Has the ICC decided to issue an arrest warrant for Sudan's Bashir?

With an arrest warrant for Sudan’s president Omar al-Bashir possibly days away, according to the New York Times, the UN Security Council faces a moment of truth: Will it allow the International Criminal Court (ICC) to move forward in the prosecution of the alleged “mastermind” of what ICC chief prosecutor Luis Moreno-Ocampo and the US government have both called a "genocide" in Darfur?

Or, will Council members postpone the Bashir case for another 12 months on grounds that Mr. Bashir could inflict terrible revenge on international aid workers, not to mention his own people?

The Security Council, under Chapter 7 of the UN Charter, can decide it is “in the best interest” for the ICC to defer the prosecution of Bashir to preserve stability and peace, which might include a fragile pact in Sudan between north and south. “The council can come in at any time and defer,” says Mark Ellis of the International Bar Association in London, “but they would have to get all five members to agree, and I’m not sure they can.”

Whether or not judges at the ICC have fully signed off on an arrest warrant for Bashir is unclear. The New York Times published a story Thursday stating that a warrant had been issued. ICC officials insist they have not.

The Times report states flatly that “Judges at the [ICC] decided to issue an arrest warrant for [Bashir], brushing aside requests to allow more time for peace negotiations in the conflict-riddled Darfur region.”

The account prompted a storm of back and forths between the court, Sudan, the media, and the UN – whose chief, Ban Ki Moon, had a shouting match on Feb. 8 with Bashir, according to the Times. The purported arrest warrant isn't the only issue dogging the ICC in recent days. As the Monitor is reporting today, Mr. Moreno-Ocampo is causing a stir in Israel by suggesting he may investigate alleged war crimes in Gaza.

The Palestinian Authority continues to press the court to do so – with some 200 requests. Yet such an act is widely seen as dubious in legal circles. Neither Israel nor the Gaza entity is a signatory to the ICC. To investigate Israel for the Gaza attacks, the ICC would have to recognize Gaza as a state; moreover, both the prosecutor and the court would have to agree that it has jurisdiction in Gaza by such recognition.

Regarding the Bashir case, Monitor sources and news reports suggest it is virtually certain that the three pre-trial judges at the ICC agree there is enough evidence to try Bashir on war crimes and crimes against humanity. But there may be a disagreement on the fraught charge of genocide.

Proving “genocide” in a court of law is a high hurdle, requiring proof of “specific intent.” This may in fact represent a technical reason why the ICC now claims that no arrest indictments are ready.

Le Monde correspondent Philippe Bolopion, at the UN, citing diplomats there, says the judges “upheld the first two charges but didn't reach an agreement on the genocide indictment, more complex to prove.” Several sources told Mr. Bolopion that “the ICC judges have not officially made their decision and haven't transmitted it to the UN yet. They haven't even mentioned the date in which the announcement will be made public. Several sources inside the ICC confirm that the arrest warrant will be issued in the next days, presumably before the end of the month.

Ironically, perhaps, it was the UN Security Council that approved a Darfur war crimes investigation in Sudan; but members may not have suspected the ICC would go so far as to indict a sitting president. France has suggested, according to German press sources [DPA], that “the ICC should withhold the arrest warrant if al-Bashir would surrender two senior Sudanese officials charged with the killings in Darfur.”

Many other press reports in the past week have cited quotes from the Sudanese ambassador to the UN saying that the ICC arrest warrants were “expected.”

As the Monitor reported recently, the ICC began its first case at the end of January with the trail of Congolese warlord Thomas Lubanga, charged with recruiting 30,000 child soldiers in the Democratic Republic of Congo.

The idea for the court emerged after the relative success of war crimes tribunals in Rwanda and the former Yugoslavia, with experts hoping that stronger concepts of justice would serve as a soft-power deterrent against heinous acts and genocide.

The court has since moved in fits and starts. Moreno-Ocampo made a splash last summer by indicting Bashir, but most of the ICC's focus so far is on Congo, where little-noticed wars have claimed some 5.5 million lives. Four Congolese alleged warlords are now at The Hague; a joint trial of Germain Katanga and Mathieu Ngudjolo is expected in several months.