ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
December 12, 2011 (WASHINGTON) – The judges of the International Criminal Court (ICC) on Monday issued the first decision of its kind dismissing the legality of an African Union (AU) resolutions ordering all its member states not to cooperate with the court in apprehending the Sudanese president Omer Hassan al-Bashir.
Bashir attended the meetings of the 19-member Common Market for Eastern and Southern Africa (COMESA) held in Malawi last October.
The Malawian government told ICC judges in a filing with the court in November that Sudan is not party to the Rome Statute, and as such Article 27 of the Rome Statute, which “waives the immunity of the Heads of State and Government,” was not, therefore, applicable.
“Malawi accorded His Excellency President Al Bashir these privileges and immunities in line with the established principles of public international law, and in accordance with the Immunities and Privileges Act of Malawi.”
Malawi further stated, “as a member of the African Union, [it] fully aligns itself with the position adopted by the African Union with respect to the indictment of the sitting Heads of State and Government of countries that are not state parties to the Rome Statute”.
But the judges today said that even if this argument was true, article 119(1) give them sole authority to make determination on applicability of immunity in the case of Bashir.
“The Republic of Malawi should have brought the matter to the attention of the Chamber, together with any available information, in order for the Chamber to make its determination” the judges said.
The Pre-Trial Chamber goes on to discuss article 98(1) of the Rome Statute that is relied on by Malawi and the AU to justify not arresting Bashir.
This clause in the ICC’s founding text states that “the Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of a third State for the waiver of the immunity”.
The chamber rejected any immunity for Bashir given his status as an individual wanted by an international court.
The judges referred to the case filed by the Congo against Belgium with the International Court of Justice (ICJ) more than a decade ago.
“The International Court of Justice (ICJ) held, in the Arrest Warrant Case, that although customary international law provided for immunity with regard to national courts, for certain officials such as the incumbent Minister of Foreign Affairs, and a fortiori for Heads of State and Government, even in the case of a suspected commission of war crimes or crimes against humanity, such immunities could not be opposed by a criminal prosecution of an international court”.
“Therefore, the Chamber finds that the principle in international law is that immunity of either former or sitting Heads of State can not be invoked to oppose a prosecution by an international court. This is equally applicable to former or sitting Heads of States not Parties to the Statute whenever the Court may exercise jurisdiction. In this particular case, the Chamber notes that it is exercising jurisdiction following a referral by the United Nations Security Council made under Chapter VII of the United Nations Charter, in accordance with article 13(b) of the Statute”.
The United Nations Security Council (UNSC) has referred the Darfur case to the ICC under a Chapter VII resolution in 2005 since Sudan is not a state party to the court.
The judges further said that “It is facially inconsistent for Malawi to entrust the Court with this mandate and then refuse to surrender a Head of State prosecuted for orchestrating genocide, war crimes and crimes against humanity. To interpret article 98(1) in such a way so as to justify not surrendering Omar Al Bashir on immunity grounds would disable the Court and international criminal justice in ways completely contrary to the purpose of the Statute Malawi has ratified”.
“For the above reasons and the jurisprudence cited earlier in this decision, the Chamber finds 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. There is no conflict between Malawi’s obligations towards the Court and its obligations under customary international law; therefore, article 98(1) of the Statute does not apply”
As a result the court “decided to refer the matter to both the United Nations Security Council and the Assembly of States Parties to the Rome Statute.”
The ICC judges in the past have reported Chad, Kenya and Djibouti to the UNSC and ICC Assembly of State Parties for failing to comply with their obligations under the treaty with regard to Bashir. However, neither bodies took any actions with respect to the non-compliance.
Bashir is the first head of state charged by the Hague based court since its inception in 2002. He faces ten counts of war crimes, crimes against humanity and genocide he allegedly masterminded in Darfur.
