swatting off damocles sword

8/12/2019 Swatting Off Damocles Sword

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

Implication in International Law

By

Lawrence Mwagwabi

Last Friday (8thJune 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 ome %tatute and thereore

ma$ing her a state party to the ,nternationa" -rimina" -ourt+ ,n this regard Ma"awi is

supposed to arrest a"*Bashir as soon as he enters its territory+ Furthermore it was reported

that the ,--&s chie prosecutor on Monday (11 thJune 2012) threatened that countries thatai"ed to detain him shou"d ha#e their aid cut+

,n an artic"e by the Reutersentit"ed Arica b"oc ready to mo#e summit o#er Bashir row3

Ma"awi4 the Ma"awian 5ice 6 'resident ight onorab"e 7humbo 7acha"e is reported to

ha#e to"d euters that the Arican !nion has written us a "etter inorming us that i we don&t

a""ow a"*Bashir to come to Ma"awi then they wi"" mo#e the summit to Addis Ababa in

9thiopia4+

Ma"awi is said to ha#e angered internationa" donors who inance :0 percent o its budgetary

unding when it hosted Bashir "ast year when it;s ormer 'resident Bingu wa Muthari$a(now deceased) was president+ Arican !nion heads o state #oted in 200< not to cooperate

with the ,-- indictments 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 -had both o them ,-- members 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"y that saying his #isit wou"d ha#e imp"ications or its aid*

dependent economy+ As pointed ear"ier Ma"awi "ost :0 percent inancia" aid to its budget

during ormer 'resident Mbingu wa Muthari$a;s tenure as president+ %econd"y the ci#i"

society in Ma"awi put pressure on the Ma"awian go#ernment not to host the A! summit+,ndeed in an artic"e entit"ed -i#i" %ociety %tatement on Ma"awi;s .ecision to >ithdraw

rom osting the 1


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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 state we the undersigned 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 ome %tatute by opting to withdraw rom

hosting the 1or$man ru"ed that 'resident Mugabe asa ser#ing ead o %tate has abso"ute immunity4 rom arrest and prosecution+ Mr >or$man


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was de"i#ering his #erdict on an app"ication or an arrest warrant on charges o torture i"ed

by human rights campaigner 'eter /atche""+ Mr /atche"" sought 'resident Mugabe;s arrest

under %ection 1: o the -rimina" Justice Act 1


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responsibi"ity under the statute4 or serious crimes+ owe#er this artic"e constitutes a brea$

rom customary internationa" "aw+

/o be ab"e to demonstrate this brea$ theArrest Warrants case at the ,nternationa" -ourt o

Justice (,-J) as we"" as the Tachiona case in the !% courts (Tachiona v. United States) is

inormati#e on this+ ,n theArrest Warrants case the ,-J he"d that Foreign Aairs Ministersen@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 theArrest Warrants case concerned a

Foreign Aairs Minister the same immunities wou"d be accorded eads o %tate+ /his

immunity is on"y unctiona" 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 theArrest Warrants case the !% courts he"d that a sitting head o state has

immunity rom crimina" and ci#i" proceedings abroad+ owe#er the Arrest Warrants casedea"t with crimina" or ci#i" prosecution in a nationa" court 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"s but rather are or the beneit o the state they represent+

/hus 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 ome %tatute 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 immunity which is regarded as importantor the eDercise o their duties , 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

oice and notwithstanding the repercussions or the .arur peace process is such a gamb"e

"i$e"y to succeed e#en i the warrants are issued and Bashir is ta$en to the ,--

Many practica" diicu"ties eDist+ ,t is doubtu" whether any state can arrest Bashir without

#io"ating the internationa" "aw on immunity 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 esistance 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"ands where the ,-- is housed 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 immunity in terms o "aw and the

precedent set by the Arrest Warrants case 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+

,ndeed in theArrest Warrants case the ,nternationa" -ourt o Justice was concerned with the

immunity ratione personae o a ser#ing Foreign Minister and conc"uded that under

customary internationa" "aw no eDception to that immunity eDists in respect to war crimes orcrimes against humanity+ /he court based its decision upon its re#iew o nationa" "egis"ation


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(in this respect the ormer Begian Act o 10 February 1


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-ourt can irst obtain the cooperation o a third state on the wai#er or immunity4+ ,n other

words oicia"s o a state which is not a party o the ome %tatute may be ab"e to c"aim

immunity in respect o their arrest and transer to the -ourt whereas a state party to the

ome %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 ,--+

e#isiting the Ma"awian decision not to host the A! %ummit meeting in Ju"y 2012 its

decision is prompted more on the act that the go#ernment recogni=es the importance o

respecting customary internationa" "aw which pre#ents it rom arresting a sitting head o

state+ ,ndeed Ma"awi is on"y comp"ying with ome %tatute Artic"e

swatting off damocles sword

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