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To: The Minister of Foreign Affairs Hon: Prof Peter Mutharika CC: All Ambassadors and High Commissioners

THE YOUTH ASSOCIATION FOR DEMOCRACY (YADEMA) POSITION PAPER ON THE VISIT OF AL B ASHIR TO MALAWI TO ATTEND THE AU SUMMIT CONSTITUTIONAL BACKGROUND viz-a-viz INTERNATIONAL RELATIONS We, the Youth and all the People of Malawi, in adopting the 1994 Constitution ma de it clear in the Preamble thereto that we are seeking to guarantee the welfare and development of all the people of Malawi, national harmony and peaceful inte rnational relations. Indeed right in Section 1 of the Constitution, as much as w e profess to be a sovereign State, we also make it very clear that we have got r ights and obligations under the Law of Nations. According to the Constitutional principles of national policy, one of the goals we as a Nation would like to ach ieve in S. 13(k) of the Constitution is to govern in accordance with the Law of Nations and the rule of law and actively support the further development thereof in regional and international affairs. When it comes to Treaties, S.211 of the Constitution makes it clear that any international agreement entered into after the commencement of the Constitution shall form part of the law of the Republic if so provided by an Act of Parliament. One such Treaty which has the force of law in Malawi is the Rome Statute of the International Criminal Court which was signed by Malawi on the 2nd Day of March, 1999, had it ratified on the 19th of September, 2002. It came into force on the 1st day of December, 2002. The principal objective of this Statute is to establ ish the International Criminal Court which has got jurisdiction to try the most serious crimes of concern to the International Community. In particular, the Cou rt has jurisdiction to prosecute any person of the following crimes: (a) Crimes of Genocide, (b) Crimes against Humanity, (c) War Crimes, (d) the Crime of Aggre ssion. Being a State Party to the Statute, Malawi has got obligations of arresti ng, prosecuting and/or extraditing the offenders. There are also consequences of failing to carry out the obligations. OF AL BASHIR and the INTERNATIONAL CRIMINAL COURT Mr Al Bashir has been the President of the Republic of Sudan since the 16th of O ctober, 1993. On the 4th of March, 2009, the Pre Trial Chamber I of the ICC issu ed a Warrant of Arrest for Mr Al Bashir. A second Warrant of Arrest was issued a gainst him on the 12 of July, 2010. He faces individual criminal responsibility as well as an indirect co perpetrator of the following crimes: (a) 5 counts of c rimes against humanity which include, murder, extermination, forcible transfer, torture and rape; (b) 2 counts of war crimes which include, internationally dire cting attacks against a civilian population as such or against individual civili ans not taking part in hostilities and pillaging; (c) 3 counts of genocide inclu ding, genocide by killing, genocide by causing serious bodily harm or mental har m and genocide by deliberately inflicting on each target group conditions of lif e calculated to bring about the group s physical destruction. Pursuant to the aforesaid warrants the Registrar of the International Criminal C ourt sent initial request on 6th March, 2009 for co-operation to all states part ies, including Malawi for arrest and surrender of President Al Bashir should he set foot on their respective territory. Subsequent to the issuance of the second warrant, the Registrar of the International Criminal Court sent a supplementary request on 21st July, 2010 couched on the said terms as the first one. OF AL BASHIR COMING TO MALAWI It is common knowledge that Al Bashir set his foot in Malawi on the ber, 2011 to attend a COMESA summit and allegedly at the invitation he Malawi Government did not arrest and have him surrendered to the ngly the ICC issued a decision requesting the Republic of Malawi to 14th of Octo of COMESA. T ICC. Accordi submit, no l

