Page last updated at 13:35 GMT, Thursday, 20 November 2008

ICC fending off Darfur challenge

Rebels in Darfur, Sudan

By Chris Stephen

With his call to indict Sudanese rebel leaders for crimes in Darfur, International Criminal Court (ICC) chief prosecutor Luis Moreno-Ocampo will hope to blunt moves in the United Nations to grant immunity from a genocide charge to Sudan's President Omar al-Bashir.

Several UN members have indicated support for suspending a proposed ICC indictment against Mr Bashir if he co-operates in turning Darfur's delicate peace process into a reality.

To put ICC proceedings on hold in Darfur would send a dangerous signal to would-be war criminals that justice is negotiable
Louise Arbour
UN's former human rights chief

In announcing charges against Mr Bashir's foes, the prosecutor is hoping to show he is even handed.

Mr Bashir was accused of genocide in July, although the ICC has yet to confirm the charge.

Since then the Arab League and the African Union have called on the UN Security Council to use special powers, under Article 16 of the ICC constitution, to suspend the case against Mr al-Bashir.

Four of the five permanent members of the council - Britain, China, France and Russia - have indicated support for the plan.

"In the event the Sudan authorities do change, totally change, their policy," said French President Nikolas Sarkozy, "France would not be opposed to using, I believe it is, Article 16."

Stuck in the mud

Human rights groups complain that such a deal would be the kiss of death for international war crimes justice, setting a dangerous precedent.

File photograph of Omar Hassan al-Bashir
An ICC prosecutor has sought a warrant for Mr Bashir's arrest
"An Article 16 deferral will send a message to human rights abusers around the world that justice can be bargained away," said Sara Darehshori of New York-based Human Rights Watch.

"It can send a signal that impunity can be tolerated."

The problem for the UN is that the Darfur peace process is stuck in the mud.

Talks between Sudan and more than 12 separate rebel groups have got nowhere and Khartoum is giving scant co-operation over the deployment of an African Union-UN peacekeeping force.

As fighting drags on, the UN is having to care for more than two million Darfur refugees living in vast camps in neighbouring Chad.

Meanwhile, Sudan has refused to hand over two men already indicted for Darfur crimes by the ICC, Humanitarian Affairs Minister Ahmed Haroun and militia leader Ali Mohamed Ali Abdel-Rahman - known as Ali Kushayb.

And it would be highly unlikely to hand over their president for trial in The Hague.

For many at the UN, suspending Mr Bashir's genocide charge would be a small price to pay for peace.

But one senior UN diplomat said: "There has to be a very substantial change in Sudan's co-operation."

"We're not getting involved in negotiations."

American pressure

Rights groups say making an exception with Mr Bashir risks opening the floodgates, with the Central African Republic and Uganda, also subject to ICC investigations, now calling for similar treatment.

ICC supporters have some influential friends.

 Sudanese internally displaced woman carries her child as she walks along railway tracks in Kalma camp
More than 2.5 million people have been forced from their homes in Darfur

"To put ICC proceedings on hold in Darfur would send a dangerous signal to would-be war criminals that justice is negotiable," said Louise Arbour, the UN's former human rights chief.

And writing in the Financial Times, Richard Holbrooke, a former US Balkan envoy and adviser to President-elect Barack Obama, argues:

"Suspension may seem a safer course to follow in the short run, but it will embolden him [Mr Bashir] and other future suspected war criminals."

An irony not lost on ICC officials is that it was the UN who called them in to investigate Sudan in the first place.

The court had no formal powers to investigate Darfur until, in March 2005, the UN Security Council gave it a mandate.

Now, say ICC supporters, the UN is considering a U-turn because the court has indicted the man many consider responsible for ethnic cleansing estimated to have left some 300,000 dead.

Mr Moreno-Ocampo will hope his call to indict three rebel leaders for the murder of 12 AU peacekeepers in Haskanita, southern Darfur, in September last year will ease criticism from some in the AU that his investigations thus far have been one-sided.

Rights groups are pinning their hopes on the United States, the only member of the Permanent Five that has yet to express a view supporting an Article 16 suspension.

The Bush administration has already commissioned an independent report that concluded genocide had been committed in Darfur, and the cause of Darfur has galvanised both America's liberals and conservative evangelicals.

In this atmosphere, the incoming Obama administration may find it politically difficult to support any UN move to give Mr Bashir impunity.

Chris Stephen is author of Judgement Day: The Trial of Slobodan Milosevic, published by Atlantic Books in 2004.

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