In the Shadow of the International Criminal Court

Abstract

The International Criminal Court (ICC) is responsible for prosecuting crimes against humanity, war crimes, and genocide. Despite the potential for the ICC to deter human rights abuses, scholars and policy makers are divided on the effectiveness of it. This debate, however, is plagued by some important theoretical and empirical limitations. I address the problems in the literature and evaluate whether the ICC can prevent human rights abuses. I argue that the ICC can deter governments from committing human rights violations by imposing a variety of costs on them throughout their investigations that decrease their expected payoffs for engaging in human rights abuses. Across a variety of statistical estimators that account for standard threats to inference and several anecdotes, I find strong support for my theoretical expectations; leaders from states that have ratified the Rome Statute commit lower levels of human rights abuses than nonratifier leaders.

Keywords

international law human rights international institutions international treaties

The International Criminal Court (ICC) aims to prevent and deter individuals from committing grave violations of international law. According to its proponents, the establishment of the Court has ushered in a new era of international justice. In contrast to other international legal instruments, such as human rights treaties, the Court has the authority to investigate and prosecute individuals suspected of committing genocide, war crimes, and crimes against humanity. As a result, the Court’s supporters claim that the “culture of impunity” that has allowed human rights abusers to freely commit atrocities without fear of sanction has come to an end.

Despite its potential to do this, the question remains: has the ICC contributed to the prevention of gross human rights abuses? Scholars and policy makers are divided on this question. Many champion the establishment of the Court and its ability to deter potential perpetrators from committing human rights violations by prosecuting offenders (Akhavan 2009; Schabas 2011; Scharf 1997). Others call into question whether the Court can prevent such crimes, given that it lacks the legal mandate and enforcement capabilities to capture and arrest wanted individuals (Ku and Nzelibe 2006; Drumbl 2007). Despite the arguments made by both sides, the current debate suffers from two major problems that make it difficult to determine whether the Court has improved human rights practices. First, researchers have failed to fully theorize the potential deterrent impact of the Court by underestimating the costs that it can inflict on individuals. Second, there is a lack of empirical research examining whether the Court has fulfilled its mandate and prevented gross human rights abuses. As Simmons and Danner (2010, 226) put it, “few social scientists have given this innovative institution close scrutiny.”

In this article, I systematically examine the relationship between the ICC and government respect for human rights. I argue that governments from states that have ratified the Rome Statute commit lower levels of human rights abuses than governments from nonratifier states.¹ I posit that the ICC can deter ratifiers from committing violations because it imposes costs on them throughout its involvement in a situation that include imprisonment, but also a variety of domestic and international audience costs. As a result, the threat of ICC’s involvement lowers the expected payoffs for engaging in repression, making other policies more attractive to ratifiers. In this way, while I acknowledge the importance of formal sanctions (i.e., incarceration), recognizing that the ICC inflicts various costs on governments once they start an investigation represents an important advance on existing arguments, given that the primary criticism of the ICC is that it is not a credible deterrent due to its limited ability to arrest wanted suspects.

I use the Cingranelli–Richards (CIRI) index of physical integrity rights to test the deterrent impact of the ICC (Cingranelli and Richards 2009). CIRI index consists of four key human rights measures: torture, summary executions, physical disappearances, and political imprisonment. The data is appropriate for the present study because it corresponds to the Court’s jurisdiction to investigate and prosecute individuals suspected of committing crimes against humanity and war crimes. All four types of violations featured in CIRI index are explicitly listed in the Rome Statute as both war crimes and crimes against humanity. Further, while the ICC has investigated rebel groups, it also frequently targets governments, which are the focus of this study. I discuss several cases below, including Colombia, Sudan, Guinea, and Kenya. Other notable cases targeting governments include Mali, Israel, Libya, and the Ivory Coast.²

I find support for my theoretical expectations; leaders from states that have ratified the Rome Statute commit lower levels of human rights violations than leaders from nonratifier states. The results are robust to several alternative explanations of human rights abuses and the determinants of ratification (i.e., regime type, democratization, recent conflict history, independent judiciary, etc.). The results are also consistent when accounting for concerns related to selection effects. Using difference-in-differences (DiD) estimation, the findings indicate that the ICC is associated with a reduction in human rights violations, even after accounting for any unobserved preexisting differences between (eventual) ratifiers and nonratifiers.³ I also directly test the causal mechanisms in my argument and find that ICC’s involvement in a situation is related to a greater probability of both economic sanctions and major domestic government crises.

The results suggest that the ICC is associated with both screening and constraining effects on governments. Although governments with better human rights records are more likely to ratify the Rome Statute, their human rights practices still improve after ratification. The practices of nonratifiers, however, change very little across time. This suggests that the ICC appears to be associated with an independent effect on ratifiers that cannot entirely be explained by prior human rights practices, trends across time, or domestic conditions.

This article makes several important contributions. To my knowledge, this is the first cross-national analysis to find that the ICC is associated with better human rights practices.⁴ Finding that the ICC can reduce human rights abuses is important for both policy makers and academics. The ICC is a novel institution with unparalleled power to enforce the law and prevent gross human rights violations. In a significant move, ratifier states sacrificed some of their sovereignty by giving the Court the authority to prosecute individuals from their country. As Bosco (2014, 2) puts it, the ICC “represents a remarkable transfer of authority from sovereign states to an international institution.” The findings in this article provide support for the Court’s backers who argue that the establishment of a permanent ICC with such jurisdictional powers can advance human rights.

