PERSPECTIVES OF COERSION IN INTERNATIONAL

CRIMINAL LAW

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

INTERNATIONAL CRIMINAL LAW

SUBMITTED BY: SUBMITTED TO:

Divya Gyan Dr. Sreemanshu Kumar Dash
Semester VIII Faculty,
Roll: 1047 Law
 TABLE OF CONTENTS

Introduction ............................................................................................................................ 3

Drawbacks of the domestic origin approach .......................................................................... 4

Domestic Debates on Criminal Deterrence........................................................................ 5

Scepticism by Analogy ...................................................................................................... 6

Social Deviancy and Holistic Assumption......................................................................... 7

The ‘Impunity Baseline’ Problem ...................................................................................... 9

Arm Wrestling with World Leaders ................................................................................. 11

To ‘Deter’ and to ‘Compel’ .............................................................................................. 15

The Rationalist International Relations’ Approach to Coercive Power ............................... 17

Schelling and the Diplomacy of Violence........................................................................ 19

George and Coercive Diplomacy ..................................................................................... 19

Byman and Waxman and the Dynamic of Coercion ........................................................ 20

The Benefits of Thinking like an International Relations Rationalist when Studying

International Criminal Tribunals’ Coercion ..................................................................... 20

Conclusion ........................................................................................................................... 22

2
INTRODUCTION

Can international criminal courts and tribunals (ICTs) deter atrocity crimes? This question
has sparked much debate among scholars and practitioners of international criminal justice,
and clear answers remain elusive. This article tries to explain why that is — and to suggest
how we could approach the debate going forward in a novel way that could complement
current avenues of analysis.

The article argues that a good starting point for understanding why we have fallen short of
providing good answers to the deterrence question is the tendency of international lawyers to
think about international criminal justice in light of its domestic origins. This is reflected in
the narratives provided by much of the broader scholarship,1 as well as the works that focus
specifically on the issue of deterrence — even in more recent iterations that attempt to break
free of such traditional narratives.2

This is, of course, not to say that other approaches are non-existent — far from it. In Kathryn
Sikkink’s The Justice Cascade, for example, the broader role of ideas that turn into norms that
gradually change outcomes in the international arena was put forth as a prominent
perspective on the impact of international criminal justice and human rights prosecutions,
while in David Bosco’s Rough Justice the reach of the International Criminal Court (ICC, or
‘the Court’) was explicitly linked to its attempt to find its place in the context of international
power politics.3 Nevertheless, it seems that, even among such narratives, the domestic origin
approach has a significant hold over the broader conversation about the issue of deterrence in
international criminal justice.

This article suggests that this domestic origin approach is flawed, or at least limited in its
analytical promise, because it is guided by assumptions that are often ill-fitting for the
international arena, and because it fails to grasp core aspects of the ‘coercive competitions’
that take place in the sphere of international criminal justice.

1
See, for example, A. Cassese, International Criminal Law (Oxford University Press, 2003), at 427– 429; G.
Werle and F. Jessberger, Principles of International Criminal Law (Oxford University Press, 2014), at 36–37; R.
Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2019),
at 28–43; W. Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 2020),
at 338–343
2
See, for example, C. Hillebrecht, ‘The Deterrence Effects of the International Criminal Court: Evidence from
Libya’, 42 International Interactions (2016) 616–643, at 624; H. Jo and B. Simmons, ‘Can the International
Criminal Court Deter Atrocity?’ 70 International Organization (2016) 443–475, at 446–452.
3
K. Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (W. W.
Norton & Company, 2011); D. Bosco, Rough Justice: The International Criminal Court in a World of Power
Politics (Oxford University Press, 2014).

3
On this basis, the article suggests analysing the problem through a broader rationalist
perspective on coercive power in International Relations (IR), which is designed to highlight
the context of co ercive efforts and the specificities of each case. The article argues that
adopting this approach would avoid much confusion and provide a better basis for studying
the coercive capacity of ICTs. Accordingly, in Section 2, I will take a hard look at the
domestic origin approach in order to explain its fundamental analytical shortcomings. In
Section 3, I will suggest treating ICTs analytically as sui generis institutions imbedded in the
world of international politics, and from there suggest that we apply rationalist perspectives
on coercive power as drawn from the field of IR to analyse these institutions’ coercive
capacity.4 The article concludes in Section 4 with remarks on the way forward.

DRAWBACKS OF THE DOMESTIC ORIGIN APPROACH

It is a common perception among international criminal lawyers that the political actors
which created the ICTs in the first place devoted little time and energy to define the exact
purposes behind their establishment. These actors seem to have lacked a firm vision on the
matter and accordingly, as noted by Robert Sloan, the legal instruments creating and guiding
the ICTs ‘say remarkably little about the purposes of punishment and include comparably
laconic sentencing provisions’.5

Seemingly, the authors of these legal instruments simply applied the basic rationales for
punishment that they knew from their domestic criminal justice systems, instead of
developing new (or modified) ones for the international system.6 This is why core concepts
and ideas behind domestic criminal justice, as they can be identified in most national systems,
were simply reapplied in the context of international criminal justice — the analogy between
the two systems was simply assumed to be valid.7

4
See also M. Schack, ‘‘Going to The Hague’ as Coercive Leverage: The Palestinian ICC policy during the 2014
Operation Protective Edge’, 15 Journal of International Criminal Justice (2017) 319–342, at 320–324; G. Dancy,
‘Searching for Deterrence at the International Criminal Court’, 17 International Criminal Law Review (2017)
625–655. The article takes no position on the domestic origin approach as it relates to other functions of ICTs,
such as questions about ICTs’ retributive, rehabilitative, or restorative effects.
5
R. Sloane, ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy
and the Potential of International Criminal Law’, 43 Stanford Journal of International Law (2007) 39–94, at 39–
40.
6
M. Mennecke, ‘Punishing Genocidaires: A Deterrent Effect or Not?’ 8 Human Rights Review (2007) 319–339,
at 321; M. Drumbl, Atrocity, Punishment, and International Law (Cambridge University Press, 2007), at 23
7
M. Aukerman, ‘Extraordinary Evil, Ordinary Crime: a Framework for Understanding Transitional Justice’, 15
Harvard Human Rights Journal (2002) 39–97, at 44.

4
Accordingly, irrespective of some writings expressing scepticism about the cogent nature of
such analogy,8 the assumption was broadly carried into the academic literature on ICTs,
which in turn enabled some scholars to more or less take the domestic deterrence arguments
as given in the international setting.9 To understand what this means in practice it is necessary
to review, if only briefly, what basic insights on criminal deterrence were transposed from the
domestic into the international debate. To achieve this, it is necessary to understand how the
domestic debate on criminal deterrence has evolved — and where it stands today.

