Sudan's Bashir defies the ICC

The African Union has appointed Thabo Mbeki to act as an intermediary between the International Criminal Court (ICC) and Sudan. The former South African leader will chair a committee to investigate human rights violations in Darfur in response to the ICC arrest warrant for Sudan's President Omar al-Bashir. 300,000 people have died and two million others have been displaced in Darfur however the Sudanese dictator has rejected the charges and accused the court of a being a colonial tool. The warrant is the first ever issued by the court to a reigning head of state.

The ICC said his official capacity does not exclude his criminal responsibility or grant him immunity. On Tuesday the court issued the warrant “for war crimes and crimes against humanity.” The arraignment is on ten counts; three of genocide, five of crimes against humanity and two of war crimes. The ICC accused Bashir of being criminally responsible for intentionally directing attacks against the civilian population of Darfur over five years (2003-2008) and for “murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians, and pillaging their property.”

The most powerful Darfuri rebel group, the Justice and Equality Movement (JEM), has welcomed the announcement. Its leader Ibrahim Khalil said the ruling invalidates Bashir’s legitimacy to govern. He told Al Jazeera the warrant would "create huge transformation" in Sudan. Khalil expects that Bashir will refuse to attend the trial in person and hinted that JEM might be prepared to carry out the arrest warrant. "They say the ICC does not have a mechanism to arrest him [Al-Bashir],” he said “But we say that [the] JEM has its own great and powerful mechanism.”

The announcement brought a predictably more hostile response in Khartoum. The government arranged an impromptu anti-ICC rally where Bashir said Sudan was a target of Western powers and that the ICC was a tool of colonialists after Sudan's oil. He immediately revoked the licences of six aid groups working in the country include Oxfam, Medecins Sans Frontieres (MSF) and Save The Children. MSF said it was absurd that impartial organisations were caught up in a political and judicial process. Sudanese officials also threatened witnesses who co-operated with the ICC. Last week, the head of Sudan’s security service warned: “We will sever the limbs of those who attempt to stick their hands in to execute the [court’s] plans.”

But even some sympathetic Darfur watchers also have misgivings about sticking their hands in. British writer and expert on African issues, Alex de Waal, called the indictment a sad day for Sudan. He says we are now in unchartered waters and calls the indictment a “roll of the dice, a gamble with unknown consequences”. He says that the Sudanese problem requires delicate negotiation and compromise between the various diverse stakeholders with an interest in the future of the nation. He says the ICC undermines this process by being a “human rights absolutism that demands that some people be ruled out entirely”. He says the most likely reaction is that the Sudanese government will ignore the indictment, and the West will be left with no leverage in the country, short of invading it.

The International Crisis Group (ICG) is more hopeful, though it too admits there is little likelihood of Bashir resigning. The ICG says the status quo is unsustainable in the long term and believes that some senior members of the ruling National Congress Party (NCP) are unhappy with Bashir’s policy of confrontation with Sudan’s peripheral regions (Darfur, Kordofan, Eastern and Southern Sudan). “To preserve its economic interests and guarantee its survival,” says the ICG, “the NCP is likely to look for a way out of a situation, by changing its policies or leadership.”

The new US president will also have a role to play in what happens next if he revisits the hostile American position to the ICC. The court was conceived of as an important mechanism for protecting civilians against atrocities and the US is the only Western power not among the ICC's 108 member nations. The Save Darfur Coalition immediately urged the Obama administration to immediately take advantage of what it called a "new window of opportunity for peace" in Sudan. But so far the response has been equivocal. Obama press secretary Robert Gibbs refused to specifically support the warrant on Thursday merely saying that “the White House believes that those who have committed atrocities should be held accountable; that as this process moves forward, that we would urge restraint on the part of all parties.” Gibbs and his boss know that until the US joins the ICC, it can’t afford to put its mouth where its money might be.