CYIL vol. 7 (2016)

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JAN LHOTSKÝ

CYIL 7 ȍ2016Ȏ

that customary immunities may not cover international crimes such as genocide,

crimes against humanity and war crimes.

According to Art. 86 of the Rome Statute,

States Parties shall cooperate fully with

the Court in its investigation and prosecution of crimes within the jurisdiction of the Court

Based on the arguments outlined above, any State Party to the Rome Statute

has a legal obligation to arrest the Sudanese President Omar al-Bashir and surrender

him to the Court, because in this case the customary immunities do not apply. In

this context, the second legal argument mentioned is preferable, because the first

argument is not considered to be persuasive and a lack of state practice with regard

to the third argument may be observed.

6. Obligations of the non-Parties to the Rome Statute

With regard to the non-Party States, the Security Council resolution says the

following:

…while recognizing that States not party to the Rome Statute have no obligation

under the Statute, (the Security Council) urges all States and concerned regional and

other international organizations to cooperate fully (with the International Criminal

Court)

Thus, although the resolution imposes a legal obligation on the Sudanese

Government to cooperate with the Court, it does not impose the same obligation on

the other states. It only ‘urges’ them to cooperate fully.

Therefore, states that are not party to the Rome Statute are not legally obliged

to arrest the President. However, the question arises whether such a state can arrest

and surrender him to The Hague on a voluntary basis.The answer to this question

depends on whether the three arguments outlined above can be applied to cooperation

of a non-Party State as well. The Court can make requests for assistance of non-

Party States, including arrest.

In such a case, using the first argument, immunities

under customary international law would not apply before international criminal

tribunals. Second, the immunities have been implicitly waived by the Security

Council resolution, because based on its referral the content of the Rome Statute

applies. Third, it may be argued that the immunities under customary international

law do not cover acts such as committing international crimes. Again, with regard

to the state practice and the ruling of the ICJ in the Arrest warrant case, the second

reasoning is legally most convincing.

In other words, the arguments mentioned above may apply also to a situation

of an arrest in a non-Party State. The main difference is nevertheless that in this

situation the country has no legal obligation to arrest President al-Bashir. However,

based on the Security Council resolution that

urges states to cooperate fully

, a non-

Party State can decide voluntarily to hear out the potential request of the Court.

Para 2, SC Resolution 1593 (2005).

Art. 87 (5) and 89 of the Rome Statute.