DOMESTIC DEBATES ON CRIMINAL DETERRENCE

Most domestic theories about criminal deterrence can be traced back to the assumptions
about human rationality articulated in the eighteenth century by utilitarian theorists Cesare
Beccaria and Jeremy Bentham.10 Beccaria and Bentham both suggested that people’s actions
and reactions are generally guided by two opposite forces: the ‘costs’ and the ‘benefits’ (or,
‘pains’ and ‘pleasures’) associated with such actions. This, in turn, makes people susceptible
to threats, including the threat of criminal punishment.11 This basic idea provides the
foundation for modern rational choice theory, which today enjoys ‘unrivalled prominence’ as
a theory of human behaviour.12 Johannes Andenæs and John Ball were central in introducing
rational choice models to modern criminology in the 1950–1960s,13 and in the 1970s several
monographs on the subject helped cement the theory in the criminological literature.14

Since then, rationalist criminological theories have been tested extensively,15 and the overall
conclusion has been, according to Raymond Paternoster, that criminals and would-be
criminals do in fact respond to (dis)incentives, but only to a certain extent, which often result

8
See, for example, considerations in this regard in K. Cronin-Furman, ‘Managing Expectations: International
Criminal Trials and the Prospect for Deterrence of Mass Atrocity’, 7 International Journal of Transitional Justice
(2013) 434–454.
9
See examples listed in J. Klabbers, ‘Just Revenge?: the Deterrence Argument in International Criminal Law’,
12 Finnish Yearbook of International Law (2001) 249–267, at 251–252.
10
C. Beccaria, On Crimes and Punishments (Bobbs-Merill, 1963); J. Bentham, An Introduction to the Principles
of Morals and Legislation (Batoche Books, 2000). For a review of the intellectual history on the deterrence issue
in domestic criminal justice, see R. Paternoster, ‘How Much Do We Really Know About Criminal Deterrence?’
100 Journal of Criminal Law and Criminology (2010) 765–824.
11
Bentham, supra note 10, at 14–18; Beccaria, supra note 10, at 32–34.
12
S. Chai, Choosing an Identity — a General Model of Preference and Belief Formation (University of
Michigan Press, 2001), at 1.
13
See especially J. Andenaes, ‘General Prevention — Illusion or Reality?’ 43 Journal of Criminal Law and
Criminology (1952) 176–198; J. Ball, ‘The Deterrence Concept in Criminology and Law’, 46 Journal of
Criminal Law and Criminology (1955) 347–354.
14
See, for example, F. Zimring and G. Hawkins, Deterrence: The Legal Threat in Crime Control (University of
Chicago Press, 1973); J. Gibbs, Crime, Punishment, and Deterrence (Elsevier, 1975).
15
See an illustrative sample of these studies in Paternoster, supra note 10, at 787–818.

5
in modest — and uncertain — deterrent effects of punishment.16 The criminological literature
is therefore rife with studies that either make a deterrent effect plausible in certain
circumstances, or shed doubts about the value of criminal deterrence. 17 This literature is thus
only able to provide us with some very basic insights into the functions of criminal
deterrence. Generally, we intuitively understand that the notion of rationality is true, at least
in a limited sense: people do usually fear punishment, and they do often behave accordingly.
For example, studies have shown that ‘hot spot’ policing can result in reduced crime in the
policed area (and a bit beyond).18

However, researchers often find that practical matters, which vary in time and space, get in
the way of such efforts, and that several problems impede criminal deterrence efforts.
Illustrative are, for example, the consistent findings that crime — and especially violent
crime — is often committed by people who are under the influence of drugs or alcohol, and
who are therefore limited in their ability to make rationalist decisions.19 Accordingly, it has
become clear that domestic criminology cannot provide us with definitive answers about
criminal deterrence — and that criminologists remain locked into relatively simple theoretical
patterns, informed by specific studies in specific environments. Consequently, whenever
International Criminal Law (ICL) scholarship has relied on domestic intuitions, scholars were
only able to incorporate a very basic understanding of criminal deterrence, along with a
generic sense of scepticism.

SCEPTICISM BY ANALOGY
This general sense of scepticism, along with a very basic understanding of how criminal
deterrence works, has been incorporated into the global debate on international criminal
deterrence. This, in turn, has created an academic debate prone to stagnation because the
participants of the discussion often try to simply rehash old arguments, without the ability to
support their claims with empirical data.20 Many sceptics therefore simply note their generic
scepticism, sometimes rejecting the deterrence potential almost out of hand. A version of this
sceptical stance can be found in Robert Sloane’s argument that we should be wary about
16
Id.
17
See, for example, the studies listed in D. Weisburd and J. Eck, ‘What Can Police Do to Reduce Crime,
Disorder, and Fear?’ 593 The Annals of the American Academy of Political and Social Science (2004) 42–65, at
51.
18
Id.
19
Examples of statistics about the relationship between drugs, alcohol and crime can be found in Bureau of
Justice Statistics, ‘Drugs and Crime Facts’, available online at https://www.bjs.gov/ content/dcf/duc.cfm#victim
(visited 25 September 2020); J. Payne and A. Gaffney, ‘How Much Crime is Drug or Alcohol Related? Self-
reported Attributions of Police Detainees’, 439 Trends and Issues in Crime and Criminal Justice (2012) 1–6.
20
Id.

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rational choice models in the context of international criminal justice because these models
are already difficult to sustain domestically.

According to Sloan, we must assume that the problems associated with domestic criminal
deterrence are also present internationally, but that further problems are added in the
international sphere, which makes the coercive potential of ICTs ‘exponentially’ more
difficult to accept than with their domestic cousins.21 This is a quite common approach to the
debate on international criminal deterrence.

Indeed, even if we look closer at the works of researchers who reject the domestic analogy,
like Miriam Aukerman, we often find that they also argue along such lines.22 For these
scholars, their (mostly intuitive) conclusions rest on the assumption that our knowledge about
domestic criminology does at least provides a reasonable analytical starting point for
discussing the deterrent potential of ICTs — which allows the poor record of domestic
criminal deterrence to guide our assessment of ICTs. This is irrespective of the fact that the
poor domestic record can in part be explained by circumstances that presumably have little
bearing on ICTs, such as the factors that drive the limited effects of ‘hot spot’ policing and the
role played by drugs and alcohol in relation to violent crimes.

With that being said, however, it must also be noted that at least the ICC should to a certain
extent be understood as an extension of the domestic criminal justice system, given its
reliance on the principle of complementary. In that sense, on the one hand, the ICC cannot
reasonably be seen in total isolation from the domestic judicial system, and treating it in such
isolation is thus inherently a bit unfair.

