The Prosecutor may increase rates in the apprehension of suspects and therefore secure higher levels of judicial enforcement by appreciating and capitalizing on her political role and the realities surrounding it.
The OTP would benefit from improving its institutional capacity in order to be able to analyze the political situations at hand and engage in constructive judicial diplomacy both in situation countries as well as in the global political sphere.
International Criminal Courts & Tribunals have been established on a belying enforcement paradox between their significant mandate and their inherent lack of enforcement powers. Their endogenous frailty lies on the predicament that, unlike their national counterparts, they are not backed by systemic law enforcement. Instead, they are left to rely on external forces to procure enforcement. Although the creation of a permanent International Criminal Court marked a fundamental turning point in the pursuit of international criminal justice, the ICC must also rely on state cooperation and judicial assistance in order to secure arrests. Despite the solid legal underpinnings of the enforcement regime under the Rome Statute, I argue that the ICC has thus far failed to achieve desired results due to its persistence in rejecting the factoring of politics in the enforcement of arrest requests equation. For this reason, I suggest a perspective of the arrest and surrender enforcement that not only recognizes the relevance of politics in its sphere but also capitalizes on it. Accordingly, I argue that by fully comprehending its enforcement tools, making use of its political role, and the realities surrounding it, the Office of the Prosecutor (OTP) may increase its rates in the apprehension of suspects, and therefore secure higher levels of judicial enforcement. Part of this role is the challenge for the ICC to successfully convince skeptical states of there being a way to engage with the Court, which does not result in an attrition of their sovereignty but in its enrichment.
Nevertheless, little reference has been made to the Court’s bargaining leverage in order to attract key actors in the regional and global political power-play that could affect the situations before the Court. This is probably due to the, oftentimes accurate, perception that those key actors appear to be vocally opposed to the ICC. Yet, even actors with opposed preferences can reach a mutually beneficial bargain if the disagreement outcome is sufficiently unattractive and their interests overlap. For this reason, despite their differing ideological preferences, there are instances where both the ICC and key regional and global actors will incur some utility gain by bringing those indicted to justice. The existence of power struggles beyond the courtroom between the Prosecutor, situation countries, and influential actors in the international community may not be lightly discounted. While the ICC is concentrated on rendering judicial outcomes within the four walls of a courtroom in The Hague, important international actors such IO’s (UN, EU, AU, et al.) and key powerful states are all part of a world that comes prior to the judicial one. This leads to a coordination game that necessitates political leverage, bargaining, and the adoption of a negotiation strategy by the Prosecutor in order to achieve desired results. Such a task therefore requires the OTP to exercise diplomatic action and engage in a form of judicial diplomacy. This could be facilitated through the establishment of a diplomatic arm within the OTP. It is for this reason that the OTP would benefit from improving its institutional capacity in order to be able to analyze the political situations at hand and engage in constructive judicial diplomacy both in situation countries as well as in the global political sphere.
The influence of politics over international law is far from a new phenomenon. Nonetheless, political overtones in international law have commonly been approached with skepticism and aggravation due to their close affiliation with notions of power, interests, and a stale conception of state sovereignty. Despite the triumph of legal positivism as the dominant school of thought in legal philosophy, the 20th century saw a procession of claims that international law was undergoing a rush of fundamental change, moving closer to the individual than ever before. This new dynamic of international law calls for a reconstruction of the endemic relationship between international justice and politics.
Having the benefit to examine this transformation of international law ex post,1 it becomes evident that the atrocities of World War II compelled an international outcry resulting in univocal demand for international criminal justice. The subsequent humanitarian and human rights developments of international law have been primarily based on this momentum. A new judicial world emanated, where crimes against international law are no longer committed by abstract entities but by men,2 who are to be held accountable for their actions before a court of law.3 Down the road, the end of the Cold War coincided with the rise of ethnic conflicts sealed by mass atrocities and egregious human rights violations transpiring a renewed interest by “like-minded states”4 to rise to the occasion.5 This climate broke new ground to existing international law enforcement, and became the impetus for departure from the single skeletal notion of state responsibility to individual accountability through criminal jurisdiction before International Criminal Courts and Tribunals.
