ANALYSIS:The chances of Bashir arresting himself are remote, leaving the court with a tricky problem, writes CHRIS STEPHEN.
PICTURE THE scene and you grasp the problem: some time today a letter from the International Criminal Court (ICC) demanding the arrest of Sudanese president Omar al-Bashir on war crimes charges will arrive in Khartoum – at the desk of Mr Bashir.
I’m no expert on Sudanese politics, but I’d say the chances of the president arresting himself are remote, leaving the war crimes court with a tricky problem.
The ICC is the world’s only permanent war crimes court, with 108 member states and a mandate from the United Nations to investigate horrors in Darfur which have cost 300,000 lives and left 2.7 million refugees. But the ICC lacks a police force, and neither the UN, nor anyone else, is about to go into Sudan to arrest the president.
Should Mr Bashir travel abroad, every UN member state is is obliged to arrest him, but if he stays at home, the ICC is powerless to intervene, opening the possibility of a stand-off between Sudan and the court that could drag on for years.
Trying to make sure this never happens, rights groups have begun a campaign to urge the UN to put the squeeze on Sudan with economic sanctions designed to persuade the government to hand over their president and two more suspects.
The United States has already stopped trading with Sudan but China continues to bankroll the country, buying its oil and providing enough profits for Khartoum to be jammed with the Mercedes and BMWs of the new oil elite.
ICC supporters say if China was to join a UN boycott, Khartoum could be squeezed.
“Targeted sanctions are a possibility, if there is demonstrated obstruction of the security council resolution,” said Richard Dicker, head of the international justice programme at New York-based Human Rights Watch.
There are precedents for this: in 2001 Serbia was persuaded to hand over former president Slobodan Milosevic to the UN tribunal at the Hague after the United States threatened to withhold more than $1 billion of aid to the war-ravaged nation.
And, in 2006, Nigeria was persuaded to hand over former Liberian president Charles Taylor for trial at the UN-backed Sierra Leone Special Court after an unprecedented lobbying campaign by rights groups from every corner of Africa.
But, for the moment, the international community is leaning the other way, with both the Arab League and African Union calling for the case against Mr Bashir to be dropped, saying it is politically motivated.
Meanwhile at the UN, the talk is not of sanctions, but of giving Mr Bashir immunity.
A clause in the ICC mandate, Article 16, gives the UN Security Council the power, if all five permanent members agree, to suspend any ICC prosecution they choose. And so far, four of the five – Britain, China, France and Russia – have indicated a willingness to do so if, in return Mr Bashir ends the war in Darfur and lets the refugees return home.
French president Nicolas Sarkozy has been the most open about this idea, saying last autumn: “In the event the Sudanese authorities do change, totally change, their policy, France would not be opposed to using, I believe it is, Article 16.”
Rights groups say such an immunity would be a disaster, because it would undermine the deterrent effect of ICC prosecutions.
And, to date, any such move by the security council has been vetoed by the fifth permanent member, the US. Its new UN ambassador, Susan Rice, said last month that she believed justice must be done on all ICC warrants.
The moment of truth for Mr Bashir will probably come next June, when ICC chief prosecutor Luis Moreno Ocampo is due to report to the security council on the progress of the case.
If, as expected, neither Mr Bashir nor the two lesser officials, also charged with war crimes, have been handed over, and if the crisis in Darfur is no better, the security council will face a difficult decision.
Which way it jumps – imposing sanctions to up the ante, or giving Mr Bashir immunity in exchange for peace – promises to be a watershed moment in the history of international justice.
Chris Stephen is the author of Judgment Day: The Trial of Slobodan Milosevic