On the other hand, the ICC’s foundational purpose and obligation is to add a layer of
protection that goes beyond domestic criminal justice and thus, arguably, an additional
coercive element. This, I believe, makes it reasonable for the sake of analysis to focus on this
added layer — and not the system as a whole.

SOCIAL DEVIANCY AND HOLISTIC ASSUMPTION

Another aspect of the debate about international criminal justice deterrence is the common
assumption that, like in the domestic setting, crime is mostly deterred socially — and
criminal acts must therefore be considered socially deviant in order to deterrable. The logic

21
Sloane, supra note 5, at 40–41.
22
Aukerman, supra note 7, at 67. See similarly F. Me´gret, ‘Three Dangers for the International Criminal Court:
A Critical Look at a Consensual Project’, 12 Finnish Yearbook of International Law (2001) 193–247, at 202; M.
Clark and P. Cave, ‘Nowhere to Run? Punishing War Crimes’, 16 Res Publica (2010) 197–207, at 201.

7
goes that for criminal justice to function as an effective deterrent, the system must uphold
values that are internalized by the people who live in the relevant community, because this
creates a moral imperative to adhere to the law — or lacking that, an expectation that crime
will at least result in moral condemnation by one’s peers. Many scholars argue that this
element of the theory of criminal deterrence does not hold up in societies engulfed in mass
atrocity, and thus that this effectively kills the deterrence argument.23 Behind this particular
kind of scepticism lies the fundamental objection that the very idea of rational choice is
inapplicable in atrocity situations — and that the criminal deterrence model, as borrowed
from the domestic literature, must be rejected.24

There are slight variations to this claim, but the general idea is the same: the chaos and
radicalization created by widespread violence and propaganda corrupts societies where
atrocities occur to the point where the deterrence theory (based on rational risk analysis by
the potential perpetrator) no longer makes sense. As Immi Tallgren explains, in these societies
not committing atrocity crimes can actually be considered socially deviant behaviour, a
situation, if true, where the rational choice model is actually reversed.25 This kind of moral
distortion could be said to provide an explanatory narrative to explain the thinking of atrocity
criminals, and thus as a way of distinguishing between these criminals (who are thus
undeterrable, at least by using the ‘normal’ approach) and ordinary criminals (who are,
presumably, deterrable).

David Wippman, for example, explains that the anatomy of the conflict in the Balkans in the
1990s led soldiers to experience a blurring of lines between (legitimate) military targets and
(illegitimate) civilian ones; between the legitimate use of force on the battlefield and the
excessive uses of force applied to abuse the civilian population. The hatred felt towards one
another justified their actions, they thought, because the other side was probably doing the
same thing.26 Similarly, as Fre´de´ric Me´gret has pointed out, ‘it beggars belief to suggest
that the average crazed nationalist purifier or abused child soldier ... will be deterred by the
prospect of facing trial’.27 This is intuitively true, just as it is true when Mark Drumbl

23
Examples of such analyses are provided immediately below.
24
See this kind of sentiment expressed in Klabbers, supra note 9, at 476; M. Minow, Between Vengeance and
Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press, 1998), at 50; Drumbl, supra note
22, at 203; M. Davis, ‘What Punishment for the Murder of 10,000?’, 16 Res Publica (2010) 101–118, at 103.
25
I. Tallgren, ‘The Sensibility and Sense of International Criminal Law’, 13 European Journal of International
Law (2002) 561–595, at 575. See also Drumbl, supra note 6, at 24.
26
D. Wippman, ‘Atrocities, Deterrence, and the Limits of International Justice’, 23 Fordham International Law
Journal (1999–2000) 473–488, at 477–479.
27
Me´gret, supra note 22, at 203.

8
suggests that criminal deterrence is of limited value for ‘genocidal fanatics’ or for people who
are forced into criminal groups because of their desire to belong to a community, or simply to
be safe from persecution themselves.28

Nevertheless, we should not ignore the fact that even former fanatics have at times expressed
remorse for their actions and faced the reality of their crimes.29 In any case, this line of
scepticism rests on the assumption that, like domestic courts, ICTs should be judged on the
basis of their ability to deter everyone — even rank-and-file child soldiers and genocidal
fanatics.30 This focus tends to apply a type of logic, however, that is in principle ill-fitting for
coercive analyses of courts like the ICC, which are supposed to be mostly concerned with the
highest-ranking individuals involved in atrocity crimes — although it must be admitted that
this principle of a high-level prosecutorial focus has not come fully to fruition in the practice
of the Court to date.

So, while the ICC may not have much deterrent effect on child soldiers and genocidal
fanatics, this problem is of limited relevance to the deterrence debate as it relates to the main
targets of ICTs: criminal leaders of nations, armies, and militia. Indeed, this approach seems
to mix the factors that affect rank-and-file soldiers with the factors that affect senior leaders.
Accordingly, while it seems plausible that ordinary soldiers are extremely difficult to deter in
atrocity situations because of the severe physical and mental pressure that they are under, and
because of the inflammatory propaganda affecting their thinking and behaviour, these factors
may be said to be hardly relevant for the political and military elites, who may even be
responsible for creating such factors in the first place and could be immune from such
influences.31

THE ‘IMPUNITY BASELINE’ PROBLEM

Another aspect of the domestic origin approach that creates problems is the assumption that,
like in the domestic sphere, the baseline for potential accused at ICTs is impunity.32 That is, if
these people were not prosecuted internationally, they would suffer little or no consequences
for their actions. This assumption, however, is often challenged, and with good reason. The

28
Drumbl, supra note 6, at 171–173.
29
On the complex issue of expressions of remorse, see for example O. Simic´ and B. Hola´, ‘A War Criminal’s
Remorse: the case of Landzˇo and Plavsˇic´’, 21 Human Rights Review (2020) 267–291
30
See a similar criticism in J. Holtermann, ‘A ‘‘Slice of Cheese’’ — a Deterrence-Based Argument for the
International Criminal Court’, 11 Human Rights Review (2010) 289–315, at 306
31
D. Golash, ‘The Justification of Punishment in the International Context’, in L. May and Z. Hoskins (eds),
International Criminal Law and Philosophy (Cambridge University Press, 2010) 201–223, at 216
32
See, for example, Jo and Simmons, supra note 2, at 446 and 449.

9
people who are in practice likely to end up facing trial at The Hague are mostly people who
would likely suffer a similar or worse fate at home, had an ICT not been available, at least in
the context of the ICC.

Conversely, the people who are powerful enough to evade international justice are usually
also powerful enough to avoid punishment at home.33 This simple point can be demonstrated
by providing a few examples from the ICC’s caseload. One such example is the situation in
Uganda, where a conflict between the Lord’s Resistance Army (LRA) and the national
authorities has been ongoing for decades.

