ICC reports Malawi to UN Security Council

The International Criminal Court (ICC) Monday dismissed Malawi’s excuse that it failed to arrest Sudanese President Omar El Bashir because he enjoyed the immunity of a foreign head of state.

The Court said a sitting head of state whose country was not a signatory of the Rome Statute did not enjoy any form of immunity from prosecution at The Hague-based Court. The Court referred the case to the U.N. Security Council for the failure to arrest the Sudanese leader in Lilongwe in October for failing to cooperate.

The Judges decided to refer the matter to both Security Council and the Assembly of States Parties to the Rome Statute, founding treaty of the ICC.

Malawi army general Henry Odillo greets Bashur as Police Chief Peter Mukhito looks on. Photo;Amos Gumulira

“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 ICC said in a statement issued late Monday.

The Judges indicated that this analysis also addresses the legal viability of the African Union’s position, which Malawi relied upon, and which refuses to comply with the ICC’s requests for cooperation regarding the arrest and the surrender of El Bashir.

The ICC ruling is a further setback to the Sudanese leader, who gave Kenya a two-week ultimatum to withdraw a High Court order seeking his arrest and transfer to the ICC at The Hague, or face an airspace ban on all flights headed to Kenya.

The Court ruled Malawi failed to comply with its obligations to consult with the ICC by not bringing the issue of El Bashir’s immunity to the Court for its determination, as it was invited to do by the Court’s Registrar, who sent a diplomatic note on 13 October.

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.

The ICC cited Slobodan Milosevic, Charles Taylor, Muammar Gaddafi, El Bashir and Laurent Gbagbo cases at the Court.

The Chamber noted that initiating international prosecutions against Heads of State have gained widespread recognition as accepted practice.

The Court issued its first warrant of arrest for El Bashir on 4 March 2009, considering 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 on 12 July 2010, for three counts of genocide.

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