo to order an end to the

xenophobic radio broadcasts of Radio Télévision Ivorienne in south Côte d'Ivoire.19 It is likely

Gbagbo viewed the threat of ICC prosecution as credible, and thus was deterred from inciting

ethnic violence, as by 2004 Côte d'Ivoire had made an ad hoc declaration under article 12(3) of

the Rome Statute recognizing the ICC’s jurisdiction, and ICC investigations were opened that

year in both Uganda and the DRC.20 Additionally, following the 2009 ICC indictment of

Sudanese President Omar Al Bashir, the solidarity of fellow African Union (AU) leaders with

Bashir may show their fear of ICC indictment; specifically, indicating the perceived necessity to

stand together against the ICC in order to preserve their political power.21 Moreover, while the

African leaders standing together against the ICC shows the negative effect ICC prosecutions


18 Then U.N. Special Advisor on the Prevention of Genocide

19 Payam Akhavan, Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism, 31 Hum. Rts. Q. 624, 637-640 (2009).

20 Id.

21 Id. at 649.

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may have in certain contexts,22 the perception of ICC prosecutions as a credible threat still serves

as a first step towards general deterrence of norm violations. Further, the naming of Bashir’s

alleged crimes associated with his indictment may serve unconscious deterrence by retrenching

the fear of AU leaders associated with such crimes—leading to the unconscious discouragement

of deviation from such international norms. Finally, the attempts of Kenyan political leaders to

block ICC prosecutions following the opening of the ICC investigation in Kenya in 2010 may

similarly show the perceived credibility of the threat of such prosecutions.23 Specifically, the

attempts to block prosecutions may show Kenyan leaders view ICC indictments as a threat to

their ability to use violence to retain political power, and consequently a threat to their political

longevity. Thus, while the ICC indictments may not have deterred them completely from norm

violations, the perceived credible threat of such prosecutions serves as a first step towards

general deterrence.

Accordingly, while it is difficult to determine whether international prosecutions have a

general deterrent effect on would-be norm violators, absent their confession of such effect, the

empirical evidence suggests leaders in the former Yugoslavia and Africa viewed the threat of

international prosecutions as credible. This evidence in turn indicates a step towards a general

deterrent effect of international prosecutions. Finally, more consistent indictments, arrests,

prosecutions and sentences issued by the ICC will bolster this deterrent effect.

22 To be elaborated upon below.


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ii. Statistical Evidence for General Prosecutorial Deterrence

There is also statistical evidence indicating international prosecutions have had a general

deterrent effect on the commission of norm violations globally. Utilizing the Uppsala University

Department of Peace and Conflict Research 2013 One-sided Violence dataset,24 which gives the

annual best estimate for intentional civilian killings by the governments of 101 States and 264

rebel groups between 1989 and 2012, Hyeran Jo and Beth Simmons have conducted the first

statistical analysis of the effect of ICC activities on norm violations globally.25 Controlling for

other factors which may influence the number of civilian killings in a State, such as regime type26

and on-going civil war in the country, Jo and Simmons studied the effect of Rome Statute

ratification, ICC actions, and aid pressure on the commission of intentional civilian killings.27

Specifically, ICC actions pertain to preliminary examinations, investigations and arrest warrants

announced by the ICC Office of the Prosecutor (OTP).28 Additionally, aid pressure consists in

the susceptibility of government officials to material manifestations of social pressure or

development assistance.29 Their findings prove optimistic for proponents of the ICC, as they

observed a correlation to a decrease in intentional civilian killings in a variety of contexts.

24 One-sided Violence (OSV) dataset. Eck and Hultman 2007. UCDP v 1.4-2013, 1989-2012.

25 Hyeran Jo & Beth A. Simmons, Can the International Criminal Court Deter Atrocity? (2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2552820.

26 Presuming democracies are less likely to target civilians than more autocratic regimes.

27 Hyeran Jo & Beth A. Simmons, Can the International Criminal Court Deter Atrocity?, at 23-6 (2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2552820.

28 Id.

29Id.

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First, Jo and Simmons found that the ratification of the Rome Statute reduced intentional

civilian killings by government forces by 60%.30 Further, they found that one additional

investigation of the OTP reduced the government forces intentional civilian killing figure by

9%.31 This serves as strong evidence for the hypothesis that governmental actors are deterred, at

least from intentionally killing civilians, by both the ratification of the Rome Statute and ICC

investigations.

Finally, in studying the 264 rebel groups worldwide, Jo and Simmons found that, while

ratification of the Rome Statute does not reduce their intentional civilian killing, further actions

taken by the ICC Prosecutor do reduce such killing.32 Accordingly, this lends support to the

hypothesis that, while rebels are not deterred by Rome Statute ratification, they are deterred by

ICC investigations and indictments. These statistics serve as strong evidence for the existence of

a general prosecutorial deterrent effect on norm-deviant behavior committed by both

governmental and non-governmental elites.

B. Specific Prosecutorial Deterrence

Specific international prosecutorial deterrence refers to the theory that indicting,

prosecuting and punishing an elite will deter him/her from committing a future crime.33 While

specific deterrence may work in the domestic criminal justice context, it is theoretically

problematic in the international context. Specifically, with reference to the presumption

underlying general deterrence theory—that elites will choose not to commit norm-deviant acts in

30Hyeran Jo & Beth A. Simmons, Can the International Criminal Court Deter Atrocity?, at 29 (2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2552820.

31Id. at 29.

32 Id. at 35.

33 Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7 (2001).

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order to maintain their political power—if a national leader is indicted, he/she may view future

arrest and prosecution as a threat to his/her political longevity. Accordingly, international

indictments may serve as a disincentive to giving up power, and actually “cause national leaders

to seek to entrench themselves, and hence maintain or even escalate an abusive or criminal

campaign.”34

Empirical evidence lends support to how it may be problematic to find specific

prosecutorial deterrence in the international context. First, after his indictment by the ICC in

2009, instead of giving up his power and turning himself in, Sudanese President Omar Al Bashir

sought to entrench his power in Sudan—expelling 13 humanitarian aid organizations and

shutting down all of the Sudanese human rights groups.35 Additionally, the 2005 indictments of

Lord’s Resistance Army (LRA) commanders Joseph Kony, Okot Odhiambo, Dominic Ongwen,

and Vincent Otti reportedly led to the failure of the Juba peace talks in 2008, as negotiators were

unable to settle with the LRA after amnesties were taken off the table by the ICC.36

Consequently, the 2005 ICC indictments in the Ugandan situation arguably led to the

continuance of the LRA’s international norm violations. Accordingly, it is unlikely international

prosecutions have a specific international deterrent effect on elites, and they may even lead to an

increase in the commission of norm violations by indicted leaders.