While credible claims have been made about atrocities committed on both sides of the
conflict,34 only members of the LRA have been targeted for prosecution. It is likely that the
reason for this disparity is that the ICC Prosecutor needs help from the Ugandan government
to gather evidence, and thus had to choose between such disparity, or having no cases to
prosecute at all. While this article will not discuss the wisdom of the choices made in this
situation, it is worth noting that this choice does reflect the idea that powerful people can
escape international criminal justice, while less powerful people cannot.

Another instructive example is the case of the former president of Ivory Coast, Laurent
Gbagbo, who lost a disputed presidential election in 2010 to Alassane Ouattara. Gbagbo was
arrested by forces loyal to Ouattara during a post-election clash between the two camps and
subsequently sent to The Hague. Here, Gbagbo was tried for alleged atrocity crimes
committed in the aftermath of the 2010-election — but was subsequently acquitted on the
basis of a lack of evidence.35 This acquittal decision is currently under appeal, but
irrespective of the specifics of the case, it is hard to imagine this scenario play out in the same
way had Gbagbo stayed in power after the 2010 election.

One reason is the fact that we have seen a similar situation unfold in 2007–2008 in Kenya,
which involved crimes allegedly committed by Kenyan leaders in connection with the 2007
election. Here, the ICC Prosecutor initiated several cases, including cases against the current

33
See similarly in J. Ku and J. Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian
Atrocities?’ 84 Washington University Law Review (2006) 777–833.
34
See, for example, Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in
Northern Uganda (2005), available online at https://www.hrw.org/reports/2005/ uganda0905/uganda0905.pdf
(visited 25 September 2020).
35
See ‘Reasons for oral decision of 15 January 2019’ in the ‘Requeˆte de la De´fense de Laurent Gbagbo afin
qu’un jugement d’acquittement portant sur toutes les charges soit prononce´ en faveur de Laurent Gbagbo et que
sa mise en liberte´ imme´diate soit ordonne´e, and on the Ble´ Goude´ Defence no case to answer motion’,
Situation in the Republic of Ccˆte d’Ivoire (ICC-02/11- 01/15), Trial Chamber I, 16 July 2019.

10
president of Kenya, Uhuru Kenyatta, and his deputy, William Ruto, who were, at the time, on
opposing sides of the conflict — and the election.

These cases fell apart, however, allegedly as a result of a coordinated effort by the
Government of Kenya to undermine the work of the Prosecutor.36 Now, these Kenyan leaders
have little to fear from the Court, and they seem to have suffered little political, reputational,
or diplomatic damage for their involvement with the ICC’s judicial machinery. In any event,
the common thread in these cases appears to be that powerful individuals often successfully
resist being tried for alleged atrocity crimes at the ICC, while weaker, defeated individuals
will have to accept prosecution.

This aspect of international criminal justice seems to undermine the assumption drawn from
the domestic origin approach, which presupposes that a baseline of impunity (understood in a
very broad sense) exists for the people who are likely to be tried by an ICT. Indeed, not only
is this assumption flawed: it also misses the important point that in international criminal
justice we often see coercive competitions take place between international prosecutors and
the powerful people that they target.

ARM WRESTLING WITH WORLD LEADERS

Unlike ordinary criminal courts in the domestic setting, ICTs regularly get involved in
difficult coercive competitions with powerful people who sometimes have entire state
apparatuses at their disposal, and who can effectively challenge not only the specific cases
but also the foundations and the very feasibility of proper and consistent international
criminal justice. These people are thus not only powerful enough to undermine the work of
international prosecutors, which is to an extent also possible in some elements of domestic
criminal justice, but also to push back hard against the institutions that such prosecutors
represent.

Indeed, this is not an exceptional issue, something that could also plague domestic legal
systems during extraordinary times or in states with a comparatively weak rule of law. This

36
See this view expressed in ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda,
on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta’ (5 December 2014), available online at
https://www.icc-cpi.int/Pages/item.aspx?name¼otp-state ment-05-12-2014-2 (visited 25 September 2020);
‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, regarding Trial Chamber’s
decision to vacate charges against Messrs William Samoei Ruto and Joshua Arap Sang without prejudice to their
prosecution in the future’ (6 April 2016), available online at https://www.icc-cpi.int/Pages/
item.aspx?name¼otp-stat-160406 (visited 25 September 2020).

11
is, rather, a problem that is built into the core purpose of ICTs and, thus, a quite common
phenomenon.

Accordingly, it is unfortunate that this feature of international criminal justice is simply

outside the scope of traditional criminal deterrence models. As mentioned above, successful
efforts have already been made by powerful defendants to thwart ICC cases against them.
Until recently, the most notable example was the case of Kenya in relation to the post-
election violence of 2007–2008, but the efforts by the United States of America (US)’s
administration to undermine the work of the Prosecutor in relation the situation in
Afghanistan has led to even more questions and concerns. Before I get into this latter case,
however, another key example of counterpressure must be mentioned, as it represents perhaps
the first overt indication of this problem.

This is the situation in Darfur since 2003, where a genocide was allegedly committed. The
Darfur region of Sudan has long been one of the most violent and volatile places in the world.
When tensions between regional rebel groups and the central government of Sudan began to
escalate in the spring of 2003, the government initiated a policy that many consider to be a
genocidal campaign.37

Then Sudanese president Omar al-Bashir seemingly decided to purge the rebels and the
civilian groups that they belonged to: the Fur, the Masalit and the Zaghawa. This purge
included, according to the arrest warrant issued against al-Bashir, acts of murder, rape, torture
and forcible transfers.38 The policy was apparently so systematic, so large scale, and so
clearly directed at these groups, that the ICC’s Pre-Trial Chamber found a ‘reasonable basis’
to believe that al-Bashir was responsible for the crime of genocide.39 On this basis, the
Chamber issued an arrest warrant against the President in 2009, which remains pending.40
The Sudanese government responded to this and other arrest warrants in three distinct ways.

First, it punished the Darfuri civilians, which created a significant backlash against the Court.
This effort included, for example, the mass expulsion of NGOs and aid workers from the

37
The Pre-Trial Chamber issued an arrest warrant based on e.g. reasonable grounds to believe that Al Bashir
was guilty of a policy of Genocide. See Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Situation
in Darfur, Sudan (ICC-02/05-01/09), Pre-Trial Chamber I, 12 July 2010, at 7.
38
Id
39
Id
40
Id. See also Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Situation in Darfur, Sudan (ICC-02/05-
01/09), Pre-Trial Chamber I, 4 March 2009. The charge of genocide was added in the second warrant.

