The apparent failure of Sudan to block the formal indictment of its president for war crimes is threatening to plunge the country into renewed internal conflict, provoke a break with the UN and end cooperation of African Union countries with the international criminal court.
Tribunal judges are expected to rule within the next two months on a request by the international criminal court chief prosecutor, Luis Moreno-Ocampo, for an arrest warrant for Omar al-Bashir concerning war crimes, crimes against humanity, and genocide allegedly committed in Darfur. Although action on the most serious allegation of genocide may be deferred, the other charges are almost certain to go ahead.
Addressing the UN general assembly last week, Sudan's vice-president, Ali Osman Taha, warned Khartoum would view an arrest warrant as tantamount to a declaration of war by the western powers. "Realisation of peace in Darfur and in [southern] Sudan, and the steps taken by the ICC, are two parallel lines that can never meet," he said.
Bashir's spokesman, Mahfuz Faidul said Sudan was pursuing a peace initiative in Darfur and was considering independent prosecutions of alleged wrongdoers. If the ICC went ahead, he said, Khartoum's response "will be nothing less than ending all our agreements with the UN". That could entail the expulsion of UN peacekeeping missions, aid agencies and NGOs in Darfur and the south.
Sudan wants the UN security council to invoke Article 16 of the ICC charter, which keeps a case frozen for 12 months at a time. Its stance has won backing across the developing world, including the African Union, the Arab League, the Islamic Conference Organisation and the Non-Aligned Movement.
"Africa believes that the stability of Sudan is too important to be jeopardised by an abrupt adoption of a regime change policy, and that justice should be pursued in the context of peace," Sudan expert Alex de Waal explained recently in his Social Science Research Council blog.
He said Jean Ping, chairman of the AU commission, had suggested African states might freeze their cooperation with the ICC because of its perceived double standards.
"Ping noted that 30 African countries had ratified the ICC's Rome statute, expecting that the ICC would aid them in the pursuit of justice. But rather than pursuing justice around the world - including in cases such as Colombia, Sri Lanka and Iraq - the ICC was focusing only on Africa and was undermining rather than assisting African efforts to solve its problems."
Activists passionately oppose freezing the case against Bashir. "A suspension of the investigation would deny justice to the thousands of victims in Darfur," said Georgette Gagnon, Africa director at Human Rights Watch. A statement by more than 100 Darfuri and Sudanese diaspora groups, published by the Save Darfur Coalition, warned a freeze would "embolden a government in Khartoum which has repeatedly broken promises".
Britain and France appear caught in two minds, anxious to prevent both a collapse in support for the ICC and a new descent into violence in Sudan - including the collapse of the already frail Comprehensive Peace Agreement (CPA) that ended the north-south civil war.
The French president, Nicolas Sarkozy, suggested last week that an Article 16 deal was possible, but only if the Sudanese government met stringent prior conditions such as ending all violence in Darfur. That seems unlikely since Darfur is not wholly under Khartoum's control.
Although it is not a party to the ICC, the US is taking a tougher line. Richard Williamson, the US special envoy to Sudan, told a Congressional hearing here last week that "as of today" Washington would veto any security council move to defer or block Bashir's prosecution. He said he expected a court decision within two months.
At the same time, Williamson admitted that the 2006 Darfur peace agreement had failed, CPA implementation was in serious trouble, that "the necessary elements to ensure free and fair elections" in Sudan next year did not currently exist, and that the 2011 referendum on southern secession was also in question.
He drew particular attention to recent attacks on Kalma refugee camp and across north Darfur. Government troops, "under the guise of a new law and order campaign to bring security to Darfur, are killing innocent civilians and creating more chaos in the region ... The mayhem, murder and misery continues," he said.
Khataza Gondwe, of Christian Solidarity Worldwide, told the hearing yet another crisis was developing in the central Nuba mountains as Arab militia associated with atrocities in Darfur moved into the area.
John Prendergast, co-chair of the Enough Project and a former Clinton administration Africa policy director, said nothing less than a multinational, UN-backed "peace surge" backed by an option for military intervention was needed to stop a descent into anarchy in Sudan. But while his and similar recommendations arise from genuine concern to help, the African argument, backed by most non-western actors, is that such interference may do more harm than good. The impasse over the ICC is only hardening. A train wreck looms.