C. Social Deterrence


35 Id.; see also Payam Akhavan, Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism, 31 Hum. Rts. Q. 624, 631 (2009).

36 Line E. Gissel, Justice Tides: How and When Levels of ICC Involvement Affect Peace Processes, 9(3) Int’l J. Transitional Just. 428, 448 (2015).

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Another form of criminal deterrence in the international context pertains to social

deterrence, or situations in which would-be norm violators are deterred by the extra-legal costs

associated with the violation of international norms.37 Such extra-legal costs may pertain to the

prospect of sanctions or the loss of business relationships political elites face when they violate

norms.38 The extra-legal factors also may consist in the effect international prosecutions have in

stigmatizing international norm-deviant conduct in the domestic political culture of would-be

norm violators.39 Specifically, international prosecutions may increase the economic and political

transaction costs other domestic and international elites face in doing business with a norm

violator—leading them to cut their economic or political ties with the criminal leader.40 Further,

with respect to leaders indicted for international norm violations, social deterrence may lead to

their sociological, political and economic stigmatization and ultimate erosion of their power base

—culminating in the cessation of their norm-deviant conduct through their arrest or fall from

power.41 Additionally, social deterrence may lead would-be norm violators to choose the

perceived political longevity associated with norm adherence, taking into consideration the



39 David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473, at 475 (1999).


41 Id.

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likelihood of sanctions, loss of business relationships or domestic political stigmatization

associated with norm deviance.42

Statistical evidence supports the existence of a social deterrent effect of the ICC. First,

there has been an increase in international attention paid to Rome Statute crimes, evidenced by

the number of references to such crimes in U.N. General Assembly resolutions since the entry

into force of the Statute in 2002.43 This evidence indicates an increased entrenchment of the

perception of such international crimes as norm deviant behavior—which may lead to greater

international and domestic, economic and political stigmatization of leaders who violate such

norms.44 Additionally, Jo and Simmons found that secessionist rebel groups with internal

discipline were less likely to intentionally kill civilians after the ratification of the Rome Statute

than non-secessionist rebel groups.45 This evidence suggests that groups which are more reactive

to social costs, such as secessionist rebel groups hoping eventually to gain the support of a

society, may choose international norm adherence to avoid the perceived future social

stigmatization associated with norm deviant behavior—such as that associated with intentional

civilian killing. Finally, Jo and Simmons found that governments depending on aid relationships

are easier to deter through ICC actions from intentionally killing civilians than more self-reliant

governments.46 This lends support to the existence of a social deterrent effect of the ICC, as it

indicates that leaders are more likely to avoid norm-deviant behavior if such behavior is 42 Nick Grono, The deterrent effect of the ICC on the commission of international crimes by government leaders, International Crisis Group, http://www.crisisgroup.org/en/publication-type/speeches/2012/grono-the-deterrent-effect-of-the-icc.aspx (last visited Oct. 4, 2015).


44 Id.

45Id. at 35.

46 Id. at 38.

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associated with economic stigmatization, loss of international aid, and subsequent loss of

political power. Accordingly, statistical evidence suggests the existence of a social deterrent

effect of the ICC on elites.

D. Indirect Deterrence

Indirect deterrence pertains to situations when international prosecutions spur the

adoption by domestic political elites of international norm-consistent legislation, creating

domestic avenues for criminal prosecution, which in turn deter international norm-deviant

conduct domestically.47 In the context of the ICC, indirect deterrence refers to situations in which

the ratification of the Rome Statute, its principle of complementarity,48 and the desire of

domestic political actors to be subject to and prosecute norm violations in their domestic

jurisdictions, leads such actors to draft Rome Statute-consistent legislation.49 Thus, the domestic

prosecutorial deterrence associated with such domestic legislation augments the net deterrence of

the Rome Statute on the commission of Statute-deviant behavior.50 While indirect deterrence

may sound effective in theory, statistical evidence gives mixed results.

First, Jo and Simmons found, while the Rome Statute may have an indirect deterrent

effect on governmental actors, it likely does not have such an effect on rebel groups.

Specifically, they found that a shift towards Rome Statute-consistent domestic legal reform does

reduce intentional civilian killing by government forces by around 60%.51 However, they found


48 Rome Statute of the International Criminal Court art. 17, Jul. 1, 2002, 2187 U.N.T.S. 90.


50Id.

51Id. at 30.

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that the adoption of such domestic criminal statutes does not reduce intentional civilian killing by

rebel groups.52 Accordingly, the ratification of the Rome Statute may have varying indirect

deterrent effects in different conflictual contexts.

E. Theoretical Problems with Criminal Deterrence in Conflict Settings

The various theories of international criminal deterrence have received much criticism

over the years, as they have been found inapplicable to some conflict situations. While this paper

asserts there is strong evidence supporting the existence of a deterrent effect of international

prosecutions on norm-deviant conduct, it is nonetheless important to note the situations in which

such prosecutions may be ineffective in deterring the commission of atrocity crimes.

First, international prosecutions may not be effective in deterring norm-deviant conduct

in situations where civilians are either dehumanized or viewed as enemy combatants. For

example, in the context of the former Yugoslavia, Slobodan Milošević, then-President of Serbia,

used the media to call for a total preemptive war against Croatia—portraying the Croats as the

Turkish hordes of the Battle of Kosovo (1389).53 Subsequently, because total war ensued in

Bosnia and Herzegovina, with civilians and military personnel fighting and whole communities

mobilizing in defense, the perception grew of civilians as enemy combatants.54 Consequently,

even though Serb fighters reportedly knew that killing civilians was norm-deviant behavior,55 the

perception that the civilians were mobilizing against them, combined with the low likelihood of



54 David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473, 478 (1999).

55 Id. at 486.

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prosecution by the ICTY weighed in favor for many Serbs of killing such civilians.56 Similarly,

in Rwanda the dehumanization of Tutsi civilians—Radio Télévision Libre des Milles Collines

analogizing them to cockroaches—and the fomentation of the ethnic hatred of the majority Hutu

population, coupled with the low probability of prosecution, weighed in favor for Hutu forces of

massacring Tutsi civilians.57 However, difficulties arise even in assuming that the Hutu forces

made any reasoned calculation during their commission of the Rwandan genocide of 1994.

