Maximizing opportunities to deter further atrocity crimes

Ambassador David Scheffer*

*Corresponding author for this work

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

Recent empirical research demonstrates the deterrence value of international and domestic prosecutions of human rights violators, including perpetrators of atrocity crimes. I propose two initiatives easily compatible with the Rome Statute to enhance the crime prevention capabilities of the International Criminal Court. First, Article 18 of the Rome Statute should be used by the Prosecutor to notify jurisdictional states of their responsibility to end the further commission of atrocity crimes in the relevant situation by their citizens or others falling within their domestic jurisdiction. To supplement the Prosecutor's notification under Article 18, a coalition of major powers- those already States Parties and a few significant nonparty states, among them permanent members of the Security Council-should be identified and cultivated to apply maximum diplomatic pressure on each notified jurisdictional state to minimize or end the atrocity crimes over which it may have control through the actions of its nationals or others. The Article 18 notification procedure thus creates a unique opportunity for major powers to weigh in to prevent further criminal conduct. Second, the failure of national authorities to apprehend and facilitate transfer to The Hague of a significant number of the Court's indicted fugitives undermines the ability of the International Criminal Court to prevent atrocity crimes because the powerful example of an effective arresting authority deployable on short notice on the territory of the fugitive is lacking. I propose serious consideration be given by the Office of the Prosecutor, the Registry, and ultimately the Assembly of States Parties to negotiating a Protocol to the Rome Statute that would enable States Parties and even willing nonparty states to agree, in advance, to the prospect of a special enforcement team, comprised of experienced and highly talented police and military personnel trained in the skills of tracking and apprehending indicted war criminals, entering the territory of a State Party to the Protocol at the direction of the Pre-Trial Chamber to track and arrest the indicted fugitive in the event that the Rome Statute Part 9 cooperation procedures prove insufficient. No such action by the special enforcement team could commence without the prior special consent of the host nation for each such entry. But as a ratified party to the Protocol, such host nation already would have endorsed the concept of such entry by the special enforcementteam and ironed out the basic procedures for such an action in the event special consent is granted in a particular case. A highly effective arrest mechanism at the International Criminal Court should prove to be a powerful deterrent to would-be perpetrators of atrocity crimes, as many would recognize the likely futility of escaping from the arm of international justice.

Original languageEnglish (US)
Title of host publicationContemporary Issues Facing the International Criminal Court
PublisherBrill
Pages220-228
Number of pages9
ISBN (Electronic)9789004304451
ISBN (Print)9789004304444
DOIs
StatePublished - Apr 6 2016

ASJC Scopus subject areas

  • General Social Sciences

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