Moral Touchstone, Not General Deterrence: The Role of International Criminal Justice in Fostering Compliance with International Humanitarian Law

This article contends that international criminal justice provides minimal general deterrence of future violations of international humanitarian law (IHL). Arguments that international courts and tribunals deter future violations – and that such deterrence is a primary objective – assume an internally inconsistent burden that the processes cannot bear, in essence setting international criminal justice up for failure. Moreover, the inherently limited number of proceedings, the length of time required, the dense opinions generated, the relatively light sentences and the robust confinement conditions all erode whatever limited general deterrence international criminal justice might otherwise provide. Bluntly stated, thousands of pages of multiple Tadić decisions have not factored into any service member’s decision-making on whether to comply with IHL. International criminal justice can play many roles, including fostering compliance with IHL, but not through general deterrence and the threat of punishment. Ultimately, adherence to IHL is an indirect byproduct of international criminal justice as a moral statement, an explication of how the international community views certain actions in armed conflict