Following its decision, the pre-trial chamber I of the ICC referred the matter to the Security Council and the Assembly to States Parties of the Rome Statute, the ICC said in a news release from The Hague, where it is based.
The chamber found that there is no conflict between Malawi’s obligations to the court to arrest and hand over Mr. Bashir and its obligations as a country under customary international law.
ICC judges also indicated that their analysis addressed the legal validity of the African Union’s position, which Malawi relied upon in its submission to the court.
On 19 October the ICC requested Malawi to explain why it had failed to arrest Mr. Bashir five days earlier when he visited the country. Under the Rome Statute, States that fail to comply with a request to cooperate with the court may be referred to the Assembly of States Parties or to the Security Council.
“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 said in a statement, adding that 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.”
In today’s decision, the chamber also examined Malawi’s observations submitted last month, and considered that international law does not exempt a head of State when he or she is sought out by an international court for crimes.
The ICC judges noted that immunity for heads of State before international courts has been rejected time and again dating all the way back to the First World War, and gave examples of international prosecutions against Slobodan Miloševic, Charles Taylor, Muammar al-Qadhafi and Laurent Gbagbo, noting that initiating international prosecutions against heads of State has gained widespread recognition as accepted practice.
The ICC first issued a warrant against Mr. Bashir in March 2009, making him the first sitting head of State to be indicted by the court. A second arrest warrant was issued in July last year.