This Article proceeds as follows. Part I begins by explaining deterrence theory in more detail. It follows with an overview of the debate surrounding the ability of international criminal tribunals and the ICC to produce a deterrent effect.
In Part II, we advance our argument regarding the need to reframe the debate about the ICC’s potential to deter. We explain the reasons why the ICC’s deterrent effect must be unpacked and, in doing so, we describe several factors that influence whether and under what conditions the ICC should or should not be able to deter. In Part III, we describe the methodology for the Kenya case study that serves to both test these hypotheses and illustrate the complexities of gauging the ICC’s deterrent power.
Part IV unpacks the ICC’s deterrent effect by analyzing the evidence from Kenya of (1) any decrease in mass atrocities or other human rights abuses and (2) any increase in domestic mechanisms available to punish those who commit such abuses. That evidence shows that the ICC’s ability to deter can vary depending on the particular political context of the targeted state, the type of actor the ICC pursues, and based on how strongly and well the ICC exercises its institutional powers. For example, case study evidence shows that ratification, the lowest level of ICC intervention, did not prevent incidences of mass atrocities or other human rights abuses. On the other hand, the case study shows some deterrent effect came as a result of a higher level of ICC intervention, namely, after the ICC prosecutor decided to launch cases against six Kenyans. Nevertheless, the evidence also indicates that during that time period the increased costs associated with the ICC’s interventions may have influenced state leaders to commit abuses to help them hold on to or gain power in order to thwart the ICC. Further, while the ICC’s interventions seemed to produce some positive effects, the evidence does not confirm any normative changes consistent with a lasting and persistent deterrent effect.