On 4 March 2009 a pre-trial chamber of the International Criminal Court (ICC) issued a warrant for the arrest of Sudanese President Omar Hassan Ahmed Al Bashir to stand trial in the ICC on several charges based on crimes against humanity (murder, extermination, rape, torture, and forcible transfer) and war crimes (intentionally directing attacks against the civilian population or individual civilians, and pillage) committed in Darfur. Charges based on the crime of genocide were subsequently included in the warrant for his arrest. The situation in Darfur was referred to the ICC by the Security Council of the United Nations.

The African Union did not take kindly to the indictment of President Al Bashir. A meeting of the African Union held in July 2009 endorsed a decision of the African States Parties to the Rome Statute of the International Criminal Court which proclaimed that ‘the AU Member 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. At the Review Conference of the International Criminal Court held in Kampala, Uganda on 31 May to 11 June 2010, Malawi, speaking in its capacity as chair of the African Union, stated that the indictment of heads of state could jeopardize effective co-operation with the ICC. Basic to the position taken by the African states parties was Article 98(1) of the Statute of the International Criminal Court (ICC Statute), which provides:
 

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