Invited Experts on Arrest Question

Banteka Avatar Image Nadia Banteka, LL.M. Lecturer in International Law The Hague University

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.

Summary

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.

Argument

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).

  1. 1.

    See Frédéric Mégret, Epilogue to an Endless Debate: The International Criminal Court’s Third Party Jurisdiction and the Looming Revolution of International Law, 13 Eur. J. Int’l L. 247 (2001).

  2. 2.

    See Trial of German Major War Criminals, by the International Military Tribunal Sitting at Nuremberg, Germany (Commencing 20th November, 1945) vol I, 1947, 223.

  3. 3.

    See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, art. 27, Aug. 8, 1945, 82 U.N.T.S. 279, 288.

  4. 4.

    See Kofi Annan, 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. Joseph Lelyveld, 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”).

  5. 5.

    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].

  6. 6.

    Antonio Cassese, On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law, 9 Eur. J. Int’l L. 2, 14 (1998).

  7. 7.

    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.”

  8. 8.

    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 C. Kreg & K. Prost, 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); Han-Ru Zhou, 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.

  9. 9.

    Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: An Uneasy Revolution 88 Geo. L.J. 381, 415–416 (2000).

  10. 10.

    See Hans J. Morgenthau, The Machiavellian Utopia, 55(2) Ethics, 145, 147 (1945).

  11. 11.

    Cassese supra note 6 at 14.

  12. 12.

    Kenneth Abbott et al., The Concept of Legalization, 54(3) Int’l Org. 401 (2000).

  13. 13.

    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. Rachel Kerr, 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 Nancy Amoury Combs, 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”.

  14. 14.

    See Emily Hencken Ritter & Scott Wolford, Bargaining and the Effectiveness of International Criminal Regimes, 24 J. Theoretical Pol. 149, 149–151 (2012).

  15. 15.

    For general treatments of bargaining models, see Ariel Rubinstein, Perfect Equilibrium in a Bargaining Model, 50 Econometrica 97–109 (1982); Abhinay Muthoo, Bargaining Theory with Applications (1999); James Fearon, Rationalist Explanations for War, Int’l Org. 379–414 (1995).

  16. 16.

    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.”)

  17. 17.

    See Tod Lindberg, A Way Forward with the International Criminal Court, 159 Pol. Rev. 28 (Feb. 2010), available online.

  18. 18.

    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.

  19. 19.

    Notable exceptions include: Phil Clark, 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); Alex de Waal, 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); Steven D. Roper & Lilian A. Barria, State Co-operation and International Criminal Court Bargaining Influence in the Arrest and Surrender of Suspects, 21 Leiden J. Int’l L. 457 (2008); William A. Schabas, Prosecutorial Discretion v. Judicial Activism at the International Criminal Court, 6 J. Int’l Crim. Just. 731, 749–53 (2008); Benjamin N. Schiff, Building the International Criminal Court, 194–247 (Cambridge University Press 2008).

  20. 20.

    International Criminal Court Office of the Prosecutor, Strategic Plan June 2012–2015, (Oct. 11, 2013) at 16 available online

Dicker Avatar Image Richard Dicker Director, International Justice Program Human Rights Watch

Ramping Up Strategies for ICC Arrests: A Few Lessons Learned

Significantly, the movement to bring justice for unspeakable crimes through international courts has accumulated rich experience on arrest over two decades of practice, particularly through the International Criminal Tribunal for the Former Yugoslavia and the Special Court for Sierra Leone. The Yugoslav tribunal gained custody of 161 of 161 of its indictees. The Sierra Leone Court went nine for nine. This experience provides an invaluable source of “lessons learned” for the ICC and justice-supporting states in the face of daunting obstacles.

Summary

Getting suspects into the dock at the International Criminal Court (ICC) has proven to be a formidable challenge for the now ten year-old permanent court. Lacking its own police force, the ICC depends on determined action by governments whose commitment, under the influence of competing diplomatic or economic objectives, can be fickle or in some cases outright missing. Improving the delivery of justice faces many hurdles, but the arrest of its suspects is a particular weak spot that affects the court in a profound way. As an act of compliance with international criminal law, arrest pits execution of a court’s judicial order against the prerogatives of a sovereignty-minded, albeit legally obligated, state.