Along these lines, this article also addresses important debates in the literature. In contrast to realist arguments that maintain that international law and institutions are either irrelevant or epiphenomenal, this article suggests that international organizations such as the Court can alter the behavior of governments. In so doing, it draws on arguments from the larger literature on human rights to suggest that the ICC can alter government behavior even with relatively weak enforcement mechanisms. By imposing various costs throughout the process, I suggest that the ICC can deter individuals even with its limited ability to arrest wanted suspects. As noted, this is an important theoretical insight about the ICC that addresses one of the major concerns of those skeptical of the Court’s impact on human rights abuses.

The rest of this article is organized as follows. First, I review the existing literature on the Court and identify the shortcomings in it. Next, I put forward my argument on the effectiveness of the ICC. I then introduce my research design and measurement issues and discuss selection effects and present the statistical findings. I then examine whether ICC’s involvement is associated with greater domestic and international costs. I conclude with the implications of this research and directions for future research.

Literature Review

The ICC’s stated goal is to deter grave violations of international law by prosecuting individuals suspected of committing war crimes, crimes against humanity, and genocide.⁵ Scholars and policy makers generally fall into two camps on the ability of the ICC to fulfill its mandate and to deter individuals from committing large-scale human rights abuses.⁶ ICC proponents claim that the Court can deter individuals from committing large-scale human rights violations by prosecuting them for violating international law (Akhavan 2009; Schabas 2011; Scharf 1997). Based on a cost–benefit analysis, these authors argue that ICC prosecutions increase the costs for committing atrocities such that the expected utility for doing so is less than it is for abiding by the law. As a result, individuals are less likely to engage in human rights violations in order to avoid the increased costs and lower expected payoffs associated with ICC prosecutions. In a related argument, Gilligan (2006) argues that the ICC even with its weak enforcement powers may still have a deterrent effect because surrendering to the ICC may be the best option for some leaders, as third-party states have little incentives to give asylum to indicted individuals.

Despite this potential for the ICC to prevent atrocities, several policy makers and scholars question the ICC’s capacity to deter state and rebel leaders from committing human rights violations (Ku and Nzelibe 2006; Drumbl 2007). They argue that the ICC lacks the necessary enforcement capabilities to deter actors from committing atrocities. They claim that since the ICC lacks its own police or military force, it must rely on the cooperation of states and international institutions to arrest indicted suspects. Relying on third-party cooperation to arrest wanted suspects undermines ICC deterrence because these actors may lack the will or capabilities to comply with ICC requests. As a result, wanted individuals often evade capture, avoiding punishment for their crimes and eroding the deterrent capability of the Court.⁷

The brief review makes clear that there is disagreement about the ability of the ICC to deter atrocities. The source of this disagreement can be largely traced to two major problems in the literature. First, there is a well-recognized lack of empirical scholarship on the deterrent effect of the ICC (Meernik and Shairick 2011; Ku and Nzelibe 2006; Gilligan 2006). While both sides have made compelling claims about the ICC’s effectiveness, they have failed to adequately test them.

Second, the theoretical literature on the ICC is limited in that it underestimates the different ways that the ICC inflicts costs on actors. While the critics are right that the ICC has limited means to enforce indictments, they also fail to fully appreciate the complete range of costs that the ICC can impose on individuals beyond imprisonment. Although the threat of prosecution likely inflicts the greatest costs on individuals, the ICC can impose other types of punishment on individuals that decrease their expected payoffs for engaging in human rights abuses.

These costs are important to recognize because they are related to the ICC’s capability to punish suspected individuals for committing crimes. As noted, many critics discredit the ICC’s ability to deter individuals because they claim that it lacks the means to arrest and prosecute suspects. However, by recognizing that the ICC can impose various costs on individuals beyond arrests and incarceration, the ICC may have the capacity to deter suspects by imposing other costs on them, even if it lacks the means to enforce all warrants and summonses. As a result, if the ICC can increase costs for violating human rights, it can still deter individuals from committing them even with limited enforcement means.

Theoretical Framework

Consistent with the literature on repression, I assume that leaders are rational actors who have a set of policy tools available to them (i.e., repression, economic liberalization, etc.) and repress to obtain some objective, typically threat reduction (Davenport 2007; Poe, Tate, and Keith 1999). Leaders commit human rights abuses when the expected utility for doing so is greater than it is for the other policy alternatives they have at their disposal. The ICC can deter leaders by inflicting costs on them such that it lowers their expected payoffs for committing human rights abuses. As a result, it is necessary to identify what leaders value in order to understand how the ICC can influence their decision-making calculi. This is because the ICC can only contribute to better human rights when it imposes meaningful costs on leaders.

I assume that leaders care about two primary goals: (1) domestic support and (2) international reputations/support. A large body of evidence establishes that leaders prioritize their tenure in office (Bueno de Mesquita et al. 2005; Russett and Oneal 2001). Scholars also claim that leaders want to maintain domestic support to implement their broader policy agendas (e.g., Brace and Hickley 1992; Davenport and Armstrong 2004; Huth and Allee 2002). Davenport and Armstrong (2004, 539) argue, for example, that governments repress “when they are trying to create or expand upon specific (political, economic, and cultural) practices ….”⁸ In other words, leaders go to great lengths to implement their favored policies. Second, leaders also value their international reputations and international support. A favorable reputation is important because it can help leaders obtain the economic and military benefits of international cooperation that they can then use to advance their foreign and domestic policy agendas and maintain domestic support (Keohane 1984; Simmons 2000).

That leaders have a bundle of domestic and foreign policy interests is important because it suggests that the ICC can influence them by affecting these priorities. While critics argue that the ICC cannot deter leaders because it lacks enforcement capabilities to arrest and punish indicted subjects, they overlook how the ICC can affect the range of interests leaders have. This is important because it means that there are other potential ways that the ICC can alter the expected utility of repression, short of a high probability of incarceration. As long as potential perpetrators expect to pay some nontrivial costs, they will be more inclined to abide by the law because their expected payoffs for repression will be reduced.

