Gillian Gibbons, the “teddy bear teacher”, has given us a primary school lesson on the politics of Sudan. The story went something like this: “Mad mullahs” jail innocent teacher. British Muslim peers ride to the rescue. The President issues a pardon. Our girl is rescued and everyone lives happily ever after.

Two days after the release of Ms Gibbons, Luis Moreno-Ocampo, the Chief Prosecutor of the International Criminal Court, delivered a degree-level lecture on the criminal nature of the Sudanese Government to the UN Security Council. With a professorial air and staccato-speaking style he laid out the charges against Sudan, one after the other, each one outrageous to anyone unfamiliar with the five-year history of the Darfur crisis.

The war criminals wanted by the ICC, such as Ahmed Haroun, the man responsible for co-ordinating the atrocities and wanted for more than 50 counts of crimes against humanity, have not been arrested. Instead he was promoted to Minister for Humanitarian Affairs, made a co-chair to a commission charged with investigating crimes in Darfur and then appointed to a committee responsible for co-operation with the UN peacekeeping force. Comparisons with Nazi Germany should be used sparingly; but his appointment is akin to proposing that Adolf Eichmann should co-ordinate the Red Cross aid efforts in postwar Europe and run the Nuremburg Tribunal in his spare time.

Mr Moreno-Ocampo is impatient with those who describe the situation in Darfur as the chaotic aftermath of a civil war: “Calling it chaos or sporadic violence or inter-tribal clashes is a cover up.” Instead, he described a situation where in the first phase of violence non-Arab tribes were murdered or deliberately herded into an archipelago of camps. In the second phase, these camps are surrounded, their inhabitants attacked, their food, water and security turned off and on at Haroun's whim, while their land and homes were resettled by Arab tribes from Chad and Darfur.

The ICC's new targets are those who protect Haroun: “Haroun is a key actor in the present crimes in Darfur, but he is not alone. I will investigate those who bear the greatest responsibility in present crimes, those who actively support him, those who instruct him.” This is significant, as Haroun reports to a small cabal surrounding President Omar al-Bashir. Since that clique came to power in a coup in 1989 it has become expert at preserving its power through patronage, coercion and atrocity.

They are the same men with whom the international community are seeking to make a peace deal. After indictments are issued, the international community faces the real risk of negotiating with individuals criminalised by the ICC, an alarming prospect to most diplomats, as the next two years contain the probability of both the north-south deal breaking down over aborted elections and fighting over oil fields, and slow-motion atrocities continuing in Darfur.

In their public actions, if not their private words, international diplomats tend to be idealists posing as realists. Their realpolitik is focused on pushing parties towards peace. They see the shard of idealism that the ICC prosecutor has thrust into the crisis as a threat to a peace deal.

However, current diplomatic efforts are equally idealistic. Negotiations with Khartoum represent the triumph of hope over experience. The pattern is familiar: a deal is born, and then bleeds to death by a thousand small cuts inflicted by the Khartoum regime; the international community slowly loses patience but then gives Sudan a second chance in the hope it will behave better next time. For example, the UN-African Union peacekeeping force has been delayed for months because of obstructions over such things as permission to fly at night.

The alternative is another form of realism. This is based on the insight that Khartoum is an “unstable centre” in which different elites battle for dominance. Alternative power centres also exist in the provinces - most obviously in the south, but also in Darfur and in eastern Sudan. What the Sudanese Government most fears is an alliance between the opposition elites in Khartoum and rebels from the provinces.

The new approach should be to use international pressure to exploit fissures between the existing elites in Khartoum. This worked successfully in Serbia. The indictments of Milosevic and his cronies were used by the Serbian opposition to undermine his legitimacy. While marginalising the Serb Government, the international community supported the opposition.

In Sudan this approach would take the form of an international ban on dealing with the business interests that fund the atrocities in Darfur and provide the finance for the regime's powers of patronage; asset freezes targeted against Sudanese ministers; British and US support to the ICC by handing over evidence from signal intelligence sources; even targeted sanctions against the oil sector, so long as revenues could be retained for humanitarian purposes. As alternative leaders emerge, they should be subtly rewarded by according them international respect and, on occasion, providing economic support. No one should argue that the next generation of leaders will be perfect democrats. But it is hard to imagine that they could be worse.

The ICC is an opportunity, not a threat. Future indictments provide a clear platform, based on international law, for a strategy of marginalising the current elite. The failed approach of the past five years is predicated on the idea that the ruling regime is a credible negotiating partner who can be trusted to keep its promises.

After 20 years of mass atrocity and forced famine, the only surprise is that we have given them the benefit of the doubt for so long.

Nick Donovan is Head of Campaigns, Policy and Research at the Aegis Trust

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