Malawi refusal to host the AU summit and its Implication in International Law

By Lawrence Mwagwabi

African Union (AU) has moved a July summit from Malawi after it blocked the attendance of Sudan's President Omar Hassan Al-Bashir.

Al-Bashir is wanted by the International Criminal Court over charges he is alleged to have masterminded genocide and other atrocities during his country's Darfur conflict.

Malawi is a signatory of the Rome Statute and therefore making her a state party to the International Criminal Court. Malawi is supposed to arrest Al-Bashir as soon as he enters its territory.

The Malawian Vice – President, Right Honorable Khumbo Kachale is reported to have told Reuters that "the African Union has written us a letter informing us that if we don't allow Al-Bashir to come to Malawi, then they will move the summit to Addis Ababa in Ethiopia”.

The Malawian government view Al-Bashir’s visit as having "implications" for its aid-dependent economy. Malawi lost 40 percent financial aid to its budget during the late Mbingu wa Mutharika’s tenure as president.

The civil society in Malawi supported the government decision, a day before the Malawian authorities decided not to host the AU summit meeting. The civil society organization roundly supported their government stating that Malawi has obligations to abide by the decisions of the AU, but it also is under obligation to other international agreements including the Rome Statute”.

Though these are valid reasons why Malawian government opted out of hosting the Summit in July, other fundamental and important considerations for Malawi must be noted.

Diplomatic law particularly the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relation and the 1969 UN Convention on Special Missions and a large number of treaties that specifically deal with both privileges and immunities of representatives of states in foreign missions, international organizations and privileges and immunities of officials employed by those organizations is relevant to Malawi’s considerations.

The Convention on the Prevention and Punishment against Internationally Protected Persons, including Diplomatic Agents 1973 comprises an important aspect of the duty of protection states owe officials of states and international organizations engaged in international business, providing for broad extraterritorial jurisdiction in respect to crimes relating to attacks on these persons. Immunities and privileges are also extended to Heads of State or Government.

The Minster for Foreign Affairs also enjoys these immunities and privileges by virtue of the position they hold. Immunity from jurisdiction of Heads of State travelling abroad has undergone some important changes in modern times.

For instance, a foreign Head of State (whether on an official or a private capacity) will enjoy complete personal inviolability and absolute immunity from criminal jurisdiction.

A Head of State enjoys immunity from prosecution for criminal offences. Enjoyment of privileges and immunities of Head of States and government from criminal jurisdiction and inviolability is firmly entrenched in international law.

These immunities and privileges are to ensure effective performance of functions of Heads of State/Government on behalf of their states. Functional immunity protects a Head of State from prosecution even after he ceases to perform the duties of a head of state because of the principle of sovereign equality under customary international law.

While a state cannot claim jurisdiction over another state’s incumbent head of state, an international tribunal can. In this way, heads of state and other high ranking officials lose impunity.

This vertical claim of jurisdiction is subject to two conditions: that the instruments creating the tribunals expressly or implicitly remove the relevant immunity of the official and that the state of the official concerned is bound by the instrument removing the immunity.

The Rome Statue has managed to pierce sovereign immunity under Article 27 of the Rome Statute, where states and even Heads of State/Government are, “not exempt from criminal responsibility under the statute” for serious crimes. However, this article constitutes a break from customary international law.

None of the immunities considered are for the benefit of any particular individual or group of individuals, but are for the benefit of the state they represent.

On any reasonable interpretation of the Rome Statute, the same principles do not apply to the ICC. What are the consequences therefore of such a policy of prosecuting even sitting heads of state and government and stripping them of their immunity (such as is the case with Al-Bashir), which is regarded as important for the exercise of their duties?

Many practical difficulties exist. It is doubtful whether any state can arrest Al-Bashir without violating the international law on immunity. The ICC relies on states to enforce and implement its warrants.

The failures in arresting the Lord’s Resistance Army leader Joseph Kony are instructive here. The ICC has not been able to bring Kony to The Hague because of the failure to physically arrest him.

One wonders if it would be easier to arrest Bashir. Thus, based on the general principle, the personal immunity of certain incumbent high state officials, including Heads of State/Government, Foreign Ministers, certain senior Ministers, diplomatic agents and also members of high-level special missions, are, in the absence of a waiver by the sending state, an absolute bar to the criminal jurisdiction of the national courts for the duration of their office or mission.

The ICC often overlooks that, even though it is an independent court, it operates within the comity of states, which have rules that pre-date the ICC.

The International Criminal Court is a body established by treaty thus in a different position because states must consent to be bound by the Rome Statute before they are bound by it.

Whilst the Rome Statute appears to limit immunities available to defendants in proceedings before the ICC itself, it is not clear that this provision can restrict the immunities of officials of states that are not parties to the Rome Statute, unless there is a waiver by the present relevant state, or binding resolution of the Security Council vesting jurisdiction in the ICC.

It should be noted that Article 98 (1) of the Rome Statute also preserves the State and diplomatic immunities of officials and property of third states.

In other words, officials of a state which is not a party of the Rome Statute may be able to claim immunity in respect of their arrest and transfer to the Court, whereas a state party to the Rome Statute has in effect waived such immunities in respect of its own officials both before ICC itself and in the courts of other states parties in respect of their cooperation with ICC.