Drawing on this logic, the primary argument advanced here is that the ICC can deter ratifiers from committing human rights abuses by inflicting a variety of costs on them across all stages of its involvement in a situation (i.e., preliminary examinations, investigations, and prosecutions). In turn, this lowers their expected utility for engaging in human rights violations.⁹ The Court can inflict three types of costs on potential perpetrators: (1) domestic costs, (2) international audience costs, and (3) prosecution costs. Importantly, these costs influence the primary interests that leaders have, such as their political survival, policy implementation, and international reputations. The ICC can thus deter actors from committing crimes even without imposing large formal sanctions on them. In this way, repression in the shadow of the ICC may be a suboptimal policy for ratifiers, leading them to pursue other policy alternatives to achieve their goals.

Domestic Support

Scholars studying compliance with human rights law argue that international law can constrain governments by affecting domestic support among elite actors and citizens (e.g., Conrad and Ritter 2013; Kim and Sikkink 2010; Simmons 2009).¹⁰ Theses scholars argue that human rights treaties establish standards of appropriate behavior that help domestic actors to mobilize against repressive regimes and demand that they act in accordance with clear legal standards. ICC’s involvement can likewise influence the domestic support of leaders and consequently threaten their political survival and broader policy agenda. This is because all leaders, even nondemocratic ones, require some level of domestic support to govern effectively and maintain their hold on power (Croco 2011; Weeks 2008).¹¹ As such, the ICC can increase costs on leaders and reduce the expected benefits of repression by lowering support for them among key domestic actors.

ICC’s investigations signal to domestic actors that the government has committed grave abuses in violation of international law. This is because ICC’s involvement contributes to greater awareness among the population that the Court is investigating human rights abuses. For example, the ICC often establishes field offices to facilitate the investigation of crimes, as well as transmits radio broadcasts and engages in education/awareness seminars that explain their activities in the situation under investigation. In the Central African Republic (CAR), for instance, the ICC field offices have held workshops with the media, local nongovernmental organizations, religious leaders, and other civil society actors (Human Rights Watch 2008). The chief prosecutor also organized a series of town hall meetings to discuss the ICC’s involvement in the CAR. Likewise, in the Democratic Republic of Congo, the ICC organized “dramatic sketches” about the Court that were broadcast on local television (Human Rights Watch 2008). Therefore, ICC’s investigations are highly visible to both the domestic population at large and elites.

Greater scrutiny from the ICC can lead citizens to oppose their leaders themselves or push elites to challenge them. In turn, leaders may be unable to execute their preferred policies, or at the extreme, fear for their political survival when domestic actors oppose them. The Columbian government, for instance, revised plans to give amnesty to several paramilitaries and instead moved forward with trials following ICC’s involvement. Bogota reportedly changed its policy at least in part because of local media coverage of the ICC’s investigation (Grono 2008). Thus, here we see that domestic actors pushed Bogota to modify its policies following ICC’s involvement in the state, even in the form of a preliminary examination.

ICC’s involvement may also be costly to leaders because it incentivizes them to prosecute domestic actors including potential supporters. Because the ICC is a court of last resort, leaders have reasons to prosecute suspected perpetrators to avoid ICC indictments, even offenders who are important to the regime.¹² As such, domestic actors may abandon or oppose leaders who target them at home. President Bashir in Sudan, for example, arrested members of the state-supported Janjaweed militia and tried some members of the group before national courts to show the Office of The Prosecutor that they were serious about domestic justice processes (Akhavan 2009). This reduced support from the militia, influencing Bashir’s ability to effectively wage war in Darfur. As Akhavan (2009, 649) concludes, “the pressures to assign blame to others have created appreciable fractures in Khartoum’s alliance with the notorious Janjaweed militia.”

ICC’s involvement against the Guinean government also provides a useful example. In late 2009, the ICC began a preliminary examination in Guinea to investigate suspected crimes committed by the government in the 2009 Stadium Massacre that resulted in at least 150 deaths and 1,000 injuries. The government established a domestic panel of judges to investigate the situation, and it recently indicted several individuals for their involvement in the massacres (Human Rights Watch 2013). Such trials can be costly to leaders who may lose the support of key actors and/or lead opposition actors to challenge their authority. For example, Guinean citizens have protested the investigation of Claude Pivi, one of the suspects under investigation for the massacre. As one analyst claimed, “the sensitive nature of the investigation brings increased risk for those involved” (Human Rights Watch 2013).

International Audience Costs

Potential perpetrators can suffer international costs across all stages of ICC’s involvement. The logic here is similar to work that focuses on how international actors and organizations can engage in naming/shaming and other forms of international coercion. As Krain (2012, 576) argues, “naming and shaming human rights abuses brings atrocities to light and creates common understandings of the actions of perpetrators across the international community.” This, in turn, can cause third parties to implement economic and political sanctions or otherwise reduce their cooperation with a targeted leader (e.g., Lebovic and Voeten 2009; Murdie and Davis 2012; Schneider 2000).

The ICC acts as a similar international spotlight that informs the international community about a leader’s wrongdoing. ICC’s involvement sends a signal to third parties that those being investigated have potentially committed grave human rights abuses. In turn, third parties may sanction targeted leaders, or lessen their cooperation with them, which can lead to a reduction in the benefits accrued from international cooperation (i.e., foreign direct investment, military assistance, etc.). Lower levels of international support also mean that leaders have fewer resources to provide to their supporters, eroding their base of support and potentially weakening their hold on power. As Akhavan (2001, 12) argues, “The stigmatization associated with indictment … may significantly threaten the attainment of sustained political power.”

