Global Policy Forum

Daniel Howden

Why are we asking this now?

The International Criminal Court has decided that Sudan's president Omar al-Bashir may be charged with genocide after all. Appeal judges in The Hague yesterday reversed an earlier ruling by the ICC's own pre-trial chamber that there was not enough evidence to charge Mr al-Bashir with genocide. Under the convoluted procedures of the court this means a decision on whether the charge will be added to the counts against him could still be several months away. In effect the appeal judges have lowered the bar slightly on what constitutes evidence of genocide and will now ask the pre-trial chamber to take a second look and see whether the charge now fits.

Hasn't he already been charged by the ICC?

Yes. The 74-year-old already has an active international arrest warrant against him on seven counts of war crimes and crimes against humanity, which include murder, rape and torture over events in the Western Sudanese region of Darfur. In March of last year the ICC made Mr al-Bashir the first sitting head of state to be indicted. The court has been investigating possible crimes in Darfur for three years and Sudan's long-time leader is one of four men charged with crimes against humanity. Only one of those men, Darfuri rebel leader Bahr Idriss Abu Garda, has appeared before the court where he denied executing a dozen AU peacekeepers.

What happened in Darfur?

Six years of fighting widely believed to have been triggered by a scramble for diminishing resources like water and pasture became a byword for human rights abuses. As many as 300,000 people are thought to have died and more than 2.5 million are said to have fled their homes since ethnic African tribes took up arms against the Arab-dominated government in 2003, claiming persecution and neglect. Mr Al-Bashir responded with a brutal counter-insurgency campaign in which the now notorious Janjaweed - a pro-government Arab militia - are alleged to have committed widespread atrocities.

With all the other charges, does one of genocide matter?

Potentially yes. The emotive power of the term genocide has played a large part in making the conflict in Sudan's vast Western region such a vocal global campaigning issue. The ICC prosecutors argued last year that the Bashir regime had deliberately attempted to wipe out the Fur, Masalit and Zaghawa peoples. While the pre-trial judges were convinced of the strength of evidence for massive crimes against humanity they weren't convinced of the intent to commit genocide. They have now been told to take another look at the evidence with a view to including three counts of genocide, bringing a prospective charge a big step forward. In practical terms it will increase the pressure on the US, which has been proceeding cautiously on Sudan, to consider tougher actions such as imposing a no-fly zone.

Why hasn't Bashir been arrested?

The ICC has a prosecutor, courts, its own prison and a large bureaucracy. But it doesn't have a police force. It relies instead on the 108 countries that recognise the authority of the ICC to do the detaining. Interestingly those signatories do not include UN Security Council members China, Russia and the US as well as emerging economic superpower India. For its part Sudan has rejected indictment and attacked the court as a Western imperialist puppet.

And how has Bashir reacted to the ICC's move against him?

He has thumbed his nose at it and continued to travel to friendly regimes such as Egypt, Eritrea, Libya, Saudi Arabia and Ethiopia among others. He was in Qatar yesterday when news of the appeal judges' decision was announced. The Sudanese ruler has been careful to avoid anywhere where he might be arrested, going as far as to duck an economic forum in Uganda, which might have been pressured into arresting him. A year on from the attention-grabbing indictment an actual trial and sentencing remains a dim and distant prospect.

What effect is the indictment having on the bigger picture in Sudan?

The attempt to put the man who has ruled Africa's largest country for the last 20 years in the dock has divided opinion in Africa and launched a heated debate over peace versus justice. The indicted president responded furiously last March, ordering foreign aid agencies out of Darfur and railing against the court as a "neo- colonialist" ICC. There is little doubt, even within Sudan, of the president's guilt and most analysts agree that he would lose a free and fair election. But outside pressure from the ICC may help to increase his popularity among his core support of Muslims.

Does the ICC have credible critics?

Many long-time Sudan observers fear that the grandstanding of the ICC, while popular in the West where the Darfur conflict resonates strongly if not precisely, could help to unravel the tortuous peace process in this most complex of countries. Sudan was wracked by a 20-year north-south civil war before Darfur hit the headlines. This year will be crucial to the survival of a five-year ceasefire between the mainly Christian and animist south and the Arab-led north. The first nationwide elections in decades are due in April and already many analysts are warning that the north-south fighting may resume. Respected Sudan expert Alex De Waal said the arrest warrant was "tantamount to demanding regime change" and the approach is a "gamble with unknowable consequences and very large risks."

Would a genocide charge weaken the prospects for peace?

The Comprehensive Peace Agreement that ended the civil war is already fraying. A fragile peace holds in Darfur where the head of the 25,000-strong UN, African Union force has declared the war to be over. The future of Sudan depends on a bewildering number of variables as political parties, rebel armies, foreign corporations and religious groups compete for power and control over vast territory and oil wealth. The south is due to vote on secession from the north in less than a year's time but an upsurge in violence during April's election could be used as a pretext to prevent that from happening.

What about the rebel groups?

They have proven their capacity to strike at the capital Khartoum and may decide irrespective of the ICC to relaunch the war. Peace in Darfur and with the South has relied on their involvement. The current negotiations on Darfur led by South Africa's former president Thabo Mbeki - tarnished by his failed "quiet diplomacy" with Zimbabwe - hinge on Mr al-Bashir remaining engaged. A genocide charge arguably weakens the already embattled former military man and could leave him with little option but to remain in power by any means necessary.

Is charging Bashir with genocide the right thing to do?

Yes...

* A genocide charge would send a message that heads of state have no immunity
* The man who came to power in a coup has led a brutal and destructive government
* The ICC needs to impose its moral authority on current crises not just past crimes

No...

* Peace in Sudan is more important than a marquee indictment to appease the Darfur lobby
* The crimes in Darfur are no worse than crimes in south Sudan or elsewhere in Africa
* The ICC has little evidence of intent to commit genocide on the part of the Bashir regime