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By Paul Reynolds
World affairs correspondent, BBC News website
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Mr Bashir is the first sitting president sought for war crimes
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The decision by the chief prosecutor of the International Criminal Court to seek the arrest of President Omar al-Bashir of Sudan is a bold human rights intervention, but one that will cause problems on the diplomatic front.
It is bound to complicate, some will say destroy, attempts to increase the presence of an international peacekeeping force in Darfur and to encourage negotiations on a settlement between the government of Sudan and the rebel groups in Darfur.
But the ICC is independent and is not concerned with diplomacy.
It is concerned with justice. The court believes that, in this case, it is doing exactly what it was set up to do in 2002 - prosecute crimes of genocide, crimes against humanity and war crimes.
It does not have to make a calculation and weigh the balance between justice and realpolitik.
Similar arguments were heard when, in 2005, the court issued an arrest warrant for Joseph Kony, the leader of the Lord's Resistance Army in Uganda. That warrant remains unenforced and a peace deal remains unsigned.
Head of state
This is the first time that the prosecutor has made charges against a sitting head of state, breaking new ground in the reduction of national sovereignty rights that have characterised international law in recent years.
ICC Chief Prosecutor Luis Moreno-Ocampo is a determined figure
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The trials of the former Yugoslav president Slobodan Milosevic and of Charles Taylor of Liberia required special decisions by the United Nations.
The chief prosecutor, Luis Moreno-Ocampo, who showed his determination as a prosecutor in Argentina when he acted against former junta leaders for the massacre of civilians, said in his presentation of evidence that Mr Bashir "committed the crimes of genocide, crimes against humanity and war crimes in Darfur".
He stated: "The prosecution evidence shows that al-Bashir masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups.... His alibi was a 'counterinsurgency'. His intent was genocide".
'Disaster in the making'
However, there has been criticism of the prosecutor's decision from the former US Special Envoy for Sudan, Andrew Natsios. In an article on the website of the Social Science Research Council titled "A disaster in the making", Mr Natsios says: "This indictment may well shut off the last remaining hope for a peaceful settlement for the country.
"Without a political settlement Sudan may go the way of Somalia, pre-genocide Rwanda, or the Democratic Republic of the Congo: a real potential for widespread atrocities and bloodshed as those in power seek to keep it at any cost because of the alternatives. An indictment of Bashir will make it much more difficult for any country or international organisation to help negotiate a political settlement with the Sudanese government."
Security Council mandate
Sudan has not signed up to the ICC but the court has authority to act in this case because the Security Council gave it a mandate to do so, with resolution 1593 in March 2005.
Under that mandate, the court issued arrest warrants in 2007 for two Sudanese citizens.
It alleged that one of them, government minister Ahmed Haroun, organised the Janjaweed militia in Darfur and that the second, a Janjaweed leader known as Ali Kushayb, ordered the murder, torture and mass rape of western Darfur villagers.
Sudan refused to hand them over.
In July 2008, Mr Moreno-Ocampo told the Security Council that Sudan was not co-operating and that he had "compelling evidence" identifying "those most responsible for crimes against civilians".
The Council then warned Sudan that it had to cooperate.
The warrant request for Mr Bashir will now be considered by a panel of three court judges.
If they issue the warrant, Sudan will be obliged to arrest its own president, in effect the president handing himself over, which nobody expects will happen.
However, under Article 89, Mr Bashir might also be liable to arrest if he visits one of the 106 states that are parties to the treaty.
Article 89 of the court's statute says that the court "may transit a request for the arrest and surrender of a person...to any state on the territory of which that person may be found..."
A warrant would also pose some other difficulties, for example, to those maintaining contacts with Mr Bashir.
This might affect China, a major arms supplier to Sudan.
It is new diplomatic territory.
Paul.Reynolds-INTERNET@bbc.co.uk
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