Significantly, the movement to bring justice for unspeakable crimes through international courts has accumulated rich experience on arrest over two decades of practice, particularly through the International Criminal Tribunal for the Former Yugoslavia and the Special Court for Sierra Leone. The Yugoslav tribunal gained custody of 161 of 161 of its indictees. The Sierra Leone Court went nine for nine. This experience provides an invaluable source of “lessons learned” for the ICC and justice-supporting states in the face of daunting obstacles. These lessons need to be mined and applied because as a permanent court with potentially worldwide jurisdiction, the challenges facing ICC arrests are qualitatively more complex than those which the ad hoc tribunals surmounted. The consensus to arrest and the focus it facilitated is more difficult to sustain across several different country situations simultaneously, each with its own particularities. The ICC justice-supporting states are going to need to up their game.

No two arrest scenarios are likely to be the same and no apprehension for the ICC will be simple. While there is a danger of over-simplification from a limited store of experience, it is possible to group International Criminal Court arrest scenarios into several distinct categories. These include:

  1. arrest where the suspect is already in the custody of the state where the alleged crimes occurred and is then arrested and surrendered for trial to the court (Thomas Lubanga Dyilo, DRC);
  2. apprehension by the national authorities of a suspect for crimes allegedly committed on the territory of another state followed by surrender to the court (Jean-Pierre Bemba Gombo, Belgium);
  3. situations of armed conflict where the territorial government is unable to apprehend a suspect through a law enforcement operation and arrest takes on a military aspect in an operation involving troops acting extraterritorially (Joseph Kony, DRC, Central African Republic); and
  4. a recalcitrant government that is implicated in the crimes alleged shields one of its own and refuses to arrest a suspect whose whereabouts are well known (Omar al-Bashir, Sudan).

In these last two scenarios, arrest can take years and there is damaging spillover for the court trying to bring a suspect to justice.

Argument

Failure to arrest poses serious risk to the mission of the court. If suspects are not brought to trial, victims do not get the sense of closure they could from a trial. The communities most affected by the crimes have no judicially verified record of individual responsibility as a reference point for societal healing. The incremental strengthening of the rule—and reach—of law to increase its future deterrent effect through prosecution does not occur. Moreover, stalled court proceedings freeze in place witness protection programs, victim participation, robust outreach, and court field presence as costs spiral upwards. In fact, accountability is weakened and impunity seems strengthened.

The court, without its own police force, depends on state action for arrest yet, ironically, it is blamed when governments fail to arrest. The paralysis generates an undercurrent of criticism that the court is inefficient, expensive, and perhaps useless. 
In a word, the court, rather than those states that have skirted their legal obligation to cooperate, takes the hit. The damage can be even more pernicious. A high profile suspect at liberty who continues to function in a senior position, ostentatiously conducting official visits to different capitals and hosting high level visitors, flouts the court’s writ in a way that is corrosive to its credibility.

The experience of the last two decades shows that justice-supporting states need to adopt a two-pronged approach underlined by a commitment to the long game. The essential element is using diplomatic, political, and economic clout—the exertion of political will—by states parties and justice-supporting states. In practice, these states need to ramp up the priority they give to justice amidst other competing, and sometimes contradictory, objectives. Drawing from the successful experience of the Yugoslav tribunal and the Special Court for Sierra Leone, there are several essential short-term measures to consider.

States need to take every appropriate opportunity to raise the importance of arrest in their one-on-one diplomatic contacts with the non cooperating state, with third party states that have influence on the non cooperating state, and in multilateral intergovernmental settings. For example, the opening of the United Nations General Assembly, a European Union Summit, or a joint European Union-African Union summit provide high profile fora for private and public diplomacy on behalf of arrests. Diplomacy for apprehension in these situations puts arrest on the agenda and creates an expectation of follow through. This occurred again and again at EU summits for suspects wanted by the ICTY. Failure to do so leaves a deafening silence.

Justice-supporting states need to identify and use effective leverage points for arrests. This is the outstanding lesson from the United States and European Union’s approach to arrests for the ICTY. Serbia surrendered 20 indictees in 2005 and two indictees each in 2007 and 2008. This was directly related to diplomatic pressure around Belgrade’s prospective accession to the EU. While not the key player, in 2001, the US used the pressure of donor conferences and World Bank loans to bring about the arrest and surrender of Slobodan Milošević. In 2006, Washington sweetened its advocacy with the offer to allow Serbia into NATO’s Partnership for Peace. The European Commission, which held the keys to the kingdom of EU membership, continuously re-calibrated its mix of pressure and concessions—the stuff of effective diplomacy—as the politics of governments in Belgrade changed.

