Human Rights
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Human Rights
Emergence of International Justice as Coercive Diplomacy: Challenges and Prospects By Alina Maria Dobos
Coercive Diplomacy: If diplomacy is the art of States furthering their interests on the global stage, then “coercive diplomacy” refers to the diplomatic strategies States undertake when their interests are opposed by other States. While such diplomacy, in this sense, has existed as long as States have interacted, modern coercive diplomacy – practiced since World War II and even more so since the end of the Cold War – refers to an increasingly sophisticated set of nonmilitary instruments deployed unilaterally and multilaterally to extract change in “target States‟”1 behavior. The tools of coercive diplomacy are varied but they share a core feature: the change in behavior coercers seek is furthered by threats of pain, and in many cases, the actual imposition of pain.7 Modern coercive diplomacy includes a spectrum of actions promising different sorts of pain. One of the oldest tools of coercion involves diplomatic consequences. Elements in this regard include the “strongly worded demarche,”8 the withdrawal of ambassadors, and the breaking of diplomatic relations. More recent additions to these diplomatic consequences include votes against targets in multilateral fora such as development banks,9 the passage of condemning resolutions by international organizations, and the expulsion of targets from such organizations. A follow-on diplomatic consequence is the implicit or explicit branding of a recalcitrant state as a “pariah.” 9 Economic consequences are a second group of coercive measures, the most enduring version of which are broad-based, “comprehensive” sanctions against States, including trade prohibitions10 and arms embargoes. A final set of tools is of more recent vintage; while it was once thought that sanctions imposed by foreign powers and international organizations could only be placed on States themselves, and not on individuals or entities within States,11 since the Cold War “smart,” individually-targeted prohibitions havebeen added to the toolbox. Such instruments include travel bans and financial sanctions that focus solely on noncompliant entities (persons and institutions) rather than countries as a whole. No matter which tool is used, the prospects of success for any instance of coercion simplifies to a common-sensical calculation: if a target State assesses that the net benefits it can obtain by resisting coercion are greater than the net costs it believes will arise from complying,coercive diplomacy will fail. To be successful, practitioners of coercive diplomacy must deploy tools that impact the calculus of target States by calibrating coercive measures the cost of resistance becomes unacceptable. Making an assessment of the correct level and type of coercion relies on a nuanced
appreciation of the psychology, history, politics, and economics of target States. The importance of these dynamic factors means that the calculation described above rarely manifests itself. Coercive diplomacy evidently did not forestall military action. Paradoxically, coercive diplomacy‟s seeming lack of success helps explain why innovations in coercive tools, such as ICC referrals, are so alluring. Coercive diplomacy provides the potential for significant benefits (achieving important State objectives) without the expense and risk of military engagement. Though some have bemoaned that policymakers have been “beguiled” by coercive diplomacy‟s promise of “big gains with minimal costs,”15 in anera of soft budgets and war-weary citizenries the attractiveness of coercive instruments will remain A Way Forward? It is, however, evident that there are significant limits and risks to using international justice as a coercive tool. Consequently, the question is whether there is a way to extract any of the potential benefits of invoking justice as a coercive measure while avoiding the detriments. One way to do so involves calling on domestic justice, rather than the ICC. The Council could “decide” under Chapter VII that Member States will work with a State to make sure that it will receive appropriate legal redress for whatever crimes are committed. From the perspective of coercive diplomacy, domestic justice is a superior tool to international justice, more credible,more flexible, more able to provide real inducements, and less susceptible to mitigation. Regarding credibility, the threat of ICC justice suffers credibility concerns for a host of reasons including the fact that the “promise” of international justice remains abstract, a geographically and intellectually removed reality. In contrast, local, domestic justice is understood and tangible, even in the most lawless dictatorships. Local justice is also more flexible than international justice, allowing the coercer to more powerfully calibrate the correct type and amount of pain. For instance, unlike the ICC, local authorities have potentially unlimited prosecutorial and judicial discretion, and can opt to focus on particular crimes at particular times, or withdraw or alter indictments, depending upon on how a target behaves. They are not bound by temporal limitations,70 ICC procedure, or the interface between the Security Council and the Court. In short, in domestic proceedings, coercers enjoy