Nonetheless, this new system does not come without caveats.6 One of its arguably most problematic areas can be traced to the arrest and surrender of indicted individuals. The ability of the International Criminal Tribunals to secure custody of those indicted has generated much anecdotal debate revolving around power, interests, and norms. International Criminal Courts & Tribunals in general have been established on a belying enforcement paradox between their significant mandate and their inherent lack of enforcement powers. Their endogenous frailty lies on the predicament that, unlike their national counterparts, they are not backed by systemic law enforcement. Instead, they are left to rely on external forces to procure enforcement. Nevertheless, these “giants without arms and legs”7 preside over situations and crimes far more onerous to investigate and adjudicate than standard domestic law offenses.
Although the creation of a permanent International Criminal Court (ICC) marked a fundamental turning point in the pursuit of international criminal justice, the ICC must also rely on state cooperation and judicial assistance in order to secure arrests. The Rome Statute with its comprehensive enforcement architecture sets out in Article 86 the general obligation to cooperate with the Court. Additionally, Article 89(1) spells out the obligation to comply with the Court when a state party receives a request for arrest and surrender of an indicted individual located in its territory.8 Finally, Article 87(7) provides that failure by a state party to comply with a request to cooperate shall allow the Court to refer the matter to the Assembly of State Parties (ASP) or the UNSC for enforcement measures. Nevertheless, these provisions are to be understood as equally reflecting a set of corollary facts: the Court has no power to compel state compliance with its requests,9 and it is unable to directly sanction states for lack of compliance. Rather it has to take the long and indirect way via the ASP and the UNSC and even then with unlikely tangible results.
Despite the solid legal underpinnings of the enforcement regime under the Rome Statute, I argue that the ICC has thus far failed to achieve desired results due to its persistence in rejecting the factoring of politics in the enforcement of arrest requests equation. While politics and its interference with international judicial institutions may not be sanctified, it remains an inextricable element of the international system. This by no means offers a normative but a pragmatic interpretation reflective of the way international law, institutions, and the international society have been operating throughout time. Whether politics is the solution, the problem, or perhaps both requires a metaphysical and qualitative evaluation of the field. However, whichever option of the above one decides to tick, they all point to the indubitable and very much present involvement of politics in international criminal justice. Normative approaches are certainly scholastically relevant and significant. Nonetheless, such endeavors neglect the practical utility of strategizing based on a game of “playing within the system” over a game of ignoring, or attempting to change the system. Inasmuch as this may appear as a less bold or alluring exercise, it is no secret that the field of international criminal law enforcement requires imminent results. This is by no means to say that the relevance and potential of the more normative discussion ought to be discounted but that both enterprises are equally important each on its own merit. For this reason, I suggest a perspective of the arrest and surrender enforcement that not only recognizes the relevance of politics in its sphere but also capitalizes on it. Accordingly, I argue that by fully comprehending its enforcement tools, making use of its political role and the realities surrounding it, the Office of the Prosecutor (OTP) may increase its rates in the apprehension of suspects, and therefore secure higher levels of judicial enforcement.
The case of the ICTY first reflects the political difficulties lodged in the international criminal justice field, where state and judicial interests stray in different directions. This becomes especially salient considering the inherent desire of international lawyers to establish a process that is based solely on law, transcending elements of realpolitik that may otherwise emerge. However, the story of the ICTY illustrates the relevance of state interests and politics in steering state action. While the world may not be conceived entirely as a “Machiavellian Utopia,”10 the importance and relevance of politics and interests may not be undermined in the enforcement of arrest requests. In other words, the ICC ought to manipulate the longstanding link between state sovereignty and realpolitik to its advantage. This sui generis relationship between the ICC and realpolitik denotes a reality that Cassese first identified and which has incessantly been ignored: while judicial enforcement must be the center stage of international criminal law, it must run parallel to political action.11 The Court may in turn spearhead such political action in undertaking its role equally as a political and a legal actor. Part of this role is the challenge for the ICC to successfully convince skeptical states of there being a way to engage with the Court, which does not result in an attrition of their sovereignty but in its enrichment. In achieving this goal, the Court’s potential bargaining power and use of the political realities may serve as aces up its sleeve.