As valuable as the lessons from the experience of the ICTY are, it would be a mistake to view them through rose-tinted glasses. Linking economic and political pressure to arrests of war crimes suspects evolved through twists and turns over more than a decade. In practice, it certainly did not proceed in a straight line and, at times, particularly in the latter years, it was difficult to act on this policy. The EU vacillated in its insistence on Serbia’s full cooperation with the tribunal in the face of political instability, anti-Western governments in Belgrade, and independence for Kosovo.

The availability of obvious leverage points on the states of the Former Yugoslavia are not likely to be replicated with such clarity in many ICC situations. But wielding pressure and concessions has worked in other situations where the means of leverage were less obvious. These required the justice-supporting states to be proactive in identifying and then using effective political and economic leverage in a smart carrot and stick fashion. The example of Charles Taylor offers insight in situations where the pressure points are not so readily apparent. Despite his indictment on war crimes and crimes against humanity, former Liberian President Charles Taylor enjoyed safe haven in Nigeria between 2003 and 2006. At the same time, Nigeria’s President Obasanjo was seeking international support for a third presidential term, forgiveness for Nigeria’s debt, and a White House meeting with President George W. Bush. The United Kingdom, the United States, and Liberia used these points to press Nigeria’s president and helped bring about Obasanjo’s decision to surrender Taylor in March 2006. The three states played their cards well.

Bosco Ntaganda’s self-surrender to the court in April 2013 offers a lesson on how unfavorable conditions can change and open new opportunities for arrest. In the period that followed the issuance of Ntaganda’s first ICC arrest warrant in 2006, the Congolese government may have been willing to arrest him, but it did not have the capacity to do so. Ntaganda’s rebel group at that time was very powerful; it controlled swathes of North Kivu and regularly defeated the Congolese army in battle. In 2009, President Joseph Kabila decided to integrate Ntaganda as a general into the army, as part of secret negotiations with Rwanda to end the rebellion. Kabila declared that “now was the time for peace, not the time for justice” and he deemed Ntaganda to be a component for stability in eastern Congo. However, civil society organizations continued to document the crimes he was associated with and called for his arrest. Some governments, particularly the US, became active in calling for his apprehension. As it became clear that Ntaganda was increasingly a factor for instability in the Kivus, the Kabila government decided to launch an arrest operation in March 2012; this led to Ntaganda’s break from the armed forces and split the militia he had initiated. Ultimately, he turned himself in to the US embassy in Kigali. Conditions changed, but the ongoing pressure was essential.

Even where arrest is not possible, states and intergovernmental organizations need to avoid non essential contacts with ICC suspects. Contact with these figures, as UN policy already mandates, should be limited only to those interactions that touch on crucial matters of mandate. Again, no two situations are the same. While Karadžić and Mladić dropped out of sight for years and removed themselves from the scene, Omar al-Bashir remains quite prominently in place. Yet, under concerted diplomatic and civil society pressure, President al-Bashir has greatly curtailed his international travel. While this pressure has not led to arrest, stigmatization and political isolation has exacted a price. The Washington Post reported that before his trip to China in June 2011, al-Bashir specifically asked Beijing to guarantee that he would not be arrested there. Keeping a suspect, who is still presumed innocent, politically marginalized in such a way so that he and his confederates feel the heat is a smart tactic intermediate to arrest.

Lastly, states need to implement short term measures at the same time they recognize that they are playing the long game and that it could take, as it did with Karadžić and Mladić, years to bring a fugitive to book. Lack of results in the short term cannot become a rationale for inaction or indifference because they do not quickly achieve the desired result. The immediate measures have a crucial dual impact: they maintain the integrity of the court’s judicial orders and they facilitate the long term objective. There is a synergy; the more vigorous and meaningful the former, the greater the likelihood of the latter.

