The move to indict President Al-Bashir is the first of its kind to be leveled against a sitting head of state. The Western powers, led by the United States, Britain and France, want him prosecuted, but China and Russia, which maintain strong political, economic and military links with Sudan, are opposed to the possible indictment.

The prosecutor of the International Criminal Court in The Hague, Luis Moreno-Ocampo, presented evidence on July 14 showing that President Al-Bashir committed crimes of genocide in Darfur. The evidence came three years after the Security Council asked him to investigate the charges.

The 18 International Criminal Court judges, representing the various geographical regions, will have to weigh the evidence and decide whether or not to issue a warrant for President Al-Bashir’s arrest.

This process could take several months and will play out against the backdrop of a rousing political controversy over the timing of the indictment and the merits of a possible arrest of an African head of state.

The 15-member Security Council has the power to suspend any indictment of President Al-Bashir under “deferral of investigation and prosecution.”

If the International Criminal Court decides to issue an arrest warrant against the Sudanese leader, there are fears of a political and military backlash against the ongoing peace process, which may also endanger the 9,000 peacekeepers in the African Union-UN hybrid operation in Sudan’s troubled Darfur province.

Bill Pace, executive director of the Institute for Global Policy, and who has been closely monitoring the International Criminal Court since its creation, said it is incorrect to accuse the International Criminal Court of jeopardizing peace or jeopardizing the African Union-UN operation in Darfur.

He said peacekeeping forces, sanctions, and international justice are only a few tools for peace that the Security Council has under its chapter seven authority in the UN Charter. These measures have been invoked since 2005 to address the threat to international peace and security posed by the war-making actions of the Sudanese government and rebel groups.

“The Sudanese government and rebel groups have not cooperated with the deployment of any of these tools by the Security Council,” Mr. Pace said.

Secretary-General Ban Ki-moon, who has been heavily involved in bringing peace to Sudan, diplomatically distanced himself from the decisions of the International Criminal Court and its prosecutor.

“The secretary-general emphasizes that the court is an independent institution and that the United Nations must respect the independence of the judicial process,” Mr. Ban’s representative said.

The Brussels-based International Crisis Group said the move “creates both big opportunities and big risks for peace in Sudan.”

“The problem for international policymakers is that the prosecutor’s legal strategy also poses major risks for the fragile peace and security environment in Sudan, with a real chance of greatly increasing the suffering of very large numbers of its people,” the group said.

International Crisis Group President Gareth Evans said the judgment call that the Security Council now has to make is whether Khartoum can be most effectively pressured to stop the violence and build a new Sudan.

If anything, the indictments will more than likely make room for a compromise that is much more difficult to achieve.

“While President Al-Bashir, and his clique, must ultimately be held accountable for Darfur, what must be primary is working through a longterm peaceful solution to (the) political crisis,” said writer and analyst Bill Fletcher.

In a statement issued July 11, the Peace and Security Council of the 53-member African Union, which represents African states, said “the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace.”

The statement, which was implicitly supportive of President Al-Bashir, said the African Union was “concerned” with the “misuse of indictments against African leaders.”

The Sudanese government has also called for an emergency meeting of the League of Arab States, of which Sudan is a member. The league is most likely to support President Al-Bashir.

One could argue that three of the permanent members—Russia, China and the United States—are using a court they have not agreed to, which means they enjoy a special exemption in international law.

China and the United States voted “no” in Rome during the creation of the treaty. Russia voted “yes” and signed the treaty but has not yet ratified it.

Related links:

Is oil behind indictment of Sudanese president? (FCN, 07-22-2008)

Sudan and America's racist foreign policy (FCN, 06-25-2007)

Black media delegation returns from Darfur (FCN, 03-15-2007)

Sudan President takes questions via live satellite from press and Black America (FCN, 03-08-2007)

Darfur, Uganda and the U.S. campaign to destabilize Sudan (FCN, 01-01-2007)

On the politics of Darfur negotiations (Sudan Tribune, 11-30-2006)

Darfur, Sudan: Seeking the Truth (FCN Webcast, 05-07-2006)