¹ 2187 UNTS 90.

² As of 21 July 2009, 110 States (out of 192 UN Member States) were parties to the Rome Statute of the International Criminal Court. Out of them 30 were African States, 14 were Asian States, 17 were from Eastern Europe, 24 were from Latin American and Caribbean States, and 25 were from Western European and other States.

³ See Office of the Prosecutor, ICC Prosecutor Confirms Situation in Guinea under Examination, ICC-OTP-20091014-PR464 (14 October 2009).

⁴ See ICC-02/05-01/09, The Prosecutor v Omar Hassan Ahmad Al Bashir.

⁵ For an overview see generally AH Idris, Conflict and Politics of Identity in Sudan (Palgrave Macmillan, New York, 2005); I Elnur, Contested Sudan: The Political Economy of War and Reconstruction (Routledge, New York, 2008); DH Johnson, The Root Causes of Sudan's Civil Wars (James Currey, Oxford, 2003).

⁶ See eg UN High Commissioner for Human Rights, Situation of Human Rights in the Darfur Region of the Sudan (7 May 2004) UN Doc E/CN.4/2005/3; Warrant of Arrest for Omar Hassan Ahmad Al Bashir (4 March 2009) No ICC-02/05-01/09; Human Rights Committee, Concluding Observations: Sudan, (26 July 2007) UN Doc CCPR/C/SDN/CO/3/CRP.1, para. 9; Centre on Housing Rights and Evictions (COHRE) v The Sudan, Communication 296/05, available at http://www.cohre.org/Sudan; Report of the African Union High-Level Panel on Darfur (AUPD), October 2009 (n 132) paras 41–127.

⁷ UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593 1. The resolution was adopted by 11 votes to none, with four abstentions by China, Algeria, Brazil and the US. Two African States, Benin and Tanzania, voted for the resolution and one, Algeria, abstaining. For a discussion see M Happold, ‘Darfur, The Security Council, and the International Criminal Court’ (2006) 55 ICLQ 226–236, 1.

⁸ Art 13(b) provides that the ICC may exercize its jurisdiction with respect to a crime within its jurisdiction if ‘[a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations’.

⁹ UNSC Res 1593 (n 7).

¹⁰ The other three situations before the ICC—Uganda, Democratic Republic of the Congo (DRC) and Central African Republic (CAR)—were all referred to the ICC prosecutor by the relevant States parties.

¹¹ Application under art 58 of the Rome Statute, requesting that Pre-Trial Chamber I issue a Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-151-US-Exp, and its annexes, ICC-02/05-151-US-Exp-Anxl-89; ICC-02/05-151-US-Exp-Corr and its annexes, ICC-02/05-151-US-Exp-Corr-Anxl-2. Public Redacted Version of Prosecution's Application under art 58 of the Rome Statute filed on 14 July 2008, ICC-02/05-157 and its annex ICC-02/05-157-AnxA (Arrest Application).

¹² ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, The Prosecutor v Omar Hassan Ahmad Al Bashir, available at <www2.icc-cpi.int/iccdocs/doc/doc639096.pdf>.

¹³ See Warrant of Arrest for Omar Hassan Ahmad Al Bashir, No ICC-02/05-01/09 (4 March 2009) available at <www.icc-cpi.int/iccdocs/doc/doc639078.pdf>.

¹⁴ ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (n 12) para 76.

¹⁵ ibid.

¹⁶ ibid.

¹⁷ See ICC, Situations and Cases, available at <www.icc-cpi.int/Menus/ICC/Situations+and+Cases/>.

¹⁸ See O Fiss, ‘Within Reach of the State: Prosecuting Atrocities in Africa’ (2009) 31 Human Rights Quarterly 1,59–69.

¹⁹ See ICC-02/04-01/05 The Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen currently being heard before Pre-Trial Chamber II. The name of Raska Lukwiya was removed from the case following the confirmation of his death in accordance with the decision of Pre-Trial Chamber II, No ICC-02/04-01/05-248 of 11 July 2007, to terminate the proceedings against Raska Lukwiya. The four remaining suspects are still at large.

²⁰ Three cases are being heard before the relevant Chambers: ICC-01/04-01/06, The Prosecutor v Thomas Lubanga Dyilo; ICC-01/04-02/06, The Prosecutor v Bosco Ntaganda; and ICC-01/04-01/07, The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui. The accused Thomas Lubanga Dyilo, Germain Katanga and Mathieu Ngudjolo Chui are currently in the custody of the ICC. The suspect Bosco Ntaganda remains at large.

