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Published online by Cambridge University Press: 25 September 2018
When the decision not to cooperate with the Court was passed in Sirte in 2009, President al-Gaddafi was the AU Chairperson and his handling of the situation was problematic for the other African states. The representatives from Botswana and Chad – both of which are states parties to the Rome Statute – were opposed to the way in which he failed to allow other delegates at the meeting to present their opinions on the issue. Chad went on to declare its reservations and refusal to abide by the AU's decision. Botswana was categorical in its disagreement with the decision and stated that:
[I]t does not agree with this decision and wishes to reaffirm its position that as a State party to the Rome Statute of the International Criminal Court, it has treaty obligations to fully cooperate with the Court in the arrest and transfer of the President of the Sudan to the International Criminal Court.
Chad, which at the time of the AU's decision was in a state of diplomatic and armed conflict with Sudan, indicated that it was not ready to abide by the decision. In 2005, the Court had concluded a general framework for cooperation with the government of Chad and subsequently managed to open an administrative and logistical support field office in Chad to facilitate investigations across the border in Darfur. However, Chad's position changed along the way, especially after its relations with Sudan improved. As a result, it allowed President al-Bashir to visit its territory to attend the Community of Sahel-Saharan States (CEN-SAD) in 2010, 2014 and 2016 without arresting and surrendering him to the Court in accordance with the Rome Statute.
Human Rights Watch warned Chad that by not honouring its obligations under the Rome Statute, ‘ it was risking the shameful distinction of being the first state party to harbour a suspected war criminal’. On 27 August 2010, the Pre- Trial Chamber I informed the UN Security Council and the Assembly of States Parties of Chad's lack of cooperation in arresting and surrendering al-Bashir. The Chadian Interior Minister defended his government's decision by citing the AU non-cooperation decision.
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