Following the failure of the Republic of Malawi to comply with the cooperation requests issued by the International Criminal Court (ICC) with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir the Pre-Trial Chamber stated the following in para. 36:
the Chamber finds that the principle in international law is that immunity of either former or sitting Heads of State can not be invoked to oppose a prosecution by an international court. This is equally applicable to former or sitting Heads of States not Parties to the Statute whenever the Court may exercise jurisdiction. In this particular case, the Chamber notes that it is exercising jurisdiction following a referral by the United Nations Security Council made under Chapter VII of the United Nations Charter, in accordance with article 13(b) of the Statute.This is probably the most unequivocal statement that the ICC Judges have expressed on the matter of immunity of heads of state.