Last Monday, Fatou Bensouda, Chief Prosecutor of the International Criminal Court, urged the United Nations Security Council to use all “necessary measures” to force the extradition of the Sudanese leader President Omar Hassan al-Bashir to the Hague for genocide and crimes against humanity. This statement was made despite the prosecutor previously suspending criminal investigations in Darfur, due to a lack of cooperation in Sudan and inadequate force by the Security Council. Bashir is the only sitting head of state indicted by the ICC for the crime of genocide, which, in Darfur, has resulted in the deaths of 300,000 and displaced some 3 million more, according to United to End Genocide. Bashir has evaded arrest from some of the charges for five years. He has continued to commit atrocities across Sudan. What do you think of the effectiveness of the Court, and how do you propose the Court approach criminal proceedings against Bashir? 

Dr. Daniel Terris

It’s a travesty that Bashir remains free but the failure does not lie with the Security Council as an abstract entity.  Responsibility for enforcement lies with the member states of the United Nations. It is up to citizens of individual countries to put pressure on their governments to make sure that each nation does its part for the cause of international justice. The International Criminal Court is a young institution with plenty of problems. It will always be dependent on the nations of the world to assist with enforcement.  But let’s remember that even though Bashir remains “free,” the indictment effectively limits him to his own country and a handful of other destinations that openly flaunt the rulings of the ICC.   That’s not the same thing as answering the charges in court, but it’s a message to other dictators.  If they commit atrocities, the politics may enable them to elude justice but they will live without the privileges of global citizenship to which they have become accustomed. 
Dr. Daniel Terris is the director for the International Center for Ethics, Justice and Public Life. 
Prof. Richard Gaskins (AMST, LGLS)
On March 9, a panel of judges informed the U.N. Security Council that Sudan has refused to cooperate with the International Criminal Court, including failing to arrest its president and send him to the Hague for pre-trial proceedings.  Although Sudan is not a member of the ICC, its obligations stem from a 2005 UNSC Resolution referring the Darfur situation to the Court for investigation and requiring all signatories to the U.N. Charter to cooperate fully.  This was the first such U.N. referral, which is the only way the ICC can gain jurisdiction over non-member states.  Without enforcement, the earlier Resolution becomes another sign of UNSC deadlock.  Meanwhile the ICC has shown its seriousness enough to restrict Sudan’s president to a cramped foreign travel itinerary. And the world can now clearly visualize the Court’s core purpose: ending impunity for leaders deemed responsible for “unimaginable atrocities that shock the conscience of humanity.”
Prof. Richard Gaskins (AMST, LGLS) is the Proskauer Chair in Law and Social Welfare. He has expertise in global justice and human rights and is the Academic Program Director of the Brandeis in The Hague.
Prof. Yehudah Mirsky (NEJS, SCIS)
It is highly unlikely that the international community will make significant efforts to have Bashir extradited anytime soon. (I would be very happy to be proved wrong.)   Because Sudan didn’t sign the Rome Statute creating the Court,  it’s only subject to its jurisdiction because in 2005 the U.N. Security Council extended its jurisdiction to Sudan, as it may in cases of genocide and crimes against humanity.  But Security Council members have not since exercised the political will and commited the resources to bring Bashir to justice.  Will the mounting disconnect between judicial rhetoric and political reality grow so large as to make a mockery of the very idea of accountability for genocide and crimes against humanity? This call does tell Sudanese activists and genocide victims that they are not forgotten. But it is only meaningful if it is being done as part of a larger political and economic effort to get him to go. This all begs the hard and necessary question of whether institutions of international justice that are so almost inevitably selective are actually better than none at all.
Prof. Yehudah Mirsky (NEJS, SCIS) served as special advisor in the US State Department’s human rights bureau in the Clinton Administration, and this semester is teaching a course, Human Rights: Law, Politics, Theology (NEJS 141b). He’s the author of Rav Kook: Mystic in a Time of Revolution.
Mangok Bol MS ’13
The International Criminal Court was founded with the goal of punishing those who have committed serious crimes against humanity. Unfortunately the Court has not executed the goals that it was founded for. Instead, those who were accused of the heinous crimes against humanity are walking free like President Omar Hassan al-Bashir, who has committed genocide both in South Sudan and Darfur. One of the major weaknesses of the International Criminal Court is its ineffectiveness with the deterrent method used by the member states to bring the accused to face the law. There is enough evidence to doubt the ability of the Court to enforce its mission without a robust police force. Lack of corporation among the member states has made it difficult for the court to arrest those with arrest warrants. Since his arrest warrant was issued on March 4, 2009, Bashir has visited a number of member states of the ICC with no arrest. The only way the court can enforce its mission across borders is to come up with a strong, well-funded International police force that can helps implement its mission. 
Mangok Bol MS ’13 is the administrator for the Mandel Center and the program administrator for the international and global studies program. He is a Lost Boy of Sudan.