Another situation in which international prosecutions may have no deterrent effect on the

commission of norm-deviant behavior consists in ethnic hatred-driven conflicts. Specifically,

considering the aforesaid fomentation amongst Rwandan Hutus of ethnic hatred against the Tutsi

minority, it is difficult to presume that the Hutu Génocidaires actually dispassionately calculated

the relative costs associated with committing genocide.58 Observations from the Yugoslav and

Rwandan conflicts may lead one to the conclusion, buttressed on the aforementioned 2004

deterrence evidence from Côte d’Ivoire, that international prosecutions will be more effective

before ethnic hatred explodes into total war or genocide, when actors are more likely to conduct

reasoned cost-benefit analyses.59 This conclusion also suggests that the earlier ICC investigations

and further ICC actions are initiated in a conflict, the more likely they are to have a deterrent

effect on the commission of norm-deviant actions.

Finally, the refusal of actors to terminate their business relationships with a norm-deviant

actor or economically stigmatize such an actor may undercut the social deterrent effect of

56 David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473, 478 (1999).


58 Payam Akhavan, Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism, 31 Hum. Rts. Q. 624, 629 (2009).

59 Id. at 636-7.

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international prosecutions. For example, in the case of Sudan, the lack of decisive sanctioning

action by the U.N. Security Council, coupled with China’s continued oil interests in the country,

decrease the likelihood of Omar Al Bashir’s arrest or any upset of political power—consequently

eliminating any social deterrent effect of the ICC within Sudan.60 Specifically, al Bashir remains

the President of Sudan six years after his indictment by the ICC, due to the lack of economic

sanctions and any consequent economic debilitation of Sudan which would likely have led to the

mobilization of domestic opposition to the leader. Instead, domestically the ICC indictment has

turned the leader into a martyr, and international fear of the ICC has led the members of the

African Union to stand in solidarity with Bashir.61

III. DETERRENCE IN THE DRC AND COLOMBIA

In order to elucidate how the deterrent effect of international prosecutions is context-

specific, and depends on a number of significant factors, this paper now turns to the cases of the

Democratic Republic of the Congo and Colombia. Each case presents very different conflict

situations as well as varying degrees of ICC involvement. Nonetheless, there is both empirical

and statistical evidence to support the conclusion that the ICC has had a deterrent effect in both

the DRC and Colombia.

A. Democratic Republic of the Congo

The International Criminal Court has arguably achieved the most success of any of its

situations in the DRC, with the country giving the ICC its first arrest and first conviction. The


61 Payam Akhavan, Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism, 31 Hum. Rts. Q. 624, 631 (2009).

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DRC signed the Rome Statute on September 8, 2000 and ratified the Statute on April 11, 2002.62

Subsequently, the DRC government referred the country to the investigation of the ICC Office of

the Prosecutor under article 12(2) of the Rome Statute on April 19, 2004, and the Prosecutor

decided to open an investigation on June 23, 2004.63 On March 16, 2006 Thomas Lubanga Dyilo,

former leader of the Union de Patriotes Congolais (UPC), was arrested and transferred to The

Hague, and the guilty verdict in his case was issued on March 14, 2012.64 Lubanga Dyilo was

subsequently sentenced to 14 years of imprisonment on July 10, 2012, for enlisting and

conscripting children under the age of 15 years into the Forces Patriotiques pour la Libération

du Congo (FPLC) (the military wing of the UPC).65 The first warrant for the arrest of Bosco

Ntaganda, a former commander of the FPLC, the Congrès National pour la Defense du Peuple

(CNDP) and later the Mouvement du 23 mars (M23), was unsealed on March 17, 2006, and a

second warrant was issued on July 13, 2012. Ntaganda subsequently surrendered to ICC custody

on March 22, 2013.66 Germain Katanga, the alleged former commander of the Force de

Résistance Patriotique en Ituri (FRPI), surrendered to the custody of the ICC on October 17,

2007, the judgment in his case was issued on March 7, 2014, and on May 23, 2014 he was

sentenced to 12 years of imprisonment.67 Callixte Mbarushimana, the alleged Executive

62 Democratic Republic of the Congo Informational Page, International Criminal Court, http://www.icc-cpi.int/en_menus/asp/states%20parties/african%20states/Pages/democratic%20republic%20of%20the%20congo.aspx (last visited Nov. 21, 2015).

63 Situation in Democratic Republic of Congo, International Criminal Court, http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200104/Pages/situation%20index.aspx (last visited Nov. 21, 2015).

64 Id.

65 Id.

66 Id.

67Situation in Democratic Republic of Congo, International Criminal Court, http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200104/Pages/situation%20index.aspx (last visited Nov. 21, 2015).

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Secretary of the Forces Démocratiques pour la Libération du Rwanda – Forces Combattantes

Abacunguzi (FDLR-FCA, FDLR), was arrested by French Authorities on October 11, 2010, and

transferred to The Hague on January 25, 2011.68 Finally, Mathieu Ngudjolo Chui, the alleged

former leader of the Front des Nationalistes et Intégrationnistes (FNI) was arrested and

transferred to The Hague on February 7, 2008, but released from ICC custody on December 21,

2012.69

In the DRC there is evidence both for and against the existence of a deterrent effect of the

ICC over the past thirteen years. While the commission of atrocities and conflict proliferates

throughout the country to the time of writing, there is empirical and statistical evidence showing

the ICC has had both a general and social deterrent effect in the country.

i. General Deterrence in the DRC

Anecdotal and statistical evidence suggests that the ICC has had a general deterrent effect

in the DRC on the conscription of child soldiers, intentional civilian killing and general violence.

