The ICC’s Moment of Truth

Longtime readers know that I have been pretty skeptical of the usefulness of the ICC’s actions against Sudan.  Indeed, Professor Jide Nzelibe and I have argued in prior work that international criminal tribunals can worsen humanitarian atrocities rather than deter or prevent them, especially when they are aimed at leaders who have the power to commit greater atrocities to stay in power.  Our academic argument was not that international criminal tribunals always leads to worse atrocities, but simply that their actions could do so.  We also took issue with academics and human rights advocates who consistently overstated the benefits of international criminal tribunals without serious efforts to offer evidence of these benefits. 

Sadly, the ICC’s arrest warrant against Sudan’s leaders demonstrates our point.  At least in the short-term, the ICC’s action is going to worsen the humanitarian crisis rather than improve it.  And it will make a peace agreement harder to reach, extending the conflict. 

Professor Tom Ginsburg of University of Chicago calls this the ICC’s “make or break” moment.  I’m not so sure about that, but it is true that the ICC has gone out on a limb here.  Unless the U.S. or some other powers intervene militarily to remove Bashir, it is going to get much worse before it gets much better.  And I wouldn’t look for President Obama to bail the ICC out, since the strongest reaction he’s come up with so far is that the expulsions are “unacceptable.”   If only his administration was as tough on Bashir as he is on Rush Limbaugh!