In the court’s second decade, justice-supporting states need to up their game on its behalf. Political will is key. For arrests to occur, states parties must invest political capital in support of apprehension. It requires backing up pressure for arrests relative to other security, diplomatic, and economic objectives. Insistence on arrest needs to get traction no matter how uphill the road.

Parker Avatar Image Tom Parker CTITF Adviser for Human Rights and Counter-Terrorism Independent Consultant

Pollyannas need not apply; the ICC has to operate in the real world. International justice is, to a certain extent, political justice, and this sets the boundaries that the court has to operate within. As unsatisfying as this is for those who seek to build a genuinely global criminal court, that’s going to be the reality for the foreseeable future.

In many respects the ICC has the deck stacked against it, with only a piecemeal geographic jurisdiction, no enforcement arm and typically well-resourced targets to pursue. Sealed indictments go a little way towards leveling the playing field.

Summary

The ICC is constrained by the circumstances of its birth but it has allies, and potential allies, not just among likeminded states but also in the civil society universe that can take up causes on its behalf. The Court needs to build these relationships, just as much as it also needs to expand the circle of participating states—especially among the great powers. But the ICC also has to be politically astute and choose its battles wisely. Sealed warrants are a necessary, even vital, tool in the ICC’s arsenal and used judiciously they can help the court navigate difficult political waters.

What considerations should guide the OTP in its decision to request that an arrest warrant be issued under seal or publicly, or to request the unsealing of previously sealed warrants, in order to improve the potential for their successful execution?

In many respects the ICC has the deck stacked against it, with only a piecemeal geographic jurisdiction, no enforcement arm and typically well-resourced targets to pursue. Sealed indictments go a little way towards leveling the playing field. Because many of the ICC’s targets are public figures, they need to travel and if the target feels secure enough to venture abroad, sealed indictments provide the ICC with the opportunity of catching them in a country that recognizes the court’s jurisdiction. Sealed indictments provide a significant advantage and the decision to unseal an indictment is more likely to be driven by political rather than operational considerations.

What factors should the OTP take into account when deciding on the timing of seeking arrest warrants?

Much is made of the so-called “chilling effect” of a public ICC indictment and while there are some examples that both support and refute this contention, it is unquestionably a potentially useful—if not surefire—political tool. I know from my personal experience as an ICTY investigator working in post-war Kosovo that the sight of a forensic team on the ground collecting evidence can deter violent parties from future crimes. The Tribunal’s decision to investigate a site relating to post-war revenge killings by the returning Kosovar population near Gnjilane, even though there was some question at the time whether or not sufficient jurisdiction existed to do so, curtailed further such incidents.

But this approach does have its limitations—once the card is played and an individual is indicted there’s not much more the court can do to deter further malfeasance. The perpetrator is on notice but may ultimately conclude that it’s better to be hung as sheep than a lamb. I also experienced the potential problems that adopting an overt approach can pose to the court’s staff. When the perpetrators know that you are coming they can prepare accordingly. In Bosnia it was not uncommon for Bosnian Serb forces to force victims to switch clothes and identity documents prior to execution to confuse investigators or for graves to be exhumed and relocated several times with partial remains ultimately ending up scattered between different sites. Perhaps worse still, bodies and crime scenes are easily bobby-trapped—an IED can be left under a body or landmines hidden in the vicinity of gravesites to maim unwary investigators, which also happened in the former Yugoslavia.

Argument

What steps could the Court as a whole take to galvanize arrest efforts?

The Court already pursues a range of outreach activities with NGOs and victim groups in the investigative arena but this is an area where much more could be done to cultivate productive partnerships. NGOs have been extremely creative in the past decade in their use of new media tools. The ‘Kony 2012’ campaign mounted against the eponymous Lord’s Resistance Army warlord by the US-based Invisible Children NGO is perhaps the best known example of the viral power of emerging online advocacy tools, but there are plenty of others. Organizations like the Enough Project and the Save Darfur Coalition, as well as countless church groups, helped put the crisis in Darfur on the national agenda of many western countries—and they have also helped to keep it there. Human rights NGOs can be powerful political allies in the struggle to get governments to take arrest warrants seriously.

Organizations like Amnesty International and their local partners have members in almost every country around the world, and they tend to be young, idealistic, and tech savvy—a veritable army of eyes and ears on the ground. This is an almost completely untapped resource. One could imagine a cellphone application distributed through NGO networks complete with up-to-date information on each indictee’s reported movements and appearance that encourages and enables human rights defenders around the world to report sightings of wanted fugitives. No doubt there would be many false sightings, but it would keep the fugitive very much on states’ radar and that’s how opportunities for enforcement action are created.