With respect to the recruitment of child soldiers, a Human Rights Watch research mission to the

Eastern DRC in 2007 found that “it was clear that militia leaders knew that Lubanga was being

tried on charges relating to child soldiers and were aware of their own vulnerability to

prosecutions.”70 Additionally, Nicolas Mateso, an ex-combatant in Ituri province stated in a 2011

report that “[t]oday many leaders of armed groups are afraid to engage in hostilities or recruit

68Id.

69Id.

70 First Verdict at the International Criminal Court: The case of the Prosecutor vs. Thomas Lubanga Dyilo, Human Rights Watch, https://www.iccnow.org/documents/HRW_2012_DRC_Lubanga_QA.pdf, at 10 (last visited Nov. 7, 2015).

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child soldiers [for] fear of being charged by the International Criminal Court . . . .” 71 Further,

since the beginning of Lubanga’s trial for the recruitment of child soldiers, there have been

reports that so-called “Lubanga syndrome has induced Congolese militia leaders to release child

soldiers from their ranks and into [DDR] programmes.”72 A report released in 2013 by the U.N.

Peacekeeping Mission in the DRC (MONUSCO) lends support to this anecdotal evidence, as it

observes that between January 1, 2009 and August 2013, 9,114 child soldiers were released from

DRC armed groups, as annual recruitment of child soldiers decreased over the same period.73

Specifically, this observed decrease in annual recruitment of child soldiers and release of the

same from the ranks of armed groups in the DRC follows the 2006 arrest of Lubanga, 2009

opening of his ICC trial, and 2012 conviction issued in his case. This evidence indicates that the

ICC prosecution of Lubanga for the crime of recruiting child soldiers has had a measurable

deterrent effect in the DRC.

However, the Lubanga trial has also reportedly led paramilitary leaders to instruct their

child soldiers to lie about their age at child protection centers in the DRC.74 While this may serve

as evidence for a negative effect of the ICC prosecution of Lubanga in the DRC, at the same time

this evidence shows that military leaders in the country fear the ICC enough to tell their kadogos

(Swahili for “little ones who fight”) to lie—showing that DRC military leaders perceive the ICC

71 Members’ Media Statements and Quotes, Coalition for the International Criminal Court, https://www.iccnow.org/?mod=newsdetail&news=4422 (last visited Nov. 22, 2015).

72 Mark Kersten, The International Criminal Court and Deterrence—The ‘Lubanga Syndrome’, Justice in Conflict, http://justiceinconflict.org/2012/04/06/the-international-criminal-court-and-deterrence-the-lubanga-syndrome/ (last visited Nov. 22, 2015).

73 Child Recruitment by Armed Groups in DRC from January 2012 to August 2013, MONUSCO, at 24 (Oct. 24, 2013), available at http://monusco.unmissions.org/LinkClick.aspx?fileticket=DazRcHfpAJo%3d&tabid=10701&mid=13689&language=en-US.

74Mark Kersten, The International Criminal Court and Deterrence—The ‘Lubanga Syndrome’, Justice in Conflict, http://justiceinconflict.org/2012/04/06/the-international-criminal-court-and-deterrence-the-lubanga-syndrome/ (last visited Nov. 22, 2015).

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as a credible threat to their power. Nonetheless, in October 2013, over a year after Lubanga’s

sentence was issued by the ICC, MONUSCO reported 996 cases of child recruitment by armed

groups in the DRC between January 1, 2012 and August 31, 2013.75 While this number is a

significant decrease from the annual average of 1,800 child recruits of the previous four years,76

it shows the norm violation is still endemic to the country.

There is also evidence suggesting that the ICC has had a deterrent effect on the general

commission of violence in the DRC. First, in 2012 former President of the ICC Song Sang-Hyun

reported that the Justice Minister of the DRC observed a deterrent effect of the ICC on the

commission of violence during the 2011 elections in the DRC.77 Specifically, the DRC Minister

reportedly stated that, during the 2011 elections, the cognizance of nationals of the fact that

“Kenyan politicians [were] facing in The Hague . . .allegations of post-election violence” and the

fact that “the ICC had been a constant topic of discussion around the DRC’s elections” showed

the ICC “had a significant deterrent effect.”78 There is also evidence that members of Bosco

Ntaganda’s armed group M23 feared arrest by the ICC after Ntaganda was transferred to The

Hague—this fear possibly causing their demobilization, and consequent prevention of future

violence.79

75 Child Recruitment by Armed Groups in DRC from January 2012 to August 2013, MONUSCO, at 5 (Oct. 24, 2013), available at http://monusco.unmissions.org/LinkClick.aspx?fileticket=DazRcHfpAJo%3d&tabid=10701&mid=13689&language=en-US.

76 Id. at 24.

77 Song Sang-Hyun, Courting peace, Wallace Wurth Memorial Lecture, University of New South Wales, http://uniken.unsw.edu.au/features/courting-peace (last visited Nov. 22, 2015) (making this statement in a lecture given at the University of New South Wales in 2012).

78 Song Sang-Hyun, Courting peace, Wallace Wurth Memorial Lecture, University of New South Wales, http://uniken.unsw.edu.au/features/courting-peace (last visited Nov. 22, 2015) (making this statement in a lecture given at the University of New South Wales in 2012).

79 Michael Broache, The International Criminal Court and Atrocities in DRC: A Case Study of the RCD-Goma (Nkunda Faction)/CNDP/M23 Rebel Group, Columbia University, at 33 (Sep. 1, 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434703.

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Furthermore, statistical evidence indicates that the ICC has had a deterrent effect on the

commission of intentional civilian killings in the DRC. A study of the Uppsala University

Department of Peace and Conflict Research (UCDP) One-side Violence Dataset80 suggests that

the DRC’s ratification of the Rome Statute in 2002, the OTP’s initiation of an investigation in

2004, Lubanga’s arrest in 2006 and conviction in 2012 all have had different effects on different

armed groups in the country. The Dataset shows the annual best estimate for civilian killings by

government and non-governmental forces for the years for which data is available between 1989

and 2014.81 First, with respect to the DRC government armed forces (Forces Armées de la

République Démocratique du Congo (FARDC)), the mean annual civilian killings decreased by

72% after the DRC’s 2002 ratification of the Rome Statute.82 This number supports Jo and

Simmons finding83 that government forces are significantly deterred by the ratification of the

Rome Statute. Nonetheless, in contrast to Jo and Simmons findings,84 neither the opening of the

OTP investigation in 2004, nor the 2006 indictment of Lubanga further reduced the mean annual

civilian killings of the FARDC. However, after Lubanga’s 2012 conviction, FARDC civilian

killings reduced from an annual mean of 57085 in the years before 2012 to 48 in 2013. This may

80 UCDP One-sided Violence Dataset v. 1.4-2015, 1989-2014, Uppsala Universitet, Department of Peace and Conflict Research, http://www.pcr.uu.se/research/ucdp/datasets/ucdp_one-sided_violence_dataset/ (last visited Nov. 22, 2015) (recording intentional attacks on civilians from 1989-2014 and the best annual civilian fatality estimates committed by governments and armed non-governmental groups).

