Light shed by Botswana on the so-called “AU decision” against the ICC

UPDATE: Sudan Tribune reports that the decision was taken “by consensus” – but it is unclear to me how you have  consensus if the parties are not actually in agreement.

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At the end of their summit in Sirte, under the watchful eye of Chair, Col. Gaddafi,  the AU put out a statement that they would not cooperate in the ICC’s case against Sudan’s President Omar Al Bashir, suggesting that he was free to travel across the continent of Africa without fear of arrest.

On hearing this, my first thought was that the 30 AU members who have joined the ICC need a refresher course in the treaty obligations they committed themselves to when they signed the Rome Statute.

While understanding it is a politically fraught situation, I didn’t see any need for the AU to have come out with this. To be clear, I wasn’t expecting them to come out with a commitment to arrest Bashir either. But they could have side-stepped the issue (not like they didn’t have plenty else on the agenda – – – a way forward for Somalia anyone?) and allowed the status quo to remain: Countries that are part of the court get to maintain the obligations they have signed up to, and those who are not state parties make their own decisions.

The signal the decision sends to civilian populations throughout Africa is that their leaders care more about looking out for each other, than about placing responsibility where it lies for the ongoing atrocities committed against their people.

News reports today however, provide a slightly different lens on the decision -one that makes me think that even calling it an “AU decision” is a mis-statement of reality.

Botswana’s foreign minister, Phandu Skelemani, came out with a statement that Botswana would be ignoring the AU’s decision and would fulfill their treaty obligations to arrest Bashir if he comes on Botswana’s territory. Most interestingly, Skelemani told reporters that the AU decision was rushed through without a vote. This makes sense of what had been a puzzle to me.

The AU has 52 members, of which 30 are part of the ICC. Under AU procedures, if a decision cannot be taken by consensus then it goes to a vote and needs a two-thirds majority to pass. Running the numbers, there would presumably be the 22 non-signatories that would vote for the anti-ICC decision. But they would have needed to get 13 members of the court to join them for the decision to pass. That seemed like a lot. I think the court’s diplomatic relations with its African signatories much more attention, but I didn’t think they were quite that dire.

But it now appears that the so-called “AU decision” was not so much the result of 13 of the court’s members deciding to ditch their treaty obligations, as it was the result of bullying by the states that are non-signatories.

I was opposed to the Bush Administration’s so-called Article 98 policy of bullying states, including African states, into rejecting the ICC. This time it is African states bullying other African states into dishonoring their commitments to the Court, and I remain opposed.

Documents I have managed to get declassified through FOIA show how strong Tanzania, Senegal and Benin, in particular, were against highly manipulative U.S. attempts to stop the Darfur case going to the ICC in 2005. Let us hope they can keep that position up now that the anti-ICC drive is coming from governments closer to home.