GORDON Brown, the Prime Minister, and David Milliband, the Foreign Secretary, have flown into a human rights firestorm at the United Nations this week after offering Sudan's president, Omar al-Bashir, immunity for genocide in Darfur.
Rights groups fear, correctly, that such a get-out-of-jail-free card could sound the death knell for international justice because it will undermine its credibility.
Mr Brown's argument is simple: Sudan's president may have blood on his hands aft
er orchestrating one of the most violent campaigns of ethnic cleansing of recent times, but he is also the man standing in the way of peace.
In July, Bashir was accused of genocide by the chief prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo.
Now London wants to use this indictment as leverage, dropping the charge if Bashir will stop the fighting, let a UN force deploy and allow two million refugees to return home.
The logic is clear: horrible things have certainly happened, but that is in the past and a trial will not bring back the dead. On the other hand, a war crimes indictment could prolong the fighting, causing yet more suffering.
This argument, peace versus justice, is the Achilles' heel of the war crimes movement because it pits practical politics against idealism.
In the case of Darfur, the Foreign Office says there is no other option, with China blocking attempts to impose sanctions on Sudan and no end to the fighting in sight.
Britain is not alone in its thinking. China and Russia have already called for the same thing and so, this week, did France.
Unlike Mr Brown, who made the announcement via Foreign Office officials instructed to speak anonymously, Paris was big and bold. President Nikolas Sarkozy has gone public, telling the UN: "In the event the Sudan authorities do change, totally change, their policy, France would not be opposed to using, I believe it is, Article 16."
Article 16 refers to a clause in the ICC constitution that allows the UN Security Council to block a prosecution or an entire case on a 12-month renewable basis.
Perfect, says the Foreign Office, for forcing Bashir into a peace deal and ensuring he sticks to it in future years.
But human rights groups are horrified. They point out that, in the first place, it was at London's behest that Bashir is facing indictment. Until 2005, the ICC had no power to investigate crimes in Darfur. Then, in April of that year, Britain led the charge in the UN to confer upon it that power.
And the crimes Bashir is accused of orchestrating are horrific. Mr Moreno-Ocampo has identified whole villages where women and girls were lined up to be raped, with many later butchered. At least two tribes have been targeted for annihilation, hence the genocide finding that was first made three years ago by the United States.
And if Bashir gets immunity, rights groups fear other warlords will want similar treatment.
On Monday, Uganda's president, Yoweri Museveni, asked the UK's Africa minister, Mark Malloch Brown, at the UN to press London to extend the ICC immunity deal to Uganda. Mr Museveni wants the immunity not for himself but for his former enemies, the rebel Lords Resistance Army, who, like Bashir, have offered to end fighting if indictments against four of their leaders are dropped.
This is not the first time that the Westminster government has put its own interests before justice.
At the end of 2006, the then prime minister, Tony Blair, blocked investigations into bribes offered by British Aerospace to Saudi officials, worried that defence industry jobs would be lost.
Since then, Foreign Office officials have complained that Britain's reputation has been damaged.
They can hardly lecture foreigners on the primacy of the rule of law when London itself makes exceptions.
The same is true in the case of Bashir. For rights groups, an immunity deal for the Sudanese leader will hole the ICC below the waterline, by setting the precedent that war crimes indictments can be negotiated away.
At a stroke, London will have undermined the whole mechanism of international justice.
Amnesty International and Human Rights Watch are now pressing the London government to look beyond the end of its nose.
They argue that if the UN sticks to its guns, it will give real teeth to the ICC, sending a tough message to other warlords about what they can expect if they launch their own ethnic cleansing campaigns.
Secondly, a tough stance weakens Bashir's grip on power, because his political opponents know that sanctions by Europe and the United States can be lifted if he is handed over.
It was this logic that saw Serbia this summer hand over former Bosnian Serb president Radovan Karadzic to the Hague Tribunal after he had been on the run for 13 years.
So far, London is unmoved. The government hopes to get outline agreement for the immunity deal at this week's UN General Assembly.
It is likely that a formal offer will then be delivered by Mr Malloch Brown to Khartoum early next month, with the Security Council meeting within weeks to cement the deal.
While Amnesty International and Human Rights Watch have united to try to shame Britain into changing its mind, their best hope lies, ironically, with the US. The Bush administration had previously been a thorn in the side of the war crimes movement, opposed to the creation of the ICC.
But the horrors of Darfur have become a popular cause in the US among the Left and Right, with the result that the US remains the only permanent member of the Security Council yet to support an immunity deal.
Rights groups hope that with an election coming up, neither John McCain nor Barack Obama will want to offer immunity, guaranteeing an American veto that would kill the offer for Bashir before it can be issued.
• Chris Stephen is the author of Judgment Day: The Trial of Slobodan Milosevic, published by Atlantic Books
ARMENIAN GENOCIDEThe Turkish massacre of one million Armenians during the First World War was the crime that spurred the Polish jurist Raphael Lemkin to give the world the word "genocide". And it was the British government that pulled the plug on planned prosecutions.
After the First World War a new Turkish regime took Britons hostage and persuaded London to put pressure on the League of Nations to drop war crime trials for their release.
AUGUSTO PINOCHETFormer Chilean dictator Augusto Pinochet was arrested in Britain on a Spanish extradition warrant in 1998 while visiting a doctor in London.
Prosecutors in Spain accused him of murdering Spanish citizens during massacres he carried out after a coup in the 1970s.
Although the British courts found the charge inadmissible, they agreed to a new one, that of a breach of the international Torture Convention, with the law lords ruling that being head of state did not give immunity from war crimes.
But Chile applied pressure on London and former home secretary Jack Straw gave way. He ruled, on the basis of medical evidence that was not made public, that Mr Pinochet was too ill to stand trial. He was allowed to fly home.
RADOVAN KARADZICIn 1995, former Bosnian Serb president Radovan Karadzic slaughtered 7,000 unarmed Muslims at Srebrenica.
Richard Goldstone, chief prosecutor of the Hague Tribunal, feared the war crimes court might be negotiated away as the price for peace, and so rushed through a genocide charge against Karadzic and his army commander, Ratko Mladic. The move worked, the court remained in place and last summer, after 13 years on the run, Karadzic was finally arrested in Belgrade. Mladic remains on the run.
The full article contains 1298 words and appears in The Scotsman newspaper.
