Can International Criminal Court intervention in ongoing conflicts serve as an effective non-violent coercive instrument to help end war crimes and wartime atrocity? Though some scholars and advocates have offered general arguments and anecdotal evidence about the coercive power of ICC intervention, the specific logic remains obscure and implicit. The primary aim of this paper is to unpack and clarify that logic and to begin to evaluate it, assessing the plausibility of specific mechanisms in light of what we know about the theory and practice of coercive diplomacy, and the limited available evidence from recent ICC interventions. The paper argues that the coercive logic of ICC intervention in ongoing conflicts is considerably flawed. Optimistic claims about the coercive power of judicial interventions rest on oversimplified or misconstrued assumptions about non-violent coercive diplomacy, rational-actor decision-making, the causes and dynamics of civilian victimization in wartime, and the process of war termination. While supporters of ICC intervention in ongoing conflict argue that the main barrier to effectiveness is lack of enforcement – something that can be remedied with greater political will – I argue that there is a more insurmountable, structural impediment: the Court’s very independence from states and existing international collective security institutions. The ICC’s independence – absolutely essential for it to function as an instrument of justice – makes it ineffective as an instrument of coercion. For coercion to work, threats must be manipulable and they must be able to be applied strategically and carefully escalated in the face of noncompliance. That requires a considerable degree of political coordination in their application. The Court’s independence, and the essential independence of each of the progressively more painful instruments at its disposal – private and informal threats, to public investigations, to indictments – forecloses that possibility. Ultimately, the Court’s ability to effectively coerce will remain modest and then only under very narrow set of conditions.
