The Experience of Prosecuting Heads of State

david crane.jpg

In coverage of the ICC chief prosecutor’s recommendation for Sudanese president Omar Hassan al-Bashir to be indicted, two precedents for such action are generally cited. As Mark has already highlighted, Richard Goldstone, the prosecutor of the court that tried Slobodan Milosevic, defends the ICC’s action from critics who contend that it will disrupt Sudan’s [non-existent] peace process. With the position taken by David Crane, the prosecutors responsible for both of the two oft-cited indictments have each affirmed their support for Luis Moreno-Ocampo’s strategy of calling for Bashir’s arrest.

Asked how these charges could be proved, Crane says, “It’s a careful investigation. You have to consider…the facts, the law, even the politics as you move forward in your investigations. I did this when I was investigating President Charles Taylor of Liberia. And I know that my good friend Luis Moreno-Ocampo carefully sorted through the facts, considered the law and the politics and the diplomacy of the issue – peace versus justice – before he moved forward. A good prosecutor has a solid case against a head of state before he actually issues an indictment. You can’t make a mistake.”

Some say an indictment of the Sudanese president could destabilize the country. Crane responds, “This is a short term view… But if they use the Charles Taylor case as a good case study, you’ll see that five years after I unsealed the indictment against Charles Taylor…despite the condemnations, despite the calls that this would hamper peace, Liberia now is on a road of potentially a sustainable peace under the leadership of the first female head of state ever in Africa to be elected in a free and open and fair election there in Liberia.”

He calls the indictment of Taylor the “cornerstone by which true peace could have happened in Liberia.” He adds, “In my opinion, the same thing will happen in Sudan.”

The road from dictatorship to peace is, of course, never neatly linear. Nor are the cases of Yugoslavia and Liberia — which were not even pursued by the ICC — direct models for Sudan. No one can predict the fallout from Ocampo’s difficult decision — though it is safe to say that Bashir will not be on the first flight to The Hague — but the expertise of two prosecutors who have been in a similarly tight spot can in many ways provide as stable a guide as we can hope for.