Third parties have implemented sanctions against governments being investigated by the ICC. Shortly after the ICC started to investigate Guinea, for instance, the European Union, the African Union, and the Economic Community of West African States enacted economic sanctions and implemented an arms embargo against officials suspected to be involved in the Stadium Massacre (BBC 2009). While the incident itself certainly influenced the decision to sanction Guinea, it is notable that they all only acted after the ICC began their investigation.

Sudanese support for the Lord’s Resistance Army (LRA) in Uganda provides a useful illustration of how ICC indictments can reduce international support, affecting the behavior of potential perpetrators (Allen 2006). During its over two-decadelong civil war with the Ugandan government, the LRA primarily received military support from the Sudanese government including arms and safe havens. However, only four months after the Uganda government issued a referral to the ICC to investigate crimes committed by the LRA, Sudan reduced both its arms shipments and LRA bases in southern Sudan.¹³ Shortly thereafter, the United Nation’s Office for the Coordination of Humanitarian Affairs issued a report stating that “Since July [2004], ‘… that the LRA had been significantly weakened and that the war was about to end.’” While there are likely multiple causes of the LRA’s decline, many commentators argue that by severing its ties, Sudan significantly weakened the rebel group (Akhavan 2009; Allen 2006). As Akhavan (2009, 643) writes, “Despite a complex range of factors, there is a noticeable link between the ICC’s exercise of jurisdiction over the case and the LRA’s demise …. Uganda’s referral made it more difficult for Sudan to continue supporting the LRA.”

Wanted individuals may also suffer from a lack of freedom of movement following ICC’s investigations. This is because third-party leaders may incur their own international and domestic costs for supporting a wanted war criminal. These constraints can impair a leader’s ability to pursue its own domestic and foreign policy agenda or avoid capture by states friendly to the ICC. For example, while some countries have allowed indicted Sudanese President Omar al-Bashir to travel freely, other states, such as Botswana, Uganda, Libya, Malaysia, and South Africa, have all stated that they would enforce the ICC warrant against him due to diplomatic pressure (Arieff et al. 2011). Likewise, several European states issued travel bans against indicted Kenyan leaders, William Ruto and Uhuru Kenyatta, while President Obama refused to visit Kenya during his 2013 trip to Africa due to the ICC’s indictments there. Finally, third-party states may refuse to permit safe havens to wanted individuals (Gilligan 2006). Wanted war criminal Bosco Ntaganda turned himself in after evading arrest for several years in Rwanda. Some commentators argue that he surrendered because Rwanda was pressured to transfer him to the Hague (Fisher 2013).

Prosecution Costs

Finally, there are the costs that are associated with ICC prosecution and incarceration. Evidence suggests that the threat of prosecution has influenced the decision-making of individuals and governments under the Court’s jurisdiction.¹⁴ According to the former chief prosecutor, Luis Moreno-Ocampo, militaries from around the world have altered their rules of engagement to be in accordance with the Rome Statute (Rosenberg 2012). Likewise, he also remarked that the ICC has influenced the behavior of individual soldiers. He claimed, for instance, that “In 2003 an Australian military pilot conducting operations in Iraq realized that if he executed the order received, he could be prosecuted in accordance with the Rome Statute. He returned to his base without dropping the bombs” (Prosecutor 2009).

Beyond punishment, the costs that individuals incur during trials can serve to deter them from violating international law. There is obviously the lack of freedom that individuals incur during this time. Leaders may also suffer health and financial losses during trials that can further increase their costs from a guilty verdict and/or standing trial. As Kim and Sikkink (2010, 942) argue regarding the former Chiliean dictator Augusto Pinochet, “although Pinochet was never convicted of human rights crimes, most would agree that his detention was very costly to him.”

In Kenya, some commentators argue that the threat of ICC prosecution led some elites to refrain from using violence in the 2013 elections. In brief, the ICC indicted six individuals including the current president for committing crime against humanity following their participation in the 2007 postelectoral violence that resulted in the deaths of over 1,000 people. Although Kenyans elected one of the indicted individuals as president, Uhuru Kenyatta, in the recent elections, the ICC appears to have pushed Kenyan leaders to engage in better human rights practices. As Stephen Rapp, the US ambassador-at-large for war crimes, said at the Forum on US-ICC relations in early 2013, “The fact that these indictments have been out there has had an effect in terms of the peacefulness in this past election. No one in Kenya wants to be on the ICC arrest list.” Thus, despite the controversial nature of the ICC in Kenya, its presence in the country has seemingly contributed to less violence.¹⁵

In sum, the ICC can impose a multitude of costs on leaders who commit abuses even with its limited capabilities to arrest potential perpetrators. These potential costs increase the deterrent impact of the ICC and lower the expected utility of repression because they can affect the political survival, implementation of preferred policies, and international support of targeted actors. Individuals will be less inclined to commit gross human rights violations when they can expect the ICC to inflict costs on them for doing so. In contrast, leaders from states that have not ratified the Rome Statute will be unlikely to expect the ICC to impose costs on them. They are thus more capable of committing human rights abuses with impunity, having little to fear from the ICC. This logic suggests the following hypothesis:

Hypothesis: Individuals from governments that have ratified the Rome Statute commit lower levels of human rights abuses than individuals from governments that have not ratified the Rome Statute.

