Of no consequence: the ICC, criminal deterrence and the reality of sexualized violence in the DRC

In addition to its retributive and restorative functions, by its mere existence the International Criminal Court is slated to play a deterrence role never before seen in international criminal law. However, unabated sexualized violence in the Democratic Republic of Congo evidences limits of the permanent ICC’s deterrent capacity. Despite the ICC’s investigation, and indictments and proceedings against Germain Katanga and Mathieu Ngudjolo for sexually violent war crimes and crimes against humanity, the nascent court is yet unable to elicit preventive effects. While deterrence theory is logically compelling, mechanisms and assumptions underlying it prove impractical when deterrence is assessed in reality. First, the ICC cannot execute certain, severe or swift enough punishment to generally deter. Second, deterrence theory’s assumption that perpetrators are rational actors engaged in utilitarian calculations of legal risk is dispelled by an analysis of Congolese perpetrators’ accounts. Evidently, prosecutions alone will not end sexualized violence in the DRC.