Many commentators have questioned why the Prosecutor of the ICC, Luis Moreno Ocampo, is pursuing Bashir, given the unlikelihood of ever arresting him. To understand what the Prosecutor hopes to gain from this move, we should interpret it in the wider context of the ICC’s prosecutorial strategy to date. In particular, we should focus on how the Prosecutor’s intentions in the Bashir case hinge on his handling of cases from the Democratic Republic of Congo.

The application to indict Bashir represents a major gamble by the Prosecutor who believes that, even though Bashir may never face trial, indicting an incumbent head of state will inherently boost the ICC where it is currently weak: on issues of international legitimacy and problematic relations with the UN Security Council and key states, particularly the US. The gamble is separate from the most common criticisms of the Prosecutor’s strategy in Sudan.

The move against Bashir is intended to show that the ICC is willing to pursue difficult cases against high-ranking officials and to regain some of the legitimacy that the Court has lost in Uganda and the DRC.

Read the full text of Phil Clark’s article, originally posted on the Oxford Transitional Justice Research programme website, here.