Pre-Trial Chamber I recently issued a decision finding that "that the Republic of Malawi (and later Chad) . . . failed to comply with the cooperation requests contrary to the provisions of the (Rome) 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." Pre-Trial Chamber I rejected the argument that both countries had to afford immunity to heads of state under article 98(1) of the Rome Statute, which provides that the Court cannot require a "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." Pre-Trial Chamber I concluded that "there is an inherent tension between articles 27(2) and 98(1) of the Statute and the role immunity plays when the Court seeks cooperation regarding the arrest of a Head of State. The Chamber considers that Malawi, and by extension the African Union, are not entitled to rely on article 98(1) of the Statute to justify refusing to comply with the Cooperation Requests."
In its statement, the AU reminded the Court that "the immunities provided for by international law apply not only to proceedings in foreign domestic courts but also to international tribunals: states cannot contract out of their international legal obligations vis-à-vis third states by establishing an international tribunal." According to the AU, "article 98(1) was included in the Rome Statute establishing the ICC out of recognition that the Statute is not capable of removing an immunity which international law grants to the officials of States that are not parties to the Rome Statute. This is because immunities of State officials are rights of the State concerned and a treaty only binds parties to the treaty. A treaty may not deprive non-party States of rights which they ordinarily possess." Thus, "immunity accorded to senior serving officials, ratione personae, from foreign domestic criminal jurisdiction (and from arrest) is absolute and applies even when the official is accused of committing an international crime." The AU referred to the International Court of Justice ("ICJ") jurisprudence, including Arrest Warrant Case (Democratic Republic of Congo v. Belgium). The AU also noted that the UN Security Council itself never expressly lifted Bashir's immunity and that the "mere referral of a 'situation' by the UNSC to the ICC or requesting a state to cooperate with the ICC cannot be interpreted as lifting immunities granted under international law."
Finally, the AU noted that Pre-Trial Chamber I failed to appreciate AU member states' obligations under the Constitutive Act of the African Union, "which obligates all AU Member States 'to comply with the decisions and policies of the Union.'"
In its concluding remarks, the AU states that it "will continue to fight against impunity as required by Article 4 of the Constitutive Act and the relevant Assembly decisions and shall oppose any ill-considered, self-serving decisions of the ICC as well as any pretensions or double standards that become evident from the investigations, prosecutions and decisions by the ICC relating to situations in Africa." It also requested that "all African Union Member States and Friends of Africa . . . reject any draft resolution that may be tabled before the UN Security Council as well as the Assembly of the States Parties to the Rome Statute with the intention of sanctioning the Republic of Malawi and Chad."
Source : ASIL