The main source of discontent in the AU is that Africa, from the outset, saw the Sudanese problem in its entirety. Africa does not have the luxury of adopting abstract principles which are very costly to implement, in a region which is already fragile. Africa is already apprehensive about the fact that more than 60% of the UN Security Council business concerns Africa, but there is no African permanent representative on the Council. After the AU PSC was created in 2002, there was a tacit understanding that the UNSC would at least take heed of AU PSC decisions and listen to African voices. Kofi Annan was able to make that work diplomatically. Everyone knew that the UNSC had the real power, but there was enough accommodation given to the AU PSC to make Africa feel properly consulted.

That didn’t happen over the ICC issue. The AU PSC decision of July 2008 was not a decision in favor of impunity. Quite the contrary. It was extremely tough on Sudan. But the AU wanted the overall picture to be taken into consideration including a peace process (headed by an African) and a peacekeeping mission (whose members are almost all African) and a national peace agreement (mediated by an African organization, IGAD). That AU PSC decision was unceremonially shunned.

Since then the entire debate about the AU and the ICC has been conducted at the expense of the AU, with all kinds of unsubstantiated insinuations about the organization and its leadership. The chief unhappiness of the Africans remains the way in which the AU PSC’s considered opinion, unanimously adopted, was shunted aside by the UNSC.

Meanwhile the ICC has made a strategic blunder. The prosecutor ought to know perfectly well that he will not get President Omar al-Bashir in court any time soon. And he ought to know that he needs the support of Africa. He could perfectly well have gone to the AU and said that he appreciates its position, but he is a prosecutor and not a judge of political consequences, so he wants an arrest warrant against al-Bashir but is not the right person to decide on whether this is in the interests of peace and security, and then kept out of the debate. Africa was ready to work with the ICC, but just demanded a bit more consideration, and would have accepted that. Instead, the ICC prosecutor has been campaigning against the Article 16 deferral demanded by the Africans and in doing so has made himself seem the pawn of a Franco-British agenda for imposing the ICC on Africa.

By turning the question from one of consultation and due participation in decision making into a highly ideological issue of impunity, for-or-against, the ICC and its supporters have unnecessarily antagonized African leaders, polarized African stakeholders, and have led the debate into a sterile direction.

Anyone who wants to say there is merit to the argument that the ICC hinders peace is really just saying this: “I think most African leaders are too willing to kill and kill again for anyone to try to do anything to stop them.” Implicitly they have Charles Taylor in mind: Elect me, or else! But guess where Charles Taylor is today? Impunity can be ended. But not by constantly backtracking. (At the least, only backtrack when the person facing justice sets in motion some irrevocable unwinding, like leaving the country for a third country.)

And …. in my opinion the whole point of justice is that is doesn’t “do something for somebody”… it does something for everybody.

Ana

While I’m generally all for advocating for what Darfuris want and have deep concerns about Comesa’s motives for calling for suspension, let’s think about what the ICC arrest warrant has done for Darfuris so far. Instead of immediately and aggressively leveraging the warrant against Bashir, which is what the international community should have done to make the warrant useful, they just sat around while Bashir kicked out aid organizations in retaliation – which is what people who had reservations about the warrant said would happen. Especially because the international community has demonstrated its inability to strike while the iron is hot, so to speak, I find it might not be unhelpful to listen to bodies like the AU, which assert that the warrant endangers peace in Darfur. If all we do is tell Bashir what a bad boy he is, then stand by and let Darfuris suffer the consequences of his ensuing tantrum, how does that lead to justice or peace for Darfuris?

Additionally, you seem to cite your conversations with Darfuris as anecdotal evidence of wider support for the ICC among the Darfuri community. First off, what percentage of the 2.7 million displaced people do those Darfuris represent? What was your sample size? Was the sample random? Secondly, what exactly did these Darfuris say in support of the court? Is justice the most important thing to them? Is it more important than peace? Would they still support Bashir’s prosecution over a diplomatic solution if it meant that their fellow Darfuris had to continue living in camps for – say – an extra year?