Research Design

I use the CIRI human rights data to test my hypothesis on the effectiveness of the ICC (Cingranelli and Richards 2009). CIRI index codes human rights practices using both US State Department Country Reports on Human Rights Practices and Amnesty International’s Annual Reports. The CIRI index is particularly useful here because it codes specific types of violations including four that are relevant for this study on the ICC. These include disappearances, extrajudicial killings, political imprisonment, and torture. These violations are consistent with the ICC’s jurisdiction and are explicitly stated in the Rome Statute. While the ICC has the jurisdiction to prosecute crimes beyond these four (i.e., apartheid, racism, sexual violence, genocide), these crimes make up an important set of ones under the ICC’s jurisdiction. Thus, they provide a reasonable test for the deterrent impact of the ICC. In particular, I use CIRI’s index of physical integrity rights as my response variable. The physical integrity index ranges from 0 (full government respect for these rights) to 8 (no government respect for these rights).¹⁶ The index is an aggregated measure of all four previously mentioned human rights violations: disappearances, torture, extrajudicial killings, and political imprisonment.¹⁷

Explanatory Variable of Theoretical Interest

Consistent with my theoretical argument, the primary explanatory variable is whether the state in question ratified the Rome Statute. Ratifying the Rome Statute is important because it gives the ICC jurisdiction over the state in question.¹⁸ The variable is a binary variable that equals 1 if the state ratified the Rome Statute and 0 otherwise. Data were obtained from the ICC website (ICC 2015). As of early 2013, 122 countries have ratified the Rome Statute.

Across the 1,330 state-year observations in my data from 2002 to 2010, there are 744 (55 percent) ratifier years. The data suggest that human rights scores differ between ratifier and nonratifier governments. Ratifiers receive an average score of around 2.3, while nonratifiers receive a 3.9. Thus, on the face of it, the data indicate that the ICC is correlated with greater human rights practices. I examine the difference between (eventual) ratifiers and nonratifiers before/after ratification in the proposed online appendix to further examine the underlying patterns in the data.

Control Variables

I include several control variables to account for alternative explanations of human rights violations. I primarily rely on Dreher, Gassebner, and Siemers (2012) to identify the relevant covariates. The authors use extreme bounds analysis and estimate over 22,000 regressions to identify the variables that are most associated with human rights violations. They find that a lagged dependent variable, population, gross domestic product (GDP) per capita, democracy, and war are the most important variables. I include all five control variables in my analysis. I also add a measure of dissent from the Banks data (Banks 2010).¹⁹ Dissent is important because scholars have found a strong relationship between dissent and repression (e.g., Davenport 2007). The results are consistent when I drop dissent from the model. The lagged dependent variable is the CIRI index lagged one year. I use the World Bank (2010) data to code both population and GDP per capita variables. I log both variables to account for their skewed distributions. To measure regime type, I create a binary variable that equals 1 when the state receives a 6 or greater on the net Polity scale and 0 otherwise (Marshall and Jaggers 2010). Finally, the war variable equals 1 if the state was involved in a civil, interstate, or internationalized conflict using the UCDP/PRIO armed conflict data (Gleditsch et al. 2002). All control variables are lagged one year.

In addition, I control for several other factors that may be related to both human rights abuses and the ratification process.²⁰ Specifically, I control for whether or not the state in question recently democratized. The measure is a binary variable that equals 1 if the state went from below 6 on the net Polity scale to 6 or above on it and 0 otherwise (Marshall and Jaggers 2010). The variable was lagged one year. I also include a variable to measure whether the state recently experienced a war termination that equals 1 if a war ended and 0 otherwise. The variable is lagged one year and is taken from the UCDP/PRIO armed conflict data (Gleditsch et al. 2002). Both variables are useful to include because they account for alternative explanations of human rights violations (and ratification). Democratizers, for instance, may both improve human rights practices and ratify the Rome Statute. Thus, while ratification may appear to explain the better practices, it is actually democratization that is primarily responsible for it. It is thus useful to control for this possibility in the empirical models.

Additionally, I control for the recent conflict history by including two variables: the total number of recent wars over the past ten-year period and the total number of battle deaths that states experienced over the past ten years. While there is a debate about the nature of the relationship, scholars have found conflict history to be related to ratification (Simmons and Danner 2010; Chapman and Chaudoin 2012). Finally, I include a control variable that measures whether or not the state has an independent judiciary that equals 1 if it does and 0 otherwise (Cingranelli and Richards 2009). States with independent judiciaries may be more likely to ratify the Rome Statute and have better human rights records. As noted above, the ICC is a court of last resort, so the ICC can only investigate crimes when a state is unwilling or incapable of doing so. An independent judiciary suggests that a state can investigate crimes committed by its own people and thus it may ratify the Rome Statute because it has less to fear from it.

Empirical Analysis

It is important to first address a threat to inference in the current study. Similar to other work on compliance with human rights law, concerns related to endogeneity/selection effects are an important consideration here (e.g., Downs, Rocke, and Barsoom 1996; Simmons 2009; Simmons and Hopkins 2005). The problem is that treaty ratification may be nonrandom in that governments with better human rights records may select into ratifying the Rome Statute, while governments with poor ones fail to ratify it. As a result, the findings for the influence of the ICC on human rights practices may be spurious because it is the decision to ratify the Rome Statute, rather than the constraints imposed by the ICC, that explain lower levels of violations among ratifiers. For example, ratifiers may have better human practices because of underlying state preferences and not because they fall under the ICC’s jurisdiction. In technical terms, an omitted variable (i.e., unobserved heterogeneity) may be correlated with both ICC ratification and the error term (and consequently the response variable) biasing the results. It is thus necessary to account for this or the statistical analysis may overestimate the effect of international law on human rights practices (Downs, Rocke, and Barsoom 1996).

Before I address this empirically, it is important to discuss it conceptually. There are two related issues. First, what explains the decision to ratify the Rome Statute, and second, what happens after ratification even among states with better practices? First, it is true that states with better human rights practices are more likely to ratify the Rome Statute, yet states also ratify it for other reasons. Goodliffe et al. (2012) show, for instance, that states that interact with ratifiers are more likely to ratify the Rome Statute, while Simmons and Danner (2010) argue that leaders can use the ICC to tie their hands domestically (but see Chapman and Chaudoin 2012). Thus, similar to what Simmons (2009) argues with respect to human rights law, ratification of the Rome Statute is not a perfect reflection of states’ preferences, suggesting there is room for some independent impact of it.