What further steps could the ASP and/or the Security Council take to improve the cooperation of states, including third States, particularly in response to the Court’s finding of non-cooperation and referral of the matter to the ASP and/or the Security Council?

This is always going to be a difficult issue—states know that they will pay a political cost for failing to cooperate and, if they calculate that cost is worth paying, it is difficult to see what more the ASP can do beyond naming and shaming. Certainly driving states out of the Treaty regime serves little purpose. The Security Council is another matter entirely and should the need arise it has a range of powerful tools at its disposal should the consensus exist to use them, but that’s the rub—consensus is hard to come by.

Is there potential for some sort of police force authorised by the UN Security Council or another organisation to execute ICC arrest warrants and effect arrests? If so, how would this be created, organised, and mobilised?

The concept of state sovereignty has not degraded anywhere near the extent that this could be a viable proposition. Weber’s ultimate definition of sovereignty—a monopoly on the legitimate use of physical force—still remains essentially as valid in the 21st century as it did in the aftermath of World War I, even allowing for the areas in which a relatively small measure of state sovereignty has been ceded to international institutions.

One need only look at how the concept of ‘hot pursuit’ has evolved under the Schengen Treaty. The treaty allows for limited hot pursuit across certain European borders in relation to serious offenses such as terrorism, murder, or kidnapping. Under Article 41 of the Schengen Convention, police from one nation can cross national borders to chase their target for up to 30km. The officers have to wear their uniforms, their vehicles have to be marked as police vehicles, and they may only use their weapons for self-defense. They must inform the local authorities immediately when they cross the border, and must break off the pursuit if instructed to do so by local police. These are hardly what we might call ‘Abbottabad Rules,’ and this is among partners in the closest international territorial confederation in history. When the British attempted to negotiate a right of ‘hot pursuit’ across the Northern Ireland-Eire border in counter-terrorism cases, their EU partners in Dublin soundly rebuffed these overtures and, contrary to popular belief, security cooperation between London and Dublin is actually pretty close.

As much as I would personally be delighted to see the “Man from U.N.C.L.E.” progress from television fantasy to modern day reality, I can’t see it happening any time soon, if ever. The real world examples of Europol and Interpol make it pretty clear that the international community is not ready for transnational law enforcement entities to have meaningful enforcement capability.

Could States use monetary or other incentives/rewards to encourage the arrest and surrender by other States?

Depending on the target, the offer of a reward could prove to be an effective strategy. Perhaps the most famous example is the combined $30 million reward offered for the capture of Saddam Hussein’s sons Uday and Qusay, which led directly to them being located and killed by US forces in Mosul in 2003. The US War Crimes Rewards Program, which offers rewards of up to $5 million for information aiding in the capture of a wanted fugitive, has helped secure the arrest of suspects sought by both the ICTY and ICTR. Between 2011–2013, the US made fourteen such payments of an average of about $400,000 per person.

However, the lure of a substantial reward has also failed to aid the apprehension of some high profile targets. Joseph Kony, for instance, currently remains at large somewhere in one of the world’s poorest countries despite the multi-million dollar bounty offered for information leading to his capture. I am also not convinced that there is a great need for such astronomical sums of money to be made available. Indeed, there is some anecdotal evidence from NATO operations in Afghanistan to suggest that the unreal feel of overly dramatic posted rewards can sometimes tend to discourage cooperation.

Is there room for economic pressure to be applied by States and international or regional organisations?

Yes, but this works best within a framework, like the European Union, comprised of like-minded states with similar liberal values where aspirant applicants have a great deal to lose from not cooperating with the court. The lure of EU membership ultimately trumped both nationalism and prejudice for both Serbia and Croatia as the surrender of war crimes suspects became an effective condition of any successful membership application.

As David Crane has pointed out, the African Union resolution last October calling for immunity from prosecution for sitting Heads of States in the wake of the ICC’s decision to indict Kenyan President Uhuru Kenyatta and his deputy William Ruto demonstrates the dangers of over-reaching. The African Union is far from unanimously wedded to the merits of the ICC and the Kenyan indictments gave the court’s opponents all the ammunition they could wish for. It may have been wiser perhaps, in such circumstances, to seal the indictment and wait for the leader in question to leave office before taking action.

