The ICC prosecutor Luis Moreno-Ocampo may in time regret his decision in July 2008 to ask judges publicly to issue an arrest warrant against the Sudanese president for ten counts of genocide, war crimes and crimes against humanity.
Moreno-Ocampo might have been better advised to keep this request under wraps, as by alerting the world to his intentions he appears to have made the task of bringing Omar al-Bashir to justice harder than it might have been if an indictment had been prepared confidentially and then unsealed.
“Deeply concerned” by the fog of speculation, misunderstandings and false reports over the possible indictment, pre-trial judges Akua Kuenyehia, Sylvia Steiner and Anita Usacka announced last week that they’ll make their decision public on 4 March, and no sooner.
Moreno-Ocampo’s public announcement spawned rumours of splits in the United Nations Security Council, and reports that heavyweights France and Britain contemplated withdrawing key support, apparently worried the indictment would kill fragile peace agreements.
In addition it led to a chorus of African protests; warnings by Sudan's intelligence chief Salah Abdallah Gosh that the country might return to hardline Islamic fundamentalism; and threats that anyone who attempts to support the ICC in Sudan will have their hands, feet, and heads cut off.
Those who dared to speak out against Bashir have been thrown in jail, including the leader of the Popular Congress Party, Hassan al-Turabi, for calling on Bashir to surrender.
Eight long months have allowed Bashir to promote the idea that indicting him is a slur on the whole country, and to warn other African leaders that they may be liable for similar treatment at the hands of the ICC.
The wait has fuelled Sudan’s suspicion that under-manned and under-resourced UNAMID peacekeepers in Darfur are proxy spies for the court. They’ve been attacked, along with aid workers brave enough to remain in the region.
For all the other situations before the ICC, including Uganda, the Congo and the Central African Republic, Moreno-Ocampo refrained from asking judges publicly to issue arrest warrants. The first the world knew about indictments was when they were issued by judges.
Darfur has been the exception.
Moreno-Ocampo made his warrant applications for the government minister Ahmed Harun and the janjaweed commander Ali Kushayb public in 2007, and in November last year announced that he wanted indictments for unnamed Darfur rebels who attacked African Union peacekeepers in Haskanita.
Some suggest the way Moreno-Ocampo has chosen to pursue Bashir is flawed. There’s a sense that his public request, and subsequent interviews with the world’s media on the guilt – not alleged guilt – of Bashir, undermines the fairness of the court.
At the same time, Moreno-Ocampo has given Bashir the time to add weight to the arguments of those opposed to his possible indictment.
He insists, for example, that he alone can see the implementation of the much-fought-for comprehensive peace agreement with South Sudan. He also pronounces that he must be around to overcome pitfalls in the Darfur peace deal.
His declarations that justice for Darfur is well and truly on the agenda in Khartoum have won support from allies in Africa and the Arab League, despite the fact they appear hollow.
Few in the international community have much hope for the special courts and new prosecutor for Darfur; the various committees set up to look into the conflict; nor the Qatar peace talks with the main rebel group the Justice and Equality Movement, JEM.
The Qatar talks only brought Khartoum and JEM to the negotiating table and, as we’ve seen time and again, bargaining with only one group of thoroughly fractured rebels cannot lead to sustained peace for Darfur.
Minni Minawi, leader of the rebel Sudan Liberation Movement, SLM, which itself broke the consensus amongst rebels to sign an agreement with Khartoum in 2006, is reported to have rubbished the Qatar talks as a mere ruse to make JEM the main power in Darfur.
Anyway, a day after the signing of a goodwill agreement at the Qatar talks, Sudanese aircraft bombed JEM fighters in Jebel Marra, casting doubt on the sincerity of the previous day’s signing.
Perhaps most alarmingly, these last eight months suggested that if you’re clever enough, and can convince some powerful friends, you can try to argue your way out of a prosecution.
Some say Moreno-Ocampo went public in the hope that Bashir would offer up Harun and Kushayb as scapegoats.
Clearly this was never going to happen, seeing as Bashir gave Harun a promotion shortly after he was indicted by the court in May 2007. And anyway, the ICC is not a negotiating tool, and rumours about it being used as such damage the court’s credibility.
I realise that the issue of going public with a request to indict a country’s leader can be argued both ways.
Some say the last eight months have given them a chance to work out how to deal with a sitting head of state indicted for the world’s gravest crimes. That if a warrant was suddenly unsealed, it would be too much to deal with and all hell would break loose.
Others argue that the judicial process must start and remain transparent, unless cogent justifications can be made for confidentiality.
But given the international clamour over Moreno-Ocampo’s request and its apparent strengthening of Bashir’s position, one wonders whether with hindsight he may have acted differently.
Katy Glassborow is an IWPR international justice reporter in The Hague.
The views expressed in this article are not necessarily the views of IWPR.