ater than 11 November 2011, any observations with regard to the alleged failure by the Republic of Malawi to comply with the cooperation requests issued by the Court for the arrest and surrender of Al Bashir. Be that as it may, it is now co mmon knowledge as well that Malawi will be hosting the African Union Summit in J uly, 2012 and according to Press Reports, Al Bashir has been invited to attend t he Summit at the instance of the AU. The Malawi Government has been quick to poi nt out that the invitation if any is by the AU and not herself. YADEMA S POSITION ON AL BASHIR COMING TO MALAWI The Youth Association for Democracy (Yadema) strongly objects to the Malawi Gove rnment allowing President Al Bashir to set his foot in Malawi for the AU Summit if he will not be arrested. We wish to remind the Malawi Government that the obl igation to arrest and surrender Al Bashir to the ICC is not conditional on who i nvites him to Malawi but his mere presence in Malawi. It is not the entity invit ing but the State Party that will be answerable to the ICC. A reading of Article s 86 and 87 of the Statute makes it very clear that once a request has been made by the ICC, the State Party is under an obligation to comply with the request. The consequences of failing to comply with a request to cooperate are that the C ourt may make a finding to that effect and refer the matter to the Security Coun cil of the United Nations which in this particular matter of Al Bashir was the o ne that referred his indictment of to the ICC. The Security Council under Articl e 41 of the UN Charter has got powers to deploy measures to countries that do no t give effect to its decisions and these measures may include complete or partia l interruption of economic relations as well as severance of diplomatic ties. To that end, we have already seen such measures being deployed on Malawi as eviden ce by the U.S Government s Millennium Challenge Corporation (MCC) decision to suspen d the US$350 Million aid meant to revamp the energy sector. The Press Statement from the MCC makes it very clear that one of the factors for the suspension of t he aid was Malawi s decision to allow Sudanese President Omar al-Bashir to attend a trade summit in Lilongwe, despite the International Criminal Court s (ICC) outstandi ng warrant for his arrest. From the above it is clear that Malawi Government s insis tence to host Al Bashir is having dire economic and diplomatic consequences on M alawi. The suspension of the US$350 million investment in the power sector was e xpected to provide close to $2 billion in net income benefits to nearly six mill ion Malawians. As a poor nation, we cannot afford to lose such aid under the gui se of sovereignty when our very own Constitution recognizes that we have duties and obligations under the law of nations. It is axiomatic that Malawi State just like any other State has no autonomous existence outside the framework of the c ommunity of nations, and that on this account, its regime of law and Constitutio nal order inter-face with the other states under the auspices of international l aw. One of the beacons of international law is multilateral treaties (including the Rome Statute), to which Malawi and other states are parties. We are thus und er a duty to arrest Al Bashir if he comes to Malawi not because the Western Coun tries so wish, but because we ratified the Rome Statute. The consequences, howev er, of our failing to comply with the Statute entail all countries, including th e western countries of reviewing their economic and diplomatic relations with Ma lawi. We are aware that the African Union decision adopted in July, 2009 by the Heads of State meeting at Sirte in Libya, directing all AU member States to withhold c o-operation with the ICC in respect of arrest and surrender of Al Bashir. Be tha t as it may, the decision by AU Heads of State is not law in Malawi. In our cons idered view, it was a mere strong appeal to brotherhood of African Leaders to pr otect each other. That decision is not law, the Rome Statute is law in Malawi an d that is what we are constitutionally bound to respect and comply with. RECOMMENDATIONS It is in view of the foregoing that we call upon the Malawi Government: (a) As a host State not to invite Al Bashir to the AU Summit. (b) If the invitation is to be done by the AU Secretariat, to outright turn down such an invitation and declare him a Persona non Grata (c) In the event that he comes to Malawi anyhow, to effect the ICC Warrant of Ar

rests and this position should be communicated to him, the ICC, the AU Secretari at and Malawians. (d) Should Government not be willing to effect the Warrant of Arrest, YADEMA is prepared to go the Kenyan way whereby an Order was obtained in the High Court, f orcing the Minister of Home Affairs to issue a Provisional Warrant of Arrest for Al Bashir. It is our hope, however that the Malawi Government will listen to the voices of the Malawian Youth and act accordingly in the light of our recommendations on Al Bashir visit to Malawi. Wapona Kita Chairperson- Youth Association for Democracy (Yadema)

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