The chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, sought an arrest warrant yesterday for Sudan's President, Omar Hassan al-Bashir, on charges of genocide and crimes against humanity in Darfur, where 300,000 people have been killed and two million made homeless since February 2003.

Court advocates applaud the precedent-setting charge against a sitting head of state; critics warn of over-reach and serious collateral damage.

The court has the authority to investigate heinous international crimes wherever, whenever and by whoever they are committed. It represents much needed advance in global governance and offers hope for a permanent reduction in the phenomenon of impunity. Nevertheless, there are four possible downsides.

First, the logics of peace and justice can collide. Peace is forward-looking, problem-solving and integrative, requiring reconciliation between past enemies. Justice is backward-looking, finger-pointing and retributive, demanding trial and punishment of the perpetrators of past crimes.

On July 12, the African Union expressed its strong conviction that the search for justice should be pursued in a way that does not impede or jeopardise efforts aimed at promoting lasting peace.

Sudan's United Nations ambassador warns that laying charges against Bashir will destroy international efforts to reach a settlement in Darfur. Senior UN officials fret about the impact on the 9000 strong hybrid UN-AU peacekeeping force. What will happen to the two-thirds of Darfuris reliant on international humanitarian assistance?

Second, the rule-of-law standard is not always scrupulously observed with regard to the collection and presentation of evidence, the right to cross-examination of witnesses and other procedures that ensure a fair trial.

Human rights law gives primacy to protecting the rights of the arrested and the accused over the requirements of the prosecution. In international criminal trials, impelled by the momentum of international accountability, the balance has shifted in favour of conviction.

Because the peak UN body is the P5-dominated Security Council, it simply cannot ensure the process of trial and prosecution is always credible, meets world standards on the independence and impartiality of prosecutors and judges, treats the rich and poor, powerful and weak as equals in and before the law, and respects the rights of defendants as well as victims. Third, the International Criminal Court is not embedded in a broader system of democratic policy making. There is no political check on it.

In a national system, the office of the prosecutor functions within a well-established structure of state governance, while the court, in the words of Judge Hisashi Owada of the World Court, ''is not established as part of a centralised system of international governance that can govern the entire international community''.

In claiming jurisdiction over nationals of countries that are not members of the court, it displaces the state as the conduit of democratic representation without providing an alternative. Its authority to overturn policy established by national democracies is questionable. Why should it have authority over a constitutionally legitimated democracies like Australia, Britain, Canada, India and the United States? And if not over them, can it fairly claim jurisdiction over non-democracies like China, Russia and Sudan?

On July 12, the African Union formally ''reiterated the AU's concern with the misuse of indictments against African leaders''. Until such time as presidents, prime ministers and generals from some major Western countries are also indicted, convicted and punished for war crimes, the court will remain suspect as the vehicle for dispensing biased justice of the strong against the weak.

Not everyone accepts the self-serving dichotomy of the virtuous West and the evil rest. Fourth, international criminal justice precludes alternative modes of healing and restitution with a view to reconciliation that puts the traumas of the past firmly in the past. Determining the fate of defeated leaders is primarily a political question, not a judicial one.

Truth commissions in Chile and South Africa took a victim-centred approach, helped to establish a historical record and contributed to memorialising defining epochs in a nation's history. A criminal trial is not always the best instrument for collective memory and communal healing. It can cause more damage and solidify the very social cleavages that led to genocide and ethnic cleansing. The purely criminal approach to transitional justice traps and suspends communities in the prism of past hatreds.

Proponents of tough international criminal justice norms and action insist that Bashir has never been committed to a political settlement, is a master of the deny, cheat and evade strategy beloved of all tyrants, and responds only to tough action. Previous indictments of brutal leaders Slobodan Milosevic in Serbia, Charles Taylor of Liberia have ultimately contributed to reaching and consolidating peace.

The point is not to deny that the choice may be a painful one, the government and the people may be divided on the issue, and the public policy that results may turn out to be flawed and wrong. Rather, the point is these are profoundly political choices, not primarily and simply legal decisions, that may involve trade-offs. For that reason, the choice is one that only the country concerned can make. Only the previously traumatised and war-torn societies can make the decisions and painful choices between justice for past misdeeds, political order and stability today, and reconciliation for a common future tomorrow. They suffered as victims in the past; they will have to bear the consequences tomorrow of choices made today.

The ethic of conviction would impose obligations to prosecute people for their past criminal misdeeds to the full extent of the law. The ethic of responsibility imposes the countervailing requirement to judge the wisdom of alternative courses of action with respect to their consequences for social harmony in the present and future.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.