²¹ See ICC-01/05 -01/08, The Prosecutor v Jean-Pierre Bemba Gombo is at the pre-trial stage of the proceedings and at the time of writing it was being heard before Pre-Trial Chamber III.

²² Two cases are being heard before Pre-Trial Chamber I: ICC-02/05-01/07, The Prosecutor v Ahmad Muhammad Harun (‘Ahmad Harun’) and Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’); and ICC-02/05-01/09, The Prosecutor v Omar Hassan Ahmad Al Bashir.

²³ Ali Kushayb ibid.

²⁴ ICC-02/05-02/09, The Prosecutor v Bahar Idriss Abu Garda.

²⁵ Ahmad Harun (n 22).

²⁶ See eg Amnesty International, ‘ICC Issues Arrest Warrant for Sudanese President Al Bashir’, 4 March 2009, available at <www.amnesty.org/en/news-and-updates/news/icc-issues-arrest-warrant-sudanese-president-al-bashir-20090304>. Amnesty International's secretary general, Irene Khan, stated that ‘[t]his announcement [of the ICC warrant of arrest for Al Bashir] is an important signal—both for Darfur and the rest of the world—that suspected human rights violators will face trial, no matter how powerful they are’. Human Rights Watch stated that the ICC warrant indicates that ‘[n]ot even presidents are guaranteed a free pass for horrific crimes’. See Human Rights Watch, ‘ICC: Bashir Warrant Is Warning to Abusive Leaders’, 4 March 2009, available at <www.hrw.org/en/news/2009/03/04/icc-bashir-warrant-warning-abusive-leaders>.

²⁷ See I Bantekas and S Nash, International Criminal Law (3^rd edn, (Cavendish, Routledge, London, 2007)) 100, citing, inter alia, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment) 14 February 2002 (hereafter ‘Arrest Warrant case’) ICJ Rep 2002, 3, 41 ILM 536 (2002) at paras 47–55.

²⁸ R Cryer et al, An Introduction to International Criminal Law and Procedure (Cambridge University Press, Cambridge, 2007) 422.

²⁹ For a discussion see R Van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (OUP, Oxford, 2008) 169; H Fox, The Law of State Immunity (OUP, Oxford, 2008) 667; International Law Commission, Immunity of State Officials from Foreign Criminal Jurisdiction: Memorandum Prepared by the Secretariat (31 March 2008) UN Doc A/CN.4/596 para 146.

³⁰ Bantekas and Nash (n 27) para 54.

³¹ See Convention on the Privileges and Immunities of the United Nations (adopted by the UN General Assembly on 13 February 1946) 1 UNTS 15, art IV.

³² See UN Convention on Special Missions (adopted by the UN General Assembly on 8 December 1969, entered into force on 21 June 1985) 1400 UNTS 231, art 21, 31 and 39.

³³ See Arrest Warrant case (n 27) para 58 applying the above position to incumbent Ministers of Foreign Affairs. The same position must extend to the serving head of state.

³⁴ Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] ICJ Rep para 170 quoting from Arrest Warrant case (n 27) para 54.

³⁵ Arrest Warrant case (n 27) para 60.

³⁶ Vienna Convention on the Law of Treaties (1969) 1155 UNTS 331. Art 34 provides: ‘A treaty does not create either obligations or rights for a third State without its consent’.

³⁷ Rome Statute, art 98.

³⁸ UN Charter, arts 24(1), 25, and 103.

³⁹ See ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (n 12) paras 40 and 45.

⁴⁰ See ibid para 41 (emphasis added).

⁴¹ United Nations, ‘Report of the Security Council Mission to Djibouti (on Somalia), the Sudan, Chad, the Democratic Republic of the Congo and Côte d'Ivoire, 31 May to 10 June 2008’ (15 July 2008) UN Doc S/2008/460 para 60. Sudan signed the Rome Statute on 8 September 2000.

⁴² See M Milanovic, ‘ICC Prosecutor Charges the President of Sudan with Genocide, Crimes Against Humanity and War Crimes in Darfur’ (28 July 2008) 12 American Society of International Law Insights 15 available at http://www.asil.org/insights080728.cfm#_edn1.

⁴³ WA Schabas, An Introduction to the International Criminal Court 3rd ed (CUP, Cambridge, 2007) at 232 citing Milošević (IT-02-54-PT), Decision on Preliminary Motions, 8 November 2001, paras. 26–34; Taylor (SCSL-2003-01-I), Decision on Immunity from Jurisdiction, 31 May 2004, para. 41.

⁴⁴ By art 1 of the Rome Statute: ‘… The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute’.

⁴⁵ P Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7 Journal of International Criminal Justice 2, 322–323.