Inasmuch as the spotlight has been focused on problems of enforcement in the form of a prisoner’s dilemma game in international criminal law, little attention has been paid to the coordination game of the bargaining stage. For terminological clarity, I understand bargaining situations to occur when all actors involved may gain from a cooperative deal yet disagree over the specifics of the proposed arrangement. Empirically, before states cooperate to enforce a commitment they have agreed to, they bargain to decide how, when, and whether they will implement it. Thus, regardless of the substantive domain, problems of international cooperation typically involve a bargaining stage (coordination game) first, followed by an enforcement stage (prisoners’ dilemma game or other). The enforcement regime of the ICC can therefore be strengthened by a clearer understanding and appreciation of its bargaining tools that come at the earlier stage and may affect the arrest and surrender of suspects.12
Looking at the ad hoc Tribunals, they seem to have undergone two distinct periods regarding their capability to apprehend suspects. The ICTY in particular, during its first period of operation until the end of the 1990’s, was particularly ineffective in procuring state cooperation despite the existence of a Chapter VII UNSC Resolution13 calling for full cooperation including the arrest and surrender of suspected individuals. During the 2000’s however, the ICTY saw a developing swift in state cooperation and a significant boost in its bargaining power. Arguably, a central reason for this change in the ICTY’s bargaining influence was the involvement of the United States and the European Union coupled with the incentives they provided and the sanctions they imposed during accession talks with Serbia and Croatia. International Relations literature extensively covers the efficiency of external economic assistance or sanctions under a carrot and stick game to promote state cooperation. As a result, some attention has been paid to the bargaining game between the ICC and the relevant state harboring indicted individuals or between the ICC and the indicted individuals directly.14
Nevertheless, little reference has been made to the Court’s bargaining leverage in order to attract key actors in the regional and global political power-play that could affect the situations before the Court. This is probably due to the, oftentimes accurate, perception that those key actors appear to be vocally opposed to the ICC. Yet even actors with opposed preferences can reach a mutually beneficial bargain if the disagreement outcome is sufficiently unattractive and their interests overlap.15 For this reason, despite their differing ideological preferences, there are instances where both the ICC and key regional and global players will incur some utility gain by bringing those indicted to justice. Unable to try a suspect, the ICC cannot administer justice risking its legitimacy within the international community. Powerful global and regional actors on the other hand may have direct interest in facilitating conflict solutions in situations that involve those indicted by the ICC. While there might never be a perfect overlap between the two, that is to say global/regional actors may not always be interested in getting involved in all the situations pursued by the ICC, this by no means nullifies the utility gained by both parties when such an overlap is indeed identified and pursued.
More practically, Article 87(5) of the Rome Statute envisions the possibility of the Court inviting assistance from states that are not party to the Rome Statute. Accordingly, non-state parties may enter into cooperative engagements with the Court on an ad hoc basis to offer various forms of potential assistance. In the language of treaty law, treaties are binding only on state parties and create no rights or obligations for a third party without its consent.16 In the case of Article 87(5), the word “invite” is indicative of the voluntary nature of non-state party cooperation. While key non-state parties to the Rome Statute voice several unique concerns with regard to their engagement with the ICC, there is arguably a large area of overlap between their national interests and the ICC agenda.