81 Id.

82 This percentage was calculated by measuring the reduction from the mean of the best estimate of annual civilian killings by the FARDC in the years before 2002 for which the UCDP has data—1989, 1990, 1991, 1992, 1993, 1995, 1996, 1997, 1998, 1999, 2000—for which the mean is 747.45 civilian fatalities. This number reduced to the mean of the years after 2002—2004, 2006, 2007, 2008, 2009, 2012, 2013—of 205.86 civilian fatalities, or a 72% decrease.


84 Id. at 29-30.

85 Specifically, the mean of the best fatality estimate in the years for which data is available from 1989-2009.

21

serve as some evidence in support of the hypothesis that Lubanga’s conviction deterred the

FARDC from killing civilians.

Similarly, with respect to the paramilitary forces in the DRC, a study of the UCDP

Dataset86 shows evidence for a deterrent effect of the ICC. First, the best estimate of annual

civilian killings by the Rassemblement Congolais pour la Démocratie (RCD), the Mayi,87 and the

Union de Patriotes Congolais (UPC)—led by Lubanga, all decreased in the years for which there

is data after the DRC’s ratification of the Rome Statute in 2002. Additionally, the best estimate

of annual civilian killings of the Forces de Résistance Patriotique d’Ituri (FRPI)—commanded

by Germain Katanga, and the Front des Nationalistes et Intégrationnistes (FNI)—commanded

by Mathieu Ngudjolo Chui, both decreased, in comparison to their pre-2004 numbers, in the

years for which there is data after the opening of the OTP investigation in 2004. This evidence

indicates that the ICC has had a deterrent effect on both government and non-governmental

forces in the DRC with regard to their commission of civilian killings. However, the big

exception to the general decrease in annual civilian killings post-2002 in the DRC pertains to the

outbreak of conflict between the Forces Démocratiques de Libération du Rwanda (FDLR) and

the FARDC in 2009.

In January 2009 DRC President Joseph Kabila and Rwandan President Paul Kagame

struck a deal to rid each other of their common enemy, agreeing to take joint military action in

the Eastern DRC against the Hutu-led FDLR.88 Subsequently, despite the 2004 OTP

86 UCDP One-sided Violence Dataset v. 1.4-2015, 1989-2014, Uppsala Universitet, Department of Peace and Conflict Research, http://www.pcr.uu.se/research/ucdp/datasets/ucdp_one-sided_violence_dataset/ (last visited Nov. 22, 2015).

87 Because of the scant amount of data available for the other Mayi Mayi groups present in the Dataset, I refer here only to the group labeled “Mayi Mayi.” 88 Democratic Republic of Congo (DRC): Events of 2009, Human Rights Watch, https://www.hrw.org/world-report/2010/country-chapters/democratic-republic-congo (last visited Nov. 14, 2015).

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investigation, the 2006 arrest of Lubanga and indictment of Ntaganda, the 2007 arrest of Katanga

and the 2008 arrest of Ngudjolo Chui, the conflict which ensued in 2009 saw the FDLR take

around 1,590 civilian lives and the FARDC take around 887 civilian lives.89 In addition, around

7,000 cases of sexual violence were registered in North and South Kivu provinces in just the first

seven months of 2009—nearly double the number for all of 2008.90 This extreme deviation from

the aforementioned general decrease in norm deviations in the DRC after the ratification of the

Rome Statute may be explained in part by the lessons learned from the former Yugoslavia and

Rwanda. Specifically, there is evidence that the FDLR targeted DRC civilians, “killing and

raping to punish the population for their government’s change in policy toward [the FDLR].”91

Additionally, there is evidence that the FARDC “itself targeted civilians who it perceived as

FDLR collaborators, as well as Rwandan Hutu refugees.”92 Accordingly, as was the case with the

Serb soldiers in the context of the total war in the former Yugoslavia,93 the perception of FARDC

soldiers of DRC civilians as enemy combatants may have contributed to their commission of

intentional civilian killings. Additionally, as was the case with the Rwandan Hutu Génocidaires

in 1994,94 the fomentation of the ethnic hatred of the similarly Hutu-led FDLR against the Tutsi-


90 Democratic Republic of Congo (DRC): Events of 2009, Human Rights Watch, https://www.hrw.org/world-report/2010/country-chapters/democratic-republic-congo (last visited Nov. 14, 2015).

91 Id.

92 Democratic Republic of Congo (DRC): Events of 2009, Human Rights Watch, https://www.hrw.org/world-report/2010/country-chapters/democratic-republic-congo (last visited Nov. 14, 2015).

93 David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473, 478-86 (1999).94 Payam Akhavan, Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism, 31 Hum. Rts. Q. 624, 629 (2009).

23

led Rwandan government may have led to the irrational targeting of civilians in 2009 in the

Eastern DRC. As a result, the evidence from the former Yugoslavia, Rwanda and the DRC

conflict situations lend support to the conclusion that international criminal deterrence does not

function in situations where either: 1) civilians are viewed by soldiers as enemy combatants, or

2) the fomentation of ethnic hatred erupts into conflict. Despite this conclusion, the

aforementioned evidence indicates that the ICC has had an overall general deterrent effect on the

commission of norm deviations in the DRC over the past thirteen years.

ii. Social Deterrence in the DRC

There is also statistical and empirical evidence which suggests the ICC has had a social

deterrent effect in the DRC, at least with respect to the recruitment of child soldiers and the case

of Bosco Ntaganda. First, there is evidence that the 2006 child enlistment charge of the ICC

against Lubanga raised awareness of the seriousness of the crime of recruitment of child soldiers

among parents in Ituri province who had not previously viewed the crime as serious; and, who

had their children join the militias of Eastern DRC.95 This increased awareness indicates the

retrenchment of the international norm against the recruitment of child soldiers within the DRC.