credibility on both sides: the threat to impose pain and the potential of lifting pain.71 Contrarily,once it has ordered an ICC referral, the Security Council cedes its ability to increase the pain (via indictment) or ameliorate the pain (via a refusal to prosecute) to an entity over which it has limited authority. Local judicial solutions can even calibrate the type of case that is to be pursued. For example, domestic prosecutions could pursue civil remedies – seeking redress for financial crimes that all too often accompany more serious criminal infractions. While there is no standing international judicial capacity for adjudicating civil harms, there is no reason the UN could not mandate that Member States help a jurisdiction find both criminal and civil redress. The benefit of civil cases is not only that they are often immediately credible – they are usually easier to establish and can potentially be pursued during a conflict (as they often concern assetsheld abroad) – but also that they can serve to both punish the indictee “where it hurts” andfurther sap his support. Citizens may not countenance that their leader engaged in warcrimes;however, “the same people will be far less patient with a leader who is charged with corruptionand fraud.” If successful, such cases may “extinguish” whatever remains of
the popularsupport of the leaders, and may allow the subsequent pursuit of more serious criminal charges. 12 This relates to the fact that it is far more difficult for an indictee under domestic justice to mitigate the impact of such an action by claiming that the charge is actually being leveled against the entire State. In the case of Milosevic16 , for instance, though Serb nationalists were upset when he was imprisoned and charged under domestic authorities with abuse of power before his transfer to the ICTY, there was little talk of the Belgrade indictments accusing all Serbs ofthese crimes. It was only once The Hague indictments were acted upon that many Serbs felt judicially attacked. International justice remains nascent; twenty years after its reemergence, diplomats, as much as lawyers, are still assessing what it means, how it changes the rules, and how it should beused. Though the novelty of the system counsels prudence, given the attraction of coercivediplomacy and the limited number of other coercive tools the international community has at its disposal, ICC referrals are understandably appealing to the Security Council. However, thischapter posits that deploying ICC referrals poses risks to whatever underlying diplomatic 17 objectives the international community pursues. Such risks flow to more than just diplomatic goals – in as much as referrals fail to result in prosecutions they can weaken the standing of the Security Council
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1 Carmen Chai, “Harper Condemns Violence in Libya,” Postmedia News (Canada), February 22, 2011; “World Condemns Gaddafi,” Australian Broadcasting Corporation, AM, February 22, 2011; “World Powers Heap Pressure on Libya‟s Qaddafi to Step Down,” Radio Free Europe, February 27, 2011. 2 “Federal Council Condemns the Use of Force Against the Libyan People and has Blocked the Assets held by Moammar Gaddafi in Switzerland,” Federal Department of Foreign Affairs (Switz.), February 24, 2011. 5 David L. Asher, Victor D. Comras, and Patrick M. Cronin, “Pressure: Coercive Economic Statecraft and U.S. National Security,” Center for New American Security, January 2011, pg. 16. Accessed August 29, 2011. http://www.cnas.org/files/documents/publications/CNAS_Pressure_AsherComrasCronin_1.pdf. 6 UN Security Council Resolution 1973, March 19, 2011, para. 4. 7 Peter D. Feaver and Eric B. Lorber, “Coercive Diplomacy: Evaluating the Consequences of Financial Sanctions,” Legatum Institute, November 2010, 9. Accessed August 29, 2011. http://www.li.com/attachments/Legatum%20Institute%20-%20Coercive%20Diplomacy.pdf. 8 Id., 8. 9 See e.g., Nicholas J. Wheeler and Tim Dunne, “East Timor and the New Humanitarian Intervention,” International Affairs 77 (2001): 818-20. 11 The conventional wisdom was that sanctioning any entities below States was “impossible…under international law.” Johann Galtung, “On the Effects of International Sanctions: With the Examples from the Case of Rhodesia,” World Politics 19(3) (1967): 378-416. 12 Bruce Jentleson, Coercive Diplomacy: Scope and Limits in the Contemporary Word,” Stanley Foundation: Policy Analysis Brief (December 2006), 3. Accessed August 29, 2011. 15 Jentleson, “Coercive Diplomacy,” 6.
16 “Success”
is often a function of the definition used for “coercive diplomacy,” and exactly what sort of activities are included in the concept. Some scholars include military action (limited or up to and “including invasion”), others do not. See e.g. Feaver and Lorber, “Coercive Diplomacy,” 8 (includes “invasion”); Peter Viggo Jakobsen, “Coercive Diplomacy: Frequently Used, Seldom Successful,” Kungl. Krigsvetenskapsakademiens Handlingar och Tidskrift (Sweden) (2007), 29. Accessed August 30, 2011. http://www.kkrva.se/wpcontent/ uploads/Artiklar/074/kkrvaht_4_2007_3.pdf (only “limited use of force”); Alexander L. George, Forceful Persuasion: Coercive Diplomacy as an Alternative to War (Washington, DC: U.S.I.P. Press, 1991), ix (only the “threat” of force or exemplary use of force). 17 Jakobsen, “Coercive Diplomacy,” 32-33.
