The International Criminal Court (ICC) on Monday said it was referring Malawi to the UN Security Council over its refusal to arrest Sudan's President Omar al-Bashir, who is wanted by the court for genocide.

The ICC has issued an arrest warrant for Bashir and, as a signatory to the Rome statute that created The Hague-based world court, Malawi was obligated to detain the Sudanese leader on its soil.

But on October 15 Bashir was among six heads of state attending a meeting of the 19-member Common Market for Eastern and Southern Africa (COMESA) in the tiny landlocked nation and returned home later in the weekend unhindered.

Failure to cooperate

On Monday the court said its pre-trial chamber "decided that the Republic of Malawi failed to cooperate with the court by not arresting and surrendering Omar Al Bashir to the court during his visit to Malawi" in October.

The court "decided to refer the matter to both the United Nations Security Council and the Assembly of States Parties to the Rome Statute."

Malawian President Bingu wa Mutharika had previously said that African leaders should not be dragged to the ICC for offences committed in Africa.

In comments submitted to the court, Malawi said that customary international law makes an exception for heads' of state immunity when international courts seek their arrest for international crimes.

No immunity

But the court said that its judges "noted that immunity for heads of state before international courts has been rejected time and time again dating all the way back to World War I."

"Giving the examples of international prosecutions against Slobodan Milosevic, Charles Taylor, Muammar Gaddafi, Omar Al Bashir and Laurent Gbagbo, the chamber noted that initiating international prosecutions against heads of state have gained widespread recognition as accepted practice."

ICC spokesman Fadi el-Abdallah told AFP "it would be up to the United Nations Security Council... to determine what measures they will judge appropriate."

Bashir is the first sitting president indicted by the ICC, which issued an arrest warrant on charges of genocide, crimes against humanity and war crimes in Sudan's troubled Darfur region.

The ICC was created through the adoption of its founding statute at a Rome conference in July 1998 and started operating in The Hague in 2002.

The ICC is the world's only independent, permanent tribunal with the jurisdiction to try genocide, crimes against humanity and war crimes. All cases opened by the court so far relate to crimes committed in Africa.