On 4 November 2016 in Nuremberg, at its annual forum commemorating the 70th anniversary of the adoption of the Nuremberg Principles by the UN General Assembly, the International Nuremberg Principles Academy launched its first book, a volume of deterrence studies titled, Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals. This volume comprises ten country studies (Serbia, Kosovo, Rwanda, Sierra Leone, DRC, Uganda, Darfur, Kenya, Cote d’Ivoire and Mali), as well as a chapter on methodology, and conclusions drawing from all the country studies, with recommendations for further action.
Two Steps Forward is notable in a number of respects. While various articles have addressed deterrence in international criminal law in some fashion, it is apparently the first volume that addresses the issue so comprehensively. It also ventures to offer conclusions on the question of deterrence based on quantitative and qualitative research, noting that nearly 20 years have passed since the ICTY and ICTR’s establishment, and nearly 15 since the ICC and Sierra Leone Special Court’s establishment. While the Nuremberg trials themselves arguably took several generations for their effects to be fully felt, enough time has passed that it is fair to begin to examine what has been the deterrent effect so far of international tribunals, and how that effect can be enhanced or improved.
The good news is that in all of the country situations surveyed, at least some deterrent effect was reported. The authors draw on quantitative factors first to assess whether overall criminality has risen or fallen, a fundamental baseline for asking whether crimes have thereafter been deterred. The authors draw on qualitative factors to assess perceptions of deterrence, in particular amongst perpetrators and potentially like-minded individuals, including members of militaries and rebel groups, political actors, diplomats and politicians, as well as academics, civil society members and victims. Perceptions of deterrence are as significant as objectively measurable deterrence; people act on their perceptions, for good or bad, and these actions can help determine whether further crimes will be committed. In all the situation countries surveyed, the authors found that while the international court or tribunal concerned had a deterrent effect, both objective and perceived, it proved difficult to sustain because the factors supporting it often fell apart. This is an important starting point for examining how to ensure that any hard-won deterrent effect is not ultimately lost.
How do we affect perceptions? These studies reach some common conclusions. Amongst them is the importance of outreach. This is a frequent general recommendation in international criminal law studies, so bears further unpacking to render it useful. Public information is only one part of the equation, as are efforts to raise the public profile of international justice efforts. Public information can be the equivalent of shouting (or whispering) into the void. Outreach, by contrast, is a conversation, and one that must be agile and brave enough to consider responses (positive and negative), understand their cultural grounding, and respond with clarifications and further information that will help ensure that the court or tribunal concerned is truly understood.
Outreach must be able to withstand sustained propaganda campaigns, and to tackle the phenomenon of the ‘noble cause’, the fact that no perpetrator believes they are committing crimes, but rather serving their country and their community through their actions. Outreach must be able to honestly grapple with why people may view the tribunal or court as selective or illegitimate without going on the defensive. Outreach must seek to identify when short-term, often ephemeral deterrent effects are achieved, and hand-in-hand with cooperation work, must make maintaining and building on those effects for the long-term a key priority.
Maintaining this conversation about justice, through outreach, is one part of building a culture of accountability. Members of the international community must maintain focus on justice and the rule of law in the long-term, and continue building the partnerships needed to turn promises of help into reality if they want to achieve deterrence in the long-term. Otherwise, deterrence will remain elusive or even impossible when the conditions driving the commission of serious crimes are more entrenched and long-standing than the anti-impunity efforts arrayed against them. Simply put, if those committing crimes are more dedicated to their endeavors than those who wish to prevent them, crimes will continue to be committed, and we will all feel the effects.
It is worth noting in this context that factors affecting deterrence and perceptions come not only from criminal law (either national or international) but also from other relevant fields, in particular conflict prevention and human rights. They are both court-based and contextual. Further academic work analyzing the origins and commonality of such factors has been conducted through Leiden University and should be available fairly soon. It is hoped that studies such as these can galvanize action across the dividing lines of different fields so that we can effectively address together the global challenges that most concern us, in particular how to help ensure both global accountability and meaningful, sustainable peace. The full deterrence volume is available for free on the Nuremberg Academy’s website here.