⁴⁶ See ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (n 12) para 42, citing preamble of the Rome Statute, paras 4 and 5.

⁴⁷ ibid para 43.

⁴⁸ Vienna Convention (n 36) art 18.

⁴⁹ See the Statute of the International Criminal Tribunal for the Former Yugoslavia, 32 ILM (1993) 1203, art 7(2); the Statute of the International Tribunal for Rwanda, 33 ILM 1598, 1600 (1994), art 6(2); and the Statute of the Special Court for Sierra Leone, <www.sc-sl.org/LinkClick.aspx?fileticket=uClnd1MJeEw%3d&tabid=200>, art 6(2). These Articles provide that ‘[t]he official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment’. See also Charter of the International Military Tribunal (entered into force 8 August 1945)82 UNTS 280, art 7, stating that ‘[t]he official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment’.

⁵⁰ For a discussion of art 27 of the Rome Statute, see O Triffterer, ‘Article 27: Irrelevance of Official Capacity’ in O Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes. Article by Article (2^nd edn, Nomos, Baden-Baden, 2008) 779–793. See also D Akande, ‘International Law Immunities and the International Criminal Court’ (2004) 98 AJIL 3, 419–432.

⁵¹ A Cassese, International Criminal Law, (2^nd edn, OUP, Oxford, 2008) 302–314.

⁵² ibid 302–304.

⁵³ Triffterer (n 50) 791.

⁵⁴ Art 25 provides that: ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (Advisory Opinion) 1970 ICJ Rep 16.

⁵⁵ See ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (n 12) para 45.

⁵⁶ Indictment of Milošević and Others, IT-99-37, 24 May 1999, available at <www.un.org/icty/indictment/english/mil-ii990524e.htm>. The same indictment also charged Milan Milutinović who, as president of Serbia, was its head of State.

⁵⁷ Prosecutor v Charles Taylor, Immunity from Jurisdiction, No SCSL-03-01-7, 31 May 2004. For a survey see M Frulli, ‘The Question of Charles Taylor's Immunity: Still in Search of a Balanced Application of Personal Immunities?’ (2004) 2 Journal of International Criminal Justice 4, 1118–1129.

⁵⁸ Prosecutor v Charles Taylor, ibid para 52.

⁵⁹ See Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex Parte Pinochet (No. 3) [1999] 2 All ER 97; Arrest Warrant case (n 27) para 61.

⁶⁰ Arrest Warrant case, ibid para 61. For a comment see A Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v Belgium Case’ (2002) 13 European Journal of International Law 4, 853–875. See also KR Gray, ‘Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium)’ (2002) 13 European Journal of International Law 3, 723.

⁶¹ 78 UNTS 277, Art 4.

⁶² Reservations to the Convention on the Prevention and Punishment of Genocide (Advisory Opinion), 1951 ICJ Rep 15, 24.

⁶³ Rome Statute, arts 19(1), 19(2)(a) and 19(4).

⁶⁴ For a discussion see F Jessberger and J Geneuss, ‘On the Application of a Theory of Indirect Perpetration in Al Bashir: German Doctrine at The Hague?’ (2008) 6 Journal of International Criminal Justice 5, 853–869.

⁶⁵ See ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (n 12) 11 para 211.

⁶⁶ The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-717, para 514.

⁶⁷ See ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (n 12) para 213.

⁶⁸ ICC-01/04-01/07-717, para 537.

⁶⁹ See ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (n 12) para 214.

⁷⁰ ibid para 215.

⁷¹ ibid para 216.

⁷² ibid paras 217–220.

⁷³ ibid para 221.

⁷⁴ ibid para 222.

⁷⁵ Judge Anita Ušacka dissented and noted: ‘I do not find any evidence which addresses the issue of the locus of control; it is unclear whether such control indeed rested fully with Omar Al Bashir, or whether it was shared by others such that each person had the power to frustrate the commission of the crime. For this reason, I would decline to find reasonable grounds to believe that Omar Al Bashir was responsible through co-perpetration and instead issue an arrest warrant based only on the mode of liability alleged by the Prosecution, indirect perpetration’. See Ušacka dissent (n 88 ) para 104.

⁷⁶ ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (n 12) para 249.

⁷⁷ Cassese (n 51) 307.

⁷⁸ ibid.

⁷⁹ Secretary of State Colin L Powell, Text of Colin Powell Testimony to Senate Foreign Relations Committee, Washington DC, 9 September 2004, available at <www.voanews.com/english/archive/2004-09/a-2004-09-09-8-Text.cfm>. See also S Totten and E Marcusen, ‘The US Government Darfur Genocide Investigation’ (2005) 7 Journal of Genocide Research 2, 279–290.