12
region, whom many Darfuris depended upon for their survival.41 Secondly, the government
refused to cooperate with the Court, which exposed its inability to provide justice for the
people of Darfur, and the lack of political will to support its efforts among the broader
international community. Thirdly, the Sudanese government initiated a political campaign
painting the Court as racist, which contributed to the erosion of public trust in the Court —
especially in Africa.42

The result was an all but complete shutdown of investigations and severe criticism lodged
against the Prosecutor’s approach to the situation. In the years that followed, al-Bashir’s
domestic standing began to fade, however, as the economy of Sudan faltered. Accordingly, in
the wake of major demonstrations in the country, starting in late 2018, al-Bashir was ousted
from power in a military coup and tried domestically mainly on corruption charges. The new
authorities in Darfur also declared their willingness to cooperate with the ICC, although it is
still too early to tell if this new approach is sincere and to what lengths the Government is
actually willing to go to in this regard.43

What is evident from this development, however, is that, on the one hand, al-Bashir
seemingly only became vulnerable to the threat of the ICC once he lost power domestically,
which would support the notion that sufficiently powerful people are effectively immune
from ICC threats; while, on the other hand, it is possible to argue that his negative
international standing — which has in part been facilitated by the ICC’s efforts — made it
easier to remove al-Bashir from power, at least in relation to the international reaction
thereto. Another evident, and highly controversial, endeavour to undermine ICC action has
been represented by the US efforts, mentioned above, to impede the Prosecutor’s
investigation into the situation in Afghanistan.

41
Humanitarian Policy Group, ‘Where to Now? Agency Expulsions in Sudan: Consequences and Next Steps’
(2009), available online at https://www.odi.org/sites/odi.org.uk/files/odi-assets/pub lications-opinion-
files/4190.pdf (visited 25 September 2020).
42
See, for example, the statements made by the Assembly of the African Union on this basis, starting with
‘Decision on the application by the international criminal court (ICC) prosecutor for the indictment of the
president of the Republic of the Sudan’ (Assembly/AU/Dec.221(XII)), available online at
https://archives.au.int/bitstream/handle/123456789/1083/Assembly%
20AU%20Dec%20221%20%28XII%29%20_E.PDF?sequence¼1&isAllowed¼y (visited 25 September 2020).
See more specifically the statements made by Sudan’s Deputy Justice Minister at the 2009 Durban Review
Conference, as cited in UN Watch, ‘Sudan calls ICC racist’ (23 April 2009), available online at
https://www.unwatch.org/sudan-calls-icc-racist-for-indict ing-al-bashir-for-darfur-genocide/ (visited 25
September 2020).
43
See, in particular, the statement made by Sudanese Prime Minister Abdalla Hamdok on 22 August 2020 in
‘Sudan ready to cooperate with ICC over Darfur, says PM’, Reuters, 22 August 2020, available online at
https://www.reuters.com/article/us-sudan-politics/sudan-ready-to-co operate-with-icc-over-darfur-says-pm-
idUSKBN25I0P3 (visited 25 September 2020).

13
This effort has been longstanding, but the first major public shot across the bow came on 10
September 2018, when then US National Security Adviser, John Bolton, gave a speech at the
Federalist Society in Washington, DC, in which he threatened the Judges and Prosecutors of
the Court, among others, with entry bans to the US, economic sanctions, and even criminal
prosecution.44 The US followed through on Bolton’s threat: first on 4 April 2019, when they
revoked the entry visa of the Prosecutor, Fatou Bensouda;45 and later on 11 June 2020, when
President Donald J. Trump issued an Executive Order putting in place a system of economic
sanctions that could potentially target a wide array of persons and entities associated with the
ICC’s efforts to hold US personnel, or certain US-allied personnel, accountable for crimes.46

The first such sanctions were authorized on 2 September 2020 and targeted the ICC’s
Prosecutor, Fatou Bensouda, and the Head of the Jurisdiction, Complementarity and
Cooperation Division, Phakiso Mochochoko.47 These developments are, as mentioned,
closely related to the Prosecutor’s investigation of crimes allegedly committed in connection
with the war in Afghanistan.

Accordingly, close attention was paid, both by the US and by legal scholars, when the Pre-
Trial Chamber on 12 April 2019 chose to deny the Prosecutor’s request to formally open an
investigation into this situation. The core reason given was that ‘changes within the relevant
political landscape both in Afghanistan and in key states (both parties and non-parties to the
Statute), coupled with the complexity and volatility of the political climate still surrounding
the Afghan scenario, make it extremely difficult to gauge the prospects of securing
meaningful cooperation from relevant authorities for the future’.48 In other words, it seemed
unlikely that the Prosecutor could be able to successfully prosecute cases because of the
opposition of, e.g. the US.

44
‘Bolton’s Remarks on the International Criminal Court’, Just Security, 10 September 2018, available online at
https://www.justsecurity.org/60674/national-security-adviser-john-boltonremarks-international-criminal-court/
(visited 25 September 2020).
45
J. Hansler, ‘US Denying Visas to International Criminal Court staff’, CNN, 15 March 2019, available online
at https://edition.cnn.com/2019/03/15/politics/pompeo-icc-visa-restrictions/index.html (visited 25 September
2020); M. Simons and M. Specia, ‘U.S. Revokes Visa of I.C.C. Prosecutor Pursuing Afghan War Crimes’, New
York Times, available online at https://www.nytimes.com/ 2019/04/05/world/europe/us-icc-prosecutor-
afghanistan.html (visited 25 September 2020).
46
‘Executive Order on Blocking Property Of Certain Persons Associated With The International Criminal Court
of June 11, 2020’, available online at https://www.whitehouse.gov/presidentialactions/executive-order-blocking-
property-certain-persons-associated-international-criminalcourt/ (visited 25 September 2020).
47
‘Blocking Property of Certain Persons Associated with the International Criminal Court Designations’, U.S.
Department of The Treasury, 2 September 2020, available online at https://home.treasury.gov/policy-
issues/financial-sanctions/recent-actions/20200902 (visited 25 September 2020).
48
Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation
in the Islamic Republic of Afghanistan (ICC-02/17), Situation in Afghanistan, Pre-Trial Chamber II, 12 April
2019, § 94.

