At Least Bashir Won’t Be Traveling to Botswana

by Kevin Jon Heller

Botswana has refused to go along with the AU resolution that — in theory — guarantees Bashir safe travel around Africa:

Botswana says it will not abide by an African Union (AU) decision to ignore an arrest warrant issued by the International Criminal Court (ICC) for Sudan’s President Omar Al-Bashir.

Countries signed up to the ICC have a duty to help arrest anyone wanted by it, and that includes Sudan’s President who is accused of war crimes in Darfur.

So when the AU announced its refusal to cooperate with the court over Mr Bashir, the court’s prosecutor was quick to point out that it was not for the AU to refuse.

Now Botswana’s foreign minister Phandu Skelemani has said Botswana was not given a chance to voice its objections at the AU, and the question had not been put to a vote.

Mr Skelemani said Botswana’s position was still that it would meet its obligations.

Government spokesman Jeff Ramsey also says Botswana will continue to cooperate fully with the court and arrest Mr Bashir.

“The Government of Botswana does not agree with the decision and wishes to reaffirm its own position, that as state party to the Rome Statute of the International Criminal Court, it has treaty obligations to fully cooperate with the ICC in the arrest and transfer of the President of Sudan to the ICC,” he said.

Skelemani’s comments make clear that the AU’s decision was anything but democratic.  Indeed, other reports indicate that the resolution is more controversial than the AU is letting on:

Some AU leaders said there was strong opposition to the summit’s decision. Benin Foreign Minister Jean-Marie Ehouzou said that Sudan’s neighbor and antagonist, Chad, objected to the wording.

Heads of state at AU summits reach their decisions behind closed doors and by consensus, not vote, and it was not clear how the new measure was approved.

“Consensus usually means unanimity, but in this case there was some dissent,” said Ehouzou, stating objections by Chad or others would likely be added as caveats at a later date in the final summit declaration.

Prime Minister Bernard Makuza of Rwanda conceded the resolution had been “a hot spot” in the leaders’ three-day summit, but that countries finally approved the Libyan-led decision because they don’t feel fairly treated by the ICC.

It is also worth pointing out that the AU’s ire seems to be directed more at the Security Council than at the ICC itself:

The text adopted at the summit voiced the frustration felt by many African nations who say that the UN Security Council ignored an earlier AU resolution calling for a one-year delay to the indictment.

“They are showing to the world community that if you don’t want  to listen to the continent, if you don’t want to take into account our proposals …  we also are going to act unilaterally,” Jean Ping, the AU commission chair, said.

The UN Security Council can ask the court, via a resolution, to suspend investigations or prosecutions for 12 months, under Article 16 of the Rome Statute.

That’s an important distinction.  As Dapo Akande noted today, “[t]he point that African States are not to be seen as rejecting the ICC as an institution or the Rome Statute as a treaty can also be seen from the fact that the AU has sought to use mechanisms within the Rome Statute in order to halt the Bashir case.”

All in all, I think rumours of the ICC’s demise are greatly exaggerated.

http://opiniojuris.org/2009/07/05/at-least-bashir-wont-be-traveling-to-botswana/

5 Responses

  1. Kevin, do you think the resolution will actually stick, or do you think it one of those conference pronouncements that disappears once everyone goes home? Policy or posture? Or too soon to tell?

  2. Ken,

    I think it’s largely posturing — but only because I don’t think the resolution changes anything: the African states that support the resolution never had any intention of arresting Bashir, and the African states that don’t support it will arrest him (should Bashir be foolish enough to visit) despite it.

  3. It might be interesting to note that, when deciding to refer the Darfur case to the ICC in UNSC resolution 1593, two of the three African members voted in favour; the earlier five-member Commission of Inquiry on Darfur, which finally contributed to the referral, contained African figures from Egypt, Ghana, and South Africa. 
    On a sidenote, the Sudan Tribune, with regard to the bindingness of the AU declaration, somehow farcially stated that “International treaties ratified by a state are binding in whole unless it decides to withdraw from it altogether. [The Sudanese foreign ministry's spokesperson Ali] Al-Sadiq said he thought the AU decisions are binding to its members, so Bashir would not have to wait for further approval from the parliaments of each state” (http://www.sudantribune.com/spip.php?article31717).

Trackbacks and Pingbacks

  1. [...] the African Union not to support the indictment against Sudan’s President Bashir was perhaps not as unanimous as first [...]

  2. [...] the rest here: Opinio Juris » Blog Archive » At Least Bashir Won't Be Traveling … July 5th, 2009 at 3:48 [...]