Emergence of International Justice as Coercive Diplomacy: Challenges and Prospects By Alina Maria Dobos
Coercive Diplomacy: If diplomacy is the art of States furthering their interests on the global stage, then “coercive diplomacy” refers to the diplomatic strategies States undertake when their interests are opposed by other States. While such diplomacy, in this sense, has existed as long as States have interacted, modern coercive diplomacy – practiced since World War II and even more so since the end of the Cold War – refers to an increasingly sophisticated set of nonmilitary instruments deployed unilaterally and multilaterally to extract change in “target States‟”1 behavior. The tools of coercive diplomacy are varied but they share a core feature: the change in behavior coercers seek is furthered by threats of pain, and in many cases, the actual imposition of pain.7 Modern coercive diplomacy includes a spectrum of actions promising different sorts of pain. One of the oldest tools of coercion involves diplomatic consequences. Elements in this regard include the “strongly worded demarche,”8 the withdrawal of ambassadors, and the breaking of diplomatic relations. More recent additions to these diplomatic consequences include votes against targets in multilateral fora such as development banks,9 the passage of condemning resolutions by international organizations, and the expulsion of targets from such organizations. A follow-on diplomatic consequence is the implicit or explicit branding of a recalcitrant state as a “pariah.” 9 Economic consequences are a second group of coercive measures, the most enduring version of which are broad-based, “comprehensive” sanctions against States, including trade prohibitions10 and arms embargoes. A final set of tools is of more recent vintage; while it was once thought that sanctions imposed by foreign powers and international organizations could only be placed on States themselves, and not on individuals or entities within States,11 since the Cold War “smart,” individually-targeted prohibitions havebeen added to the toolbox. Such instruments include travel bans and financial sanctions that focus solely on noncompliant entities (persons and institutions) rather than countries as a whole. No matter which tool is used, the prospects of success for any instance of coercion simplifies to a common-sensical calculation: if a target State assesses that the net benefits it can obtain by resisting coercion are greater than the net costs it believes will arise from complying,coercive diplomacy will fail. To be successful, practitioners of coercive diplomacy must deploy tools that impact the calculus of target States by calibrating coercive measures the cost of resistance becomes unacceptable. Making an assessment of the correct level and type of coercion relies on a nuanced
appreciation of the psychology, history, politics, and economics of target States. The importance of these dynamic factors means that the calculation described above rarely manifests itself. Coercive diplomacy evidently did not forestall military action. Paradoxically, coercive diplomacy‟s seeming lack of success helps explain why innovations in coercive tools, such as ICC referrals, are so alluring. Coercive diplomacy provides the potential for significant benefits (achieving important State objectives) without the expense and risk of military engagement. Though some have bemoaned that policymakers have been “beguiled” by coercive diplomacy‟s promise of “big gains with minimal costs,”15 in anera of soft budgets and war-weary citizenries the attractiveness of coercive instruments will remain A Way Forward? It is, however, evident that there are significant limits and risks to using international justice as a coercive tool. Consequently, the question is whether there is a way to extract any of the potential benefits of invoking justice as a coercive measure while avoiding the detriments. One way to do so involves calling on domestic justice, rather than the ICC. The Council could “decide” under Chapter VII that Member States will work with a State to make sure that it will receive appropriate legal redress for whatever crimes are committed. From the perspective of coercive diplomacy, domestic justice is a superior tool to international justice, more credible,more flexible, more able to provide real inducements, and less susceptible to mitigation. Regarding credibility, the threat of ICC justice suffers credibility concerns for a host of reasons including the fact that the “promise” of international justice remains abstract, a geographically and intellectually removed reality. In contrast, local, domestic justice is understood and tangible, even in the most lawless dictatorships. Local justice is also more flexible than international justice, allowing the coercer to more powerfully calibrate the correct type and amount of pain. For instance, unlike the ICC, local authorities have potentially unlimited prosecutorial and judicial discretion, and can opt to focus on particular crimes at particular times, or withdraw or alter indictments, depending upon on how a target behaves. They are not bound by temporal limitations,70 ICC procedure, or the interface between the Security Council and the Court. In short, in domestic proceedings, coercers enjoy credibility on