The International Criminal Court: An Effective Means of Deterrence?

AuthorMajor Michael L. Smidt
Pages04

156 MILITARY LAW REVIEW [Vol. 167

THE INTERNATIONAL CRIMINAL COURT: AN EFFECTIVE MEANS OF DETERRENCE?

MAJOR MICHAEL L. SMIDT1

In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you . . . to do yours in the struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.2

De Oppreso Liber [To Liberate the Oppressed]3

I. Introduction

The preceding lines, taken from two very different organizations, demonstrate that many in the world share deep concern and personal commitment for reducing and preventing man-made humanitarian disasters. The first, a vision statement by United Nations (U.N.) Secretary General Kofi Annan, suggests the necessity of an international criminal court to punish the past conduct of oppressors. The second, the motto of the U.S. Army Special Forces, represents a belief that the present application of military force, rather than judicial punishment after the fact, is a legitimate response to rid the world of oppression. Although the respective methodologies of these two organizations vary tremendously, one judicial and the other military, history has shown that both are vital to the preservation of

peace and security. Producing a synergistic effect when combined, both approaches are indispensable in preventing human conflict that requires a very broad-brush stroke to address the numerous facets of human behavior.4

Both the U.N. vision and the Special Forces motto imply that tyrants must be thwarted. The judicial approach of the U.N. provides that, through aggressive justice, potential criminals may be deterred from committing acts of aggression or massive human rights violations if they realize they cannot act with impunity. While the military approach would agree that oppressors should not be able to act without consequences, it would add that many tyrants can only be controlled with a credible threat of force.

In reality, both the law enforcement and the military responses add to the concept of system-wide deterrence. However, each modality plays a distinct role, and neither should be permitted to negatively impact the other. This article argues that the present theory, which assumes that the answers for world peace derive primarily from judicial sources, is being overemphasized to the detriment of the potential ability, and occasional requirement, to use military force. First, over-reliance on justice ignores the obvious fact that potential victims are best served if they are not allowed to become victims in the first place. Courts may be effective in handling situations after the fact, but until they possess the deterrent capabilities needed to control rogue regimes, they should not be permitted to displace or weaken the military option. Second, if a court lacks the ability to actually enforce its pronouncements, rogue regimes will simply ignore the court and will not be deterred.

The military remains the most credible and effective form of deter-rence in the international arsenal of weapons to prevent war and massive human rights abuses. Within the international military community, the U.S. armed forces are better prepared than any other entity to deter aggressive regimes and their leaders. Therefore, any move by the international community to sacrifice on the alter of justice the deterrent capability of the armed forces of the United States and its allies cannot be accepted.

However well-intentioned advocates for the International Criminal Court (ICC) may be, the proposed court represents a significant threat to the national security of the United States and its allies as currently formu-

lated. There is certainly room, and arguably a need, for a permanent international criminal court. However, the provisions of the ICC5 simply place too many significant risks on nations and their armed forces that are equally determined to rid the world of oppression. Political prosecutions before the ICC are so probable that the forces of good may be deterred from taking on the forces of evil. Since the forces of evil will recognize the deterrent influence of such politically based prosecutions on potential responders, the leaders of these regimes may make entirely rational decisions to commit acts of aggression, knowing they can act without fear of military intervention from foreign forces.

War is not as clean as we would like it to be, and it defies precise legal scrutiny. It involves the use of force and a level of destruction that would be considered both illegal and immoral during times of peace.

War consists largely of acts that would be criminal if performed in time of peace-killing, wounding, kidnapping, and destroying or carrying off other people's property. Such conduct is not regarded as criminal if it takes place in the course of war, because the state of war lays a blanket of immunity over the warriors.6

However distasteful the use of military force may be, the alternative, allowing rogue regimes to act with impunity, is far more disastrous. The injury to victims of such regimes may far exceed the damage inflicted by military forces defending against oppression. Holding warriors on the battlefield to peacetime-like criminal law standards is simply unrealistic. This is particularly so if the court has the potential of rendering politically-based judgments.

This is not to suggest that rules should not exist on the battlefield. Humanity is certainly better off because of the laws of war.7 Millions, perhaps billions, have been spared because of their effectiveness.8 Moreover,

these battlefield rules of restraint diminish the "corrosive effect of mortal combat on the participants" themselves.9 Units adhering to the laws of war have fewer problems with good order and discipline, and when soldiers from these units return home from combat, they are more likely to do so with their societal values still intact.10

Humanity has a right to demand that soldiers do all they can to limit the destructive forces of combat. Soldiers must be trained to recognize the difference between proper and improper applications of force. However, it is both unrealistic and dangerous to scrutinize and judge in a court of law their every action on the battlefield.

For the common soldier, at least, war has the feel, the spiritual texture, of a great ghostly fog, thick and permanent. There is no clarity. Everything swirls. The old rules are no longer binding, the old truths no longer true. Right spills over into wrong. Order blends into chaos, love into hate, ugliness into beauty, law into anarchy, civility into savagery. The vapor sucks you in. You can't tell where you are, or why you're there, and the only certainty is overwhelming ambiguity . . . . You lose your sense of the definite, hence your sense of truth itself . . . .11

Holding the common soldier criminally culpable for even the smallest violation of the laws of war may distract the international community from the real threat to society and world peace: aggressive and oppressive regimes.

This article briefly describes current theories in war avoidance. It then focuses on the "democratic peace" and deterrence theory as the most statistically-sound paradigm for avoiding conflict. It next examines international criminal tribunals in an attempt to determine their place and effe

tiveness in deterring criminal state actors at the international level. Finally, it looks at the proposed International Criminal Court and asks whether the court will contribute to the concept of systemic deterrence. The article concludes that, in its currently proposed format, the court has the potential to deter the wrong parties.

This article maintains that becoming a party to the ICC would run counter to the national security interests of the United States. However, now that the United States has signed the treaty creating the court,12 this article proposes specific changes to the treaty necessary to adequately protect U.S. interests. Although the United States would be best served if it did not ratify the treaty, at a bare minimum, these absolutely vital changes must be agreed upon by the international community prior to U.S. ratification.

II. The Prevention of Hostilities

War has been with mankind since man began recording history. In 1968, one scholar estimated that "there had been only 268 years free of war in the previous 3421 years."13 To successfully prevent war, one must first examine its causes. Numerous theories have been suggested over the years. Theorists tend to cite one or more of the following as the causes of war:

(1) Specific disputes among nations;

(2) Absence of dispute settlement mechanisms;

(3) Ideological disputes;

(4) Ethnic and religious differences (a current emphasis);

(5) Communication failures;

(6) Proliferation of weapons and arms races;

(7) Social and economic injustice; and

(8) Imbalance of power (or paradoxically, balance of power).14

Having determined the potential causes, workable responses to these causes must be fashioned. Professor John Norton Moore lists the most commonly accepted theories for preventing war:

(1) Diplomacy;

(2) Balance [of] power;

(3) Third-party dispute settlement;

(4) Collective security;

(5) Arms control;

(6) Functionalism;

(7) Increasing commercial interactions;

(8) Advances in military technology, thereby making war more deadly;

(9) World Federalism;

(10) Rationalism;

(11) Pacifism and non-violent sanctions;

(12) "Second track" diplomacy; and

(13) Resolving underlying "causes" (poverty, racism, ethnic differences [and others]).15

It is beyond the scope of this article to examine all of...

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