How can diplomacy be used effectively and creatively to influence the political will of states and make the environment more conducive to cooperation with the Court, especially concerning the execution of arrest warrants?

As much as we may wish it were not so, international justice is as much a political process as a judicial one, and the needs of the ICC must compete with a range of economic, political, military, and diplomatic interests for States’ attention. Sudan has important reserves of oil. The Kenyan government plays a critical Western-orientated role in counter-terrorism and anti-piracy operations in East Africa. The Congo never seems to rise up high enough on any western leader’s agenda to risk spending domestic political capital sending already over-stretched troops into a dangerous operational environment to execute the ICC’s arrest warrants. These are the political realities that the ICC must navigate, and even the best diplomats will find it hard to persuade an state to act against its perceived interests—especially in support of something that may essentially be a purely external matter as far as the state in question is concerned.

The ICC still suffers greatly from the United States’ continued reluctance to become a participating state party. With only two members among the permanent five members of the Security Council, and faced with deep suspicion from the other three, it is always going to be an uphill struggle to unite the international community behind action in support of the ICC’s goals. It is hard to imagine a case that wouldn’t prompt at least one spoiler to step forward in the Security Council to prevent purposeful action. Criticisms that the ICC is nothing more than a first world court for third world problems have more than an element of truth about them while the leading powers duck the challenge to lead by example.

Can States Parties agree to limit non-essential contacts with persons wanted by the Court to those that are strictly necessary, following the revised UN guidelines in this regard?

Sudan’s provocative appointment of ICC suspect Ahmad Muhammad Harun as head of the county’s humanitarian operations, putting international actors in the uncomfortable position of either having to work with a wanted war crimes suspect or have their refusal to do so impact the most vulnerable sections of Sudanese society, demonstrates just how difficult it can be to inoculate international justice from the political (and moral) compromises often required by diplomacy. Peace is made with warmongers and often war criminals—rarely with moderates. The 2012 United Nations Guidelines on Effective Mediation recognize this dilemma and effectively fudges the hardest question of all: “Mediators need to protect the space for mediation and their ability to engage with all actors while making sure that the process respects the relevant legal limitations.” In other words: sup with a long spoon, but sup. As such, limiting non-essential contacts with indictees is a fairly meaningless standard to enforce; any contact can likely be presented as ‘essential’ and will inevitably offer the alleged perpetrator a measure of legitimacy. Again, this is an area where sealed indictments can help the international community sidestep a potentially thorny question.

The UN Security Council Sanctions Committees can impose targeted sanctions on individuals including travel bans and the freezing of assets. How can greater linkages be created between existing UN Security Council mechanisms for sanctions and the enforcement of the Court’s arrest warrants?

Smart sanctions have come of age over the past decade as a tool to meet global counter-terrorism and terrorist financing challenges and there is no reason why, where the international political will exists, that these should not also be used in support of the ICC operations. But realistically, like other forms of international action, the necessary consensus will likely be hard to find.

Where the State concerned is willing but unable to effectuate an arrest, can third States or relevant peacekeeping or peace enforcement forces contribute to successful arrest operations through military, logistical, or intelligence support?

Clearly, there is a potential role for states to play in regions where local capabilities are not equal to the task of apprehending a well-resourced or supported fugitive from justice. In the context of peacekeeping operations, we have already seen SFOR and KFOR troops act in this role, detaining suspects like Goran Jelisić and Haradin Bala for the ICTY, so the principle, at least, is well established. Such actions, of course, do not happen in a vacuum—peacekeepers have to take into account the terms of their mandate and the wider political circumstances in which they are operating—but the possibility for intervention exists as a political choice.

Unilateral action is a bit more complicated. Whether in the jungles of Columbia, the mountain passes of the Hindu Kush, or the sterile reaches of the Sahara desert, states provide military, logistical, and intelligence support to allied governments in the context of counter-terrorism, counter-insurgency, and counter-narcotics all around the world. There is no reason, with the agreement of a host government, that such cooperation should not be extended to the apprehension of a fugitive from the ICC and, indeed, in recent years we have seen the United States send Special Forces operators to assist the Ugandan authorities in the hunt for Joseph Kony.