14
This was, of course, never said explicitly, and we do not know if this is indeed the correct
interpretation of these words. But it is easy to read such a statement as an open admission
that, if targeted states and individuals are powerful enough, the Court will have to fold — and
this is how many observers indeed read the decision. Consequently, the White House issued a
Statement from the President immediately following the decision calling it a ‘major
international victory’.49

The decision was appealed, however, and on 5 March 2020, the Appeals Chamber
unanimously decided to ‘amend’ the earlier decision to the effect that the Prosecutor’s
investigation was now authorized.50 Therefore, as the case law stands, the fact that a
particular situation or case is complex and unlikely to yield at least certain convictions does
not mean that the ICC Prosecutor is barred from investigating. This is probably the better
understanding of the Rome Statute. However, such a decision does not make it much more
likely that powerful US citizens will actually be tried at the ICC. The reaction of the US to
the Prosecutor’s efforts illustrate how deeply entrenched the situation is, and how difficult a
task the ICC is faced with. The situation is, however, illuminating in terms of how the ICC
can have some effects on even powerful states that feel the need to react; but also in terms of
how such actors can, and in some cases will, fight back against the Court. In any event, it is
still too early to say if this saga, and its interim result, will end up being for the benefit or
detriment of the Court in the long run.

TO ‘DETER’ AND TO ‘COMPEL’

A final example of the shortcomings of the ‘domestic origins’ approach is its tendency to
create an incomplete narrative about the coercive capacity of ICTs. I use the term ‘coercive’
capacity purposefully here, instead of referring to the ability of ICTs to ‘deter’, because that
is part of the point. Usually, when we discuss coercive power in international politics, we use
the term ‘coercion’ to cover both the concept of ‘deterrence’ (which means the prevention of
an action from being taken through fear of the consequences) and the concept of
‘compellence’ (which means to stop or turn back an action already underway, or force some
yet uninitiated action to commence, out of fear of the consequences).51

49
‘Statement from the President’, The White House, 12 April 2019, available online at https://
www.whitehouse.gov/briefings-statements/statement-from-the-president-8/ (visited 25 September 2020).
50
Judgment on the appeal against the decision on the authorization of an investigation into the situation in the
Islamic Republic of Afghanistan, Situation in Afghanistan (ICC-02/17 OA4), Appeals Chamber, 5 March 2020.
51
See definitions in T. Schelling, Arms and Influence (Yale University Press, 1966), at 69–98.

15
The current literature on ICTs, however, deal almost exclusively with deterrence, as of
course criminal justice is usually intended to deter, not to compel. 52 Accordingly, in the
domestic sphere, once a crime is committed, it is generally assumed that a case will be
brought, subject to all sorts of considerations in the systems with discretionary prosecutions.
This is not necessarily so internationally, however.

Here, there is no assumption that all cases of criminality will be prosecuted, or otherwise
dealt with by the legal system. There are simply too many cases for this to happen and too
many restraints on ICTs. This is particularly true for the ICC, which has an exceptionally
wide jurisdictional range — and a potentially massive caseload. This is, of course, by design,
because the system is supposed to work on a complementary basis. Accordingly, it is assumed
that the states themselves will deal with such cases, and only in situations where they are
unwilling or unable to do so, will the Court step in.

If, however, we experience cases of mass violence where the relevant states are not able or
willing to investigate and prosecute, we end up in situations where the Court cannot possibly
deal with all the cases that it could theoretically pursue. Accordingly, the Prosecutor needs to
pick and choose a limited number of cases, while effectively ignoring others. This means that
some people will inevitably end up outside of the Court’s reach, irrespective of the potentially
heinous nature of the crimes that they have committed. This feature of the ICC system limits
its ability to provide broader justice — albeit only in situations where the states have first
failed to fulfil their responsibilities — but it also provides some room for compellent threats
to be made, even after a potential target has committed crimes. Such leverage was, for
example, seemingly used at the early stages of the conflict in Libya, when the situation was
referred to the ICC.53 Nevertheless, as mentioned, the current literature on ICTs discuss
almost exclusively the issue of deterrence. Consequently, many of the strategic options
available to international prosecutors are ignored. Such considerations, however, are often
front and centre for the broader study of coercive power in international relations, and this is
one of the reasons why this article argues that we should turn our attention to this field of
study.

52
See, however, a notable exception in D. Mendeloff, ‘Punish or Persuade? The Compellence Logic of
International Criminal Court Intervention in Cases of Ongoing Civilian Violence’, 20 International Studies
Review (2018) 395–421
53
Bosco, supra note 3, at 168.

16
THE RATIONALIST INTERNATIONAL RELATIONS’ APPROACH TO COERCIVE POWER

Having pointed out several problems with the domestic origin approach, it is useful to explain
what (comparative) benefits ICL researchers can gain from a perspective inspired by
rationalist IR scholarship on coercion. In this section, I therefore present a brief overview of
this literature with that goal in mind. The first thing worth noting about the rationalist IR
scholarship on coercion is that it consists mostly of specific studies aimed at understanding
how coercive power works in international politics under various criteria.

These studies try to show what elements come into play when states and state leaders put
pressure on one another, and to determine under what circumstances these actors can expect
to be successful — and, importantly, when they should expect to fail. In this literature, it is a
central organizing principle that such coercive efforts take place in a context where no
Leviathan exists to oversee the interaction. The rationalist study of coercive power in
international relations was pioneered by Thomas Schelling in the 1960s and 1970s.54

While Schelling was initially (for obvious reasons) focused on nuclear threats, the study has
since then moved far beyond Cold War considerations. Indeed, although the threat and use of
military force is still the dominant element, the study now encompasses a range of non-
forceful means as well, including the power of political pressure and economic sanctions.55
International criminal prosecutions, however, have not yet been incorporated into the study,56
although elements of relevance to this approach has been made part of other parallel efforts,57
and the prevention of mass atrocities is rarely the focus in this specific literature.58 ‘Coercion
theory’, as the approach is sometimes called, has simply not been developed with this
problem in mind. Irrespective of this limitation, it is not uncommon for coercion theory to
deal with cases that involve atrocities.

54
T. Schelling, The Strategy of Conflict (Harvard University Press, 1960); Schelling, ibid. It should be noted
that while undoubtedly highly influential, Schelling’s works has continuously been subjected to criticism. See an
example in R. Ned Lebow, ‘Thomas Schelling and Strategic Bargaining’, 51 International Journal (1996) 555–
576
55
D. Byman and M. Waxman, The Dynamics of Coercion: American Foreign Policy and the Limits of Military
Might (Cambridge University Press, 2002), at 16–17. See generally D. Baldwin, Economic Statecraft (Princeton
University Press, 1985).
56
It should be kept in mind that most ‘coercion theory’ literature was written before the ICC existed. I have
found only one example of coercion theory being used explicitly for the purposes of studying the ICC: A.M.
Smith, ‘The Emergence of International Justice as Coercive Diplomacy: Challenges and Prospects’, Harvard
Law School, Human Rights Program - HRP Research Working Paper Series (May 2012), available online at
http://hrp.law.harvard.edu/wp-content/ uploads/2012/05/smith.pdf (visited 25 September 2020).
57
Sikkink, supra note 3 and Bosco, supra note 3.
58
See, however, Byman and Waxman, supra note 55, which includes a chapter on ‘Humanitarian coercion and
nonstate actors’

17
The Yugoslav Wars of the 1990s, for example, are often used in case studies, and as such,
these wars constitute essential building blocks for the general theory.59 Accordingly, it is no
stretch of the theory to apply it to these kinds of conflicts, and there is nothing inherent in the
theory that seem to inhibit such an application. Indeed, as mentioned above, the study has
been broadened over time to consider both forceful and non-forceful measures in its
analysis,60 and this refocusing has generally happened without alterations to the basic theory.

