In this chapter, I will begin to explore the jus post bellum principles that might help to adjudicate conflicts between justice and peace. I begin by discussing the principle of retribution, and am especially interested in how one can defend post war criminal trials for heads of State that have perpetrated war crimes. The specific question posed in this chapter, whether Sudanese President Al Bashir should be indicted, arrested, and extradited for his role in the Darfur genocide and other atrocities, goes directly to the issue of how best to deal with retribution in light of a case that seems to jeopardize peace. This chapter also begins to discuss how to move toward an international rule of law, where the rules of jus post bellum peacemaking would be of central concern. The case I will consider is especially problematic because it concerns the indictment of a sitting head of State, and displays in an especially graphic way the conflict between pursuing peace and adhering to the jus post bellum principle of retribution.

The chapter’s structure is fairly simple. In the first section I will discuss specific ideas both historical and contemporary on jus post bellum as they bear on indictments, arrests, and extraditions of State leaders. In the second section I will discuss the very recent controversy about whether a sitting head of State, Omar Hassan Ahmad Al Bashir, should have had an indictment and arrest warrant issued for him by the International Criminal Court (ICC) for genocide in the Darfur region of the Sudan. In the third section, I consider the position of the ICC in respect to jus post bellum and transitional justice concerns, eventually setting out a normative principle to guide the ICC in future dealings with heads of State. In the fourth section, I consider the problem that results when a State grants amnesty or pardon to a public official accused or convicted of serious human rights abuses. And in the final section I respond to several objections to my views. Throughout the chapter I develop a normative framework for thinking of the institution of arrest and indictment proceedings against sitting heads of State in light of considerations of jus post bellum.