SUDAN: From Steve Bloomfield in Nairobi
MORE than seven months after the chief prosecutor of the International Criminal Court (ICC) accused Sudan's president, Omar al-Bashir, of committing genocide in Darfur, judges at the ICC will announce on Wednesday whether they will issue a warrant for his arrest.
If they go ahead, Bashir would become the first sitting head of state to be formally charged with war crimes, something the prosecutor's supporters say would send a powerful message to authoritarian leaders around the world.
But what should be seen as a momentous day for international justice threatens to be overshadowed by criticisms of the controversial prosecutor, Luis Moreno-Ocampo.
The Argentinean decided to charge Bashir on 10 counts of war crimes, crime against humanity and genocide. However, most Sudan watchers believe an arrest warrant will be issued for war crimes and crimes against humanity, but the genocide charges will be far harder to prove.
Alex de Waal, an expert on Sudan at the Social Sciences Research Council in New York, said the case was "so shoddy any reasonable judge would throw it out", while some of the ICC's investigators who helped put the case together have privately voiced concern that genocide cannot be proven.
The charges have also been questioned by Moreno-Ocampo's former senior legal counsel, Andrew Cayley. "It is difficult to cry government-led genocide in one breath," he wrote, "and then explain in the next why two million Darfuris have sought refuge around the principal army garrisons of their province."
The three pre-trial judges, who will decide whether or not to issue the warrant, may also be unsure. They approached Moreno-Ocampo in December, asking him to provide further evidence on the genocide charges.
But Katy Glassborow, of the Institute for War and Peace Reporting based in The Hague, said it would be "absolutely devastating to the reputation of the court" if the judges decide there is no case to answer on the genocide charge.
De Waal added: "Moreno-Ocampo is gambling with the future of the ICC. He is setting it up for another failure."
These are already troubled times for a court which many expected to become a beacon of international justice, feared by dictators and warlords and the last bastion of hope for victims.
Most of the alleged war criminals charged by the court are yet to be arrested, including the leaders of Uganda's Lord's Resistance Army (LRA), who were recently accused of massacring hundreds of villagers in northeastern Congo. Peace negotiations in Uganda fell apart when the LRA leaders refused to sign unless the ICC arrest warrants were dropped, something Moreno-Ocampo said he was unable to do.
The ICC's first trial, that of Congolese warlord Thomas Lubanga, was almost thrown out before it had even started. The prosecution had promised confidentiality to a number of witnesses, whose evidence it refused to hand over to the defence.
The court ruled that, unless the defence was given access to the documents, it would be "impossible to piece together the constituent elements of a fair trial". A compromise was eventually reached, allowing the trial to begin last month. The first day of the first ICC trial should have been a major event, but Moreno-Ocampo's performance left a lot to be desired. Observers in the courtroom said the prosecutor appeared disinterested in his case, apparently texting on his mobile while Lubanga's "not guilty" plea was made.
At least he actually turned up on day one. Twenty-four hours later he was absent, networking in Davos while Lubanga's lawyers began his defence.
It didn't take long before the case was in trouble again. The first witness, a former child soldier, told the court during the morning session how he had been recruited. After lunch he recanted, claiming he had been told by an aid agency what to tell ICC investigators.
But for all the court's problems, there is no shortage of cases for Moreno-Ocampo to consider. He has already opened inquiries in Afghanistan, Georgia and Colombia, although his next case may come from Kenya.
A handful of senior Kenyan politicians and business leaders could eventually face ICC trials for financing and organising last year's post-election violence which killed more than 1300 people and displaced around 300,000.
An independent commission set up to investigate the violence recommended the establishment of a special tribunal in Kenya to try those accused of orchestrating the violence.
The commission's chairman, Philip Waki, all too aware of Kenya's longstanding problems of judicial independence, publicly handed over an envelope containing the names of those he believes should face trial to Kofi Annan, the former UN secretary-general whose negotiations led to the political deal which ended the violence.
Annan was instructed to pass the envelope to the ICC if a tribunal was not established. Last month, Kenyan MPs rejected a bill which would have set up a tribunal.