The literature on economic coercion, for example, has developed both within the rationalist
study of IR coercion, and as a separate field of study. While this study separates itself by
focusing on the economic instrument of power, it draws heavily on the broader works on
coercion in IR. David Baldwin, for example, in his 1985 book Economic Statecraft, set out to
build an analytical framework to study economic policy instruments, 61 and one of the main
purposes behind this effort was to convince his peers that ‘economic techniques of statecraft
should be described and evaluated using the same intellectual apparatus that is used to
analyse other techniques of statecraft’.62

Baldwin believed that economic techniques of statecraft were simply one type of instrument
of foreign policy, like many others, and thus that foreign policy was the relevant perspective
to analyse this instrument. Accordingly, Baldwin wanted the study of economic statecraft to
enter the broader conversation on instruments of foreign policy, and he showed how e.g. the
work of Thomas Schelling could be used as an organizing framework.

This included, for example, utilizing Schelling’s insights into the functions of ‘bargaining’
and ‘credible commitments’ to develop his analytical framework.63 Below, I provide a brief
introduction to the cores writings on the subject, by Thomas Schelling and Alexander George
and others, as well as a more modern approach that builds on this scholarly tradition and
opens it up to both military and non-military instruments.64

59
See, for example, S. Burg, ‘Coercive Diplomacy in the Balkans: The U.S. Use of Force in Bosnia and
Kosovo’, in R. Art and P. Cronin (eds), The United States and Coercive Diplomacy (United States Institute of
Peace Press, 2003) 57–118; P.V. Jakobsen, Western Use of Coercive Diplomacy after the Cold War: A Challenge
for Theory and Practice (Palgrave Macmillan, 1998), at 70–109
60
See, for example, Byman and Waxman supra note 55, at 105–116. Others simply discuss economic threats, for
example, where they played an integral part of the coercive policy applied in the case analysed, including W.
Drennan, ‘Nuclear Weapons and North Korea: Who’s Coercing Whom?’ in Art and Cronin, supra note 59, 157–
223.
61
Baldwin, supra note 55, at 371.
62
Id
63
Id
64
Byman and Waxman, supra note 55, at 9, 31–33, 105–116, 75–99.

18
SCHELLING AND THE DIPLOMACY OF VIOLENCE
To understand Schelling’s scholarship, it is important to note that a point of departure for him
was that coercive theory could be developed from deductive reasoning and from an
understanding that, in international politics, ‘[t]he power to hurt is bargaining power’.65 From
this point of departure, Schelling worked his way towards developing several core insights
into IR coercion. This included the insight that coercive threats must be both potent and
credible to be successful, that adversaries must be given sufficient (but not too much) time to
comply with threats, that adversaries must be given sufficient assurance that no new demands
will follow from compliance, and that coercive conflicts must not present themselves as zero-
sum situations, if they are to be successful.66

Additionally, Schelling has pointed out that coercive strategies do not always have to focus
on the person ‘in charge’ to be successful. Often, this person may be too committed to a
particular policy or cause to be coerced effectively. In such cases, it could be more helpful to
try to coerce the next layer of opponents, who may be in a position either to affect the person
in charge — or to remove him from power.67 These are just some of the conclusions of
Schelling’s work, which have been employed in the academic literature ever since.

GEORGE AND COERCIVE DIPLOMACY

Alexander George and his colleagues chose another approach to the study of coercion in
international politics. They analysed a range of historical cases, which featured compellent
threats being made, and from such cases they distilled the core characteristics of the coercive
efforts applied therein, which seemed to make a difference — one way or another.

These insights were condensed into simple features that seemingly lead to the most
successful outcomes — and to a cautionary tale about the perils of employing coercive
diplomacy. The identified characteristics included an asymmetry in the motivation between
the coercer and the target in the coercers’ favour, a sense of urgency felt by the target, and the
fear of escalation.68

Additionally, George and others pointed out how important ‘contextual variables’ were in
these coercive competitions. As such, it was a key feature, for example, how isolated the
target of coercion was globally, and what strategic environment the coer cive competition
65
Schelling, supra note 51, at 2
66
Id.
67
Id.
68
See A. George, D. Hall and W. Simons, The Limits of Coercive Diplomacy: Laos, Cuba, Vietnam (Little,
Brown and Company, 1971), at 215–228

19
took place within.69 While these variables are, obviously, difficult to affect, they were put
forward to warn decision-makers about employing coercive polities in a political
environment that did not warrant such policies.

BYMAN AND WAXMAN AND THE DYNAMIC OF COERCION

Daniel Byman and Matthew Waxman provide an example of a more modern account of
coercion in IR, which consists of a system of analytical concepts that focus on the
‘mechanisms’ of coercive pressure. Their analysis draws heavily on the previously mentioned
works, but they focus mostly on the concept of ‘escalation dominance’, as borrowed from the
work of Herman Kahn.70

This concept is defined as ‘the ability to increase the threatened costs to the adversary while
denying the adversary the opportunity to negate those costs or to counter escalate’.71 The
focus of the study is thus on the dynamics between the coercer and the coerced and thereby
on the relative rather than absolute ability to inflict and/or mitigate pain. Along with this
approach, Byman and Waxman introduced a list of specific coercive strategies and actions
that could be employed to implement such strategies, including attempts to threaten a
regime’s relationship with its core supporters (‘powerbase erosion’), and to create popular
dissatisfaction with a regime (‘unrest’). Byman and Waxman’s model focus primarily on
military force but includes economic and political elements in some cases.72

THE BENEFITS OF THINKING LIKE AN INTERNATIONAL RELATIONS RATIONALIST WHEN

STUDYING INTERNATIONAL CRIMINAL TRIBUNALS’ COERCION

The rationalist IR-approach to the study of coercion assumes, at its most basic level, that
human beings are rational creatures and that people generally adhere to basic models of
rational choice. This is no different from the scholarship on domestic criminal deterrence —
or from a range of other fields of study, for that matter. From here, however, there are several
aspects of the rationalist IR approach, which I believe makes it a better fit for the study of
ICT coercion than the current domestic origin approach.