The second important issue is that treaties can both screen and constrain states (Simmons and Hopkins 2005). That is, while states with better human rights records are more likely to ratify, it is also important to consider what happens after ratification. In this way, the ICC can still be effective if it improves human rights practices following ratification. This suggests that the key question then is how the human rights practices of states change after ratification, relative to trends among nonratifiers.

Scholars have proposed various methods to deal with endogeneity, including matching methods and instrumental variable regression. While these are useful methods and I employ them as robustness checks in the proposed online appendix, I focus here on DiD estimation. DiD is a useful method to assess the impact of the ICC on human rights abuses, as it accounts for the (unobserved) differences between ratifiers and nonratifiers, which, as noted above, is the source of the bias resulting from endogeneity (i.e., omitted variable bias).²¹ DiD compares the treatment group (ratifiers) with a control group (nonratifiers) before/after the treatment was implemented. This is important because it allows for an assessment of the change in human rights abuses among ratifiers relative to the change for nonratifiers. As Imbens and Woolbrige (2008, 64) put it, DiD “removes biases in second period comparisons between the treatment and control group that could be the result from permanent differences between those groups, as well as biases from comparisons over time in the treatment group that could be the result of time trends unrelated to the treatment.”

More technically, using two time periods (pretreatment and posttreatment) for ease of presentation, assume that µ _it is the mean of the outcome in group i at time t (i.e., average human rights score) in which i = 0 for the control group (nonratifiers) and i = 1 for the treatment group (ratifiers), while t = 0 for the pretreatment period and t = 1 for the posttreatment period (assuming that only the treatment group gets the treatment). The DiD estimator is then (µ₁₁ − µ₁₀) − (µ₀₁ − µ₀₀). It is the difference between the differences in the treatment group pretreatment/posttreatment and the differences in the control group pretreatment/posttreatment. In this way, DiD directly compares the effect of the treatment (ratification) on human rights with what happened among states that did not receive the treatment (nonratifiers).

Applied to the current study and assuming states can only ratify the treatment in one period (i.e., 2002), we obtain the first term (µ₁₁ − µ₁₀) by subtracting the pre-2002 human rights scores from post-2002 human rights scores for ratifiers and then do the same for nonratifiers; that is, subtract the pre-2002 human rights scores from post-2002 human rights scores (µ₀₁ − µ₀₀). To obtain the DiD, we subtract the difference for nonratifiers from the difference for ratifiers (µ₁₁ − µ₁₀) − (µ₀₁ − µ₀₀).

The two-period case can easily be applied to time-series cross-sectional (TSCS) data, such as the type of data employed in this article. In the TSCS world, the DiD model is also known as the two-way fixed effects model. The model is specified as Y _it = β₀ + β₁ T _it A _it + u_i + v_t + ε _it . T _it A _i is coded 1 for the treatment group in the posttreatment period (i.e., states that have ratified the Rome Statute) and 0 otherwise (i.e., nonratifiers). β₁ is the coefficient of interest, while u_i and v_t are state and time (year) fixed effects, respectively.

The state and time fixed effects account for selection effects by addressing omitted variable bias, the source of the endogeneity problem (Imbens and Wooldridge 2008; Wooldridge 2010). The state fixed effect captures differences across states (i.e., cultural differences) that may be related to ratification and human rights violations but cannot be controlled for using observed data, while the time fixed effect deals with any unobserved changes across time that affects all states.²² As such, the DID estimator reduces omitted variable bias by removing any unobserved state-level and time-related factors that are associated with human rights practices.²³ In turn, it addresses concerns related to selection effects and nonrandom treatment assignment by controlling for any unobserved factors that explain why some governments select into ratifying the Rome Statute.

It is also important to note that, similar to all estimators, there are some important assumptions and potential limitations with the DiD model. First, it is possible that some time-variant factors may still lead to selection problems and consequently biased estimates. I address this problem in several ways. First, I compare preratification trends in human rights scores for (eventual) ratifiers and nonratifiers. This helps to determine whether ratifiers have a different trajectory of human rights practices leading up to ratification compared to nonratifiers. For example, do (eventual) ratifiers consist of states that already have improving human rights practices relative to nonratifiers?

Specifically, I compare the trends from 1995 to 2001 for nonratifiers and six years prior to ratification for ratifiers. I start in 1995 for nonratifiers because this is when the United Nations General Assembly first started to pursue a permanent ICC. Regarding ratifiers, I use six years prior to ratification instead of the period 1995–2001 because this seems to be the most accurate way to account for any preratification changes. For instance, using 1995–2001 is a less precise way of measuring trends in human rights practices for a state that ratified the Rome Statute in 2010. The results suggest that the pretrends are similar for both (eventual) ratifiers and nonratifiers. The difference among ratifiers is .44 (2.69 − 2.25), while it is .41 for nonratifiers (3.86 − 3.45). Thus, the preratification trends suggest that there is not a major difference between (eventual) ratifiers and nonratifiers.

