Today, 12 December 2011, Pre-Trial Chamber I of the International Criminal Court (ICC) decided that the Republic of Malawi failed to cooperate with the Court by not arresting and surrendering Omar Al Bashir to the Court during his visit to Malawi on 14 October 2011. The Chamber decided to refer the matter to both the United Nations Security Council and the Assembly of States Parties to the Rome Statute, founding treaty of the ICC.
The Chamber found that there is no conflict between Malawi's obligations towards the Court to arrest and surrender the suspect and its obligations under customary international law. The Judges indicated that this analysis also addresses the legal viability of the African Union's position, which the Republic of Malawi relied upon, and which refuses to comply with the ICC's requests for cooperation regarding the arrest and the surrender of Mr Al Bashir.
The Chamber, recalling its previous decisions on the Al Bashir case, re-affirmed that "the current position of Omar Al Bashir as Head of a state which is not a party to the Statute, has no effect on the Court's jurisdiction over the present case". The Chamber also indicated that the Republic of Malawi failed to comply with its obligations to consult with the Chamber by not bringing the issue of Omar Al Bashir's immunity to the Chamber for its determination, as it was invited to do by the ICC Registry's
note verbale sent to the Malawi authorities on 13 October 2011.
In today's decision, Pre-Trial Chamber I examined Malawi's observations submitted on 11 November 2011 and considered that customary international law creates an exception to Head of State immunity when international courts seek a Head of State's arrest for the commission of international crimes. The Judges noted that immunity for Heads of State before international courts has been rejected time and time again dating all the way back to World War I. Giving the examples of international prosecutions against Slobodan Milosevic, Charles Taylor, Muammar Gaddafi, Omar Al Bashir and Laurent Gbagbo, the Chamber noted that initiating international prosecutions against Heads of State have gained widespread recognition as accepted practice.
On 4 March 2009, Pre-Trial Chamber I issued a first warrant of arrest for Mr Al Bashir, considering that there are reasonable grounds to believe that the suspect is criminally responsible for five counts of crimes against humanity and two counts of war crimes. A second warrant of arrest was issued for Mr Al Bashir on 12 July 2010, for three counts of genocide.
Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir
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