The existing international jurisprudence, such as it is, seems to take quite a permissive view of ad hoc detention operations. In 1996, the European Court of Human Rights (ECHR) was asked to consider the circumstances of the rendition of Ramirez Sanchez, aka the terrorist Carlos the Jackal, from Sudan to stand trial in France. Although he was Venezuelan by birth, Sanchez joined the Popular Front for the Liberation of Palestine (PFLP). He is most famous for planning and carrying out the December 1975 OPEC summit hostage siege in Vienna, in which three people were killed, and was wanted by the French authorities for murdering two French Security Service (DST) officers and their informant in Paris in June 1975. The Court decided on the facts that as Sanchez’s initial abduction in 1994 had been carried out by the Sudanese government—he had been sedated without his knowledge by his Sudanese bodyguards while he was recovering from a medical procedure and surrendered to representatives of the DST—it did not have standing to consider this aspect of the case. The Court found that the subsequent transfer of Sanchez to French custody was simply the result of cooperation between the Sudanese and French governments, and was thus lawful.

Similarly in Abdullah Öcalan v. Turkey (2005), the ECHR considered a complaint from the Kurdistan Workers Party (PKK) leader Abdullah Öcalan about the manner in which he had been returned to Turkey to face trial. Öcalan was captured in Kenya in February 1999 in an operation conducted by the Turkish National Intelligence Agency (MIT) in cooperation with the Kenyan authorities. Öcalan had been staying with the Greek Ambassador in Nairobi while he looked for a new safe haven. The Netherlands agreed to take him in and he made arrangements to travel there. The Greek Ambassador planned to travel with Öcalan to the airport in a diplomatic vehicle to ensure his safety. Kenyan officials prevailed on the Greek Ambassador to allow them to convey Öcalan to his flight to the Netherlands alone. When Öcalan arrived at Jomo Kenyatta International Airport, the Kenyan officials instead handed him over to officers from the MIT. He was then flown back to Turkey for trial. The Court found that, in the absence of a formal extradition treaty and since there appeared to be cooperation between the Kenyan and Turkish authorities, there had been no violation of Kenyan sovereignty and thus the transfer was lawful. It also found that the manner of the transfer had not violated Öcalan’s human rights.

Another tactic often utilized by law enforcement to lure a suspect within range of a court’s effective jurisdictional reach is simple deception. For example, in October 2013, the Belgian police lured Mohamed Abdi Hassan, described in one UN report as “one of the most notorious and influential leaders” in Somali piracy, onto Belgian soil with the promise of a starring role in a documentary about his exploits. Hassan was implicated in the 2009 hijacking of a Belgian vessel.

A rather more aggressive approach was the Federal Bureau of Investigation’s apprehension of wanted terrorist fugitive Fawaz Yunis, who was believed to be responsible for the hijacking of a Jordanian airliner in Beirut. Yunis was based in Cyprus and United States undercover agents lured him into international waters on the pretext of arranging a drug deal. There he was arrested, transferred to a US warship, and then flown to the US to face trial. He was sentenced to 30 years in prison and served 16 years before being deported to Lebanon.

Courts typically take a benign view of deceptions of this nature. There is no reason why the ICC could not contemplate such an operation should a suitable opportunity arise, although this would still require the cooperation of a friendly law enforcement agency with the power of arrest.

Finally, putting a price on a suspect’s head also creates the possibility that private citizens may try to take matters into their own hands to earn the reward by kidnapping a PIFWC. This may seem fanciful, but in July 2000, Serbian authorities arrested four Dutchmen in the town of Mehov Krs who were allegedly in Serbia hunting for war criminals. Such a scenario raises the question of what position the court would take on male captus, bene detentus—whether an individual can be brought unlawfully within a court’s jurisdiction and then lawfully prosecuted. male captus is a controversial doctrine endorsed by some states—for instance, the United States and Israel—and rejected by others—such as the United Kingdom and South Africa. An ICC ruling on this issue would be a major contribution to international jurisprudence.

Ryngaert Avatar Image Professor Cedric Ryngaert Associate Professor Utrecht University

Some Reflections on Securing the Arrest of ICC Fugitives1

When it comes to arrest, the Prosecutor ought to be a clever political operator rather than a stellar lawyer.