Second, states might experience some structural or institutional changes that affect both the decision to ratify and corresponding human rights practices. To account for this, I include both democratization and war termination measures in the appropriate models below. Both of these factors provide alternative explanations for the improvement in human rights practices among states. For example, it is possible that a state had relatively bad human rights practices, democratized, ratified the Rome Statute, and then improved its practices. Thus, while ratification would appear to explain better human rights practices, it could be that regime change led to better practices (and the decision to ratify). The same logic applies to war termination. As shown below, the results are robust to the inclusion of these variables. Finally, I also interact the unit-fixed effects with time to account for the fact that some states might have different (unobserved) trajectories of violations across time. Ratification is still significant even when incorporating this interaction term.²⁴

DiD also makes some important assumptions, such as parallel trends. This assumption is that without the treatment (ratification), the average change for the treated (ratifiers) would have been the same as the average change for the control group (nonratifiers). A common violation of this assumption is known as the Asenfelter dip. This happens when just prior to the treatment, there is a change in the treatment group such that the observed change following the treatment is due to the regression to the mean rather than due to the treatment itself. While it is impossible to directly test this given that it is a counterfactual, it is common to assess this assumption by looking at preratification trends, as I did above for selection issues. Scholars suggest that it is possible to assess this assumption by determining whether treated and control groups have similar trends before the implementation of the treatment (Angrist and Pischke 2009). As discussed above, the pretrends suggest that the parallel lines assumption is not violated, and the Asenfelter dip does not exist in the data. In other words, the preratification trends cannot explain the difference we observe following ratification.

DiD can also produce inefficient estimates in the presence of serial correlation (Bertrand, Duflo, and Mullainathan 2004). I include a lagged response variable and cluster my standard errors on the state, two standard ways to address serial correlation. As a robustness check, I use block bootstrapping (clustered or replacement at the state) and include a lagged response variable for two and three years. The results are consistent with the below, and available upon request.

Finally, it is also common to use placebo tests to determine whether the treatment is an artifact of general trends in the data. A common placebo test is to replace the response variable in the model of interest with a response variable that is unrelated to the treatment. I replace human rights practices with monadic trade levels (both logged and unlogged) and regress it on the primary models below. ICC ratification is not significant, suggesting that any general trends across time do not explain the significant result for ratification in the primary models below.

In short, while I attempt to address the limitations with DiD based on suggestions from the existing literature, no estimator is perfect, especially when it comes to endogeneity. As result, and given any lingering concerns, I use matching and instrumental variable regression analysis in the proposed online appendix as robustness checks. I also further investigate selection issues by looking at the underlying patterns in the data before and after ratification in the online appendix.

Statistical Results

In this section, I employ both ordinary least squares (OLS) regression and DiD to examine the influence of ICC ratification on human rights violations. OLS serves as useful baseline model with which to compare the results from the DiD model that accounts for selection effects. In the OLS regressions, I estimate my models from 2002 to 2010 and I use the 1995–2010 period for the DiD models. I begin the OLS analysis in 2002 because that is when the Rome Statute entered into force. While some states ratified the Rome Statute prior to 2002, the ICC’s jurisdiction over them started in 2002. I start the DiD estimator in 1995 for two primary reasons; this estimator requires data before the treatment was implemented. Further, as noted above, I begin the analysis in 1995 because this is when the General Assembly first established a committee to begin addressing issues related to the establishment of a permanent international court. It thus represents a useful starting point for an analysis on the ICC.

Finally, I rely on coefficient plots to display the results. I plot the coefficient estimates and the 95 percent confidence interval for each variable. The variable is significant at the two-tailed, .05 level when the confidence intervals do not cross 0.

As argued above, I expect a negative relationship between ICC ratification and the physical integrity index. As expected, the results indicate support for the hypothesized relationship.²⁵ In the baseline OLS model (Figure 1), the coefficient estimate for ICC ratification is negative and statistically significant (β = −.22, SE = .067), suggesting that ratifiers commit lower levels of human rights abuses than nonratifiers. The results are very similar for the DiD model (β = −.22, SE = .079), indicating that ICC ratification is consistently associated with lower levels of human rights abuses, even when accounting for selection effects (Figure 2).

Figure 1.

The determinants of human rights violations, all state years (ordinary least squares model).

Figure 2.

The determinants of human rights violations, all years (difference-in-differences model).

The control variables also behave as expected in both models. Independent judiciary is negative and statistically significant in both models, suggesting that it is associated with an improvement in human rights practices. GDP is significant in the OLS model, but fails to reach significance in the DiD model, while democracy just misses significance in the OLS model and reaches statistical significance in the DiD model. Democratization is negative in both models but just misses statistical significance. The lagged response variable, dissent, and recent history of conflict (i.e., total number of conflicts in past ten years) are all positive and statistically significant in both models, while population misses significance in the DiD model. Conflict termination, battle deaths, and ongoing conflict all fail to reach standard levels of significance. While the finding on the conflict variable may be surprising, it is largely because it is correlated with the conflict history variables. When I drop these variables from the analysis, ongoing conflict becomes significant. Ratification also remains statistically significant when I drop these variables from the analysis. The consistent and strong results indicate that the model is well specified.

The results suggest that the ICC has influenced the human rights records of states since the Rome Statute entered into force in 2002. While researchers have identified some important limitations with the Court, the empirical evidence suggests that the ICC is associated with greater human rights practices among ratifiers. While it is true that states that ratify the Rome Statute have on average better human rights records than nonratifiers, it is also the case that the human rights practices of ratifiers have improved since the Court’s establishment more than the human rights practices of nonratifier states over time. Thus, the preexisting differences that may have contributed to ratification in the first place cannot entirely explain the differences that we observe between the two types of states following ratification. In this way, the ICC appears to both screen and constrain states, as ratifiers still improve after ratification.²⁶

Secondary Analysis

The primary statistical results suggest that ratifiers commit lower levels of human rights abuses than nonratifiers. While the results provide strong support for the hypothesis, they do not test the underlying argument advanced in this article that the ICC deters states because its involvement is associated with a multitude of expected costs beyond prosecution. As such, I directly test here the relationship between ICC involvement and domestic and international audience costs to show direct support for the causal mechanisms in my argument. I examine whether states are more likely to suffer economic sanctions and major domestic government crises when the ICC is involved, compared to states without ICC involvement. I first describe the key explanatory and response variables and then present the empirical results.