State interests are after all far from static and are subject to constant change, something that can be of great use to the ICC in this type of dynamic. For instance, a policy of positive cooperation with the ICC would give third states the considerable opportunity of becoming part to the shaping of the ICC agenda and how it conforms within the context of their interests. The pursuit of international justice is a unifying theme, which encompasses multiple operational pillars and players. The ICC is only one pillar of a bigger system, which includes diplomacy, institutional action led by the UNSC, local political and judicial mechanisms, and perhaps even military action.17 Facilitating the work of the ICC does not necessarily have to impair the pursuit of the same or other interests under the rest of available options; if anything it should complement it.
Viewing the ICC as part of this bigger system and not as isolated and unipolar will allow for a cooperation that ultimately brings states in a position to ask what they can do to help the Court.18 Satisfying its side of the bargain, the ICC can advance its interests by seizing the plethora of resources such key actors may be in a position to offer, from operational facilitation and capacity building to intelligence sharing and diplomatic pressure in apprehending suspects. In tandem, these third states may come to find that such a positive cooperation may turn out to be particularly effective in seizing utility and maximizing their international payoffs as global/regional key players.
Despite the lack of a tangible enforcement power of its own, the ICC bears significant legal and political tools it may utilize towards this end, the most important one being the role that the Prosecutor and her Office can play outside of the courtroom in wresting state cooperation. While the acts of the Prosecutor are key to the development and success of the ICC, little attention has been paid19 to the dynamics and consequences of the Prosecutor’s actions in the convoluted international political rink. Yet it is at these decisive junctures of arrests enforcement that the Prosecutor is presented with the ultimate opportunity to infiltrate into the political landscape. By doing so, she may employ strategies that can directly impact state cooperation and the overall pursuit of international criminal justice. The existence of power struggles beyond the courtroom between the Prosecutor, situation countries, and the influential actors in the international community may not be lightly discounted. While the ICC is concentrated on rendering judicial outcomes within the four walls of a courtroom in The Hague, powerful international actors such IO’s (UN, EU, AU, et al.) and key powerful states are all part of a world that comes prior to the judicial one. This leads to a coordination game that necessitates political leverage, bargaining, and the adoption of a negotiation strategy by the Prosecutor in order to achieve desired results. In this struggle for cooperation, the Prosecutor is bound to need all the tools she can get from key global and regional actors in order to attain compliance from recalcitrant states.
In this light, cooperation with the ICC and the OTP does not necessarily require an active engagement with the Court itself. If the purpose of the ICC is understood as the quest to end impunity and establish accountability for the international crimes within its jurisdiction, there are multiple ways in which non-member states could facilitate this goal without directly and actively engaging with the Court yet remaining in its periphery. The first way they could facilitate international accountability is through capacity building and the enhancement of the domestic legal systems in situation countries. Taking advantage of the principle of complementarity, which gives way to genuine national prosecutions, the shared goal of ending impunity can be achieved indirectly without having to necessarily sit on the same table. Secondly, states with rigid police and military systems can provide training, equipment, and intelligence assistance to situation countries in order to facilitate the apprehension of ICC suspects. While this does not require a military intervention on the part of those states, it offers significant advantage to states such as those located within the dense African continent in discovering the whereabouts of those wanted by the ICC. Again, this avoids a direct relationship between the Court and third states while at the same time strengthening and preserving their relationships with their allies. Somewhat related is the third way in which non-member states can indirectly support the efforts of the ICC through the exercise of diplomatic pressure or rewards on those states whose cooperation is key for the apprehension of suspects.
Seeing international criminal justice as such a process therefore requires the OTP to exercise diplomatic action and engage in a form of judicial diplomacy. This could be facilitated through the establishment of a diplomatic arm within the OTP in order to enhance its relationship with current member states and to build trust and understanding between the Office and non-member states. This practice should not strike us as odd given that the OTP is already engaged through its day-to-day operations in high-level politics: its engagement with the UNSC in cases of referrals; the political decisions of governments with regard to arrests; the political consequences of arrests of indicted individuals, who are usually key actors in the political fermentation of their regions; and everything in between. After all, a Prosecutor’s work is by its very nature “politicized” in that her purpose is to apprehend individuals and secure convictions while the Court as a whole is expected to be neutral and independent. Therefore, even though the ICC as a whole is and ought to be non-political, independent, fair, and impartial, the very role of the OTP requires a set of maneuvers in order to fulfill its mandate that have very little to do with the judicial process back in The Hague.
