Exaggerating the ICC

Abstract:     
The ongoing debate over the legitimacy and utility of the newly formed International Criminal Court has been freighted with overblown rhetoric by Court supporters and opponents alike. The unfortunate result of the polarization of the debate over the ICC is that it obscures what may realistically be expected of the new institution, and potentially distorts the allocation of political and financial resources in the fight against the crimes the new Court is designed to address. The reality is that claims on both sides are substantially overstated. In practice, the Court will be hampered by legal, financial, and political constraints; there is little empirical evidence to support claims that ICC prosecutions will have a substantial deterrent effect; national legal systems in the countries where atrocities are most widespread are usually inadequate and will often be unable to fulfill the role assigned to them by the Court's statute; and the signaling/rule of law promotion function of the Court is likely therefore to be relatively modest. But the Court can contribute to the marginalization of extremists in some contexts, and it can over the long term reinforce normative constraints against the commission of atrocities, even if only at the margins. Moreover, the Court will probably avoid the gray area cases most feared by the United States and other critics, so its impact on state sovereignty and national security decision making is likely to be modest.

Accepted Paper Series