Given my interest in whether states with ICC involvement suffer greater costs, the primary independent variable is the presence of ICC activity in a given state. These data were obtained from the ICC website and equal 1 for all years where the ICC is involved in a state (i.e., preliminary examinations, formal investigations, indictments, and prosecutions) and 0 otherwise.²⁷ I lag the variable one year to account for simultaneity bias. ICC’s involvement is coded in fifty-five country-years.

To test the international audience costs argument, I examine whether international actors are more likely to enact economic sanctions against governments that are targeted by the ICC than states without ICC involvement. Economic sanctions (i.e., arms embargoes, travel restrictions, and reductions in trade and financial flows) directly capture my argument that the international community imposes costs on leaders following ICC involvement. ICC involvement signals to third parties that governments are likely guilty of committing human rights abuse which may cause them to sanction states for such crimes. The variable equals 1 if a third-party state or intergovernmental organization enacted sanctions targeting humans rights violations committed by the state in question and 0 otherwise. I obtained the data from the Threat and Imposition of Sanctions (TIES) data set (Morgan, Bapat, and Kobayashi 2014).

I also examine whether states are more likely to face significant challenges from domestic actors when the ICC is involved in a state. To measure domestic audience costs, I use the major government crises variable from Banks (2010) to code whether governments experience a major crisis as a result of ICC involvement. This measure is consistent with my theoretical argument that governments face some domestic costs (i.e., threats to the regime) following ICC activity in their states. The variable equals 1 if there is “any rapidly developing situation that threatens to bring the downfall of the present regime—excluding situations of revolt aimed at such overthrow,” and 0 otherwise.²⁸

I include the same set of control variables from the primary models above with the exception of democratization because there are not enough cases of it to include in the models. These controls are appropriate, given they constitute important rival hypotheses to ICC involvement. They also enable me to assess whether the ICC has an independent impact on domestic and international actors that is distinct from the human rights practices of governments and related forms of political violence, such as civil war.

I estimate the models on all states from 2002 to 2010, in which the country-year is the unit of analysis. I use probit to test both models, given that both economic sanctions and domestic government crises are binary variables. The results are reported in Table 1. As expected, ICC involvement is positive and statistically significant in both models. While the results are preliminary, the findings suggest that ICC involvement is associated with both domestic and international costs on states. ICC involvement signals to domestic and international actors that the government in question has committed gross violations of human rights, leading third parties to act and punish such violators in the form of economic sanctions and domestic challenges to the regime.

Table 1.

ICC Involvement and International and Domestic Audience Costs.

	Economic sanctions	Major domestic government crises
ICC involvement	0.640** (0.255)	0.535** (0.232)
Physical integrity index	0.125*** (0.0473)	0.033 (0.0302)
Democracy	−0.754*** (0.176)	0.263*** (0.092)
GDP per capita	−0.127** (0.0543)	0.032 (0.035)
Population	0.0121 (0.0436)	−0.047 (0.0319)
Dissent	0.134 (0.166)	0.045 (0.101)
Conflict	−0.224 (0.303)	−0.116 (0.188)
War termination	−0.331 (0.396)	−0.232 (0.251)
Independent judiciary	−0.0108 (0.0106)	0.002 (0.008)
Recent war	0.0106 (0.0282)	0.040** (0.020)
Battle deaths	−0.0000486 (0.0000410)	−1.88e-08 (0.00000071)
Constant	−1.265** (0.636)	−0.685 (0.528)
Observations	1,342	1,342

Note: Robust standard errors are given in parentheses. ICC = International Criminal Court; GDP = gross domestic product.

*p < .10.

**p < .05.

***p < .01.

Conclusion

This article has important implications for scholars and policy makers interested in the ICC and international law and organizations in general. To my knowledge, this is one of the first studies to find systematic evidence that the Court can deter leaders from committing atrocities, suggesting that the proponents of the Court are correct in arguing that the ICC can deter and prevent gross human rights abuses. It also addresses important theoretical debates in the literature among institutionalists and realists and other critics of the Court. While the Court has limitations, this article suggests that the international community can design international courts that constrain governments and help advance human rights practices. Further, the logic indicates that it is also important to consider some more indirect costs that courts can impose on governments, such as those that alter the domestic and international policies of leaders and their supporters. This article suggests that the international community can strengthen the effectiveness of the Court by increasing the domestic and international costs that accompany ICC involvement in situations. By withholding cooperation from states that have refused to extradite indicted individuals, third parties can help improve the deterrent capacity of the Court. Likewise, if the Court along with the international community can weaken domestic support of indicted individuals, they may be able to deter individuals from committing crimes.

Of course, more research is necessary to further understand the effectiveness of the ICC. This article focused on four key human rights violations, such as torture, political imprisonment, extrajudicial killings, and disappearances. Future work should broaden this and consider other types of violations that both rebels and government commit, such as sexual violence, the use of child soldiers, and civilian targeting. In addition, while this article finds that the ICC on average can deter leaders, it would be useful to consider some scope conditions that exist. That is, some governments may be more susceptible to domestic and international costs, such as democratic leaders and/or states that are highly integrated into the global economy. Thus, it would be important to know when the ICC has the strongest (or weakest) impact on states. Finally, this work finds that ICC involvement in a state is associated with a higher probability of both economic sanctions and major government crises, yet it would also be useful to consider whether third parties punish states under investigation in other ways, such as reducing levels of trade and financial flows.

Footnotes

Acknowledgment

I thank Jakana Thomas, Alyssa Prorok, Sarah Croco, and Mike Colaresi for their invaluable help throughout this project. I also thank the two anonymous reviewers and Paul Huth for their thoughtful comments on this article.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Supplemental Material

Supplementary material for this article is available online.

Notes

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