IN charging President Omar Hassan al-Bashir of Sudan with genocide, crimes against humanity, and war crimes in Darfur, and asking the International Criminal Court to issue a warrant for his arrest on Monday, chief prosecutor Luis Moreno-Ocampo marked a momentous day for international justice.
These are the first charges of genocide and the first charges against a head of state to be brought before the court.
The move also creates both opportunities and risks for peace in Sudan. The challenge now facing international policymakers is how to best support the work of the ICC â€“â€“ with its promise to end impunity for those most responsible for conscience-shocking atrocities â€“â€“ while addressing the need to end the suffering of the Sudanese people and preventing any new explosion of mass violence.
The UN Security Council tasked Moreno-Ocampo in 2005 to investigate crimes committed in Darfur. He has resolutely pursued his task since then, despite a complete lack of cooperation from the regime. Most recently the government brazenly rejected the courtâ€™s arrest warrants for a government minister and a Janjaweed commander. Confronted with this intransigence, the prosecutor went straight to the top.
But the prosecutor doesnâ€™t operate in a political vacuum. His actions and strategy have implications for the stability of Sudan, and the potential success or failure of the peace efforts taking place there. He is not, however, mandated to advance the interests of peace; his official role is to act in the interests of justice, to end impunity for those believed guilty of atrocity crimes.
The increased pressure now placed on the regime could cause it to respond in one of two ways. It may be forced to acknowledge that its options are diminishing, and hence take long-overdue steps to cease all violence, implement genuine and credible measures to resolve the Darfur crisis, and fully carry out its side of the bargain under the Comprehensive Peace Agreement, the 2005 deal that ended Sudanâ€™s separate 20-year north-south war.
It may also lead the regime to lash out, with the potential to increase the suffering of large numbers of its people. Hard-liners on all sides may be reinforced, and the government and other players may react in ways that undermine the fragile peace agreement process, bring an end to any chance of political negotiations in Darfur, make impossible the effective deployment of the UN peacekeeping mission, put at risk the humanitarian relief operations, and lead to inflammation of wider regional tensions.
Given that the judges of the ICC are likely to take two or three months to decide on whether to issue the warrant, there is an opportunity for the international community to maximize the prospects for peace in Sudan by urging the government to display a genuine and verifiable commitment to ending the violence and conflict.
Article 16 of the courtâ€™s governing charter, the Rome Statute, gives the UN Security Council authority to put ICC investigations or prosecutions on hold for 12 months, renewable annually. Hence, if there is real evidence that the Sudanese government is serious about bringing peace to all of Sudan, and acting accordingly, the Security Council could suspend any prosecution of Bashir. Such a decision would have to be made in light of the regimeâ€™s history of repeatedly flouting agreements it has entered into. But the need for any deferral to be renewed annually would provide an incentive, previously lacking, for the regime to abide by any such commitments.
This is not an easy judgment to make. And it may never have to be made â€“â€“ for instance, if the government continues to display its contempt for the international community, and escalates its campaign of violence and destabilisation. But if there is genuine progress toward peace in Sudan, then the challenge for the Security Council will be to decide whether to leave the court to proceed with its prosecutions or to put that process on hold in the larger interests of peace.
Grono is deputy president of International Crisis Group.