JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that even though the recent indictment of sitting Sudanese President Omar Hassan al-Bashir by the prosecutor for the International Criminal Court (ICC) for war crimes in Darfur might appear to provide a precedent for indicting US President George W. Bush for alleged war crimes in his conduct of the Iraq War, major legal and political obstacles stand in the way of that ever happening…

N ow that Sudanese President Omar Hassan al-Bashir has been indicted for war crimes, could George W. Bush be next?

Maybe. But not likely. American exceptionalism, ironically, is more the rule than the exception in modern international law. Al-Bashir was indicted by the prosecutor for the International Criminal Court (ICC) in The Hague for his role in war crimes, genocide and crimes against humanity that continue to unfold in the Darfur region of Sudan. Over the past five years, hundreds of thousands of black Sudanese have been forcibly displaced by Arab militias and government forces and at least 35,000 have been killed outright. The face of western Sudan is scarred with the rubble of burned out villages, decimated fields and eradicated settlements.

President al-Bashir is only the third sitting president to be so indicted, and the first by the ICC. Yugoslavia's Slobodan Milosevic was indicted in 1999 by the International Criminal Tribunal for the Former Yugoslavia, and Liberia's Charles Taylor was indicted in 2003 by the Special Court for Sierra Leone. Neither man was physically arrested and brought to trial, however, until after they had been deposed – a prospect that does not appear on the horizon for Sudan's Mr. Bashir.

Nevertheless, a formal request for the arrest of a sitting president always raises questions of sovereign immunity that a leader enjoys while in office. Many in the international community consider President George W. Bush to be manifestly guilty of war crimes in his conduct of the Iraq War and openly wonder whether he or any in his administration could be held to account for that conduct. Like Sudan, the United States is not a member of the Rome Statute that created the ICC. And, as in the Sudan case, President Bush is a sitting head of state. Yet, the leader of Sudan now finds himself in the ICC's crosshairs. So what about President Bush?

The International Court of Justice (ICJ) ruled in 2002 that the sitting Congolese Foreign Minister enjoyed head of state immunity from an assertion of universal criminal jurisdiction over him by Belgium. The Arrest Warrant Case, as it was known, provided some comfort to political leaders in similar situations, but more recent conflicting rulings in the other direction by different judicial bodies throws that determination into question.

The war inaugurated by the Bush administration against Iraq in 2003 was clearly a violation of international law under the United Nations Charter – even the Bush administration admits that. However, the U.N. has no criminal jurisdiction over its members. That the invasion of Iraq was unprovoked made it "aggressive" in nature, which is also violative of both customary and conventional international law, and which the tribunal at Nuremberg used to hang former Nazi leaders in 1947. But the ICC is a creature of its own statute, and the crime of aggression was left undefined in the treaty, so no prosecution can be brought against anyone on that score.

Which leaves war crimes. The American-led occupation of Iraq after the 2003 invasion was negligent at best and criminal at worst, directly causing the deaths of hundreds of thousands of Iraqi civilians. Violations of the Geneva Conventions abounded. Thus, charges based on war crimes could possibly underlie a viable indictment against President Bush and even Vice President Cheney as a key architect of the war. But the political reality of the ICC's superstructure mitigates against this possibility.

The U.N. Security Council can quash any indictment issued by the ICC. This collective veto power over the tribunal and its prosecutor was a crucial compromise designed to reassure nervous states that the court would not be used for political prosecutions. In the end, that compromise failed to convince the U.S. to sign the treaty. And the U.S. would certainly use its position as a permanent veto-wielding member of the Security Council to muster the votes necessary to quash any indictment against President Bush.

This very apparatus will likely save President Bashir. Now that the legal heat has been turned up on him over the atrocities committed against Sudanese under his watch, political pressure is mounting for Mr. Bashir to return to peace talks. A likely trade for Bashir's sticking to a brokered peace in Sudan, and ensuring an end to the bloodshed, would be quashing the ICC indictment against him. It is unsettling to watch politics interfere in legal process, and especially so in the nascent realm of international criminal law.

Yet, the mixture of law and politics is sometimes a necessary evil in order to accomplish a greater good. For example, the U.S. and Britain famously agreed to Stalin's demand that political groups be left unprotected by the legal definition of genocide in exchange for the Soviet bloc signing on to the Genocide Convention – "better to have them in than out" ran the logic.

Although it is great fun to speculate and draw up indictments for war crimes, as the irrepressible Christoper Hitchens has done against Henry Kissinger, President Bush will not be indicted by the ICC anytime soon. As for Sudan's President Bashir, despite his indictment by the tribunal, this new and bold venture in The Hague, admirable as it is, has no police force of its own to effectuate any arrest anywhere – even in the streets of Amsterdam. Thus, Mr. Bashir won't be arrested in Khartoum, as he controls his own security forces, and the outgunned U.N. peacekeepers would not attempt an arrest anyway.

Nevertheless, Article 59 of the Rome Statute mandates that all of the 105 nations party to the treaty "shall immediately take steps to arrest the person in question in accordance with [their] laws…." So, at least while this indictment looms over him, Mr. Bashir would be well advised to steer clear of Paris, Johannesburg, Rio or any states amenable to the ICC's jurisdiction. Otherwise, like Chile's Augusto Pinochet, who was arrested in Britain on a crimes against humanity indictment from Spain in 1998, Mr. Bashir could find himself taking a much longer vacation than he anticipated.

Consequently, the indictment at least has the effect of placing Mr. Bashir under house arrest in Sudan. Yet somehow, war crimes and genocide should draw more than a stern "time-out." Shouldn't they?

Michael J. Kelly is Professor of Law at Creighton University School of Law in Omaha, Nebraska. He is author of Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide & the Trials of Slobodan Milosevic and Saddam Hussein (Peter Lang 2005) with a foreword by Desmond Tutu, winner of the 2006 Book of the Year Award from the U.S. National Chapter of L’Association Internationale de Droit Pénal.
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