The ICC and elections

From de Waal

ON THE UPCOMING SUDANESE ELECTIONS: “[I]t’s absolutely correct that [the ICC is] on a collision course with the elections. The vision of the elections and the comprehensive peace agreement was that this was the opportunity, the first step in democratic transformation. No one had any illusions that this was going to be the be all and end all, these were not going to be like U.S. elections, but they were going to be a step in that direction. And President Bashir was even contemplating stepping down. . . . I can’t say for sure whether that was true or not but certainly now Bashir has absolutely no option but to fix that election so that he wins. . . .

I think the statement need some reconsideration. I don't see how the ICC could avoid issuing an arrest warrant at some point, once the case was referred in 2005 by the Security Council (which followed directly from the 2004 Antonio Cassese-led UN Commission of Inquiry, which followed from war crimes and 2.5 million displaced in six months... in 2003-4). Al-Bashir perhaps thought that he would not himself be a target, but this would have been a mistake any number of people (including Salva Kiir) would have disabused his excellency of. Plainly he was going to be indicted. So not clear how the timing of the ICC arrest warrant affects the electoral outcome. Al-Bashir could never relinquish power.

The critics of the arrest warrant usually suggest that the timing was poor, rather than that the case itself would not stand. (BTW, I think is less obvious, since Al-Bashir has a plausible defense, if he can find the witnesses, that he was conducting a counter-insurgency, and as Donald Rumsfeld put it, "stuff happens". In other words, al-Bashir's defense is essentially very similar to Bush/Rumsfeld. Which defense would you be willing to bet on, in a proper court of law?)

But here de Waal is suggesting that the scenario might have been

1) ICC holds off
2) Al-Bashir steps down in 2010
3) ICC issues arrest warrant in 2011
4) New democratically elected government refuses to hand over al-Bashir (as part of the deal for free elections, though how al-Bashir, with no personal militia, enforces the deal is beyond me)
5) Second democratically elected government hands over al-Bashir to Senegal, in 2015 when he is ~75
6) Senegal puts al-Bashir in guesthouse with deposed former Chadian president Idris Deby.

Tell me what has changed with the arrest warrant issued now? The entire scenario is exactly the same.