Yvonne Dutton

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https://hdl.handle.net/1805/11674

Unpacking The International Criminal Court’s Deterrent Effect

Yvonne Dutton’s research examines questions about international cooperation and the role and effectiveness of international institutions in deterring and holding accountable those who commit crimes of international concern. The overarching research question is whether and in what circumstances the International Criminal Court (ICC) produces a deterrent effect in the countries that have joined the court. To explore this question, and with funding from The Hague Institute for Global Justice, two collaborators from The Hague Institute and Dutton conducted a case study of Kenya’s relationship with the ICC over time. That Kenya project involved two trips to Kenya where they: (1) conducted elite interviews, and (2) trained 10 local researchers who have since completed about 480 surveys of “ordinary” citizens in Kenya.

Dutton and researcher Tessa Alleblas from the Hague Institute share some preliminary findings from the case study research in an article entitled “Unpacking the ICC’s Deterrent Effect: Lessons from Kenya” (to be published in 2017 by St. John’s Law Review). Although recent empirical work suggests the ICC has a deterrent effect, the case study evidence reveals the complexities of gauging the ICC’s deterrent power and shows that not all actors are deterred in all situations or in the same ways—or even permanently. Dutton and her collaborators continue to analyze the data collected in order to make policy recommendations to the ICC and other relevant actors aimed at ensuring the ICC can deliver justice to victims of mass atrocities.

Professor Dutton’s work on the effectiveness of the International Criminal Court is another example of how IUPUI faculty are TRANSLATING RESEARCH INTO PRACTICE.

