International Criminal Court Puts President in the Dock

The following was originally published by Project Syndicate. Aryeh Neier is president of the Open Society Institute.

In a way, the stir aroused by the recent decision by the International Criminal Court to indict Sudan's President Omar al-Bashir for war crimes and crimes against humanity in Darfur is a surprise. After all, the court has no means of its own to arrest anyone in Sudan, much less a head of state who commands the country's armed forces. Nor is there any prospect that someone else will intervene in Sudan to make an arrest. While the ICC's chief prosecutor, Luis Moreno-Ocampo, expresses confidence that Bashir will be brought to justice, it is unclear how this will happen. But it could.

Despite the ICC's seeming powerlessness, many governments' leaders are engaged in strenuous efforts to block the indictment. They do not seem concerned that the charges are unfair; rather, they appear to be demonstrating solidarity with a fellow head of state.

Those denouncing the attempt to put Bashir on trial include the large blocs of countries that are members of the Organization of the Islamic Conference and the African Union, together with such powerful states as China and Russia. One can only guess whether some of those joining this effort are motivated by concern that they themselves may some day face charges like those leveled at Bashir by the ICC judges.

Though Bashir may be able to avoid arrest simply by limiting his international travel, the commotion provoked by the indictment is not irrational. The charges against him have a powerful stigmatizing effect.

The fact that a panel of judges representing the 108 governments that are parties to the ICC has accused Bashir of principal responsibility for the crimes committed in Darfur during the past six years undermines the legitimacy of his continued rule. Those crimes have caused more than 300,000 deaths, and have forcibly displaced at least another 2.7 million people. Even if Bashir's fellow heads of state succeed in their effort to persuade the U.N. Security Council to defer prosecution—which is highly unlikely—the charges will continue to hang over Bashir's head unless and until he stands trial.

In 1999, an international criminal tribunal indicted another sitting head of state, Slobodan Milosevic of the Federal Republic of Yugoslavia. Though he seemed secure at the time, a year and a half later he was sent to The Hague to stand trial. Similarly, in 2003, an international criminal tribunal indicted Liberia's then-president, Charles Taylor. He had to flee Liberia a few months later and initially received asylum in Nigeria, but is now on trial in The Hague. When those indictments were issued, no one could have predicted how events would unfold; in retrospect, it is evident that the indictments' delegitimizing effects had important consequences.

Of course, the ICC's prosecutor and judges are themselves taking a substantial risk in the indictment of Bashir. The court is still in its infancy, and antagonizing the many government leaders expressing solidarity with him could jeopardize its future.

Yet it should be recognized that the court's personnel are carrying out their duties. The treaty establishing the ICC explicitly states that heads of state do not enjoy immunity. And the Security Council referred the Darfur case to the court in 2005. This was an investigation that had to be conducted, and those found to have the highest level of responsibility for the crimes had to be indicted.

Many of those now objecting to the prosecution of Bashir participated in the decisions leading to the indictment. If the ICC's indictment now causes them discomfort, that is only because they did not anticipate that the court would carry out the responsibilities that they themselves assigned to it.

© Project Syndicate