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.