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    Maritime Piracy and the Impunity Gap: Insufficient National Laws or a Lack of Political Will?
    (2012) Dutton, Yvonne M.
    Nations are not prosecuting piracy suspects with any regularity. One reason cited for this culture of impunity is the lack of domestic legislation to facilitate the prosecution of suspected pirates. However, universal jurisdiction over piracy has existed for more than one hundred years, and most nations are parties to the United Nations Convention on the Law of the Sea (UNCLOS) and the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), both of which encourage nations to cooperate in prosecuting acts of maritime piracy. Given this legal framework, should we not expect that nations would have domestic laws criminalizing piracy and would use those laws to try the pirates they have gone to such lengths to capture? This Article explores these questions by examining the domestic antipiracy laws in about fifty states for which information is available in English. The analysis supports a conclusion that on the whole states lack the political will to share in the burden of prosecuting pirates because relatively few states have enacted comprehensive antipiracy laws that include a framework for exercising universal jurisdiction over pirate attacks. The analysis also shows that the laws states have enacted may not be sufficient to allow for a successful prosecution for today's pirates. Although states may have many reasons to sit back and wait for others to prosecute maritime piracy offenses, this Article concludes that all states must embrace their duty to share in the burden of prosecuting pirates, which means that all states must first pass the necessary domestic laws criminalizing maritime piracy.
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    Virtual Witness Confrontation in Criminal Cases: A Proposal to Use Videoconferencing Technology in Maritime Piracy Trials
    (2012) Dutton, Yvonne M.
    Maritime piracy is a serious problem, yet states are not prosecuting captured pirates with any regularity. One of the many reasons cited to explain this phenomenon focuses on the expense and difficulty of mounting cases of such international proportions and which involve evidence, suspects, victims, and witnesses from around the globe. In an effort to help close the impunity gap that surrounds piracy, this Article offers a potential solution to the difficulties associated with obtaining live witness testimony. It proposes a rule to allow witnesses under some circumstances to testify remotely by way of two-way, live videoconferencing technology. While remote testimony need not become the norm in maritime piracy cases, the proposed rule is carefully structured to balance both the public's and the defendant's interest in a fair trial.
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    Commitment to International Human Rights Treaties : The Role of Enforcement Mechanisms
    (2012) Dutton, Yvonne M.
    States continue to abuse human rights and commit mass atrocities even though for the past several decades they have overwhelmingly ratified a host of international human rights treaties. This Article seeks to explain this phenomenon and suggests that where treaty enforcement mechanisms are too weak for states to view them as a credible threat to their sovereignty, even states with the worst practices will regularly and readily commit to treaties designed to promote better human rights practices. I empirically test my credible threat theory against the explanatory power of other extant theories about treaty commitment by examining the relationship between treaty enforcement mechanisms and likelihood of ratification across a broad range of treaties. I include in my analysis the treaty creating the International Criminal Court (“ICC”)--a treaty which contains a strong enforcement mechanism in the form of an independent Prosecutor and the Court, which can punish violators. The results of the statistical tests using data from 1966 to 2008 provide support for the credible threat theory. I find that a state's human rights ratings do not influence ratification of international human rights treaties with the weakest enforcement mechanisms, such as those that only require the state to self-report its compliance. However, states with poorer records are significantly less likely to commit to the ICC treaty. The implication is that where enforcement mechanisms are strong, states may take their commitment more seriously and join only if they intend to comply. If we structure treaties with stronger enforcement mechanisms, perhaps fewer states will ratify, but at least when they do, they may be held to that commitment.
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    Pirates and Impunity: Is the Threat of Asylum Claims a Reason to Allow Pirates to Escape Justice
    (Fordham International Law Journal, 2011) Dutton, Yvonne M.
    Pirates are literally getting away with murder. Modern pirates are attacking vessels, hijacking ships at gunpoint, taking hostages, and injuring and killing crew members. They are doing so with increasing frequency. According to the International Maritime Bureau (“IMB”) Piracy Reporting Center’s 2009 Annual Report, there were 406 pirate attacks in 2009—a number that has not been reached since 2003. Yet, in most instances, a culture of impunity reigns whereby nations are not holding pirates accountable for the violent crimes they commit. Only a small portion of those people committing piracy are actually captured and brought to trial, as opposed to captured and released. For example, in September 2008, a Danish warship captured ten Somali pirates, but then later released them on a Somali beach, even though the pirates were found with assault weapons and notes stating how they would split their piracy proceeds with warlords on land. Britain’s Royal Navy has been accused of releasing suspected pirates, as have Canadian naval forces. Only very recently, Russia released captured Somali pirates—after a high-seas shootout between Russian marines and pirates that had attacked a tanker carrying twenty-three crew and US$52 million worth of oil. In May 2010, the United States released ten captured pirates it had been holding for weeks after concluding that its search for a nation to prosecute them was futile. In fact, between March and April 2010, European Union (“EU”) naval forces captured 275 alleged pirates, but only forty face prosecution. Furthermore, when pirates are tried, they are often tried by Kenya or other African nations, rather than by the capturing nation. Kenya has entered into agreements with Canada, China, Denmark, the European Union, the United Kingdom, and the United States to try the pirates these nations capture. Mauritius, Seychelles, and Tanzania have executed similar agreements to prosecute captured pirates. In an effort to aid prosecutions, Western states have pledged money—about US $10 million since May 2009—to alleviate the strain on the “poorly equipped and corrupt criminal justice system” and to cover the cost of transporting witnesses, training police and prosecutors, and upgrading prisons and courts. In fact, in late June 2010, the United Nations Office on Drug and Crimes (“UNODC”) used funds from donor nations to help open a new high-security courtroom in Mombasa, Kenya to prosecute pirates. But why are Western states refusing to prosecute pirates on their own soil even though they—more so than less-developed nations—have the money and institutional capabilities to bring pirates to justice in a swift and fair manner? After all, these states are providing Kenya and other African nations with funds and support to help them conduct piracy trials. They are spending billions to support the various naval patrols that are capturing pirates—but thereafter releasing them to continue their criminal activities. While several reasons have been advanced to explain why nations may not be regularly prosecuting pirates, one reason often given to explain the reluctance of Western nations to try pirates on their own soil