Sudan: After the Indictment

Sudan's president, Omar Hassan al-Bashir, is likely to soon have the dubious distinction of being the first head of state to be indicted by the International Criminal Court.

On Wednesday the ICC is expected to demand that he surrender himself to The Hague to face charges of crimes against humanity and war crimes for atrocities committed in Darfur.

Of course, indictment is one thing: Getting Bashir before the court will be an entirely different challenge. Ideally, Bashir would step down and hand himself in, but this isn't going to happen.

So whether and when he faces trial will depend on internal Sudanese political dynamics, and the reaction of the international community.

There are a number of possible scenarios. The nightmare one is that Sudan will retaliate against what it calls a Western attempt at "regime change."

It could lash out at the UN missions in Sudan and international humanitarian operations, and could go so far as to unleash attacks on peacekeepers and Darfuri civilians in camps to ram home the message.

There are also fears it will declare a state of emergency and crack down on its political opponents. However, experience with international prosecutions in places such as the former Yugoslavia and Liberia has shown such dire predictions to be overstated.

There are real constraints on the regime's ability to strike out. For a start, such a violent response would be highly destabilizing. Many of Sudan's partners have a strong interest in continued stability - China with its big stake in the oil industry, Egypt with its desire for regional security and access to the Nile waters, Gulf states with substantial economic investments.

They will be privately cautioning the regime against an overreaction. Senior figures within the ruling majority National Congress Party (NCP) and the Sudan Armed Forces have profited from Sudan's economic boom, and would also be loathe to see the investment climate destroyed. To back up these constraints, the ICC prosecutor should make clear that figures close to Bashir responsible for any violent response may end up sharing the dock with him.

Then there are also elements within the regime that believe Bashir's violent suppression of the political demands of Sudan's peripheral regions (such as Darfur and Southern Sudan) has, far from ensuring stability and unity, weakened the state. Some also believe continued confrontation with the West may not be the wisest policy when oil prices have collapsed and the state's finances are increasingly parlous.

Such views are gaining traction at the senior levels of the NCP. And, although Bashir and his security apparatus are still entrenched in power, the indictment is likely to weaken their hold. It may even cause the army and intelligence agencies, the ultimate wielders of power, to contemplate a future without Bashir.

Given these constraints, the regime may reluctantly seek a genuine settlement of the Darfur conflict. This will only happen if it decides that this is the only way to maintain its hold on power, even if that power is itself reduced. The "declaration of intent" it signed recently in Doha, Qatar, with the rebel Justice and Equality Movement, while a welcome step, is nowhere near being such settlement.

It is in fact a continuation of the regime's tested tactic of offering a small concession to avoid bigger ones.

The outcome the international community should be seeking is a political transformation in Khartoum. There needs to be a fundamental change in the NCP's destructive policies, and real steps toward holding those most directly responsible for atrocities in Darfur accountable.

The regime needs to start by unconditionally implementing the Doha agreement, and then work to bring in other rebel groups and Darfuri representatives to negotiate an inclusive settlement of the Darfur conflict. There also needs to be full implementation of the Comprehensive Peace Agreement between the North and South, ensuring the necessary transformation of Sudan's governing institutions.

These are big tasks, and the international community's leverage is limited, but the indictment creates a real opportunity to push for change. Its best leverage may be to hold out the prospect of normalizing relations and large-scale international aid. Another tool is the power of the UN Security Council to put ICC prosecutions on hold for renewable 12-month increments.

But it should not rush to put either of these options on the table. Given that the indictment of Bashir may itself drive political change within Sudan, the Security Council in particular should set the bar very high, and demand demonstrated progress, before it considers a deferral. It should also bear in mind impunity for past atrocities has fueled the regime's violent policies.

In the end the needed changes may go beyond the regime's willingness or ability to agree. But if that is the case, the prosecution of Bashir will proceed. Sudan will become, over time, a pariah state with an increasingly isolated president. And Bashir himself will be constantly looking over his shoulder, wondering if and when Sudan's powerbrokers will decide that it is time for him to go.