Leslie Johns (California, Los Angeles) and Francesca Parente (Christopher Newport)

The Politics of Punishment: Why Non-Democracies Join the International Criminal Court

View the webinar here.

Abstract

The International Criminal Court (ICC) has extensive powers to prosecute individuals for core crimes under international law, including aggression, crimes against humanity, genocide, and war crimes. Yet the ICC can only prosecute crimes involving states that have formally joined the Court, thereby accepting the Court’s jurisdiction. Previous scholars usually argue that governments join the ICC to signal opposition to international crimes or to credibly commit that they will not commit these crimes in the future, suggesting that the ICC constrains governments. However, we argue that non-democratic leaders use the ICC to target and punish their political rivals by facilitating selective prosecution of crimes committed within their territory. Because the ICC Prosecutor relies on the cooperation of member-states to investigate crimes, collect forensic evidence, provide witnesses, and arrest indicted individuals, leaders have extensive influence over ICC investigations. Political leaders can therefore enable the prosecution of some individuals, while hindering the prosecution of others, making ICC investigations a tool for incumbent government to target their domestic opponents. We illustrate this dynamic with a game-theoretic model and quantitative evidence. Our statistical analysis suggests that non- democracies are most likely to join the ICC when they face domestic political opposition to their rule and are subsequently less likely to commit violence and more likely to survive in office. We further bolster our statistical evidence with a case study of the ICC’s prosecution of Dominic Ongwen, a Ugandan rebel.