Swatting Off Damocles Sword: Malawi Refusal to Host the AU Summit and Its

Implication in International Law

By
Lawrence Mwagwabi
Last Friday (8
th
June 2012) it was reported in the media that the Arican !nion (A!) wi""
mo#e a Ju"y summit rom Ma"awi i the country $eeps up its eorts to b"oc$ the attendance
o %udan&s wanted 'resident (mar )assan a"*Bashir+ Bashir is wanted by the ,nternationa"
-rimina" -ourt o#er charges he is a""eged to ha#e masterminded genocide and other atrocities
during his country&s .arur con"ict+
/he media urther reported that Ma"awi is a signatory o the 0ome %tatute and thereore
ma$ing her a state party to the ,nternationa" -rimina" -ourt+ ,n this regard1 Ma"awi is
supposed to arrest a"*Bashir as soon as he enters its territory+ Furthermore1 it was reported
that the ,--&s chie prosecutor on Monday (11
th
June 2012) threatened that countries that
ai"ed to detain him shou"d ha#e their aid cut+
,n an artic"e by the Reuters entit"ed 2Arica b"oc ready to mo#e summit o#er Bashir row3
Ma"awi41 the Ma"awian 5ice 6 'resident1 0ight )onorab"e 7humbo 7acha"e is reported to
ha#e to"d 0euters that 8the Arican !nion has written us a "etter inorming us that i we don&t
a""ow a"*Bashir to come to Ma"awi1 then they wi"" mo#e the summit to Addis Ababa in
9thiopia4+
Ma"awi is said to ha#e angered internationa" donors1 who inance :0 percent o its budgetary
unding1 when it hosted Bashir "ast year when it;s ormer 'resident Bingu wa Muthari$a
(now deceased)1 was president+ Arican !nion heads o state #oted in 200< not to cooperate
with the ,-- indictments1 saying they wou"d hamper eorts to end %udan&s mu"tip"e con"icts
and critici=ing the court or unair"y targeting Arican countries+ ,t shou"d be noted that a"*
Bashir has since #isited 7enya and -had1 both o them ,-- members1 as we"" as other
countries * an embarrassment or the g"oba" court+
Ma"awi has cited a number o reasons why it wou"d pre#ent 'resident Bashir rom ta$ing part
in the A! summit meeting+ First"y1 that saying his #isit wou"d ha#e 8imp"ications8 or its aid*
dependent economy+ As pointed ear"ier1 Ma"awi "ost :0 percent inancia" aid to its budget
during ormer 'resident Mbingu wa Muthari$a;s tenure as president+ %econd"y1 the ci#i"
society in Ma"awi put pressure on the Ma"awian go#ernment not to host the A! summit+
,ndeed1 in an artic"e entit"ed 8-i#i" %ociety %tatement on Ma"awi;s .ecision to >ithdraw
rom )osting the 1<
th
%ummit o the Arican !nion41 a day beore the Ma"awian go#ernment
decided not to host the A! summit meeting1 the ci#i" society organi=ation pointed supported
their go#ernment by stating that Ma"awi1 2 +++ ha#e ob"igations to abide by the decisions o the
A!1 we are a"so under ob"igation to other internationa" agreements inc"uding the 0ome
%tatute4+
/he -i#i" %ociety (rgani=ations statement continued to state that 2recogni=ing that the
go#ernment arri#ed at the decision with the primary consideration o what is in the best
interests o Ma"awians as part o its eort to reposition the country;s image to the
internationa" community and in u"i"ment o the internationa" ob"igations p"aced on itse"
under the #arious internationa" instruments our go#ernment has accented to or ratiied? our
ta$e on Ma"awi;s bo"d decision on 'resident Bashir whi"e hosting the %ummit has the
potentia" to boost the credibi"ity o a gi#en member state1 we the undersigned1 strong"y
app"aud the go#ernment o Ma"awi or standing up to upho"d and respect internationa"
commitment and ob"igation especia""y o the 0ome %tatute by opting to withdraw rom
hosting the 1<
th
%ummit o the Arican !nion that was s"ated or Ju"y 2012 i the ,nternationa"
-rimina" -ourt (,--) indicted %udanese 'resident (mar A" Bashir is a""owed to attend+ /his1
in our #iew1 is a c"ear maniestation that Ma"awi wi"" not compromise on anything "ess than
@ustice and human rights4+
/hough these are #a"id and undamenta" reasons why Ma"awian go#ernment may ha#e opted
out o hosting the a"" important %ummit in Ju"y1 urther ana"ysis is necessary to identiy
