IX. Deterrence

One of the reasons for pursuing justice, and a reason cited for the establishment of the International Criminal Court, is the belief that ending impunity for the most serious crimes will lead to their prevention.[515] Critics have pointed to commission of crimes in countries where an international court already had jurisdiction as evidence that these courts do not have the hoped-for impact (though in the oft-cited examples of Srebrenica and Kosovo, at the time of those events few suspects then being pursued by the International Criminal Tribunal for the former Yugoslavia had been apprehended, so the court’s reach and impact was not yet evident).[516] Extrapolating from national experience, we have seen that the higher the probability of apprehension and punishment, the greater the likely deterrent effect on some premeditated crimes. The deterrent effect here will likely hinge on the degree to which punishment for those crimes becomes more certain, and in the international arena that is subject to a greater number of variables. It will depend to a large extent on the willingness of states parties to the ICC to support the court and to press for cooperation, in particular with respect to arrest warrants.

It likely will be years before the court has established a track record and developed its standing as an effective institution willing to act when national authorities are unwilling or unable to do so. Nonetheless, without overstating the significance, Human Rights Watch has found some anecdotal evidence that indicates that there may be some short-term deterrence benefits arising from the threat of prosecution, even at the current development of international criminal law.

A. Afghanistan

A perceived threat of prosecution has been seen to have some short-term effect on at least one warlord in Afghanistan. In May 2002 the Christian Science Monitor reported that a key warlord in northern Afghanistan, Gen. Abdul Rashid Dostum, forced more than 90 commanders to listen to a reading of a 52-page Human Rights Watch report alleging atrocities committed by his forces after the fall of the Taliban.[517] The report, entitled “Paying for the Taliban’s Crimes,” described widespread abuses including killings, sexual violence, beatings, and extortion committed against Pashtuns, targeted because their ethnic group was closely associated with the Taliban regime. The report called for Afghan commanders and combatants responsible for war crimes to be held to account.[518]

During the meeting, the warlord warned his men, “You must be careful in the future. These [investigators] are very dangerous men. They can take you to an international court of justice if they can prove your actions.” He also said, “I am dying of these accusations from the international community ... . If any one of my commanders commits these kind of acts, I will kill him tomorrow.” [519] The previous day, the general signed an agreement with a rival group to remove heavy weaponry from the city of Mazar-e Sharif and to create a combined 600-member multi-ethnic force to police the city to discourage abuse of minority ethnic groups. A UN official suggested that the Human Rights Watch report was provided to both forces as “incentive” for the deal. [520]

Given Dostum’s evident sensitivity to the threat of prosecution, the failure to follow through with him and others on issues of accountability (as discussed in Chapter IV.A) was also a missed opportunity to turn short-term effects into something more lasting.

B. Côte d’Ivoire

On November 16, 2004, the Côte d’Ivoire government-controlled National Radio and Television aired messages that replaced earlier appeals to ethnic hatred with ones of restraint, a day after the UN special advisor on the prevention of genocide warned that the situation could be referred to the International Criminal Court. After an arms embargo was imposed by the UN Security Council in response to the government’s violation of a ceasefire agreement, anti-French rioting and ethnic clashes occurred. With thousands of Ivoirians and foreigners fleeing the country, the special advisor stated that xenophobic hate speech could exacerbate already widespread human rights violations. In particular, the special advisor warned that “the Ivoirian authorities have an obligation to end impunity and to curb public expressions of racial or religious hatred especially those aimed at inciting violence” and noted that Côte d’Ivoire had lodged a declaration with the ICC registrar accepting the exercise of the court’s jurisdiction.[521] The pro-government media’s sudden change of message was a factor in allowing the situation to grow quieter quickly.[522]

C. Democratic Republic of Congo

On March 17, 2006, the Democratic Republic of Congo transferred Thomas Lubanga Dyilo to The Hague pursuant to an ICC arrest warrant on charges of enlisting and conscripting children as soldiers and using them to participate actively in conflict in Ituri. That day Human Rights Watch researchers had a meeting with a Congolese army colonel to discuss crimes committed by his forces against the Mai Mai, a local militia. As the discussion turned to war crimes, the colonel sat up and said, “I don’t want to be like Lubanga! I don’t want to be transferred to The Hague!”[523] Human Rights Watch researchers have heard similar sentiments expressed by militia leaders on other occasions. In a September 2006 discussion with a militia leader in Ituri who was engaged at the time in peace discussions with the Congolese government, the commander asked Human Rights Watch for further information about what constituted war crimes, having heard a broadcast from The Hague on proceedings against Lubanga a few days earlier. When the elements of the crimes were explained to him, he asked, “So could I also be transferred to [T]he Hague if I did those things?” When informed that if he had done such things that was a possibility, he put his head in his hands and repeatedly said, “I had no idea. I had no idea.”[524]

The nongovernmental International Center for Transitional Justice, and children’s rights advocates in the DRC, have also found that “Lubanga’s arrest had an enormous educational impact, making clear what was not previously understood: that recruiting, enlisting, and using children to fight is a war crime.”[525] Although the repercussions are not all positive (awareness has negatively affected demobilization since armed groups do not want to be implicated in crimes), Lubanga’s arrest has dramatically increased awareness among Congo warlords and militia leaders that the use of children as participants in conflict is unlawful.[526] In the long run, the awareness that recruiting children to be soldiers is a criminal act that may result in prosecution may help discourage use of child soldiers.[527]

D. Central African Republic

On May 22, 2007, the ICC prosecutor announced the opening of an investigation into the CAR. The CAR government had referred the events of 2002-03 to the Office of the Prosecutor on December 22, 2004. Although the prosecutor has focused on crimes mainly committed during that time, because the CAR is a party to the Rome Statute and is under ICC investigation, officials and rebels are concerned that the prosecutor will also turn his attention to crimes committed as part of the 2007 counterinsurgency campaign. An active human rights community in the CAR representing the victims and pushing for accountability has increased civil society’s awareness of the ICC and has helped make it a part of the debate surrounding more recent crimes.[528]

Human Rights Watch documented hundreds of unlawful killings and burning of villages committed as part of a counterinsurgency campaign in northern CAR by government troops and members of the Presidential Guard in a September 2007 report. Human Rights Watch also documented human rights abuses and violations of laws of war committed by rebel groups. In meetings with rebel leaders that occurred immediately following Congolese rebel leader Thomas Lubanga’s transfer to The Hague (see above), rebel commanders told Human Rights Watch researchers that they “did not want to end up before the ICC.” Before learning of the ICC prosecution of Lubanga on charges of enlisting and conscripting child soldiers, rebel commanders readily admitted that there were many children in their ranks, including some as young as 12, and that many were armed and participated in combat. Upon learning that the use of children as combatants is a serious violation of international humanitarian law, one rebel commander spent two days explaining to Human Rights Watch researchers that he had not known using child soldiers was a crime, that it was “a misunderstanding,” and that he was not a criminal. He immediately offered to demobilize the child soldiers as long as their security could be guaranteed, and asked Human Rights Watch to contact United Nations Children's Fund (UNICEF) for assistance with the demobilization. The children were in fact demobilized.[529]