In July of this year, the Prosecutor of the International Criminal Court (ICC) took a significant step forward for international criminal law in requesting a warrant of arrest for the President of Sudan, Omar Hassan Al-Bashir. Typically, under the complementarity doctrine the ICC only instigates criminal proceedings when the underlying criminal conduct has not been meaningfully addressed by a nation subject to the court’s jurisdiction. And so, the warrant request says two things at once: first, Al-Bashir ought to be brought to justice, and second, Sudan isn’t doing enough to make that happen.

Although the Prosecutor’s action has been (somewhat prematurely) heralded as a triumph for human rights and accountability for crimes against humanity, other responses to Al-Bashir’s potential indictment (including notably those from within Sudan itself) have taken a more wary approach, demonstrating that the prosecution of a head of state will always be fraught with political and practical difficulties and will demand more than a simple consideration of legal capacity to prosecute.

The Rome Statute of the International Criminal Court states in no uncertain terms that official capacity, including as a head of state or government, does not exempt a person from criminal responsibility before the Court or constitute a ground for reduction of sentence. In doing so, the Statute chafes against the grain of international law, which has traditionally accorded heads of state virtually unqualified immunity from prosecution.

Although the legal position regarding the prosecution of Al-Bashir as a head of state is clear, and an intuitive response is to see the prosecution as laudable from the point of view of human rights, the request for a warrant of arrest for Al-Bashir has been met with serious and considered debate as to whether the Prosecutor should, as a practical and political matter, have sought to indict Al-Bashir. At the forefront of critics’ concerns is the fear that the prosecution of Al-Bashir will lead to greater political instability, with the people of Sudan ultimately bearing the consequences of the Prosecutor’s decision. The spectre of retaliatory politics and resulting disorder places the global community in the unenviable position of facing a trade-off between peace and justice - a problem that has similarly plagued post-conflict rehabilitation in East Timor, Cambodia and Sierra Leone. The vastly different experiences of these countries reveals that any resolution of a post-conflict situation must be carefully tailored to the particular country’s needs, and that prosecution for international crimes must always be seen as only one of a number of options for facilitating the transition to a peaceful and stable government.

Other criticisms of Al-Bashir’s potential indictment have focused on the political, as opposed to purely legal motivations behind the Prosecutor’s decision. One commentator has seen the request for a warrant of arrest as “an attempt to intimidate Bashir into faster negotiation of a peace deal and resolution of the Darfur conflict” and as a means to force the handover of two other senior Sudanese government officials, who have already been indicted by the International Criminal Court. Others have uneasily noted that the Court has, to date, exclusively focused on African cases, representing what is seen as a worrying incursion of a fundamentally Western legal regime in the sphere of justice in Africa, with serious ramifications for African support of the Court.

There is a simple, but critically important, question that has not yet been asked about the potential indictment against Al-Bashir: Would the indictment be legally justifiable under the terms of the ICC’s charter? The government of Sudan insists it has been bending over backwards to prosecute war criminals effectively. The ICC doesn’t appear to be convinced. Since 2005 the ICC has been mulling over how to deal with Darfur, regarding with sceptical eyes the efforts of the Sudanese government to bring its own to account for their crimes. Surely some of this doubt has been well founded. One only has to consider the case of Ali Kushayb, the “colonel of colonels” who terrorized and murdered countless innocents but was released by the Sudanese authorities for “lack of evidence.”

The problem, of course, is that there is no clear standard, no juridical algorithm, to determine whether a nation like Sudan, one of limited resources beset by internal conflicts over whether and how to prosecute war crimes, is doing everything within its power to ensure that the masterminds of mass carnage are effectively prosecuted. This admission may suggest to cynics that law and politics are essentially inseparable when the ICC is called to decide whether Sudan is really doing all it can. Yet however difficult this question seems in the abstract, when one reflects on how little has actually been accomplished in Sudan over the last three years, and considers the fact that the African Union aggressively lobbies the United Nations to end ICC investigations no matter how ghoulish the atrocities at issue, indicting Al-Bashir would not only be well within the authority of the ICC, it would also be justifiable on moral and political grounds.

If the ICC is actually going to spur national leaders to prosecute war crimes and crimes against humanity, its prosecutorial power must be readily available in appropriate circumstances. While the exercise of this power will always be problematic and involve politically sensitive considerations, the ICC must not allow these concerns to distract it from its fundamental charge of securing justice, lest the Court become a toothless tiger.

A graduate of the University of Melbourne Law School, Edwina Chin is an Articled Clerk for a large Australian law firm. Edwina has an interest in international human rights law in general, and has focused her academic
research on the relationship between anti-terrorism legislation and executive powers. In addition to serving on the Melbourne Journal of International Law, in 2007 Edwina received the Alan Missen Foundation Essay Prize for the best essay on Civil Liberties in Australia.