CYIL Vol. 7, 2016

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) . 11 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. 12 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.

11 Para 2, SC Resolution 1593 (2005). 12 Art. 87 (5) and 89 of the Rome Statute.

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