critica""y other important considerations that the Ma"awian may ha#e ta$en into consideration
in arri#ing at this decision+ First"y1 dip"omatic "aw current"y comprises a "arge1 and in many
respects1 high"y de#e"oped body o "aw+ /hese inc"ude the 1<A1 5ienna -on#ention on
.ip"omatic 0e"ations (5-.0)1 the 1<AB 5ienna -on#ention on -onsu"ar 0e"ation (5--0)
and the 1<A< !C -on#ention on %pecia" Missions+ ,n addition1 in re"ation to internationa"
organi=ations1 there is a "arge number o treaties which dea" with both pri#i"eges and
immunities o representati#es o states to internationa" organi=ations and pri#i"eges and
immunities o oicia"s emp"oyed by those organi=ations+
/he best $nown eDamp"es are the 1<:A -on#ention on the 'ri#i"eges and ,mmunities o the
!nited Cations1 and the 1<:E -on#ention on the 'ri#i"eges and ,mmunities o %pecia"i=ed
Agencies+ A urther important component o dip"omatic "aw is the -on#ention on the
're#ention and 'unishment against ,nternationa""y 'rotected 'ersons1 inc"uding .ip"omatic
Agents 1<EB+ /his con#ention comprises an important aspect o the duty o protection states
owe oicia"s o states and internationa" organi=ations engaged in internationa" business1
pro#iding or broad eDtraterritoria" @urisdiction in respect to crimes re"ating to attac$s on
these persons+ /o eDemp"iy app"ication o these dip"omatic "aws1 7enya has1 or instance1
domesticated the 5ienna -on#ention on .ip"omatic 0e"ations through what is reerred to as
the 'ri#i"eges and ,mmunities Act1 -hapter 1E< o the Laws o 7enya+ /his con#ention is
now ratiied by 18A countries pro#ides or immunities and pri#i"eges or dip"omats1 which
protects them rom coercion1 harassment and prosecution rom a host country+ /hese
immunities and pri#i"eges are a"so eDtended to )eads o %tate or Fo#ernment+ ,ndeed1 the
Minster or Foreign Aairs a"so en@oys these immunities and pri#i"eges by #irtue o the
position they ho"d+
,t is important to note that dip"omatic "aw is not u""y codiied+ /hus1 certain categories o
those engaged in the conduct o internationa" re"ations thereore en@oy immunity on"y by
#irtue o customary internationa" "aw+ For instance1 the "aw go#erning the pri#i"eges and
immunities o oreign )eads o %tate and other senior go#ernment oicia"s remains "arge"y
uncodiied at the internationa" "e#e"+ )owe#er1 immunity rom @urisdiction o )eads o %tate
tra#e""ing abroad has undergone some important changes in modern times+ For instance1 in
the !nited 7ingdom1 the %tate ,mmunity Act (1<E8) essentia""y eGuates the position o a
)ead o %tate with that o the head o a dip"omatic mission+ /hus1 a oreign )ead o %tate
(whether on an oicia" or a pri#ate capacity) wi"" en@oy comp"ete persona" in#io"abi"ity and
abso"ute immunity rom crimina" @urisdiction or ratione personae. ,n a @udgement o Bow
%treet Magistrates; -ourt in Tachiona et al versus Mugabe and ZANU PF o 1: January
200:1 the ru"ing in Bow %treet Magistrate;s -ourt1 'resident Mugabe cannot be arrested or
prosecuted or the crime o torture+ Judge /imothy >or$man ru"ed that 'resident Mugabe1 as
a ser#ing )ead o %tate1 has 2abso"ute immunity4 rom arrest and prosecution+ Mr >or$man
was de"i#ering his #erdict on an app"ication or an arrest warrant1 on charges o torture1 i"ed
by human rights campaigner 'eter /atche""+ Mr /atche"" sought 'resident Mugabe;s arrest
under %ection 1B: o the -rimina" Justice Act 1<881 which incorporates the !C -on#ention
Against /orture 1<8: into !7 domestic "aw+
,n addition1 immunities o a )ead o %tate can be wai#ed1 either by the )ead o %tate himse"
or herse"1 or his or her state+ (n the other hand1 when a )ead o %tate "ea#es oice1 the
)ouse o Lords in the !7 has ound that heHshe wi"" en@oy immunities on the same basis as a
ormer dip"omat1 and in particu"ar subsisting immunity or ratione materiae or his oicia"
acts as pro#ided or under Artic"e B< (2) o the 5-.0+
%econd"y1 under customary internationa" "aw1 a )ead o %tate en@oys immunity rom