⁸⁰ UNSC Res 1564 (18 September 2004) UN Doc S/RES/1564, para 12.

⁸¹ See ‘Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur to the United Nations Secretary-General—Pursuant to Security Council Resolution 1564 of 18 September 2004’ (25 January 2004) UN Doc S/2005/60, available at <www.un.org/News/dh/sudan/com_inq_darfur.pdf> (hereafter ‘Commission of Inquiry’). For a comment on this report see C Byron, ‘Comment on the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General’ (2005) 5 Human Rights Law Review 2, 351–360; and the Contributions to the Symposium, ‘The Commission of Inquiry on Darfur and its Follow-up: A Critical View’ (2005) 3 Journal of International Criminal Justice 3, 539.

⁸² Commission of Inquiry, ibid paras 489–522, 640–641. For a comment see several articles published in: (2008) 31 Fordham International Law Journal 4 on ‘The Crisis In Darfur’; and W A Schabas, ‘Darfur and the “Odious Scourge”: The Commission of Inquiry's Findings on Genocide’ (2005) 18 Leiden Journal of International Law 4, 871–885.

⁸³ Commission of Inquiry (n 81) ibid para 569.

⁸⁴ ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (n 12) para 1.

⁸⁵ AT Cayley, ‘The Prosecutor's Strategy in Seeking the Arrest of Sudanese President Al Bashir on Charges of Genocide’ (2008) 6 Journal of International Criminal Justice 5, 840.

⁸⁶ See W A Schabas, ‘Article 6: Genocide’, in Triffterer (n 50) 143–157. For a comprehensive discussion of genocide in international law see generally W A Schabas, Genocide in International Law. (2^nd edn, CUP, Cambridge, 2009).

⁸⁷ 78 UNTS 277 (1951).

⁸⁸ See Separate and Partly Dissenting Opinion of Judge Anita Ušacka, ICC-02/05-01/09, 4 March 2009, para 36 (emphasis added) (hereafter ‘Ušacka dissent’).

⁸⁹ UN Doc PCNICC/2000/1/Add.2 (2000).

⁹⁰ For a discussion see C Kreß, ‘The Crime of Genocide and Contextual Elements: A Comment on the ICC Pre-Trial Chamber's Decision in the Al Bashir Case’ (2009) 7 Journal of International Criminal Justice 2, 297–306; R Cryer, ‘The Definitions of International Crimes in the Al Bashir Arrest Warrant Decision’ (2009) 7 Journal of International Criminal Justice 3, 289–296.

⁹¹ Ušacka dissent (n 88) para 17.

⁹² Judge Anita Ušacka, dissented as noted in (n 75) and (n 88).

⁹³ ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (n 12) para 111.

⁹⁴ See Rome Statute, art 6.

⁹⁵ ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (n 12) para 204(v). But see Ušacka dissent (n 88), who was satisfied that there were reasonable grounds to issue an arrest warrant on the basis of the existence of reasonable grounds to believe that Al Bashir committed the crime of genocide.

⁹⁶ See ICC-02/05-01/09, ibid para 207.

⁹⁷ ibid para 136.

⁹⁸ Ibid.

⁹⁹ ibid para 137.

¹⁰⁰ Cayley (n 85) 840 citing R Brauman, ‘The ICC's Bashir Indictment: Law against Peace’ World Politics Review (23 July 2008) available at http://www.worldpoliticsreview.com/Article.aspx?id=2471.

¹⁰¹ See Ušacka dissent (n 88).

¹⁰² ibid para 26.

¹⁰³ ibid para 25.

¹⁰⁴ Rome Statute, art 58(l)(a).

¹⁰⁵ ibid art 61(7).

¹⁰⁶ ibid art 66(3).

¹⁰⁷ Ušacka dissent (n 88) paras 32–34, 84.

¹⁰⁸ ibid para 31.

¹⁰⁹ Rome Statute, art58(1)(a), emphasis added.

¹¹⁰ See The Prosecutor v Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58, ICC-01/04-01/06-8-Corr, para 12.

¹¹¹ Ušacka dissent (n 88) para 76.

¹¹² ibid para 85.

¹¹³ ICC-02/05-01/09-12, Prosecution's Application for Leave to Appeal the Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir.

¹¹⁴ Art 82(1) (d) provides that: ‘Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence: A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings’.

¹¹⁵ ICC-02/05-01/09 Decision on the Prosecutor's Application for Leave to Appeal the ‘Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’ (24 June 2009).

