Rules, Politics, and the International Criminal Court

Posted on Actualizado enn

Why did states decide to create the International Criminal Court (ICC) and design it with a uniquely strong enforcement mechanism that can punish noncompliant behavior?  After all, by joining the ICC, states agree that the court may investigate, arrest, prosecute, and punish state nationals for genocide, crimes against humanity, and war crimes should the ICC conclude the state is unwilling or unable to do so domestically.

One may not be surprised that more than 100 states have joined one of the many international human rights treaties with weak enforcement mechanisms that require the state to only self-report compliance. But, why would states–particularly states with poor human rights practices–join the ICC and risk having their citizens tried in The Hague?  On the other hand, if states that most need to improve their protections against human rights  abuses do not join the court, is there any hope that the threat of punishment by the ICC can help improve state practices and deter individuals from committing mass atrocities?

I explore these and related questions in my new book entitled Rules, Politics, and the International Criminal Court: Committing to the Court.  Using both quantitative analyses and in-depth case studies of eight different states, I examine whether and how the ICC’s enforcement mechanism influences state membership and the court’s ability to realize its goal of ending impunity for mass atrocities. I proceed from the premise that the ICC is different from the human rights treaties that have gone before it.

I argue that while there are many reasons states may want to join the court, they should view the ICC’s ability to investigate, arrest, and prosecute a state’s leaders or citizens as a credible threat.  States should be wary of committing unless their domestic human rights practices are sufficiently good that commitment will not lead to a significant sovereignty loss–e.g., a trial in The Hague.   In contrast to the other theories typically advanced to predict treaty commitment behavior, the credible threat theory focuses on the role enforcement mechanisms might play in discouraging states to ratify.

For example, one prominent theory predicts that states with poor human rights practices will embrace the ICC because it provides an international mechanism through which to demonstrate their “credible commitment” to domestic change. Other theories predict that normative or other pressures will cause even bad states to join the court. This book shows why those theories are problematic.  In short, the ICC’s stronger enforcement mechanism should not generally discourage states with good human rights practices from joining the court, but it should discourage “bad” states from joining because they will not want to risk being punished for noncompliance.

Both the quantitative and qualitative evidence support the book’s thesis.  I find that the ICC’s institutional design discourages ratification by the very states where individuals need to be held accountable.

Nevertheless, even though fewer “bad” states may join the court, I still conclude that the ICC can realize its goals.  Indeed, some states with bad practices may experience certain “windows of opportunity”–such as a change in leadership or a point where external or internal calls for commitment can no longer be ignored–where the benefits of joining may seem to outweigh potential costs.  When those states join the ICC, the good news is that the ICC has been designed so that states can be held to their commitment.

Source: IntLawGrrls

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