The case for pragmatism

Let us understand one thing at the start: It is extremely unlikely - almost impossible - that Sudanese President Omar Al Bashir will ever actually stand before a tribunal at the International Criminal Court (ICC) in The Hague. What the ICC's Argentine prosecutor Luis Moreno-Ocampo is asking Sudan to do is to arrest its commander-in-chief, and hand him over to the tribunal. And, in so doing, ensure the collapse of the national unity government in Khartoum, breakdown of peace talks with rebels in Darfur and bloody chaos in Africa's largest country and one of the continent's biggest oil producers.

It must be remembered that the ICC, in April last year, issued arrest warrants against Ahmad Haroon, Sudan's humanitarian affairs minister, and Ali Kushayb, "commander" of the Janjaweed militia. Sudan condemned the move and flatly refused to handover the duo. And no one has been able to do anything about it. What chances, then, of the president handing himself over?

Bashir's case has no precedence in international law. This is the first time that the ICC has sought the arrest of a serving head of state of a sovereign nation. (Former Yugoslav dictator Slobodan Milosevic and Liberian warlord-president Charles Taylor were not charged by the ICC, but by the Special Court for Sierra Leone and the International Tribunal for the Former Yugoslavia, in 1999 and 2003 respectively).

The charges against the Sudanese president are most serious: three counts of genocide, five counts of crimes against humanity and two counts of war crimes, all related to the conflict festering in Darfur since the past few years. If ever he is arrested, Bashir faces life in jail.

We are in new diplomatic territory here. Much will now depend on the judges of the ICC. They will now have to review the prosecutor's case against Bashir and decide whether grounds exist to issue an arrest warrant against the president. And this process can take months.

Besides, there are other tricky issues: more than 100 countries are signatories to the treaty and, if the judges issue an arrest warrant, are obliged to arrest the Sudanese president if he travels to those countries.

Under-reported

There is little doubt that widespread human rights abuses have been committed by the Sudanese armed forces and the Janjaweed militiamen. However, it is also true that atrocities by the Darfur rebels have gone under-reported. The Western media, along with well-meaning but not necessarily well informed celebrities like George Clooney and Mia Farrow, has led efforts to demonise the Sudanese government internationally.

Darfur is an incredibly complex conflict, and essentially an internal affair of Sudan. Its chief actors are Sudanese Darfuris and the Sudanese armed forces and their Sudanese Janjaweed allies. The ICC prosecutor's move to get Bashir arrested not only violates the sovereignty of the Sudanese state but also shows one-sidedness, given the fact that the rebel movement is also responsible for fuelling the conflict in the region. For instance, most of the attacks on the UN food and aid convoys have been carried out by the Darfur rebels.

Currently, the joint United Nations-African Union peace mission, UNAMID, includes more than 9,000 uniformed men and about 1,300 civilian staff, operating in the region. They are performing the essential task of providing security and aid to the hundreds of thousands of displaced people in the region. Though grossly understaffed - Darfur is the size of France - and under equipped, they are doing a modestly good job.

The aid agencies in the region operate with the consent of the government, and are protected by government troops. And their presence is badly needed. But the latest development doesn't bode well for the aid mission. Already, the UN has announced that it is scaling back its non-essential staff in the country. This may be a precursor to eventual and gradual withdrawal, though the UN has denied it has such intentions.

Besides, there is the question of selective arm-twisting, and where this alarming practice of issuing international arrest warrants against world leaders will stop. It can be argued, with some merit, that US President George W. Bush bears ultimate responsibility for the deaths of hundreds of thousands of Iraqis as a result of his illegal war against the country, and hence is guilty of crimes against humanity. Former Israeli premier Ariel Sharon was also widely believed to be a war-criminal, given his track record in Lebanon in the 1980s. (In fact, a lawsuit was brought against him in Belgium, under a controversial Belgian law, by his Palestinian victims. Later, the chief witness, Lebanese Christian warlord Elie Hobeika was mysteriously blown to bits in Beirut and eventually, the law itself was scrapped by Belgian lawmakers.)

Israeli Prime Minister Ehud Olmert has been laying a brutal siege on the 1.5 million residents of Gaza. Surely, that constitutes a war crime? Or are the rules different when Israel is concerned?

The dictators of North Korea and Myanmar can be accused of turning their countries into virtual prisons, affecting millions of lives.

What has been done cannot be undone. The only way out would be for the ICC's judges to exercise sound judgement, weighing the necessity to mete out justice against the need to ensure peace and stability for the long suffering people of Sudan.

But even if the judges do go ahead and issue the arrest warrant, the international community can still act. The UN Security Council could exercise its power to suspend any prosecution, initially for a period of 12 months. And renew it indefinitely.

The coming few months hold the key.