When the International Criminal Court (ICC) indicted Sudan president, Omar Bashir, for crimes in Darfur, The African Union (AU) strongly objected to the arrest warrant issued for him. In fact, only South Africa and Botswana openly declared that they would arrest Bashir if he dared travel to their jurisdiction.

Others, including Kenya, were not so keen on the matter – Bashir joined the celebrations during the promulgation of Kenya’s new constitution in Nairobi in late 2010. So, it came as no surprise that, when prominent Kenyan politicians became subject to ICC investigations themselves, the AU (just like in the Sudan case) backed their request to defer the cases.

Despite international objections, AU insisted that its members would not co-operate with the ICC because the UN Security Council had failed to act upon a request to defer Bashir’s case. In essence, AU told the world that its authority superseded that of the ICC in Africa, regardless of whether or not member states were signatory to the Rome Statute. The prevailing argument was that ICC unfairly targets Africans.

Why is Gaddafi’s case different?

The African Union has stayed conspicuously silent during the uprisings in Libya. But in a shocking feat of co-operation earlier this week, the United Nations General Assembly (including AU member states) unanimously voted to refer the Gaddafi regime for investigations by the ICC for crimes against humanity. It seems that AU has abandoned its founder, Gaddafi, to the mercy of the same court whose jurisdiction it fought so hard to limit in Africa until now. The impact of this is significant considering the organization’s position on the Kenya and Sudan cases.