[I]t is the view of the Chamber that when cooperating with this Court and therefore acting on its behalf, States Parties are instruments for the enforcement of the jus puniendi of the international community whose exercise has been entrusted to this Court when States have failed to prosecute those responsible for the crimes within its jurisdiction. The Chamber therefore finds, in accordance with article 87(7) of the Statute that the Republic of Malawi has failed to comply with the Cooperation Requests contrary to the provisions of the Statute and has thereby prevented the Court from exercising its functions and powers under this Statute. The Chamber decides to refer the matter both to the United Nations Security Council and to the Assembly of States Parties.

The ICC has previously reported Kenya and Chad [JURIST report] for failing to arrest al-Bashir when he visited those countries. Last month the Kenyan High Court ruled that al-Bashir must be arrested [JURIST report] if he ever returns to the country. In June ICC Chief Prosecutor Luis Moreno Ocampo said that al-Bashir has continued to commit crimes against humanity [JURIST report] in Darfur. In May, the ICC urged Djibouti to arrest al-Bashir [JURIST report]. Al-Bashir faces seven counts of war crimes and crimes against humanity as well as three charges of genocide [JURIST reports] in relation to the Darfur conflict [BBC backgrounder].

1:00 PM ET ~ The ICC reported Chad [decision, PDF, in French; press release] Tuesday for failing to arrest al-Bashir when he visted the country in August of this year.