both sides: the threat to impose pain and the potential of lifting pain.71 Contrarily,once it has ordered an ICC referral, the Security Council cedes its ability to increase the pain (via indictment) or ameliorate the pain (via a refusal to prosecute) to an entity over which it has limited authority. Local judicial solutions can even calibrate the type of case that is to be pursued. For example, domestic prosecutions could pursue civil remedies – seeking redress for financial crimes that all too often accompany more serious criminal infractions. While there is no standing international judicial capacity for adjudicating civil harms, there is no reason the UN could not mandate that Member States help a jurisdiction find both criminal and civil redress. The benefit of civil cases is not only that they are often immediately credible – they are usually easier to establish and can potentially be pursued during a conflict (as they often concern assetsheld abroad) – but also that they can serve to both punish the indictee “where it hurts” andfurther sap his support. Citizens may not countenance that their leader engaged in warcrimes;however, “the same people will be far less patient with a leader who is charged with corruptionand fraud.” If successful, such cases may “extinguish” whatever remains of
the popularsupport of the leaders, and may allow the subsequent pursuit of more serious criminal charges. 12 This relates to the fact that it is far more difficult for an indictee under domestic justice to mitigate the impact of such an action by claiming that the charge is actually being leveled against the entire State. In the case of Milosevic16 , for instance, though Serb nationalists were upset when he was imprisoned and charged under domestic authorities with abuse of power before his transfer to the ICTY, there was little talk of the Belgrade indictments accusing all Serbs ofthese crimes. It was only once The Hague indictments were acted upon that many Serbs felt judicially attacked. International justice remains nascent; twenty years after its reemergence, diplomats, as much as lawyers, are still assessing what it means, how it changes the rules, and how it should beused. Though the novelty of the system counsels prudence, given the attraction of coercivediplomacy and the limited number of other coercive tools the international community has at its disposal, ICC referrals are understandably appealing to the Security Council. However, thischapter posits that deploying ICC referrals poses risks to whatever underlying diplomatic 17 objectives the international community pursues. Such risks flow to more than just diplomatic goals – in as much as referrals fail to result in prosecutions they can weaken the standing of the Security Council
i
i
1 Carmen Chai, “Harper Condemns Violence in Libya,” Postmedia News (Canada), February 22, 2011; “World Condemns Gaddafi,” Australian Broadcasting Corporation, AM, February 22, 2011; “World Powers Heap Pressure on Libya‟s Qaddafi to Step Down,” Radio Free Europe, February 27, 2011. 2 “Federal Council Condemns the Use of Force Against the Libyan People and has Blocked the Assets held by Moammar Gaddafi in Switzerland,” Federal Department of Foreign Affairs (Switz.), February 24, 2011. 5 David L. Asher, Victor D. Comras, and Patrick M. Cronin, “Pressure: Coercive Economic Statecraft and U.S. National Security,” Center for New American Security, January 2011, pg. 16. Accessed August 29, 2011. http://www.cnas.org/files/documents/publications/CNAS_Pressure_AsherComrasCronin_1.pdf. 6 UN Security Council Resolution 1973, March 19, 2011, para. 4. 7 Peter D. Feaver and Eric B. Lorber, “Coercive Diplomacy: Evaluating the Consequences of Financial Sanctions,” Legatum Institute, November 2010, 9. Accessed August 29, 2011. http://www.li.com/attachments/Legatum%20Institute%20-%20Coercive%20Diplomacy.pdf. 8 Id., 8. 9 See e.g., Nicholas J. Wheeler and Tim Dunne, “East Timor and the New Humanitarian Intervention,” International Affairs 77 (2001): 818-20. 11 The conventional wisdom was that sanctioning any entities below States was “impossible…under international law.” Johann Galtung, “On the Effects of International Sanctions: With the Examples from the Case of Rhodesia,” World Politics 19(3) (1967): 378-416. 12 Bruce Jentleson, Coercive Diplomacy: Scope and Limits in the Contemporary Word,” Stanley Foundation: Policy Analysis Brief (December 2006), 3. Accessed August 29, 2011. 15 Jentleson, “Coercive Diplomacy,” 6.
16 “Success”
is often a function of the definition used for “coercive diplomacy,” and exactly what sort of activities are included in the concept. Some scholars include military action (limited or up to and “including invasion”), others do not. See e.g. Feaver and Lorber, “Coercive Diplomacy,” 8 (includes “invasion”); Peter Viggo Jakobsen, “Coercive Diplomacy: Frequently Used, Seldom Successful,” Kungl. Krigsvetenskapsakademiens Handlingar och Tidskrift (Sweden) (2007), 29. Accessed August 30, 2011. http://www.kkrva.se/wpcontent/ uploads/Artiklar/074/kkrvaht_4_2007_3.pdf (only “limited use of force”); Alexander L. George, Forceful Persuasion: Coercive Diplomacy as an Alternative to War (Washington, DC: U.S.I.P. Press, 1991), ix (only the “threat” of force or exemplary use of force). 17 Jakobsen, “Coercive Diplomacy,” 32-33.