prosecution or crimina" oences+ /hus1 en@oyment o pri#i"eges and immunities o )ead o
%tates and go#ernment rom crimina" @urisdiction and in#io"abi"ity is irm"y entrenched in
,nternationa" Law+ ,ndeed1 these immunities and pri#i"eges are not granted or persona"
beneit o the )ead o %tate or Fo#ernment1 but to ensure eecti#e perormance o their
unctions on beha" o their states+ /hus1 'resident A"*Bashir;s immunity rom arrest and
prosecution is unctiona" because when he oicia""y #isits other states (inc"uding 7enya)1 he
is perorming the unction o the state and the oice he ho"ds+ Functiona" immunity protects a
)ead o %tate rom prosecution e#en ater he ceases to perorm the duties o a head o state
because o the princip"e o so#ereign eGua"ity under customary internationa" "aw1 which
suggests that each nation*state is orma""y eGua" to the other and thereore shou"d be gi#en
eGua" respect by the other nation*states+ %tates are a"so entit"ed to a right to se"*determination
and non*inter#ention in their interna" aairs by other countries or internationa" organi=ations+
Cow this princip"e ma$es a president immune rom prosecution on the #irtue o e#erything
heHshe does as "ong as heHshe is in oice+ Furthermore1 a president en@oys persona" immunity
as "ong as heHshe is a head o stateI
Cow1 under what circumstances does a head o state or go#ernment "ose their immunityJ
>hi"e a state cannot c"aim @urisdiction o#er another state;s incumbent head o state1 an
internationa" tribuna" can+ ,n this way1 heads o state and other high ran$ing oicia"s do not
en@oy impunity+ )owe#er1 this #ertica" c"aim o @urisdiction is sub@ect to two conditions3 that
the instruments creating the tribuna"s eDpress"y or imp"icit"y remo#e the re"e#ant immunity o
the oicia"? and1 that the state o the oicia" concerned is bound by the instrument remo#ing
the immunity+
,n the Arrest Warrants case (Arrest >arrant o 11 Apri" 2000 * .emocratic 0epub"ic o
-ongo 5+ Be"gium * 're"iminary (b@ections and Merits1 Judgement1 ,-J 0eports) the
,nternationa" -ourt o Justice a"so stressed that immunity was not the same as impunity+ ,n
this respect1 it noted our circumstances in which a#ai"abi"ity o immunity ratione personae
o incumbent oicer*ho"ders wou"d not pre#ent their prosecution3 where the oice*ho"der in
Guestion is prosecuted by the courts o his own state? where immunity is wai#ed by the
oice*ho"der;s state? when the oice*ho"der "ea#es oice1 he or she may be prosecuted by the
court o another state (pro#ided that in other respects it has @urisdiction in accordance with
internationa" "aw) in respect o his or her acts prior to or subseGuent to his period o oice1 or
or his or her pri#ate acts during his period o oice? and1 by certain internationa" crimina"
courts1 pro#ided that they ha#e @urisdiction+
/he 0ome %tatue has a"so managed to pierce so#ereign immunity+ !nder artic"e 2E o the
0ome %tatute1 states and e#en heads o state or go#ernment are1 2not eDempt rom crimina"
responsibi"ity under the statute4 or serious crimes+ )owe#er1 this artic"e constitutes a brea$
rom customary internationa" "aw+
/o be ab"e to demonstrate this brea$1 the Arrest Warrants case at the ,nternationa" -ourt o
Justice (,-J)1 as we"" as the Tachiona case in the !% courts (Tachiona v. United States)1 is
inormati#e on this+ ,n the Arrest Warrants case1 the ,-J he"d that Foreign Aairs Ministers
en@oy u"" immunity rom crimina" @urisdiction and in#io"abi"ity whi"e in oice since this
immunity is important or the eDercise o their duties+ /his immunity ensures that Foreign
Aairs Ministers can tra#e" without hindrance in the perormance o their duties+ )eads o
%tate are by nature o their oice representati#es o the state where#er they are and a"so en@oy
this immunity+ 9#en though the case being dea"t with in the Arrest Warrants case concerned a
Foreign Aairs Minister1 the same immunities wou"d be accorded )eads o %tate+ /his
immunity is on"y unctiona"1 since it accords )eads o %tates ree eDercise o their duties in
