Wednesday’s report in the Sudan Tribune re-ignited the debate over whether the Sudan Government might hand over the two men wanted by the ICC for crimes in Darfur. The two are Ahmad Haroun, now Minister of State for Humanitarian Affairs, and the militia leader Ali Kushayb. Leaving aside the veracity of the report””which is uncertain””two sets of questions arise.

First, what would the Sudan Government require in order to hand over the two men? Is it looking for a guarantee that there will be no prosecutions of senior officials? And if so, what kind of guarantee would suffice? The ICC itself cannot provide any such guarantee””the Prosecutor is constrained solely by his mandate and any resolutions of the UN Security Council. The Court would not want to enter into bargaining of this kind with a possible indictee. But it is conceivable that assurances from respected international leaders might be sufficient for President Bashir to reconsider his options and at least buy himself some time. The Sudan Government’s lawyers will have taken some solace from the difficulties the prosecution has faced in the Lubanga case, difficulties that will be reproduced should Haroun or Kushayb stand trial.

Second, could the Chief Prosecutor be engaging in a game of high-stakes brinkmanship? Could the message implicit in his statement to the UN Security Council be a ploy to pressure Khartoum to hand over Haroun? If so, then Luis Moreno Ocampo has a very strong hand. The best exercise in brinkmanship is conduced by the one who has no fear of going over the brink. And in Ocampo’s case, he will win either way. If he gets Haroun and Kushayb in custody, he has a victory. If he goes through with indicting a very senior government official then he has made history and forced the hand of his chief critic in the international system, namely the U.S.