¹¹⁶ Genocide Convention, arts IV and VI; ICJ, The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), (Judgment of 26 February 2007) 108, available at http://www.icj-cij.org/docket/files/91/13685.pdf#view=FitH&pagemode=none&search=%22stojanovic%22.

¹¹⁷ See Prosecutor v Krstić, IT-98-33, Trial Chamber, 2 August 2001; Appeals Chamber Judgment, 19 April 2004.

¹¹⁸ See Decision on the Implementation of the Assembly Decision on the Abuse of the Principle of Universal Jurisdiction—Doc Assembly/AU/3 (XII) (February 2009) para 9 requested: ‘the [AU] Commission, in consultation with the African Commission on Human and Peoples’ Rights, and the African Court on Human and Peoples' Rights, to examine the implications of the Court being empowered to try international crimes such as genocide, crimes against humanity and war crimes, and report thereon to the Assembly in 2010'.

¹¹⁹ See Ninth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 (2005), available at <www.icc-cpi.int/NR/rdonlyres/B97B3A9C-0C83-4884-881C-70C1C1EEEA53/280448/9th_UNSCReport_Eng.pdf> paras 52–63.

¹²⁰ See Report of the Special Rapporteur on the Situation in Sudan, Simar Samar, UN Doc A/HRC/11//14 (June 2009) paras 17, 49.

¹²¹ See Report of the African Union High-Level Panel on Darfur (AUPD), October 2009 (n 132) para 217.

¹²² See The Interim Nation Constitution of the Republic of The Sudan 2005, available at <www.sudan-embassy.de/c_Sudan.pdf, Article 60>.

¹²³ See WA Schabas, ICC Observers Exclusive Interview (26 March 2009) available at <http://iccobservers.wordpress.com/2009/03/26/icc-observers-exclusive-interview-william-schabas-professor-of-human-rights-law-and-director-of-the-irish-centre-for-human-rights-at-the-national-university-of-ireland-galway/>.

¹²⁴ See full transcript of Lindsey Hilsum's interview with Omar Al-Bashir, president of Sudan, Channel Four News (17 October 2008) available at <www.channel4.com/news/articles/politics/international_politics/interview+omar+albashir/2562362>.

¹²⁵ See BBC, ‘Sudan Leader Denies Darfur Crimes’ BBC News (12 May 2009) available at <http://news.bbc.co.uk/1/hi/world/africa/8046516.stm>.

¹²⁶ See A de Waal, ‘Darfur, the Court and Khartoum: The Politics of State Non-Cooperation’ in N Waddell and P Clark (eds), Courting Conflict? Justice, Peace and the ICC in Africa (The Royal African Society, London, March 2008) 34.

¹²⁷ See Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC) Doc Assembly/AU/13(XIII), para. 10. The AU decided in July 2009 that ‘the AU Members states shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan’.

¹²⁸ See Final Doha Declaration 30–31 March 2009, available at <www.iccnow.org/documents/Arab_League_Summit_2009_-_SummaryFV.pdf>. See also—‘Arab Leaders Back “Wanted” Bashir’ BBC News (30 March 2009) available at <news.bbc.co.uk/1/hi/world/middle_east/7971624.stm>. In a joint statement by the Arab League in March 2009, the Arab League Member States ‘rejected’ the ICC arrest warrant decision in the following terms: ‘We confirm our solidarity with Sudan and reject the decision of the Pre-Trial Chamber to the International Criminal Court regarding the President of Sudan, Omar Hassan Ahmed Al-Bashir. We support our Brotherly Sudan in confronting anything aimed at damaging its sovereignty, security, and national stability’.

¹²⁹ See Communiqué of the 13^th Ordinary Session of the Standing Commission for Afro-Arab Cooperation Tripoli, Libya, 10 to 11 October 2009, available at <www.africa-union.org/root/AU/Conferences/2009/october/afroarab/FINAL%20COMMUNIQUE%20OF%20THE%2013TH%20SESSION%20OF%20SCAAC.doc>.

¹³⁰ See United Nations, Security Council Decides to Extend Mandate of African Union-United Nations Hybrid Operation in Darfur by 14 Votes in Favour, 1 Abstention, SC/9412 (31 July 2008), available at <www.un.org/News/Press/docs/2008/sc9412.doc.htm>.

¹³¹ See Darfur: The Quest for Peace, Justice and Reconciliation – Report of the African Union High-Level Panel on Darfur (AUPD), October 2009, PSC/AHG/2(CCVII), available at <www.reliefweb.int/rw/RWFiles2009.nsf/FilesByRWDocUnidFilename/SKEA-7XFEKC-full_report.pdf/$File/full_report.pdf>.

¹³² ibid vii.