In the first part of my dual contribution on the general deterrent effect of international criminal judicial bodies (here), I explained that deterrence comes in many shapes and forms, but the focus of both contributions is on general deterrence which implies that the punishment (‘legal sanction’) of a criminal will deter potential offenders from committing a similar crime. Regarding the International Criminal Court (ICC), I concluded that there is not enough evidence, yet, to realistically determine the efficacy of the Court in providing a consistent general deterrent effect, especially when we currently witness the first ever effective withdrawal from the Rome Statute by Burundi (27 October 2017), and the subsequent authorisation to open proprio motu investigation for alleged crimes against humanity committed in Burundi or by nationals of Burundi outside Burundi since 26 April 2015 until 26 October 2017. This second part explores the general deterrent effect of two ad hoc international criminal judicial bodies, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The emergence of the ICTY and the ICTR has been hailed as great achievements in international law, despite the initial doubts regarding the legality and the legitimacy of their establishments. This analysis does not intend to question the precedence and credibility of the Tribunals, as I believe that they both have, in a way, dismantled the tradition of impunity for international crimes.

The International Criminal Tribunal for the former Yugoslavia 

Regarding ICTY, the Tribunal is mandated to prosecute persons responsible for specific crimes committed in the whole territory of the former Yugoslavia made up of six republics: Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia (including the regions of Kosovo and Vojvodina) and Slovenia. The then ICTY President, Antonio Cassese, noted that “the Tribunal is intended to act as a powerful deterrent to all parties against continued participation in inhuman acts”,[1] but the majority of existing literature on the deterrent effect of the ICTY is Serbia-centric. This is justifiable for the following reasoning. International criminal prosecutions of middle and low-ranking perpetrators (middle ranking perpetrators included people at mediate level of power and authority such as regional political leaders and heads of executive units who are responsible for the implementation of policies, while low-ranking perpetrators included people with limited authority such as camp commanders, local politicians and local army commanders) have a limited deterrent effect,[2] while the deterrent effect created by the prosecutions and indictments of high-ranking perpetrators (i.e. top political or military authorities who take policy decisions) is larger than anticipated.[3] In the case of the ICTY the majority of prosecuted individuals are Serb-ethnic, especially the high-ranking perpetrators, which makes the Serb-centric analysis justifiable.

The Tribunal’s general deterrent impact has been divided by a number of authors, like Sladjana Lazic, into two stages; the first stage starting from the establishment of the court until the transfer of Slobodan Milošević to the detention unit in Scheveningen (The Hague), and the second stage starting thereafter.[4] During the first stage, the Tribunal was still at its infant stages, investing a lot of time and energy to build its credibility and procure cooperation of states while at the same time struggling to obtain evidences and build its cases. The lack of general deterrent effect during that time is thus not surprising. The first period also coincided with the violent conflicts and grave violations that took place in Bosnia, Croatia and Kosovo. This has led many to question the general deterrent effect of the ICTY, since grave violations were still taking place.[5] The general deterrent effect of the first judgements of the ICTY has been questioned in a similar manner, because arguably “there was no precedent  in  history  to  show  the  existence  and  strength  of  institutionalised international criminal justice”.[6] The contribution of those cases, nevertheless, should not be underestimated. According to Lazic the empirical evidence at the time “speak to some level of awareness of local actors about the illegality of their actions, but this awareness did not lead into halting the further atrocities”.[7] Simply stated, although the potential violators did not stop committing crimes, they started hiding their actions. Some could argue that this indirectly indicates a form of deterrence (probably more of restrictive rather than general deterrence), but in general the ICTY remained ineffective in providing an immediate general deterrent effect in the short-term.

The 1999 indictment of Milošević marked the year of the first ever indictment against a sitting head of state, but his arrest did not materialise until 31 March 2001. The period thereafter, and especially 2003-2009, has been characterised as the “golden years” of the ICTY, with professional observes labelling that period as “the best time for the prosecution of war crimes”.[8] During that time, Montenegro separated from Serbia in 2006, and Kosovo declared its independence in 2008 with minimal outbursts of minor violence (like the attack of the customs gates in the north of Kosovo and the incident with the protesters in UNMIK courthouse in north Mitrovica).[9] While one could argue that these illustrate the long-term general deterrent effect of the fully-functional ICTY in the region, I still remain sceptical for the following reasons.

Firstly, although the reduction in violence is indeed evident, I cannot conclude that this was a direct result of the Tribunal’s existence and prosecutorial work, as I believe that Serbia’s devotion to gain membership in the EU played, and still plays, a more vital role. Moreover, the ICTY’s insufficiency to provide general deterrence is arguably reflected in the fact that certain people, who surrounded Milošević and others, are now key political leaders in Serbia.[10] This does not only give the perception that some criminals have remained unpunished, but also that they can still have considerable power in their hands. Lastly, but equally important, the lack of severity of sentences combined with prolonged proceedings are certainly other factors impacting the overall general deterrent effect of the ICTY.[11]

The International Criminal Tribunal for Rwanda

With regard to Rwanda, it has been widely argued that, had the international community intervened on time, the genocide committed against the Tutsi could have been prevented. Unlike the ICTY, which was created during an ongoing conflict, the ICTR was established in the immediate aftermath of the genocide to try those who bear the highest responsibility, while specialised chambers in national ordinary courts, and later the Gacaca Courts, tried the rest of the perpetrators. The prosecution of high profile perpetrators has been praised for achieving both  individual  and  general  deterrence,  especially due to  the ICTR’s capacity to bring fugitives before justice.[12]  The ICTR has established strong precedents, but the lightness and duration of its cases has been critisised similarly to the ICTY. For instance, Mackline Ingabire’s study reveals that the ICTR’s investigations and collection of evidences has been considered insufficient and led to lighter sentencings,[13]  which affects the   deterrent effect of the Tribunal. Moreover, it is argued that the general deterrence of the ICTR would not have been as effective, if the Tribunal was a “standalone” mechanism, mainly due to the fact that the ICTR was located far away from the crime scene.[14] The parallel work of international and national mechanisms thus seems to have a greater deterrent effect both in short-term and in long-term.

