Last week the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Omar Al-Bashir, confirming charges of war crimes and crimes against humanity but rejecting the prosecutor’s charge of genocide. The immediate response has been for Al-Bashir to dig in, expelling 13 international aid groups as “spies” and severely worsening the humanitarian situation. This raises the issue of whether or not international criminal law deters or exacerbates human rights violations. Professors Ku and Nzelibe argued for the latter in an article a couple years ago; the vast majority of international criminal law scholars seem to believe the former.
What is clear is that this is a make-or-break decision for the ICC, as I explore recently in an article our Chicago Journal of International Law. Some optimists believe that Al-Bashir will be turned over by his own countrymen. But the more likely outcome, given the negative reaction to the indictment by the African Union, China and much of the Arab World, is that Al-Bashir will continue to be able to defy the Court. With a Chinese veto, the Security Council is unlikely to approve new sanctions or to take collective steps for Al-Bashir’s arrest. This puts the West in the position of ratcheting up costly sanctions on the Sudan (unlikely to be effective without Security Council support) or else appearing impotent in the face of a severely deteriorating humanitarian situation. In the short run, then, I am afraid Ku and Nzelibe seem to have the better argument.