November 13, 2011 (WASHINGTON) – The government of Malawi responded to a request for an explanation by the judges of the International Criminal Court (ICC) on why it did not apprehend the Sudanese president Omer Hassan al-Bashir, when he visited last month.

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 orchestrated in Darfur.

The African Union (AU), in several resolutions instructed its members not to comply with the arrest warrant even if they are ICC members. So far Kenya, Chad, Djibouti and Malawi are the African ICC members that have allowed Bashir to visit without issues.

The last trip to an ICC state party took Bashir to Malawi for the meetings of the 19-member Common Market for Eastern and Southern Africa (COMESA). ICC judges afterwards asked Malawi to submit observations by November 11th on its refusal to arrest the Sudanese leader.

According to the Nyasa Times, Malawi said in its response that they gave Bashir all the immunities and privileges guaranteed to every visiting head of state and government which include, “freedom from arrest and prosecution within the territories of Malawi.”

This Malawi said was on the basis that Sudan is not party to the Rome Statute, arguing that Article 27 of the Rome Statute, which “waives the immunity of the Heads of State and Government,” was not, therefore, applicable.

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.

“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.

Nonetheless, the African state said it reconfirms its unflinching commitment to the Rome Statute in combating impunity and ensuring that the world is free of heinous crimes like those specified in the Statute.

Malawian President Bingu wa Mutharika has previously said that African leaders should not be dragged to the ICC for offenses committed in Africa.

“Why on earth should your leaders be dragged to the Hague when your judges are right here,” he said.

African judges and the judicial system “would be seen to be admitting failure if they continue to allow its own leaders to appear before an international judiciary for offenses committed on the African continent.”

“We Africans must stand up and be courageous to try our own leaders so that no African should be dragged to court outside our own judiciary system,” he said.

The US and European nations have issued statements criticizing Malawi for failing to adhere to its legal obligations further adding to its diplomatic isolation

Major aid donors suspended packages worth around $1 billion over concerns about human rights abuses and maladministration by President Bingu wa Mutharika, who drew international condemnation when his forces killed 20 protesters at anti-government rallies in July.

The US leading Congressman Frank Wolf had asked President Obama to suspend aid to Malawi as a result of hosting Bashir.

“The very thought of US taxpayers providing money to a country that has opened its doors to wanted war criminal should be reason enough to cancel both the MCC and American foreign aid funding all together for Malawi,” Wolf wrote in letters to President Obama and Secretary of State Hillary Clinton.