Punishment as Prevention? The International Criminal Court and the Prevention of International Crimes

Abstract

INTRODUCTION The International Criminal Court, like all international criminal courts and tribunals, was created with a view to the prevention of international crimes. Yet, as a judicial mechanism, the court is designed with the core and sole purpose of punishing international crimes through the process of investigation, trial, and, in cases of guilt, detention. The court operates under the assumption that the punishment of crimes will itself lead to prevention. Indeed, this belief, which is near-orthodoxy among international lawyers and jurists, is enshrined in the preamble of the Rome Statute, which states that the signatories are ‘determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’. In order for the court to effectively address this laudable goal it is important to critically assess the potential impact of the court in preventing international crimes. This chapter will attempt to do so from a criminological, socio-legal perspective. It will draw from the author's extensive research on the causes of genocide and crimes against humanity, particularly in terms of the moral context and its effect on perpetrator motivation. This chapter is intended to be forward-looking and prescriptive, rather than focusing entirely on the past record of the court. The analysis of the prevention of international crimes involves several aspects. Firstly, we must consider the nature of international crimes and the international criminal justice system. What makes international crimes distinct from domestic crimes? How is the international criminal justice system distinct from domestic criminal justice systems? Secondly, this chapter will draw from criminological theory to theorise the prevention of international crimes. Could the ICC stop international crimes while they are still occurring or prevent the future commission of crimes through timely prosecutions? Does the ICC directly or indirectly deter perpetrators? Does it trigger other forms of accountability and policy responses through its complementarity regime and/or its moral condemnation of named perpetrators? Could it undermine the conditions that contribute to criminal behaviour, such as an enabling moral context and armed conflict?