In turn, this retrenchment may have contributed to the social stigmatization of the act of military

recruitment of children in the DRC, and consequent deterrence of such conduct, evidenced by the

drastic decrease in the recruitment of child soldiers across the country from 2009 to 2013.96

Additionally, the most probative evidence for a social deterrent effect of the ICC in the

DRC pertains to the case of Bosco Ntaganda. Following the release of the ICC verdict in the

95 First Verdict at the International Criminal Court: The case of the Prosecutor vs. Thomas Lubanga Dyilo, Human Rights Watch, https://www.iccnow.org/documents/HRW_2012_DRC_Lubanga_QA.pdf, at 10 (last visited Nov. 7, 2015).

96 Child Recruitment by Armed Groups in DRC From January 2012 to August 2013, MONUSCO, at 24 (Oct. 24, 2013), available at http://monusco.unmissions.org/LinkClick.aspx?fileticket=DazRcHfpAJo%3d&tabid=10701&mid=13689&language=en-US.

24

Lubanga case in March 2012, the OTP once again called for the immediate arrest of Ntaganda—

similarly on charges of child soldier enlistment.97 However, wanting to try Ntaganda in Goma,

DRC, where the crimes were committed, in April 2012 DRC President Joseph Kabila also called

for the arrest of Ntaganda.98 Around this same time, rivals of Ntaganda within the recently-

defected M23 rebel group said the DRC government would never agree to a favorable peace deal

with Ntaganda because of the ICC warrant for his arrest.99 The second ICC warrant for

Ntaganda’s arrest was then issued on July 13, 2012,100 and throughout the rest of the year and

early 2013 Ntaganda’s political and military base within the M23 continued to crumble.101 In

early 2013 Rwanda, who had been backing Ntaganda, told him they could no longer do so—as

the U.S. had pressed Rwanda to cut ties and offered a reward for Ntaganda’s capture.102

Subsequently, Sultani Makenga and the forces allied to him within the now-factionalized M23

forced Ntaganda and his dwindling allies within the M23 to flee to Rwanda in early March

2013.103 Once in Rwanda Ntaganda turned himself in to the U.S. consulate in Kigali, where,

97 Congo’s ‘Terminator’: Kabila calls for Ntaganda arrest, BBC News, http://www.bbc.com/news/world-africa-17683196 (last visited Nov. 23, 2015).

98Id.

99 Michael Broache, Beyond deterrence: the ICC effect in the DRC, Open Democracy, https://www.opendemocracy.net/openglobalrights/michael-broache/beyond-deterrence-icc-effect-in-drc (last visited Nov. 23, 2015).

100 Situation in Democratic Republic of Congo, International Criminal Court, http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200104/Pages/situation%20index.aspx (last visited Nov. 21, 2015).

101 Marlise Simons, War Crimes Trial Opens for Bosco Ntaganda, Congolese Rebel Leader, New York Times, http://www.nytimes.com/2015/09/03/world/africa/bosco-ntaganda-congo-international-criminal-court.html (last visited Nov. 23, 2015).

102 Id.

103 Defeated Congo rebels surrender, Gulf Times, http://www.gulf-times.com/africa/243/details/345710/defeated-congo-rebels-surrender%20race (last visited Nov. 7, 2015).

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according to U.S. Department of State spokeswoman Victoria Nuland, he specifically asked to be

transferred to the ICC.104

While it is likely that Ntaganda asked to be transferred to the ICC to avoid being killed

by the Rwandan government or alternatively Makenga’s forces,105 the splintering of the M23 and

Ntaganda’s surrender were still likely due in part to the ICC warrant for his arrest—and the

associated social stigmatization of Ntaganda. Furthermore, after the 750 M23 combatants loyal

to Ntaganda fled to Rwanda in March 2013, over 240 M23 combatants surrendered to

MONUSCO in the DRC.106 Also, reportedly the M23 “killed approximately 2.54 fewer civilians

per month, on average, after Ntaganda’s surrender.”107 In addition, the M23 continued to degrade

until, in November 2013, Sultani Makenga surrendered with around 1,700 remaining M23

fighters in Mgahinga National Park, Uganda.108 The splintering and subsequent fall of the M23

thus serves as evidence that the ICC had a social deterrent effect by stigmatizing Ntaganda. This

stigmatization led to Ntaganda’s surrender to the ICC, which in turn led to the debilitation of the

M23—ending their commission of atrocity crimes in the Eastern DRC.

iii. Evidence against Deterrence in the DRC

104 Jeffrey Gettleman, Wanted Congolese Rebel Leader Turns Himself In to U.S. Embassy, New York Times, http://www.nytimes.com/2013/03/19/world/africa/wanted-congolese-rebel-leader-turns-himself-in.html?action=click&contentCollection=Africa&module=RelatedCoverage&region=Marginalia&pgtype=article (last visited Nov. 23, 2015).

105 Id.

106 Michael Broache, Beyond deterrence: the ICC effect in the DRC, Open Democracy, https://www.opendemocracy.net/openglobalrights/michael-broache/beyond-deterrence-icc-effect-in-drc (last visited Nov. 23, 2015).

107 Michael Broache, The International Criminal Court and Atrocities in DRC: A Case Study of the RCD-Goma (Nkunda Faction)/CNDP/M23 Rebel Group, Columbia University, at 23 (Sep. 1, 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434703.

108 DR Congo’s M23 rebel chief Sultani Makenga ‘surrenders’, BBC News, http://www.bbc.com/news/world-africa-24849814 (last visited Nov. 7, 2015).