(ST)
Sir. Nostalgic
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
Dear people, Kindly tell those thugs of Mahammed Ali, Sam Eto’o, Jalaby and others that the case of Bashir to the arrest by International Court is inevitable and you should not waste your time defending him unliterally. That is what we called Stupid Support and it is also Stupid competition against International Community. Shame on you!
mohammed ali
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
Nostalgic, you call yourself Sir, yet you want the African Union to bow to the White-man court!I donnot see that they have any jurcidiction over a soverign body.The US formulated a law that will allow their president to send troops to the Hague to free any American who would possibly be arrested by this court!Yet America can send you to this court, which they themselves do not recognize….cont
mohammed ali
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
..This is an insult to any African who has the slightest pride within himself.It is sad that till today some Africans like to lick the white man shoes and remain enslaving themselves deep in their hearts!Basheer will never ever be arrested.The free Sudanese will never ever allow this to happen; go and die with your hatred.
Yanga Wani
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
Dear ALi, Bashir is criminal as well as Arab not African. What do means bow to white-man. Okay you will see next year this ICC will lead by one of the African. You and Bashir will bow to HER within one week. THere will be no game of saying “White-man”
Yanga
J P Puok
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
Dear Mohamed ALi and the like, your argument is cheap and shallow. Bashir killed his own subjects supposely he is to protect. OK if Bush killed Iragi and Afgans thats different altogether. He is protecting his pple the American interest at whatever cause. That is why pple like you will never benefit from the civilisation. Blindly supporting the criminal. if he is innocent let him go first and
BM Bol
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
This so-called African union has shown itself over and over again to be incapable of appalling the laws that honor victims’ rights. Instead, this dictators’ club exists to shield criminals that have no respect for human. I personally applaud the decision by the ICC to dismiss it.
J P Puok
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
depend himself in the Hague ! He is innocent till prof guilty ! what is wrong with that. African head of states who were sheltering him including John Ping do it bcse of financial interest ! now that there is no money in Khartoum let him go to Malawi again uh my friend open your eyes wide.Kenya had declear her stands, follow closely how who follow suit. Udanga was the first, rejoce not its early
$ 10,000,000
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
That Sudan will never be peaceful unless it is divided into many countries such Blue Nile Republic, Nuba Mountain Republic, Darfur Republic. Abyei is South Sudan already. They are fit to countries just like Togo in west Africa. Those people should claim to the world that they are being oppressed and need their autonomous governments.
$ 10,000,000
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
That Sudan will never be peaceful unless it is divided into many countries such Blue Nile Republic, Nuba Mountain Republic, Darfur Republic. Abyei is South Sudan already. They are fit to countries just like Togo in west Africa. Those people should claim to the world that they are being oppressed and need their autonomous governments.
$ 10,000,000
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
That Sudan will never be peaceful unless it is divided into many countries such Blue Nile Republic, Nuba Mountain Republic, Darfur Republic. Abyei is South Sudan already. They are fit to countries just like Togo in west Africa. Those people should claim to the world that they are being oppressed and need their autonomous governments.
$ 10,000,000
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
That Sudan will never be peaceful unless it is divided into many countries such Blue Nile Republic, Nuba Mountain Republic, Darfur Republic. Abyei is South Sudan already. They are fit to countries just like Togo in west Africa. Those people should claim to the world that they are being oppressed and need their autonomous governments.
Elijah B. Elkan
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
Mr. Ali, you an African and you leave in the African continent and that’s make you an African. Many Africans Muslims do not called themselves Arabs.You need to stop denigrate Africans because they’re good people. Bashir killed many of it’s citizens, and he’s the world’s most wanted criminal he must hang. Mind you this is not personal against you.
mohammed ali
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
Pouk,financial support made u sell yourself for an asylum visa and weekly handout; that what makes you believe that Basheer had killed his people! Which is absolutely not true! Nyala and Al fashir are more safe than London or New Yourk, where you cannot go out safely after 6 pm; or even Juba where THREE people are killed daily for this whole year.Who told you that there is no money in Khartoum? co
mohammed ali
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
..There financial strains is true, like what is happening in all over Europe and US, where money means everything,resulting in London riots and wall street occupation.Immigrants and Asylum seekers will start to feel the pain very soon!Or, you are telling me the SSG is not facing strains and the GDP growth is 27%.The reason that they are not paying transit fees is that they donnot have the money!
