Abstract

http://ssrn.com/abstract=931567
 
 

Citations (7)



 
 

Footnotes (153)



 


 



Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?


Julian Ku


Hofstra University - School of Law

Jide Nzelibe


Northwestern University - School of Law


Washington University Law Quarterly, Vol. 84, 2007
Hofstra University Legal Studies Research Paper No. 06-27
Northwestern Public Law Research Paper No. 931567
Northwestern Law & Econ Research Paper No. 931567

Abstract:     
Contemporary justifications of international criminal tribunals (ICTs), especially the permanent International Criminal Court, often stress the role of such tribunals in deterring future humanitarian atrocities. But hardly any academic commentary has attempted to explore in-depth this deterrence rationale. This essay utilizes economic models of deterrence to analyze whether a potential perpetrator of humanitarian atrocities would likely be deterred by the risk of future prosecution by an ICT. According to the economic theory of deterrence, two factors - certainty and severity of punishment - are central to the reduction of crime after taking into account a particular individual's preference for risk. In the context of a possible ICT prosecution, isolating the pool of individuals likely to commit humanitarian atrocities is difficult but not insurmountable. Given that international tribunals are not likely to have independent police powers in the foreseeable future, the actors most likely to face prosecution are individuals in weak states who have failed politically. In other words, the likely pool will be composed of individuals in weak states who have been forced from political power by local or foreign forces. Examining evidence concerning the fate of failed coup plotters and dictators in Africa - a group that represents a pool of likely perpetrators of atrocities - we show that the probability that this pool of individuals will be subject to a range of other legal and extra-legal sanctions is quite high. Moreover, the severity of the sanctions these individuals are likely to face - death, life imprisonment, and torture - is also likely to be higher than those imposed by an ICT. Thus, prosecution by an ICT will often serve as a weaker substitute, rather than a complement, to pre-existing sanctions. In one situation, however, the threat of ICT prosecution is likely to complement other possible sanctions and serve as a deterrent - where the perpetrator is unlikely to be subject to other sanctions because he is considered to be politically indispensable. But in such circumstances, the ex ante benefits of deterrence from ICT prosecution will likely be outweighed by the ex post harms of prosecuting a spoiler - an individual whose prosecution is likely to generate local political instability. In other words, the prospect of prosecution by an ICT may sometimes exacerbate the risks of humanitarian atrocities. Finally, prosecution by an ICT may also exacerbate conflicts though a political opportunism effect in which local politicians will have an incentive to free-ride off ICT efforts and turn a blind eye to the kinds of institutional reforms that are more likely to prevent future atrocities.

Number of Pages in PDF File: 49

Keywords: international tribunals, international criminal law, deterrence

JEL Classification: K00, K14, K33, K42

Accepted Paper Series





Download This Paper

Date posted: September 26, 2006  

Suggested Citation

Ku, Julian and Nzelibe, Jide, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?. Washington University Law Quarterly, Vol. 84, 2007; Hofstra University Legal Studies Research Paper No. 06-27; Northwestern Public Law Research Paper No. 931567; Northwestern Law & Econ Research Paper No. 931567. Available at SSRN: http://ssrn.com/abstract=931567

Contact Information

Julian G. Ku (Contact Author)
Hofstra University - School of Law ( email )
121 Hofstra University
Hempstead, NY 11549
United States
516-463-4237 (Phone)
516-463-6264 (Fax)

Hofstra University Logo

Jide Nzelibe
Northwestern University - School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
Feedback to SSRN


Paper statistics
Abstract Views: 5,985
Downloads: 992
Download Rank: 11,584
Citations:  7
Footnotes:  153

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.344 seconds