representing their state+ /he Tachiona case in the !% courts dea"t with torture and ci#i" action
against the Mugabe regime or ha#ing tortured /achiona;s ami"y in Kimbabwe+ Fo""owing
the precedent in the Arrest Warrants case1 the !% courts he"d that a sitting head o state has
immunity rom crimina" and ci#i" proceedings abroad+ )owe#er1 the Arrest Warrants case
dea"t with crimina" or ci#i" prosecution in a nationa" court1 not an internationa" one+
,t shou"d be noted that none o the immunities considered are or the beneit o any particu"ar
indi#idua" or group o indi#idua"s1 but rather are or the beneit o the state they represent+
/hus1 a sending state can wai#e immunities thereby consenting to the @urisdiction o the
courts o another court o#er the oicia" in Guestion+ /his app"ies whether the immunity in
Guestion is granted ratione personae or ratione materiae+
(n any reasonab"e interpretation o the 0ome %tatute1 the same princip"es do not app"y to the
,--+ >hat are the conseGuences thereore o such a po"icy o prosecuting e#en sitting heads
o state and go#ernment and stripping them o their immunity1 which is regarded as important
or the eDercise o their dutiesJ , the ,-- 'rosecutor had sought the arrest warrants when
Bashir had "et oice that wou"d ha#e been a dierent issue+ But right now Bashir is sti"" in
oice1 and notwithstanding the repercussions or the .arur peace process1 is such a gamb"e
"i$e"y to succeed e#en i the warrants are issued and Bashir is ta$en to the ,--J
Many practica" diicu"ties eDist+ ,t is doubtu" whether any state can arrest Bashir without
#io"ating the internationa" "aw on immunity1 which means that the support o other states in
arresting Bashir wi"" be un"i$e"y+ /he ,-- re"ies on states to enorce and imp"ement its
warrants+ /he ai"ures in arresting the Lord;s 0esistance Army "eader Joseph 7ony are
instructi#e here+ /he ,-- has not been ab"e to bring 7ony to the )ague because o the ai"ure
to physica""y arrest him+ (ne wonders i it wou"d be easier to arrest Bashir+ ,t seems the ,--
has "earnt "itt"e rom its eDperiences in the !ganda situation+ /he ,-- itse" is based in the
territory o another state+ >hether /he Cether"ands1 where the ,-- is housed1 wou"d #io"ate
its internationa" "ega" ob"igations by a""owing the ,-- to go ahead and prosecute a sitting
president who has immunity within its territory is a"so yet to be seen+ 9#en though scho"ars
and commentators ha#e cha""enged this position on immunity1 in terms o "aw and the
precedent set by the Arrest Warrants case1 or the time being the position stands that a sitting
head o state is immune rom prosecution andHor arrest in the territory o another state+
,ndeed1 in the Arrest Warrants case1 the ,nternationa" -ourt o Justice was concerned with the
immunity ratione personae o a ser#ing Foreign Minister1 and conc"uded that under
customary internationa" "aw1 no eDception to that immunity eDists in respect to war crimes or
crimes against humanity+ /he court based its decision upon its re#iew o nationa" "egis"ation
(in this respect the ormer Begian Act o 10 February 1<<< under which the immunities were
not admissib"e in respect to war crimes1 crimes against humanity and genocide1 appeared
eDceptiona" and so cou"d not be re"ied upon as suicient e#idence in itse" o an emerging
ru"e o genera" internationa" "aw+ A point under"ined by the act that this pro#ision was
repea"ed and the Act as a who"e was substantia""y amended o""owing the -ourt;s @udgement
and dip"omatic pressure rom other states) and those ew decisions o higher courts in
nationa" "ega" systems on the point (such as subseGuent cases that support the indings o ,-J
are Tachiona versus Mugabe and the decision o Bow %treet;s Magistrate;s court)+
/hus1 based on the genera" princip"e1 the immunity ratione personae o certain incumbent
high state oicia"s1 inc"uding )eads o %tate1 )ead o Fo#ernment1 Foreign Ministers1 certain
senior Ministers1 dip"omatic agents and a"so members o high*"e#e" specia" missions1 are1 in
