Sudan poses key challenge for ICC

By Tom Lane
BBC United Nations bureau producer

The ICC's moves against President Bashir have sparked protests

Even as the International Criminal Court (ICC) tilts towards what might be its biggest challenge yet, diplomats and dignitaries gathered in New York to celebrate the institution's 10th anniversary.

The occasion was marked by awards and speeches at the United Nations' Headquarters in New York.

The court also celebrated the accession of a new member: South America's Surinam, which became the 107th country to join the body.

However, amid the celebrations, many diplomats were focused on a high-profile case that some fear could tear the international order apart.

The situation sparked off earlier this week, when the ICC's chief prosecutor Luis Moreno-Ocampo announced he would seek to indict Sudanese President Omar al-Bashir on charges of genocide in his country's Darfur region.

Deadly attacks

Three senior ICC judges are currently considering this request. They are expected to issue a decision within three months on whether they agree. Although they could reject his case and defuse the crisis, many diplomats are already wondering what to do if they allow the prosecution.

Although UN officials stress the court's independence, many fear the decision could jeopardise peace efforts in Darfur, and endanger the lives of roughly 9,000 peacekeepers already in the region.

In the past fortnight, eight UN troops have been killed in Darfur. Seven died on 8 July after what the Security Council has described as a "sophisticated" attack involving up to 200 fighters. Another was shot on 16 July while on patrol.

Some fear the groups behind these incidents have the tacit backing of the Sudanese government, and that the attacks are just a taste of what might come if the ICC pushes ahead.

Earlier this week the UN advised its Darfur-based staff to remain largely in-base, and even withdrew what it deemed some "non-essential" personnel.

In New York, attention has now turned to the UN Security Council. The government of Sudan has never joined the ICC, so claims it is immune from prosecution. However, in 2005 the Security Council issued a binding resolution that referred the case of Darfur to the ICC.

Technically, such resolutions have their own validity under international law, so this arguably brought Sudan under the court's remit.

Veto lobby

The council, then, is at the centre of the situation. The court claims to operate its Darfur case under the orders of the Security Council. If the situation in Darfur were to deteriorate, some diplomats believe the council could issue a new order, demanding the court delay its proceedings.

There are fears peacekeepers' safety could be further jeopardised

Sudanese officials have made it clear they are lobbying for such a move. Some UN observers say they might be supported by two of the council's permanent members, China and Russia.

However, any resolution to block proceedings would have to gather nine votes from the 15-member council, and avoid a veto from one of the council's other permanent members: the United States, Britain and France. Britain and France are both members of the ICC.

This simmered in the background of the anniversary celebrations.

In a speech to UN officials, ICC President Philippe Kirsch obliquely referenced the issue, saying: "The effectiveness of the ICC depends on its credibility as a non-political institution… its credibility cannot be traded away for reasons of particular expediency without suffering the costs."

If the court's judges do allow Mr Moreno-Ocampo to proceed with his case, and the Security Council does not block that decision, then international institutions will face a perplexing new question: who will arrest President Bashir?

UN officials say peacekeepers are not mandated to perform such operations; the Security Council would have to make a formal change to the mission. Diplomats say that is unlikely to happen.

Tough future

Additionally, both UN staff and ministers from individual countries would have to decide what sort of contacts they could keep with a president who has officially been indicted. It's unclear quite what arrangement might be reached.

It is also unclear how such a prosecution might affect the court's hopes of expanding its membership. Currently some of the world's most powerful countries, including Russia, China, India and the US, have refused to sign up.

Some ICC officials say cases such as the Darfur prosecution might help the court build a body of work that will encourage further states to join. However, sceptics fear such high-profile prosecutions against national leaders will do just the opposite.

One thing that is clear is that as the court enters its second decade there will be no lack of testing issues before it.