It is for this reason that the OTP would benefit from improving its institutional capacity in order to be able to analyze the political situations at hand and engage in constructive judicial diplomacy both in situation countries as well as in the global political sphere. In the context of arrests the OTP ought to incorporate a proactive approach in order to analyze and create strategies for using realpolitik in its favor. More practically, the OTP could achieve this by bringing in people with political and diplomatic expertise, who can analyze political situations and have experience both in specific regions, situation countries, and global politics. This will also facilitate the Office to play a significant role in the creation of a clear and consistent policy agenda for the international community as a whole with regard both to indicted individuals as well as states that may contribute to their apprehension. The OTP has taken an important step towards this direction in its 2012–2015 Strategic Plan through the organizational changes it has planned especially with regard to the Jurisdiction, Complementarity and Cooperation Division (JCCD) and the Investigations Division (ID).20 The focus of the JCCD on managing strategic international contacts is moving towards the direction of establishing a more concrete role for the JCCD as that diplomatic arm the OTP needs in order to fully seize its tools as a political actor in the field of arrests. The next step in this would be the full engagement of the JCCD and the Prosecutor in embracing the political context within which the Office operates and act on improving its diplomatic leverage. This may well include relationship building in order to improve trust between the Court and state parties, examining situations of interest alignment between the OTP and states (whether parties or non-parties), as well as bargaining with governments that may advance the Office’s task in securing arrests.
The adventures of the ICTY offer insight on issues of state cooperation that transcend the sterile judicial environment and involve the “morbid” realpolitik. That is because state cooperation can be better understood and pursued in conjunction with the international and regional political environment. For this reason, the singular nature of the ICC empowered by the political dynamic of the OTP would benefit from a strategic model, which integrates its judicial mandate with political cognizance. Under this model, the Prosecutor bears significant leverage in productively utilizing her bargaining power in order to increase cooperation. Through recognizing the importance of key actors in the arrest and surrender coordination game, the OTP will be able to set and advance its agenda in order to gain the necessary leverage allowing it to successfully carry out its mandate. This would not in fact politicize the Court but enable it to utilize all possible tools available without compromising its rigid legal standards. Having said that, I recognize the arguably difficult balance this requires, which often leads to blanket contestation against any involvement of the Court with political realities. Nevertheless and despite the perhaps current skepticism, it is important to identify what is becoming all the more so apparent: the interests of international criminal justice and political strategy are heavily intertwined in a world where human rights and international criminal justice are not a universally shared ideal.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See Trial of German Major War Criminals, by the International Military Tribunal Sitting at Nuremberg, Germany (Commencing 20th November, 1945) vol I, 1947, 223. ↩
See , UN-Secretary General Urges “Like-Minded” States to Ratify the Statute of the International Criminal Court, M2 Presswire, Sep. 2, 1998 (calling for the global community to sign the Rome Statute of the International Court of Justice). Cf. , The Defendant, The New Yorker, May 27, 2002, at 82. (“The total of sixty-six ratifying nations included America’s closest allies … [but the] holdouts include Russia, China, and the ‘axis of evil’: Iran, Iraq, and North Korea”). ↩
See e.g. The Security Council has set up ad hoc Tribunals pursuant to its power to decide on measures necessary to maintain or restore international peace and security: in 1993 the International Criminal Tribunal for the Former Yugoslavia, and In 1994 the International Criminal Tribunal for Rwanda (ICTR). See also Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute]. ↩
