Chad's Irresponsibility Undermines the International Criminal Court

Omar al-Bashir, the President of Sudan, is a wanted man. He has been indicted by the International Criminal Court (ICC) on charges of genocide, war crimes and crimes against humanity related to the conflict in Darfur. According to the Rome Statute, which established the ICC in 1998, all nations which are members of the ICC are required to arrest Omar al-Bashir if he is encountered on their territory, then turn him over to ICC jurisdiction to face trial in the Hague.

However, when al-Bashir attended a regional conference last month in N'jamena, the capital of Chad, the Chadian authorities very publicly declined to arrest him. This is in spite of the fact that Chad is a signatory of the Rome Statute and, under international law, was obligated to take al-Bashir into custody and turn him over to the ICC. It was also in spite of a loud outcry from the international community at Chad's failure to live up to its responsibilities.

This decision was a disgrace from any moral or ethical standpoint. Al-Bashir is accused of truly horrific crimes, in which many tens of thousands of people were ruthlessly massacred. Many others were systemically raped and driven from their land. By declining to arrest al-Bashir, the Chadian government has behaved in a truly shameful manner.

But beyond its moral considerations, Chad's decision will also have negative effects in terms of its impact on international law. Al-Bashir is the first head-of-state indicted by the ICC, and his arrest and trial would set a very important legal precedent by establishing that being the head-of-state of a country does not confer immunity from prosectution for genocide, war crimes, or crimes against humanity. In deciding not to arrest al-Bashir, Chad significantly set back the cause of international justice.

We should take two lessons away from this sad episode. The first is that so long as developing global institutions like the ICC are forced to rely on voluntary participation by their members, they will often prove to be inadequate. Eventually, a system must be put into place allowing for coercive punitive measures against those countries which refuse to cooperate in the hunt for persons indicted for genocide and other crimes against humanity, perhaps in the form of economic sanctions.

The second lesson is less obvious but equally important. Although the European Union (which supports the ICC) was loud in its denunctions of Chad for failing to arrest al-Bashir, the response from the United States (which is not a member of the ICC) was not nearly as loud as it could have been. If the United States were a full-fledged member of the ICC, it could have brought the full force of its immense diplomatic muscle to bear against Chad for failing to arrest al-Bashir, and the result of this fiasco could have been very different. This episode is yet more evidence that the United States should ratify the Rome Statute and become a full member of the ICC at its earliest opportunity.