The decision this week by the International Criminal Court's chief prosecutor to charge the President of Sudan, Omar al-Bashir, with genocide and other crimes committed in Darfur, is a bold step. It is a recognition of the suffering Darfuris have endured at the hands of Sudanese forces and allied militias and it strikes an important blow for international justice. But it also carries a massive risk, which some analysts believe could pave the way for further problems and slaughter.
The prosecutor, Luis Moreno-Ocampo, must produce evidence proving not only that Bashir was responsible for the actions of his forces in Darfur but that his intent was to "destroy, in whole or in part" the Fur, Masalit and Zarghawa peoples. Ocampo compares Bashir's regime to the Nazis. Like Hitler, he argues, Bashir had a plan of extermination.
But while prosecutors at the Nuremberg trials could rely on volumes of documents detailing the "final solution", there is no such paper trail in Darfur. Three judges will spend the next two or three months considering whether Ocampo's charges are admissible, and while they do that, Bashir will plot his next move. Despite fears that he might respond like a wounded animal, it seems more likely that he will follow a diplomatic path, in the short term at least.
China, Sudan's biggest ally on the UN Security Council, has already voiced its disapproval of the charges and foreign ministers from the Arab League will meet on Saturday to discuss their response. Their backing will be crucial, as will the reaction from Africa.
While the majority of African states have signed up to the ICC, there is unease that since the court was established in 2002, it has charged only suspects in Africa. (Central African Republic, Uganda and the Democratic Republic of Congo, and two others in Sudan.) It can be argued that in the first three cases the prosecutor was invited to investigate by the host government, while in Sudan the case was referred by the Security Council.
But as Bashir builds alliances, Ocampo's biggest potential backer will remain quiet. The US may have been the first to call the conflict in Darfur "genocide", but it is unlikely to beat the drum for the Sudanese leader's arrest. Like Sudan, it has refused to sign up to the ICC.Reuse content