Suspended disbelief: the curious endurance of the deterrence rationale in international criminal law

Practitioners and advocates of international criminal law frequently justify this body of law and its institutions on the basis of the deterrent effect that it has on those who might commit mass atrocity. Nevertheless, detailed studies by external critics in the past 20 years of globalised justice have strongly called into question this deterrence rationale as it lacks support in the historical record. It is therefore necessary to explain why arguments based on the deterrent capacity of internationalised justice endure given the weight of evidence against the preventative potential of criminal proceedings. This article argues that for practitioners of international criminal law, belief in the deterrence rationale rests on a passionate legalistic belief in the possibilities of law. But as well, for many in the non-governmental organisation and policy-making communities, the avowal of the deterrence argument may owe more to its potency as a rhetorical device than to true belief – these actors suspect it may not work but deliberately forget this in order to promote international criminal justice institutions. Faith in the deterrence rationale is also bolstered for some by studies that purport to prove its validity through anecdote or through employment of overly simplistic correlations between the fact that trials have taken place, and the fact that conflict or oppression has ended.