the absence o a wai#er by the sending state1 an abso"ute bar to the crimina" @urisdiction o the
nationa" courts or the duration o their oice or mission+ /he ,-- oten o#er"oo$s that1 e#en
though it is an independent court1 it operates within the comity o states1 which ha#e ru"es
that pre*date the ,--+
Most "i$e"y1 the ,-- 'rosecutor did consider a"" o these e#entua"ities+ , so1 then1 why did he
see$ the warrant or Bashir;s arrest and a"so pub"icise the actJ (ne is tempted to arri#e at the
conc"usion that the ,-- 'rosecutor is p"aying po"itics rather than "aw * in an attempt to
intimidate Bashir into aster negotiation o a peace dea" and reso"ution o the .arur con"ict
and possib"y handing o#er the other two suspects rom %udan+ /he ,-- is a"so p"aying
po"itics by trying to orce the %ecurity -ounci" into engaging u""y in %udan to end the
con"ict+ /he %ecurity -ounci" has so ar eDhibited #ery "itt"e po"itica" wi"" to in#o"#e itse"
who"ehearted"y in reso"#ing con"ict in %udan * hence1 the reerra" to the ,--1 the mere
support ro"e p"ayed by the !C in assisting the Arican !nion orce1 and the continued debate
o#er whether the #io"ence in .arur constitutes genocide+ /his is a gamb"e by the 'rosecutor1
and whether it wi"" trigger the %ecurity -ounci";s u"" engagement remains unc"ear+ ,t is
instructi#e that whi"e the ,-- inc"udes genocide on its "ist o crimes a""eged"y committed in
.arur1 the !C has not considered the crimes as genocide on the grounds that there is no
genocida" 8intent8+ 9#en though some members o the !C1 particu"ar"y the !%1 ha#e pub"ic"y
reerred to the crimes committed in %udan as genocide1 there has not been in the !C %ecurity
-ounci" or Fenera" Assemb"y a response worthy o the crime o genocide+ /he %ecurity
-ounci" has not in#o$ed its powers under -hapter 5,, o the !C -harter to protect a peop"e
in danger rom its own go#ernment and to maintain peace and security in %udan+ /here has
not been the sense o urgency that a response to genocide necessitates+
/he ,nternationa" -rimina" -ourt is a body estab"ished by treaty thus in a dierent position
because states must consent to be bound by the 0ome %tatute beore they are bound by it+
>hi"st the 0ome %tatute appears to "imit immunities a#ai"ab"e to deendants in proceedings
beore the ,-- itse"1 it is not c"ear that this pro#ision can restrict the immunities o oicia"s
o states that are not parties to the 0ome %tatute1 un"ess there is a wai#er by the present
re"e#ant state1 or binding reso"ution o the %ecurity -ounci" #esting @urisdiction in the ,--+ ,n
re"ation to the a#ai"abi"ity o immunities in re"ation to proceedings beore nationa" authorities
and nationa" courts re"ating to reGuests by ,-- or surrender and assistance1 it shou"d be
noted that Artic"e <8 (1) o the 0ome %tatute a"so preser#es the state and dip"omatic
immunities o oicia"s and property o third states+ ,t speciica""y states under Artic"e <8 (1)
states3 2/he -ourt may not proceed with a reGuest or surrender or assistance which wou"d
reGuire the reGuested state to act inconsistent"y with ob"igations under internationa" "aw with
respect to state or dip"omatic immunity o a person or property o a third state1 un"ess the
-ourt can irst obtain the cooperation o a third state on the wai#er or immunity4+ ,n other
words1 oicia"s o a state which is not a party o the 0ome %tatute may be ab"e to c"aim
immunity in respect o their arrest and transer to the -ourt1 whereas a state party to the
0ome %tatute has in eect wai#ed such immunities in respect o its own oicia"s both beore
,-- itse" and in the courts o other states parties in respect o their cooperation with ,--+
0e#isiting the Ma"awian decision not to host the A! %ummit meeting in Ju"y 20121 its
decision is prompted more on the act that the go#ernment recogni=es the importance o
respecting customary internationa" "aw1 which pre#ents it rom arresting a sitting head o
state+ ,ndeed1 Ma"awi is on"y comp"ying with 0ome %tatute Artic"e <8 (1) in and in not so
many wordsIII