See id. Cassese argues that “Notwithstanding this development, the ICTY remains very much like a giant without arms and legs--it needs artificial limbs to walk and work. And these artificial limbs are state authorities. If the cooperation of states is not forthcoming, the ICTY cannot fulfill its functions. It has no means at its disposal to force states to cooperate with It.” ↩
See Rome Statute art. 89(1). Article 91(3) outlines the kind of written material that must accompany the request for arrest and surrender. See also & , Article 89: Surrenders of Persons to the Court, in Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article at 1073 (Otto Triffterer ed., Nomos 1999); , The Enforcement of Arrest Warrants by International Forces: From the ICTY to the ICC, 4 J. Int’l Crim. Just. 202, 211–212 (2006), available online. ↩
S.C. Res. 827, U.N. SCOR, 48th Sess., 32 ILM 1203, U.N. Doc. S/Res/827 (25 May 1993), available online. Resolution 827 of the UNSC established the Tribunal in 1993 using its mandate under Chapter VII of the UN Charter. “[The Council] [d]ecides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the statute”; Cf. , The International Criminal Tribunal for the Former Yugoslavia: an exercise in law, politics, and diplomacy (OUP 2004) at 38: “[b]eyond condemnation, nothing concrete has been done by the Security Council to punish non-compliance.” See also , Copping a Plea to Genocide: The Plea Bargaining of International Crimes, 151 U. Pa. L. Rev. 1–157 (2002), available online arguing that “The President of the ICTY has made eleven reports to the Security Council regarding lack of state cooperation,” all of which received statements that a certain country’s actions are “deplorable”. ↩
For general treatments of bargaining models, see , Perfect Equilibrium in a Bargaining Model, 50 Econometrica 97–109 (1982); , Bargaining Theory with Applications (1999); Rationalist Explanations for War, Int’l Org. 379–414 (1995). ↩
Article 34 of the Vienna Convention on the Law of Treaties states the pacta tertiis nec nocent nec prosunt principle: ―a treaty does not create either obligations or rights for a third state without its consent.” There may however, be some customary law obligations not to actively hinder accountability for international crimes, see Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity, G.A. Res. 3074, U.N. GAOR, 28th Sess., Supp. No. 30, at 79, U.N. Doc. A/9326 (1973) at 8, available online (“States shall not take any legislative or other measures which may be prejudicial to the international obligations they have assumed in regard to the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity.”) ↩
This shift has even been witnessed in practice e.g. in the Obama administration has proactively arranged meetings with ICC officials to discuss ways in which the US can help the Court. See Statement by Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes, Regarding Stocktaking at the Eighth Resumed Session of the Assembly of States Parties of the International Criminal Court, (Mar. 23, 2010) available online. See also “The need for this assistance is strong. ― We have our shopping list ready of requests for assistance…from the American government.” Statement of Beatrice Le Fraper Du Hellen, Special Advisor to the Prosecutor at the ICC, Seeking Global Justice, CNN’s Amanpour (Transcript), (Mar. 24, 2010) available online. Unsurprisingly, at the top of the list is a request for U.S. operational support to facilitate the execution of the arrest warrants that have been issued by the ICC. ↩
Notable exceptions include: Law, Politics and Pragmatism: The ICC and Case Selection in the Democratic Republic of Congo and Uganda, in Courting Conflict? Justice, Peace and the ICC in Africa at 37 (Nicholas Waddell & Phil Clark eds 2008); , Darfur, the Court, and Khartoum: The Politics of State Non-Cooperation, in Courting Conflict? Justice, Peace and the ICC in Africa at 29 (Nicholas Waddell & Phil Clark eds 2008); & , State Co-operation and International Criminal Court Bargaining Influence in the Arrest and Surrender of Suspects, 21 Leiden J. Int’l L. 457 (2008); Prosecutorial Discretion v. Judicial Activism at the International Criminal Court, 6 J. Int’l Crim. Just. 731, 749–53 (2008); , Building the International Criminal Court, 194–247 (Cambridge University Press 2008). ↩,