Courting Disaster

No one doubts that Omar al-Bashir is an odious character. Yet the ICC indictment of the Sudanese president, while well-intentioned, could have terrible consequences.

The International Criminal Court's indictment of Sudanese President Omar al-Bashir is surely emotionally satisfying in view of his regime's brutal handling of Darfur, yet it could also have profoundly dangerous-and ultimately immoral-unintended consequences. Advocates of the ICC's move would do well to think long and hard about the reactions it might provoke and the precedents it could set.

Sudan's conduct in Darfur has clearly been despicable and was declared genocide by the Bush administration some time ago. And Khartoum's bloody repression in the south has been condemned widely by others as well. There is little dispute over whether or not the Sudanese government has directly and indirectly committed atrocities. The question, then, is less about what Khartoum has been doing and more about how best to stop it.

Activists promoting the expansion of international human-rights law routinely call for Mr. Bashir and others to be "held accountable" by international institutions. The problem is not that repressive leaders do not deserve accountability-they do. But at what price? Before the advent of the ICC and the rapid expansion of international human-rights law in the 1990s, major powers and key regional players were often able to "ease out" dictators in the developing world by allowing them to retain some portion of their normally ill-gotten assets so long as they agreed to exile (typically in a neighboring country or a former colonial power) and an end to their political lives. Many justifiably resented the injustice of former tyrants continuing to enjoy comfortable lives. Unfortunately, few remember the most important fact: these men were former tyrants. As a result, the citizens of their countries had new opportunities for life free of oppression.

Indicting a sitting head of state creates a powerful incentive for that leader to stay in power-and therefore out of reach of the court in any practical sense-at any price. No dictatorial leader could ever feel fully safe relinquishing power voluntarily because of these new higher stakes. What evildoer would willingly submit to imprisonment by The Hague-especially after seeing former-Yugoslav President Slobodan Milosevic die there during his trial before another international court? The consequences for the people of Sudan, and other countries under repressive rule, could be quite grave. Citizens in these countries could ultimately end up paying to soothe the consciences of Western activists with years and years of additional brutality.

The ruling also creates a precedent that could do serious damage to American interests, raising the possibility that a sitting U.S. president could be indicted by the court. Some American liberals are already calling for ICC indictments of President George W. Bush or Vice President Dick Cheney over U.S. detention and interrogation policies. While they may enjoy the sound bites, blog posts and bumper stickers, it is difficult to understand how anyone could not see the enormous and enduring injury to American leadership and prestige that would result from an indictment of the current president (which seems so unlikely as to be effectively impossible) or any future U.S. leader. And yes, even a leader like Barack Obama, with the superhuman powers of public diplomacy granted him by various commentators, would not be able to overcome what could be a permanent change in international views of the United States after such an event.

Returning to Sudan, however, those who seek to improve the lives of the Sudanese, especially those in Darfur and in cross-border refugee camps, should get their priorities straight. Accountability is important, but saving lives is paramount. The way to make a difference there, where it matters most, is through a negotiated and sustainable resolution of Sudan's civil war.


Paul J. Saunders is executive director of The Nixon Center and a former State Department political appointee in the Bush administration.