What's the Best Way to Arrest a Genocidal African Dictator?

It took a little over a year for Luis Moreno Ocampo, the chief prosecutor at the International Criminal Court, to push through his request to indict Sudanese president Omar el-Bashir on charges of war crimes and crimes against humanity. It took a little less than a day for Bashir to decry the move.

The court is now in the difficult position of making sure he’s formally arrested—should he leave the country, they risk losing credibility as an instrument of international humanitarian law.

“Sudan is raising its voice. It rejects the hegemony, the colonialists,” Bashir declared on Thursday in front of a cheering crowd in the Sudanese capital of Khartoum. He capped the speech with the bold proclamation that "we are ready to face you" – the “you” in question being the International Criminal Court and the United Nations Security Council.

This was on March 4th. Since then, all hell has broken loose in Sudan. Almost immediately after the warrant was issued, the Sudanese government expelled thirteen foreign aid groups working in the country, effectively cutting Darfur off from its only source of humanitarian aid.

Domestically, the decision resulted in tension among government officials, and on March 10 the French news site Sudan Tribune reported that the pro-government newspaper Akhir-Lahza published a letter signed by five Sudanese jihadist groups declaring their intent to execute 250 attacks against countries supportive of the ICC. In an ominous sign, three Belgian workers with Doctors Without Borders were kidnapped today near the Darfuri city of al-Fasher.

In other words, neither Sudan nor Bashir are taking the ICC decision lightly. The magnitude of the situation comes largely from the fact that the ICC has entered into uncharted territory for international law. There is no precedent for issuing an arrest warrant against a standing leader, and as of now, nobody knows exactly how things are going to play out. With the knowledge that leaving Sudan could carry the threat of arrest, Bashir has cancelled an upcoming trip to Egypt, and now is hard at work rallying groups in Sudan against the decision.

While this situation is the first of its kind, there are some helpful precedents. One example is the work of Spanish Judge Balthazar Garzón, a man who rose to fame prosecuting the Basque terrorist group ETA and later gained international prominence when he attempted to arrest former Chilean dictator Augusto Pinochet. Since then, he’s become the darling of human rights activists, recently criticizing the US detention center in Guantanamo Bay and expressing an interest in investigating former Secretary of State Henry Kissinger.

In 1998, Garzón issued an arrest warrant for Augusto Pinochet while he was traveling in England, the first such charge against a former Western leader. Although Garzón’s request to extradite Pinochet to Spain was ultimately defeated, Pinochet was held in England for seventeen months, twice denied immunity, and by the time he was finally released to Chile for medical reasons, hundreds of charges had surfaced against him. He was ultimately sentenced to house arrest, a fate unthinkable just two years earlier, and he died in 2006 before having stood trial.

Although the cases are obviously different--Bashir is a standing leader and Pinochet had been retired for decades--the Pinochet case is instructive in that it urged the public to rethink the immunity of an allegedly untouchable figure. Issuing an arrest warrant is a delicate business and raises thorny issues of credibility, immunity and force, but it also thrusts the accused directly into the public spotlight. While the warrant for Bashir’s arrest may not come to fruition in the near future, it does recast his image on the global stage, and makes it far more likely that one day he will be called to task for his crimes.

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