A first in international law

One of my classes this semester is International Criminal Law, a burgeoning field of law that began in earnest after World War II, with the Nuremberg and Tokyo Tribunals. When most people think of criminal law, they think of crimes like murder, robbery, theft, etc. There are hundreds, if not thousands, of domestic crimes, and they vary by state and country.

International crimes, on the other hand, are few — but they are hefty. After Nuremberg, there were essentially three international crimes: war crimes (breaking the rules of war, a series of treaties that includes the Geneva Conventions), genocide (systematically killing a group of people because of their ethnicity or religion), and crimes against humanity (engaging in systematic persecution, torture, rape, or other inhumane acts as part of a governmental policy). A fourth international crime, aggression, is still in development, and is not used as often as the others.

Most international crimes have been prosecuted by ad hoc tribunals — courts set up to deal with international crimes after they have occurred. This has been the case for situations like the former Yugoslavia (the ICTY) and Rwanda (the ICTR). The field of international criminal law got a huge boost in 1998, when 120 countries signed a treaty containing the Rome Statute, which established a permanent, forward-looking International Criminal Court. The court has its permanent seat at The Hague, Netherlands, and operates independently — for the most part — of the United Nations.

(Although the Clinton Administration helped draft the Rome Statute, the Bush Administration and Republicans in the Senate refused to ratify the treaty, so the U.S. is not a member of the International Criminal Court.)

This is just a little background to help explain what's happening today, which is a first in international criminal law. The ICC has issued an arrest warrant for Omar al-Bashir, the president of Sudan. He is accused of war crimes, genocide, and crimes against humanity. Obviously it's difficult to arrest a sitting president, so it's not at all clear when or if that will happen. But he has been indicted, and an ICC prosecutor is waiting for Bashir in The Hague, should he somehow be delivered. For a depressing look at what has happened in the Darfur region of Sudan on Bashir's watch, go to savedarfur.org.

What happens next may depend on the actions of five key nations: China, France, Russia, the U.K., and the U.S. These are the five permanent members of the UN Security Council. If the Security Council so chooses, it may permanently delay Bashir's prosecution. As the Times article suggests, some people believe that it could be detrimental to any peace process in Darfur if Bashir is extradited to The Hague and put on trial. That could lead to many more years of chaos in Sudan. But it would also likely mean the first prosecution of the sitting president of a country — a revolution in international law.

UPDATE: Turns out the Times article may have been a bit premature. The Associated Press reports that the ICC is denying that its judges have made a decision to issue a warrant for Bashir's arrest.