mohammed ali
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
Pouk,Why should he kill Iraqi or Afgani?! Aren’t they human beings?So, if he is protecting his interest he kills other people,that is the civilisation which you understand!Certainly I donnot want and will never want that civilisation of yours.It is the same reason, if you understand ABC of politics, that they are accusing Basheer of killing his pple.Brainwashed ignorants only will believe that!.
J P Puok
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
Mohamed Ali, I some times give everyone’s rights. I like sometimes your reasoning capability in that you don’t easily loose control of your temper and start firing randomly insulting pple u never see like some pple do in this website. humanly i don’t like pple rejocing the suffering of other pple even if they are enemy to you leave alone killing them.tobe frank brother to you 100% Sudanese educate
J P Puok
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
and im very much leaving in SS currently participating actively in rebuilding it after 21 yrs destruction by your fellow muhadeen. so drop that valueless point of me being asylum seeker. till the seperation of the 2 sudan last July I was leaving in Jabra block 13 where I proudly voted for spilted of our former country in Yasarab girls’ centre. Believe me or not one day you will value my argument
J P Puok
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
come to the point of Irag and Afganstan, by then I was a studen in Khartuom in one of the Sudanese university. Irag was bombed in April 2003 then followed Afganstan in 2004 were by, already over 4000 civilians were cool bloodedly murdered in Sept2001 by the muslim extremist. ok,if it was true that those bombers were being shieltered by Saddam who was then the president of Irag and Ben Laden
J P Puok
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
the Sudanese king maker was being shieltered and protected by the then Taliban government in Afganstan, why not bombing them so that we don’t have another Sept 11 as we are enjoying now even you ?
Ben Laden is gone once and for all, will you the Sudanese who were supporting the late Bin laden be bomb again like 1998?
no unless if you home grown another Carlos and Laden definitly not dar Elshifa
J P Puok
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
but the Burji Elfatah that Gadhafi had built for you pple will be ground zero. stop supporting terrorist so that you will be spare including the Hamas. we the S sudanese know better the pain Palestinians are going thru bcse its exactly how we were being treated by you pple, but their survivour will not be Hamas who are the king of terror may be Alfatah should be legalised and supported.
J P Puok
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
Supporting SS rebels wouldn’t help you at all bcse these are pple with no viable cause to fight for! you may support Libyans revolutionaries as Ismail openly claimed, that may be tit for tat to Late Gadhafi being the second supporter for our struggle I saluted him in heaven! But pple like Athor, Bapiny, Gai yoach and the like uh my friend served that merger money for subsidizing fuel and foodrathe
J P Puok
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
Ali be the example of the new generation for change, and if that is how all the North Sudanese are reasoning, Im afraid, Sudan will never come out of the cold of the International isolation. don’t over rely on China and Russia who are only protecting their interest,oil which we took 75% of it with us. we critised our leaders day in day out not bcse we don’t like our country and them no !
J P Puok
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
we can not and will not blindly follow Kiir if there iscase again him.if ICC let him go safe our country.I will and shall never waste even a minute depending criminal but Im ready to shet my blood for the country as we were doing it in Kadoro and UOK. u and Thaib Mustafa know it better.It was not bcse of Dr John Garang, Kiir or Dr Riek that we were in and out the jail without charges but freedom !
J P Puok
ICC judges dismiss legality of African Union decision on Bashir, refer Malawi’s non-compliance to UNSC
good bye Ali and sorry for revealing to you the bitterness of nothing but truth and I will never regret it bcse it is my right as a citizen of the Sudan formerly and SS currently.Good day and God bless you today and not curse you as I use to say. For tomorrow God knows!!!!!!!