A 'Slice of Cheese' – A Deterrence-Based Argument for the International Criminal Court

Human Rights Review (2010) 11:289–315

24 Pages Posted: 4 Jun 2019

See all articles by Jakob v. H. Holtermann

Jakob v. H. Holtermann

University of Copenhagen - iCourts - Centre of Excellence for International Courts

Date Written: 2010

Abstract

Over the last decade, theorists have persistently criticised the assumption that the International Criminal Court (ICC) can produce a noteworthy deterrent effect. Consequently consensus has emerged that we should probably look for different ways to justify the ICC or else abandon the prestigious project entirely. In this paper I argue that these claims are ill founded and rest primarily on misunderstandings as to the idea of deterrence through punishment. They tend to overstate both the epistemic certainty as to and the size of the deterrent effect necessary in order to thus justify punishment. I argue that we should in general expect reasonably humane punitive institutions to lead to better consequences than if we abolish punishment entirely. And I show that, contrary to widespread assumption among critics of the ICC, we should not expect the conditions characteristically surrounding mass atrocity to undermine this presumption. Properly understood, the ICC equals adding another “slice of cheese” to our comprehensive crime preventive system modelled along the lines of James Reason’s Swiss cheese model of accident causation and risk management. Undoubtedly, some future perpetrators will elope through the holes in this layer too, but others will be deterred.

Keywords: The International Criminal Court, mass atrocity, punishment, deterrence, prevention, the “Swiss cheese model”

Suggested Citation

Holtermann, Jakob v. H., A 'Slice of Cheese' – A Deterrence-Based Argument for the International Criminal Court (2010). Human Rights Review (2010) 11:289–315, Available at SSRN: https://ssrn.com/abstract=3388644 or http://dx.doi.org/10.2139/ssrn.3388644

Jakob v. H. Holtermann (Contact Author)

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

HOME PAGE: http://jura.ku.dk/icourts

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