The first such aspect is the fact that the rationalist IR approach takes seriously the perspective
that international coercive competitions take place in a context where no Leviathan exists to
oversee the interaction. It is therefore built into the foundations of the theory that it is
69
These elements were added to the study in the second edition. See A. George and W. Simons (eds), The Limits
of Coercive Diplomacy (Westview Press, 1994), at 270–279.
70
See H. Kahn, On Escalation: Metaphors and Scenarios (Routledge, 1965).
71
Byman and Waxman, supra note 55, at 38.
72
Id.

20
unlikely that states or state leaders can be pushed into doing things that they manifestly do
not want to do, unless other powerful states or state leaders put enough pressure on them.

This element of coercion in international politics is essential to most rationalist IR

scholarship, and I believe it is essential for evaluating the coercive capacity of ICTs. This
element of international coercive efforts cannot be captured through the application of
domestic criminological thinking to international criminal justice. For example, the better
explanation for the ICC’s failures in places like Sudan, Kenya, and Afghanistan likely rests
on analyses of the power structure of international politics in connection with each of these
efforts, rather than on abstract ideas about the coercive power of criminal courts, or any
specific failure of the ICC system, as such. For this reason, it seems futile to even begin to
think about ICT coercion in a way that does not sufficiently appreciate this core characteristic
of the analytical problem. The second such aspect is the inherent focus in the IR scholarship
on the world of international politics. IR scholars study how states and state leaders act and
respond to incentives and disincentives — which are usually created by fellow global actors,
including other states, state leaders and international institutions.

By putting the debate on international criminal coercion into this analytical framework we
allow scholars to consider, for example, the fact that international criminal justice is not a
one-sided affair; that ICTs often target powerful individuals who push back and ‘counter-
escalate’ against international prosecutors. This feature of the international criminal justice
system falls outside the scope of the currently dominant approach. Allowing it into the study
of international criminal coercion provides us with a better framework for analysing ICTs
prospects for success in concrete scenarios — based on the state of affairs in international
politics — and the risks that they run when they go after powerful states and individuals.

A third aspect of the IR approach that makes it preferable is its inclusion of both deterrent and
compellent elements of the coercive competition. This allows researchers to consider a
broader range of coercive issues than what is possible under the domestic origin approach —
so making a more thorough understanding of the actual coercive capacity of ICTs possible.
For example, researchers could discuss variations of coercive prosecutorial modi operandi
that take advantage of the unfortunate fact that a court like the ICC can only deal with a very
limited number of cases per situation.

On this basis, the ICC Prosecutor could choose to apply pressure on individuals who are not
at the top-tier of offenders (and thus not immediately targeted for prosecution) but

21
nevertheless form an important part of these offenders’ power base — even when such
second-tier individuals have already committed crimes. Essentially, the Prosecutor could in
such a scenario threaten to include these individuals in the list of targets for prosecution,
unless they take certain steps.

Such considerations, however, currently fall outside the boundaries of contemporary strategic
thinking in this area, which leaves a major analytically black hole within which we have little
knowledge or understanding. Finally, the rationalist IR approach avoids the many unfortunate
aspects of the domestic origin approach discussed above. As such, it is not dependent on
extending reasoning based on case studies conducted in a completely different setting (the
domestic setting) and involving completely different types of people (ordinary, domestic
criminals) to prop up assumptions about coercion and rationality. Indeed, it seems timely to
move beyond such approaches because, as time passes, we see more and more empirical
analyses released that look into the specifics of the capacity of ICT’s to deter crime, or
otherwise affect the societies in which they operate. These efforts are interesting, though-
provoking and useful by themselves — but put together they also provide a starting point for
a sui generis perspective on the functions and effects of international criminal justice. 73 On
this basis, I believe that the rationalist IR approach is a better fit for the analysis of ICT
coercion than the domestic origin approach.

CONCLUSION

This article has argued that the dominant domestic origin approach to the study of ICT
coercion is insufficient for the purpose of fully accounting for the nuances of deterrence, at
times even creating unnecessary confusion. To alleviate this problem, the article suggests
supplementing this approach with the application of a rationalist IR perspective on coercive
power. The article argues that the literature on domestic criminal deterrence, which the
domestic origin approach rests upon, is not always completely fitting for the international
sphere and does not provide a sufficiently solid foundation for the study of ICT coercion. The
rationalist IR approach, on the other hand, provide useful hints as to the actual power plays
involved in ICT actions and the consequent reactions by other international actors.

73
Examples of such works focusing on the coercive element of ICTs include Hillebrecht, supra note 2; Jo and
Simmons, supra note 2; J.R. McAllister, ‘Deterring Wartime Atrocities — Hard Lessons from the Yugoslav
Tribunal’, 44 International Security (2020) 84–123. Examples of analyses with a broader focus include M.
Glasius ‘‘It Sends a Message’: Liberian Opinion Leaders’ Responses to the Trial of Charles Taylor’, 13 Journal
of International Criminal Justice (2015) 419–447; D.F. Orentlicher, Shrinking the Space for Denial: The Impact
of the ICTY in Serbia (Open Society Justice Initiative, 2008).

22
This point is made, firstly, by explaining why the domestic origin perspective is problematic,
and secondly, why the rationalist IR perspective seems appropriate and useful — though
primarily as a framework for developing a sui generis understanding of prosecutorial
coercion at the international level. The article canvassed elements of the current literature that
are, seemingly, affected by the domestic origin approach. It is noted, for example, that the
holistic, sceptical strand of the literature on international criminal deterrence is informed or
inspired by scepticism drawn from domestic studies that have little relevance to ICTs.

Additionally, the article considers how a range of assumptions drawn from domestic
criminology have been applied by analogy to ICTs, irrespective of their limited significance
in the international sphere. Furthermore, it is noted how the domestic origin approach ignores
important aspects of ICT coercion, including the ability of powerful defendants to fight back
against ICTs, and the relevance of compellence in the coercive competition between ICTs and
their (potential) targets. These elements of the domestic origin approach, it is argued, make it
problematic. Conversely, the article points out that a rationalist IR approach applied to ICTs
would not suffer from several of these problems and explicitly takes into account elements
that the domestic origin approach misses. On this basis, the article argues that ‘prosecutorial
coercion’ should be treated analytically by applying insights from the rationalist IR approach,
at least as a supplement to the traditional domestic origin approach.

Thus — echoing David Baldwin’s project in 1985 to integrate the field of economics into the
world of foreign policy thinking — the suggestion of this article is similar, in that it argues
that prosecutorial coercion can and should be ‘described and evaluated using the same
intellectual apparatus that is used to analyse other techniques of statecraft’.74

74
Baldwin, supra note 55, at 15–16

23