Take action! Ask the Security Council not to block ICC action against President al-Bashir...

The prosecutor of the International Criminal Court recently sought an arrest warrant for the President al-Bashir of Sudan to answer charges of war crimes and genocide in Darfur.

Recently there have been calls for the UN Security Council to suspend the ICC investigations for a year. Yet the arrest warrants have been almost the only point of leverage that the international community have in their dealings with the Government of Sudan. The UNSC should not waste this opportunity by suspending investigations prematurely, unless there is proof that President al-Bashir is changing his policies.

Article 16 of the Rome Statute of the International Criminal Court authorises the UN Security Council to defer investigations for a year. The deferral can be renewed each year.

Article 16 was envisaged as a method of suspending investigations if priorities of peace and security compel a delay of international justice. In particular it was intended as a way for the Security Council to slow down investigations by the ICC which were not yet fully underway and had emanated from the prosecutor or states parties to the ICC.

Article 16 was not intended to be used for investigations which were several years old, had already issued arrest warrants, and had been initiated by the Security Council itself. Nor was Article 16 intended to be a route for suspected perpetrators to threaten to commit further crimes unless investigations were suspended. Yet it is threats now emanating from Khartoum which drive the calls to invoke Article 16.

The arrest warrants have been almost the only point of leverage that the international community have in their dealings with the Government of Sudan. The UNSC should not waste this opportunity by employing Article 16 prematurely, unless there is proof that President al-Bashir is changing his policies. The benchmarks against which the regime should be judged need to include the following:

• Unconditional peace talks, and a clearly-demonstrated willingness to achieve a ceasefire in Darfur.

• A resolution acceptable to internally displaced people regarding their return or resettlement.

• Genuine cooperation with the UNAMID peacekeeping force and all humanitarian organisations working in the Darfur region.

• The surrender of Ahmad Harun, and ‘Ali Kuyshab’ to the ICC and the creation of robust justice and reconciliation mechanisms within Darfur to address the grievances of, and provide compensation to, all victims of the conflict.

• Expedited implementation of the CPA, including demarcation of the internal borders of 1956, establishment of an independent National Electoral Commission and follow through on the agreements on the regions of Abyei, South Kordofan / Nuba Mountains and Blue Nile.

• An improved democratic climate in advance of the national elections in 2009, through the reform of national security and intelligence law and the media laws.