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Unfortunately, the Ntaganda case also gives evidence for the negative effect the ICC has

likely had in the DRC. Specifically, after the March 14, 2012 ICC verdict in the Lubanga case,

the OTP, the U.S. embassy in Kinshasa and other international human rights organizations again

called for Ntaganda’s arrest.109 Subsequently, there is evidence that fear of arrest and future

sanctions led Ntaganda, then-brigadier general in the FARDC, to encourage former officers of

the CNDP who had integrated into the FARDC, to revolt.110 In the next month they did so, and

by April 2012 Ntaganda had helped form the rebel M23 force, which over the next year-and-a-

half would commit “serious atrocities, including killing civilians, sexual violence and pillaging”

in the Eastern DRC.111 This evidence indicates that, instead of simply having no specific

deterrent effect, an ICC indictment may lead an indicted leader, as it did with Kony and has done

with Ntaganda, to commit more atrocity crimes.

B. Colombia

The situation in Colombia offers a very different case from that in the DRC, in which

there is both statistical and empirical evidence suggesting a deterrent effect of the ICC on the

commission of atrocity crimes. Specifically, evidence indicates that the ICC may have had a

general deterrent effect on both the Colombian government and paramilitary forces—including

the Autodefensas Unidas de Colombia (AUC), the Fuerzas Armadas Revolucionarias de

Colombia-Ejército del Pueblo (FARC-EP), as well as the Ejército de Liberación Nacional

(ELN). There is also evidence suggesting the ICC has had both an indirect and social deterrent

effect in Colombia.

109 Michael Broache, The International Criminal Court and Atrocities in DRC: A Case Study of the RCD-Goma (Nkunda Faction)/CNDP/M23 Rebel Group, Columbia University, at 28 (Sep. 1, 2014).

110 Id. at 28-9. 111 Michael Broache, Beyond deterrence: the ICC effect in the DRC, Open Democracy, https://www.opendemocracy.net/openglobalrights/michael-broache/beyond-deterrence-icc-effect-in-drc (last visited Nov. 23, 2015).

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The Colombian government signed the Rome Statute on December 10, 1998, and ratified

it on August 5, 2002.112 Additionally, the OTP began its preliminary examination of Colombia in

June 2004.113 While a formal investigation has yet to be initiated, on March 2, 2005 the OTP

“informed the Government of Colombia that he had received information on alleged crimes

committed in Colombia that could fall within the jurisdiction of the Court.”114 Empirical and

statistical evidence indicates that these preliminary actions have had a deterrent effect on the

commission of norm-deviant behavior in Colombia over the last decade.

i. General Deterrence in Colombia

Both empirical and statistical evidence supports the existence of a general deterrent effect

of the ICC on the leaders of armed groups in Colombia. First, there is evidence that José Vicente

Castaño Gil, the leader of the AUC, “was apparently sharply aware and fearful of the possibility

of ICC prosecution, a fear that reportedly directly contributed to his demobilization.”115

Additionally, Eduardo Pizarro, a Professor at the National University of Colombia who met

frequently with demobilized paramilitary leaders, said the leaders cited as one of their main

motivating factors for voluntary disarmament the “desire to serve any prison sentences in

Colombia, rather than in an unknown country following an ICC indictment and trial.”116 Jineth

112 Colombia Informational Page, International Criminal Court, http://www.icc-cpi.int/en_menus/asp/states%20parties/latin%20american%20and%20caribbean%20states/Pages/colombia.aspx (last visited Nov. 23, 2015).

113 Situation in Colombia: Interim Report, International Criminal Court, Office of the Prosecutor, at 2 (Nov. 2012), available at https://www.icc-cpi.int/NR/rdonlyres/3D3055BD-16E2-4C83-BA85-35BCFD2A7922/285102/OTPCOLOMBIAPublicInterimReportNovember2012.pdf.

114 Id.

115 Nick Grono, The deterrent effect of the ICC on the commission of international crimes by government leaders, International Crisis Group, http://www.crisisgroup.org/en/publication-type/speeches/2012/grono-the-deterrent-effect-of-the-icc.aspx (last visited Nov. 23, 2015).

116 David Cantor & Par Engstrom, In the Shadow of the ICC: Colombia and International Criminal Justice, Human Rights Consortium: University of London, at 28 (May 26, 2011) available at http://sas-space.sas.ac.uk/3206/1/ICC,_Colombia_and_International_Criminal_Justice_Conference_Report.pdf.

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Bedoya, a journalist at El Tiempo newspaper of Colombia who has worked extensively on the

Colombian conflict, also “agreed that many paramilitary demobilizations had been catalyzed by

the threat of ICC proceedings.”117

Further, with respect to the possible deterrent effect of the ICC on the Colombian

government, there appears to have been some fear stoked by the March 2005 OTP

correspondence. Specifically, former U.S. Ambassador William R. Brownfield wrote in his notes

of a November 1, 2007 meeting with former Colombian President Andrés Pastrana that he

“voiced concern that the International Criminal Court could attempt to prosecute him for

allegedly creating a safehaven for narcoterrorists through the Caguan process” and that he “asked

for [U.S. Government] support, appropriate, to refute these allegations.”118 This evidence

indicates that even former Colombian government officials perceived the threat of ICC

prosecution as legitimate, even though the ICC had not even opened a formal investigation in the

country. In turn, this fear suggests the possibility that the ICC may have had a general deterrent

effect on Colombian government officials.

Finally, there is both empirical and statistical evidence in support of a general deterrent

effect of the ICC on FARC-EP and ELN forces in Colombia. First, Eduardo Pizarro stated in

2011 that “he had information that active members of the FARC-EP and UC-ELN had been

making enquiries as to what risks they ran of being subject to ICC proceedings.”119 However,

Jineth Bedoya reported at the same time that, while FARC-EP had discussed ICC proceedings,

FARC internal documents she saw suggested that the armed group did not believe the risk of

117Id.118 U.S. Ambassador William R. Brownfield, Nov. 1, 2007 Meeting with Former President Andres Pastrana (Nov. 14, 2007) available at https://wikileaks.org/plusd/cables/07BOGOTA8045_a.html.