While in Rwanda there seems to be a positive influence of general deterrence overall, one remains sceptical about the ICTR’s general deterrent effect in the region. Personnel of the Ministry of Defence and the Ministry of Justice of Rwanda indeed argue that the deterrent effect of ICTR in the region is minimal.[15] It has been specifically asserted that “the  incidents currently happening in Burundi is an indicator that the Great Lakes region did not learn  from the events in Rwanda”.[16] Prima facie, this might seem true, but, realistically, one cannot  prove the causation between the general deterrent effect of the ICTR per se and the compliance behaviours of leaders in the region in general, since there are numerous other factors influencing decisions.

Conclusion

Summing up, when it comes to the evaluation of the general deterrent effect of the international criminal judicial bodies, one cannot be definite. A change in behaviour or reduction in violence does not necessarily prove general deterrence since there are other factors affecting the change in the status quo. There is no strong evidence to support that international criminal courts and tribunals per se provide counter-incentives and influential reasons for compliance in the short-term. The updated “People on War” survey of the ICRC, reflecting the opinions of 17,000 people in 16 countries (P5 countries, Switzerland and 10 countries affected by armed conflicts), indeed reveals that although three quarters of the respondents think that “increasing the effectiveness of the rules of war and accountability through the international courts helps to reduce the number of victims of war”, the threat of punishment by international courts is one of the lowest factors influencing behaviour (military leaders, fellow  combatants  and  community leaders  where  the  three  highest  rated  answers  in this regard).[17] If one looks at the bigger picture, the network of international criminal judicial bodies has undeniable prospects of having a solid deterrent effect in the future, if international criminal law is sustainably and consistently applied. It will, nonetheless, be impetuous to suggest that there is an immediate deterrent effect, which has a near-term impact. International criminal courts and tribunals have constructively contributed to a normative shift towards accountability, but there is far less evidence supporting their actual deterrent effect either in theory or practice.

                                                                                                                                                                                   

[1] Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, (UN Doc. A/49/342-S/1994/1007), 29 August 1994, at 13.

[2] Alette Smeulers, Hola Barbora and Tom van den Berg, Sixty-five years of international criminal justice: The facts and figures, 13 (1) International Criminal Law Review 7 (2013), at 40.

[3] Ibid.

[4] Sladjana Lazic, Serbia and the ICTY – Deterrence through Coercive Compliance, in Jennifer Schense and Linda Carter (eds.) Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals, International Nuremberg Principles Academy (2016), at 55. See also Diane F. Orentlicher, That Some Guilty be Punished: The Impact of the ICTY in Bosnia, Open Society Justice Initiative, July 2010, at 36-38.

[5] See for example the perspective of judges in Prishtina discussed in Dafina Bucaj, Difficulties in Achieving Deterrence by International Criminal Tribunals: The Example of the ICTY in Kosovo, in Jennifer Schense and Linda Carter (eds.) Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals, International Nuremberg Principles Academy (2016), at 115. See also Leslie Vinjamuri, Justice, Peace and Deterrence in the former Yugoslavia, European Council on Foreign Relations, Background Paper, November 2013, at 4.

[6] Sladjana Lazic, Serbia and the ICTY – Deterrence through Coercive Compliance, in Jennifer Schense and Linda Carter (eds.) Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals, International Nuremberg Principles Academy (2016), at 58.

[7] Ibid, at 70.

[8] Ibid, at 56.

[9] United Nations Department of Public Information, Kosovo: The untold story of a diplomatic breakthrough (2008) available at http://www.un.org/en/events/tenstories/08/kosovo.shtml .

[10] Dafina Bucaj, Difficulties in Achieving Deterrence by International Criminal Tribunals: The Example of the ICTY in Kosovo, in Jennifer Schense and Linda Carter (eds.) Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals, International Nuremberg Principles Academy (2016), at 120.

[11] Dafina Bucaj, Difficulties in Achieving Deterrence by International Criminal Tribunals: The Example of the ICTY in Kosovo, in Jennifer Schense and Linda Carter (eds.) Two Steps Forward, One Step  Back:  The Deterrent Effect of International Criminal Tribunals, International Nuremberg Principles Academy (2016, at 118-120.

[12] Mackline Ingabire, Exploring the Boundaries of the Deterrence Effect of the International Criminal Tribunal for Rwanda, in Jennifer Schense and Linda Carter (eds.) Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals, International Nuremberg Principles Academy (2016), at 86-87 and 106.

[13] Ibid, at 88-89.

[14] Ibid,  at 106-107.

[15] Ibid, at 90-91.

[16] Ibid, at 90-91.

[17] ICRC, People on War: Perspectives from 16 Countries (December 2016), at 14, available at https://shop.icrc.org/people-on-war-perspectives-from-16-countries.html? store=default .