Argument: As the ICC intentionally limits its prosecutions to group leaders, many of those who actually commit atrocities need have no fear of prosecution

By prosecuting only those leaders deemed ‘most responsible’ for the crimes in question, the ICC is effectively allowing lower-ranked perpetrators to commit crimes with impunity. These rank and file troops generally have little awareness or understanding of international criminal laws. Furthermore, just as local domestic laws fail to deter offenders who often commit crimes with little thought of being punished, distant ICC threats are even less likely to deter those whose actions are easily manipulated and controlled by militia leaders. Child soldiers, in particular, have often been drugged before going into combat. [1]

[1] Mullins &amp; Rothe, pp.782-4

Candidate 1: "Precisely because many rank and file perpetrators are easily controlled or manipulated by group leaders, their criminal responsibility is diminished. While Article 26 of the Rome Statute prevents prosecution of those under 18 years of age, this is designed to prevent injustices towards those who are often themselves victims of those in command. Article 33 specifically rejects the ‘Nuremberg defence’ that following orders absolves a person from criminal responsibility. But in keeping with International Humanitarian Law (Rule 155 of Customary IHL), child soldiers should not be prosecuted for crimes committed under severe coercion by leaders. Prosecuting those responsible for that coercion is the most powerful deterrent. [1]

[1] IRIN News, "Should child soldiers be prosecuted for their crimes?""
Candidate 2: "The fact that the Sudanese president has been able to travel freely to several countries without being arrested does not indicate that he or other would-be criminals are undeterred by the threat. Though the African Union has strongly advised its member states to ignore the arrest warrant and most have obliged, more recently Malawi and Kenya prevented Al-Bashir from attending summits. Even when Nigeria allowed his attendance at an AU summit last year, Al-Bashir fled within a day of arriving, after local human rights groups filed a court action.

The Democratic Republic of Congo has surrendered several suspects to the ICC and this was enough to induce another suspect to surrender. [1]

[1] Roth, "Africa Attacks the International Criminal Court.""
Candidate 3: "Even if Kenya’s recent reforms were motivated by the ICC’s indictments, the 2013 elections were still marked by violence which “as of February 2013, had claimed more than 477 lives and displaced another 118,000 people.” [1]

Despite many African governments’ initial enthusiasm for the ICC, the African Union has since openly challenged the Court’s investigations and Kenyan authorities have been doing their utmost to obstruct the ICC’s investigations. [2]

[1] Human Rights Watch

[2] Evenson"
Candidate 4: "The Lubanga case took 6 years to reach a verdict owing to problems with the reliability of testimony and the sheer number of witnesses and victims involved in the proceedings. [1]

Although the Prosecutor sought a harsher sentence, these problems with the weight of evidence and difficulties ascertaining the number of child soldiers required the Trial Chamber to impose a more modest sentence. [2]

Therefore, even if the Lubanga conviction might not have a strongly deterrent effect by itself, the ICC is pursuing many other cases and it is these constant and cumulative investigations that deter others from committing similar crimes.

[1] Kammer, "Deconstructing Lubanga"

[2] Human Rights Brief"
Candidate 5: "Many of those 122 States Parties have repeatedly shown their reluctance to co-operate with the ICC. Among the African Union states, only Botswana has shown its complete commitment to the Rome Statute. It appears that even South Africa may ultimately be more supportive of the AU than the ICC. [1]

[1] Miruthi , p.4"
Candidate 6: "The actions by Columbia and Sri Lanka do not alter the fact that, as noted earlier, the recruitment of child soldiers in Africa and elsewhere is still endemic in 2013.

And while the Lord’s Resistance Army and its leader Joseph Kony have indeed been muted, that is largely due to the initiative of the U.S. government which has itself refused to ratify the ICC’s Statute. [1]

[1] Schomerus, Allen and Vlassenroot"

Precisely because many rank and file perpetrators are easily controlled or manipulated by group leaders, their criminal responsibility is diminished. While Article 26 of the Rome Statute prevents prosecution of those under 18 years of age, this is designed to prevent injustices towards those who are often themselves victims of those in command. Article 33 specifically rejects the ‘Nuremberg defence’ that following orders absolves a person from criminal responsibility. But in keeping with International Humanitarian Law (Rule 155 of Customary IHL), child soldiers should not be prosecuted for crimes committed under severe coercion by leaders. Prosecuting those responsible for that coercion is the most powerful deterrent. [1]

[1] IRIN News, "Should child soldiers be prosecuted for their crimes?"