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ICC prosecutions was serious.120 Nonetheless, a study of the UCDP One-sided Violence

Dataset121 shows that the ICC may have had a deterrent effect on the FARC. Specifically, while

the mean annual best estimate of civilian killings by the FARC-EP did not decrease after

Columbia’s ratification of the ICC statute in 2002, the rebel group’s mean annual intentional

civilian killings in Colombia decreased by 39.5% after the start of the OTP’s preliminary

investigation in 2004.122 This figure supports Jo and Simmons findings123 that, while ratification

of the Rome Statute does not deter non-governmental armed groups globally, further ICC actions

do. Accordingly, the aforementioned evidence indicates that the ICC has had a general deterrent

effect on the commission of norm-deviant behavior by paramilitary and government forces in

Colombia over the past decade.

ii. Indirect Deterrence in Colombia

In contrast to the findings of Jo and Simmons with respect to rebel groups globally,124

there is evidence supporting the conclusion that the ICC has had an indirect deterrent effect on

paramilitary groups in Colombia. First, at a 2011 expert conference on the role of the ICC in

Colombia, “[i]t was emphasized that upon ratification of the ICC Statute, Colombia committed

120 Id.


122 This figure was calculated by measuring the reduction from the mean of the best estimate of annual civilian killings by the FARC in all years for which the UCDP has data before 2004—every year from 1994 through 2003—which is 71.5 annual civilian killings. This mean annual fatality estimate decreases to 43.25 in the years for which the UCDP has data after 2004—2005, 2006, 2008, and 2009.


124 Id.

30

to prosecute serious crimes.”125 Specifically, Catalina Díaz of the University of Oxford proposed

that one reason for the debate and adoption of Colombia’s 2005 Justice and Peace Law (Ley 975)

was the “shadow” of the ICC leading paramilitary leaders to desire an agreement with the

Colombian government to prevent ICC intervention.126 Díaz also noted how, in order to invoke

the Rome Statute’s principle of complementarity,127 the Colombian National Congress “included

the language of justice not amnesty” in the Justice and Peace Law.128 Finally, even though the

Justice and Peace Law “has been criticized for its leniency towards the perpetrators of

atrocities,”129 it has had a marked impact on demobilizing paramilitary forces in Colombia—

preventing their further commission of atrocities.

Specifically, Professor Eduardo Pizarro of Colombia’s National University noted that,

along with their desire to avoid ICC prosecution, the other main motivating factor for the

voluntary disarmament of paramilitary leaders in Colombia was the incentive of greatly reduced

prison sentences offered by the 2005 Justice and Peace Law.130 As a result of the negotiation

process spurred by the Justice and Peace Law between 2003 and 2006, a total of 31,671 members

of the self-defense paramilitary groups and their leaders in Colombia took part in 37 collective


126 Id. at 37.

127 Rome Statute of the International Criminal Court art. 17, Jul. 1, 2002, 2187 U.N.T.S. 90.


129 Id. at 9.

130 Id. at 28.

31

demobilization processes.131 Additionally, between 2002 and 2010, around 21,909 members of

Colombian non-governmental armed groups individually demobilized,132 and during the same

demobilization process 18,051 weapons, 13,117 grenades and 2,716,401 rounds of ammunition

were given up voluntarily for smelting.133 Thus, while the demobilization process has been

criticized, the ICC has likely had a marked indirect deterrent effect on the continued commission

of atrocities by thousands of paramilitary combatants in Colombia.

iii. Social Deterrence in Colombia

There is additionally some evidence that the ICC has had a social deterrent effect on the

commission of atrocity crimes in Colombia. Reinaldo Villalba, of the José Alvear Restrepo

Lawyers Collective of Colombia, noted that, because of the ratification of the Rome Statute and

the creation of the ICC, “a new awareness of the rights and obligations stemming from

international law has emerged in Colombia.”134 Specifically, the ICC has attuned victims groups

and human rights advocates in Colombia to recognize “that crimes against humanity have taken

place . . . .”135 This evidence indicates that there has been a retrenchment of the international

norms propagated by the ICC in Colombia, which may have partly instigated the aforementioned

demobilization of thousands of paramilitary combatants in the country over the past decade.

131 Justice and Peace law: an experience of truth, justice and reparation, International Criminal Court, Review Conference of the Rome Statute, RC/ST/PJ/M.1, at 9 (June 1, 2010) available at https://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-ST-PJ-M.1-ENG.pdf.

132 Id.

133 Id. at 11.


135 Id.

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Additionally, the ratification of the Rome Statute has motivated victims groups and

human rights activists in the country, even in the face of opposition, to submit communications

to the ICC.136 These communications led the OTP, on March 2, 2005, to inform the Colombian

government that crimes had been committed in the country falling under the ICC’s

jurisdiction.137 Additionally, as of November 2012, the OTP had received 114 communications

from human rights groups in Colombia—further evidencing the retrenchment of ICC-consistent

norms in the country and the stigmatization of the norm-deviant conduct of armed groups.138

Finally, as stated above, the 2005 OTP communication likely led to the deterrence of the

commission of norm-deviant actions by paramilitary and government forces alike in Colombia

over the last decade. Accordingly, the ratification of the Rome Statute, and the actions of the

OTP have created a culture in Colombia where impunity is not put up with, and the commission

of atrocity crimes is stigmatized. Thus, the ICC has had a measurable social deterrent effect in

the country.

IV. CONCLUSION

While much criticism surrounds the hefty budget and scant arrest and conviction record

of the ICC, statistical and empirical evidence suggests that the tribunal has had a marked

deterrent effect on the commission of atrocity crimes globally. The Court has had a general,

social, and indirect deterrent effect in the conflict situations of Colombia and the DRC, as well as

many others. Additionally, history suggests that in the future, with the increased credibility of the

ICC stemming from more investigations, arrests and convictions, the Court will have a greater

136 Id.

137 Situation in Colombia: Interim Report, International Criminal Court, Office of the Prosecutor, at 2 (Nov. 2012), available at https://www.icc-cpi.int/NR/rdonlyres/3D3055BD-16E2-4C83-BA85-35BCFD2A7922/285102/OTPCOLOMBIAPublicInterimReportNovember2012.pdf.

138 Id.

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deterrent effect on the commission of international norm-deviant conduct. If nothing else though,

the ICC should uphold for jurists the conviction that atrocity crimes, committed in the far reaches

of the globe, should not go unpunished. It should uphold for citizens a culture against impunity.

Hopefully, in the coming years, we will not have to live in a world where the morals of a just

global society are sacrificed for the perceived exigence of an attractive peace deal.

34

the effect of international prosecutions on the commission of norm violations

Documents