In my FindLaw column (updated link here) on the warrant application against Sudanese President Al Bashir, I argue that, although it's impossible to predict with certainty, the International Criminal Court proceedings are likely to do more harm than good. I also say, though, that Luis Moreno-Ocampo nonetheless made the legally correct judgment because the UN Security Council, in referring the matter to the ICC prosecutor's office, already made the judgment that, if genocide charges were factually justified, it was, all things considered, appropriate to prosecute. In other words, I assume a rough division of labor in which the Security Council makes the strategic/consequentialist decision about what will further collective peace and security, while the prosecutor makes the judgment about what is factually and legally warranted.
That's not the only way to read the situation, however. Moreno-Ocampo also had the prosecutorial discretion not to seek an arrest warrant, even if he concluded that there were reasonable grounds to believe that Al Bashir had committed genocide. In the domestic criminal law enforcement context, we are all familiar with the sorts of reasons that could justify the exercise of prosecutorial discretion. These include:
1) Given prosecutorial resources, other, more serious crimes take priority. That's clearly inapplicable here.
2) A conviction would be difficult to obtain for reasons unrelated to guilt. Because the ICC does not permit trials in absentia, that's true here, although that doesn't make the justification applicable. The reason not to bring a case against a likely-guilty suspect who would nonetheless likely be acquitted is that it's a waste of prosecutorial and judicial resources (including juror time). An arrest warrant that's never served doesn't cost the ICC much at all. It's a bit like the arrest warrants that judges issue from the bench in minor cases where the defendant doesn't show up. No one expects the police to serve the warrant, but if the defendant is later picked up for something else, he's in bigger trouble.
3) A greater good comes from not prosecuting a guilty defendant. In the domestic law enforcement context that's most commonly going to be the ability to use the defendant's testimony against someone else that the government would rather prosecute. Ideally, the govt turns small fish for big fish, although in recent years it's often been simply the first defendant to talk that gets the best deal. In any event, it's pretty clear that there's no reason to turn Al Bashir against anyone else, and he isn't remotely willing to do so anyway.
Still, this third category, taken at a higher level of generality, does offer a reason for non-prosecution: The greater good of improving the lives of Al Bashir's victims in Darfur. It's worth noting that this sort of argument is almost NEVER offered in domestic law enforcement. It would be like the Justice Dept deciding not to prosecute mafia bosses they believed they could convict because they worry that this will lead to reprisals against witnesses, or that decapitating the mafia will lead to a bloody power struggle. Such pragmatic arguments are hardly far-fetched. Yet the fact that they're not considered on the table in domestic law enforcement should give us pause in thinking about whether going after Al Bashir is the right move.
Posted by Mike Dorf