Rethinking Deterrence: The International Criminal Court in Sudan

On 1 April 2005, the United Nations Security Council referred the situation in the Darfur region of Sudan to the International Criminal Court. Only two months later, the Office of the Prosecution accepted the referral and decided to initiate the investigation. It is not only the first case referred to the ICC by the United Nations; it is also the first time that the ICC becomes involved in a country where the sitting government, unlike that of Kabila in the DRC or Museveni in Uganda, categorically rejects its jurisdiction and refuses to cooperate. How will this newly created institution fare in such a complicated political environment? Will the case of Sudan vindicate or disprove the oft-repeated claim that international criminal law can deter the commission of atrocities? Has the conduct of Omar al-Bashir been inhibited by the threat of international scrutiny, investigations, and prosecutions? This paper will argue that the emphasis on deterrence, so prevalent in the literature that links international law and conflict resolution, has little analytical value and does not help further the cause of international justice. On the other hand, skeptics overlook the difference between short-term deterrence and long-term prevention, ignore credibility and consistency as necessary functions of deterrence, and take no notice of the variety of strategies that actors choose to cope with the threat of prosecution, as well as the constraints that narrow down their choices and exit options.