is the threat of asylum claims by convicted pirates. This reason has been advanced by academics and government representatives, among others. Roger Middleton, a researcher for Chatham House, the London-based think tank, explained it this way: “These countries don’t want to be bombarded by claims of asylum from the pirates, who would ask not to be deported to Somalia, a country at war.” In fact, in April 2008, the British Foreign Office warned the Royal Navy that detaining pirates at sea could be a violation of their human rights and could also lead to asylum claims by pirates seeking to relocate to Europe. A former Tory chairman stated that ministers in Parliament had indicated privately that the reason captured pirates were not being brought to Britain for trial (including the sixty-six suspected pirates captured by the Royal Navy in 2009—all of whom were thereafter released) was because of fears those pirates might seek asylum in the country. And at least some pirates have actually threatened to seek asylum in the West. Reports indicate that two of the pirates on trial for attacking a Dutch vessel have declared their intention to try to stay on as residents. Nevertheless, although the threat of asylum claims is frequently offered to explain Western nations’ reluctance to prosecute pirates in their territories, what is not addressed is whether this fear has any actual basis in fact or law. Instead, the statement that nations are afraid of asylum claims is followed by little explanation at all—and certainly no legal analysis of the international or domestic laws on which convicted pirates would base their claims for asylum. In any event, even if the fear of asylum claims is well-founded, is this a reason to allow Western nations to avoid their duty to prosecute crimes that violate international law? Although some pirates are being prosecuted, why should others get away with murder solely because Western nations fear asylum claims? This Article is concerned with these issues and examines international refugee law and international human rights law in an effort to determine the likely viability of any asylum claims that may be brought by pirates convicted in the West. Based on an analysis of the text of the main international treaties governing asylum and non-refoulement, as well as interpretations of the provisions contained in those treaties, this Article concludes there is little reason to believe that Western states would be required to grant refugee status (as that term is defined in the 1951 Convention Relating to the Status of Refugees) to convicted pirates. Among other things, pirates are not a group that is subject to persecution, and pirates have committed the types of serious and violent crimes that should exclude them from claiming refugee status—and thus, the residence and other benefits associated with being granted asylum. Second, states should be able to legally expel or deport convicted pirates under international human rights treaties since most pirates are likely unable to show they would face torture if expelled or returned to their country of origin. Even if pirates could show they risk torture or other inhumane treatment upon return, states may be able to satisfy their international obligations regarding non-refoulement and return pirates if the state receives diplomatic assurances that the authorities would not resort to such treatment. Furthermore, under the recent European Qualitative Directive, European Union Member States are not required to grant benefits such as residence permits to individuals who have committed serious and violent crimes, even though the European Convention on Human Rights prohibits refoulement to face torture or other ill treatment. Finally, even if there is some risk that some pirates can mount successful asylum or non-refoulement claims, the risk is one that developed Western states should assume because of the greater good that will come from ensuring that pirates are brought to justice (especially by way of fair trials and processes that respect human rights). Developed nations risk asylum claims (by pirates and others) simply because they are developed—a status that typically carries with it an expectation that the state will protect human rights and enforce the rule of law. In this instance, enforcing the rule of law means that nations must invoke universal jurisdiction or use the prohibitions contained in international treaties and in their own domestic laws to prosecute violent and dangerous pirates even if it means they must consider and adjudicate some additional asylum claims. Bringing to justice the pirates that commit violent acts and disrupt international waters is a goal as worthy as numerous others where nations accept the risk of asylum claims, and pirates are unlikely to be deterred from committing those acts unless nations commit to end the current culture of impunity. Part I of this Article describes the modern piracy problem, including the international law governing piracy, and the culture of impunity that surrounds it. Part II provides a brief overview of the international law providing protection for those seeking asylum, focusing on international refugee law as well as the primary treaties under international human rights law that govern the transfer of persons and specifically prohibit transfer to states where those persons would be subjected to torture or ill treatment. Parts III and IV analyze international refugee law and international human rights law in the context of potential claims by convicted pirates seeking asylum and protection against nonrefoulement. The Article concludes by suggesting that although prosecuting pirates may require states to also consider additional asylum claims, the risk that states will have to grant such claims is small and also a burden they should assume so that pirates may be brought to justice.
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    Gunslingers on the High Seas: A Call for Regulation
    (Duke Journal of Comparative & International Law, 2013) Dutton, Yvonne M.
    Since only mid-2011, states have increasingly authorized their shippers to hire private armed guards to protect them as they travel through pirate-infested waters. Estimates indicate that in 2011, the percentage of ships employing armed guards rose from approximately 10% to upwards of 50%. Primarily, the guards are hired out by the 200 to 300 private maritime security companies (PMSCs) that have been created overnight to capitalize on this new opportunity. This article recognizes the importance of protecting innocent seafarers from violent pirate attacks. It also recognizes that the worlds' navies may not be able to protect each and every ship and crew from being attacked. Nevertheless, it argues that states should not be permitted to include private citizens in the fight against piracy without first ensuring that those guards will abide by governing laws and norms and be held accountable should they fail to do so. Yet, as the article shows through a comparison and analysis of the laws and guidance of five states, only some states appear to be providing any guidance regarding the necessary training and qualifications that armed guards must possess or how and when they may lawfully use and transport weapons. This article argues that states need to do more. At the very least, it urges states to agree on vetting and monitoring procedures to make certain that any guards who are hired by shippers are well trained and prepared to safely transport, store, and use weapons. States are responsible for the fight against piracy, and if they want to include private contractors in that fight, then they should act responsibly and regulate and monitor the guards' conduct. Otherwise, in a world where each state is creating its own rules or even no rules at all, the likely outcome is chaotic and violent seas — and perhaps the next "Blackwater" moment.
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    Recent Developments in Indiana Evidence Law: October 1, 2013 to September 30, 2014
    (2014) Dutton, Yvonne M.; Robert H. McKinney School of Law