When the international criminal court began in 2002, there was a widespread hope that those guilty of appalling crimes against humanity would finally be brought to justice. There was a belief too that the very existence of the ICC and its reach would be a brake on the behaviour of other warlords and dictators, increasing protection for hundreds of millions of people.
Those hopes have been badly dented by the African Union's decision earlier this month to withdraw co-operation with the ICC. In a profoundly depressing move, the AU summit in Libya resolved that its members would not arrest or extradite any African figure it indicted. This defiance follows complaints by some African states that the ICC was a "western court" that focuses on prosecuting Africans.
The immediate beneficiary of this decision – and the reason for it – is Sudanese president Omar al-Bashir. He is wanted by the ICC in connection with charges that his government and army have committed war crimes and crimes against humanity in Darfur. The text of the AU resolution effectively requests AU states not to arrest Bashir if he is in their country, nor to allow the ICC to conduct investigations on their territory.
The truly disheartening part of this resolution is that it is backed not just by those countries who have opposed the ICC from the start but also by those – the majority on the African continent – who have signed the Rome treaty. It is also a damaging reversal on their position a month ago. Then, at a meeting in Addis Ababa, bullying from Sudan and other hardline opponents of the ICC was resisted. Instead they declared the need for "unflinching commitment" to the ICC and "to combating impunity".
Their statement signalled that the days of African states turning a blind eye to appalling crimes elsewhere on the continent – out of some mistaken solidarity – have gone. They talked about the need for "unflinching commitment" to the ICC and "to combating impunity". It was a cool-headed response to those pushing for African countries to withdraw, or at least consider withdrawing, from the Rome treaty.
Following the Libya summit, this welcome commitment has now been badly undermined. In the last few days, however, some African countries have refused to drop their commitment to justice and human rights. At the forefront is Botswana, which expressed its opposition to the AU stance and re-affirmed its support for the ICC.
Foreign minister Phandu Skelemani said Botswana would "fully co-operate with the ICC in the arrest and transfer of the president of Sudan to the ICC". This week, Uganda too has spoken of its commitment to the ICC and determination to meet its legal obligations. But this only puts into stark relief the conduct of other leading African nations who are signatories to the ICC and are now ready to ignore their legal obligations.
The position of South Africa is particularly important. This is not just because the country can be proud of the leadership role it played in setting up the ICC. It is also because it is one of only three states in Africa to have incorporated the ICC statute's provisions into national law.
At the time, this seemed a significant step that showed the country's commitment to international criminal justice. With ICC judges confirming the arrest warrant for president Bashir in early May, it was presumably a big factor in his decision not to visit South Africa for president Jacob Zuma's inauguration later that month. It was heartening then to see that Bashir – having weighed his liberty in the balance – opted not to be among the guests joining the celebrations in Pretoria.The rule of law had an effect, if only on Bashir's travel plans.
The ICC is, of course, in its infancy. Constructive criticism of its work is important to its maturity and development. But the AU's statement is not about helping the ICC work better. It is simply to protect someone who stands accused of the most serious crimes against humanity. It has the potential both to undermine the ICC and its important work on behalf of hundreds of thousands of African victims.
The ICC came into existence during Kofi Annan's time as UN secretary-general. He remains a passionate supporter, and has shown little patience for those Africans who see it as a western court. He warned recently that there was "little hope of preventing the worst crimes known to mankind, or reassuring those who live in fear of their recurrence, if African leaders stop supporting justice for the most heinous crimes just because one of their own stands accused".
He is right. As the dust settles around the AU meeting, it is disheartening to see politicians showing their solidarity with the Bashirs of the world rather than with the victims of mass rapes, murders and mutilations. In the interests of the rule of law and victims' rights, it is to be hoped that the leadership shown by Botswana will begin to gain support.
Cherie Booth, a barrister at Matrix Chambers in London and Tony Blair's wife and Max du Plessis, a senior research associate at the Institute for Security Studies, Pretoria.