The following op-ed, “You’re under arrest, Mr. President, by HLS S.J.D. candidate Noah Weisbord appeared in the Feb. 12, 2009, edition of the International Herald Tribune.
The International Criminal Court has announced plans to issue an arrest warrant against Sudan’s president, Omar Hassan al-Bashir, in what would be the first international arrest warrant ever issued against a sitting head of state.
Preliminary evidence linking the atrocities in Darfur to the government in Khartoum supports genocide charges against Bashir. But since the ICC has no police force, it is difficult to imagine how he will be apprehended.
For the time being, Bashir can most likely rely upon the might of the Sudanese state and its allies to shield him from prosecution. His political allies have threatened reprisals against the civilian population if the warrant is enforced.
But clues to possible scenarios for his arrest can be found by examining the successful arrests of four former heads of state. The key factor lies in the vicissitudes of political power among leaders who commit atrocities against their own people.
Former Chilean President Augusto Pinochet was recovering from back surgery in London when Scotland Yard served him with an arrest warrant alleging the torture and killing of Spanish citizens in Chile. Amnesty International and an alliance of human rights organizations, undeterred by British reluctance to detain Pinochet, worked concertedly with Spanish lawyers and judges to issue the arrest warrant before Pinochet could leave the hospital.
With this Spanish warrant, the British police detained the Chilean dictator in London, although Home Secretary Jack Straw subsequently released Pinochet on the grounds that he was medically unfit to stand trial. Pinochet was flown back to Chile where he spent the rest of his days answering accusations related to his time in power.
The arrest of former Yugoslav President Slobodan Milosevic was facilitated by an American-sponsored public relations campaign, the withholding of a hundred million dollars in aid, and his betrayal by members of the Serbian government.
Even though Milosevic was isolated politically, he didn’t surrender without a fight. His arrest was the climax of a 40-hour standoff between his bodyguards and the Yugoslav police, punctuated by gunshots which the Serbian interior minister attributed to Milosevic’s daughter shooting at the approaching government negotiator.
Though Milosevic warned he would not be taken alive, he finally surrendered, gambling that he would be tried on domestic charges of corruption and abuse of power rather than international charges of crimes against humanity. When he was in their hands, the Yugoslav authorities transferred Milosevic to The Hague, where he died in prison in the course of his trial.
Liberian President Charles Taylor was granted asylum in Nigeria as part of a deal ending the gruesome 14-year civil war in Sierra Leone. A joint United Nations and Sierra Leonean war-crimes tribunal then issued an indictment and requested his arrest.
American, Liberian and Sierra Leonean governments persuaded Nigeria to hand him to the Special Court for trial. Taylor fled his luxury villa in a Range Rover with diplomatic plates carrying sacks of cash. He made it to the Nigeria-Cameroon border but was identified by customs officials.
Nigerian security forces arrested Taylor and sent him to Liberia. From Liberia, he was flown to Sierra Leone for trial. Tribunal officials, uneasy about Taylor’s escape attempt and his residual political influence, moved the trial to The Hague, where Taylor joined other deposed African and Balkan leaders in a Dutch prison overlooking the North Sea.
Radovan Karadzic, the former Bosnian Serb leader and psychiatrist accused of masterminding the siege of Sarajevo and the Srebrenica massacre, was arrested by Serbian security forces on a Belgrade bus last summer. Although wanted by the International Criminal Tribunal for the former Yugoslavia, Karadzic had evaded arrest for a decade. He had been living openly under the eyes of NATO and Serb authorities, disguised as an Orthodox priest and a folk healer. Only after the European Union made Karadzic’s arrest a condition of Serbian membership did the Belgrade government finally detain him and ship him to The Hague.
These cases indicate that the political and geographical isolation of the accused are key to an arrest. For now, Bashir remains in power. It is possible that he could present the arrest warrant as an outside threat in order to consolidate alliances at home and abroad; in fact, he has attempted to unify the African Union leaders against what he has described as the Western imperial threat presented by the ICC.
But in light of compelling evidence that he has committed genocide, even nationalistic African leaders are beginning to distance themselves from him, and his political rivals in Sudan smell blood.
The first ICC arrest warrant against a sitting head of state is an historic moment in international affairs. To date, international lawmakers have had, at best, modest success deterring states from committing genocide.
By focusing their energy on the statesman rather than confronting the entire state, they may have discovered a way to leverage their force and advance the cause of international justice. States will enforce the warrant when they realize that going after Bashir is not going after Sudan.
Noah Weisbord, a visiting assistant professor at Duke Law School, was a law clerk to ICC Prosecutor Luis Moreno Ocampo.