The International Criminal Court (ICC) [official website] on Monday referred the Republic of Malawi [decision, PDF; press release] to the UN Security Council and the Assembly of States Parties to the Rome Statute [official websites] for failing to arrest Sudanese President Omar al-Bashir [case materials; JURIST news archive] when he visited the country for a trade summit in October. The court had previously asked Malawi for an explanation [JURIST report] of its actions. The ICC found "no conflict between Malawi's obligations towards the Court and its obligations under customary international law. The court concluded:
[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 court reiterated that there is no immunity for heads of state who commit international crimes.
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].