Summary

The importance of the arrest of the accused at the behest of an international criminal tribunal and its Prosecutor can hardly be overstated. As Gavin Ruxton, Legal Advisor at the ICTY Office of the Prosecutor (OTP), has observed: The arrest process lies at the very heart of the criminal justice process: unless the accused are taken into custody, we will have no trials; no development of the law by the courts; and ultimately, no international justice.2 Since the statutes of the tribunals prohibit trials in absentia (with the notable exception of the Special Tribunal for Lebanon),3 without the presence of the accused, international tribunals cannot mete out justice, cannot establish a historical record, and thus cannot complete their mandate.4

Compliance with requests for arrest and surrender is essentially tied to State political willingness and international political pressure. This renders arrest selective—and inevitably casts a shadow over the universal, blind justice which the tribunals are supposed to administer.5 Adequate awareness of the political environment and access to reliable sources of information (e.g., by the OTP’s own ‘tracking teams’), are crucial to the success of the OTP’s arrest mission. When it comes to arrest, in fact, the Prosecutor ought to be a clever political operator rather than a stellar lawyer.6

In this brief note, I will reflect on three issues: (1) the challenge of securing State cooperation; (2) the wisdom of issuing sealed arrest warrants; and (3) the support of international troops. The focus lies on arrest warrants issued by the International Criminal Court.

Argument

I. Securing State Cooperation

As the jurisdiction of the ICC has in a number of cases been triggered by a self-referral of the State on whose territory the crimes allegedly took place (Uganda, DRC, Central African Republic), one might expect cooperation with the ICC to run smoothly in such cases.7 However, even with regard to self-referrals, cooperation may sometimes not be forthcoming. First, the territorial State may have second thoughts after having triggered the ICC’s jurisdiction, for instance, because the enforcement of arrest warrants may be an obstacle to peace negotiations with rebel groups (e.g., a peace-deal between the Ugandan Government and the LRA). Second, the State may suspend its cooperation in case the OTP reneges on an implicit deal not to target the government side, but only the insurgents (e.g., in case the OTP were to target the Ugandan Government, and not only the LRA rebels). Or third, the indicted person may have fled to another State than the State that referred the situation to the OTP, and that State is not willing to cooperate (e.g., former President of the Central African Republic Ange-Felix Patassé fled to Togo, a State not Party to the ICC Statute).8

In case the jurisdiction of the ICC has not been triggered by a self-referral, the enforcement of ICC arrest warrants risks running into particular trouble. One should think of the ICC Prosecutor using his proprio motu powers (the Kenya scenario), or the Security Council referring a situation to the ICC (the Sudan scenario). Because in these cases, the State has not given its consent for an OTP investigation, and is quite probably unwilling to conduct genuine investigations itself,9 it is not very likely that its cooperation in enforced arrests will be smooth, even though the State may be under a legal obligation to cooperate.10 Still, in case of Security Council referral, the international community’s leverage may potentially be rather significant, as the increased authority and legitimacy with which such a referral is imbued may convince all States—irrespective of their being Parties to the ICC Statute or not—to put their weight behind coaxing the target State into compliance. Obviously, this is not to say that this will happen as a matter of course, as the situation in Sudan demonstrates.11

In all cases, in order to obtain the arrest of an indictee, the OTP will somehow have to secure cooperation from relevant international and local players. The faithful execution of cooperation frameworks always depends on the political reality of the day, however. Still, under specific circumstances, the OTP may sometimes strategically exploit any cracks in the framework. This strategy may have particular relevance when the OTP has sought warrants for the arrest of persons who are accused of crimes committed in different States, and those States are all part of the cooperation framework. The OTP may then make a deal with one State, promising not to seek the (immediate) enforcement of an arrest warrant relating to the situation in that State, in return for cooperation in executing arrest warrants relating to a situation in another, adjacent State. This is of course based on the assumption that the indictees of the latter situation are present in the former State and/or could be expelled to the latter State.12 Burke-White has given the example of the ICC OTP playing Sudan against Uganda: the OTP could commit itself not to urge cooperation of Sudan in the enforcement of the ICC arrest warrants issued against its officials, provided that Sudan no longer offers a relatively safe haven to the LRA on its territory.13 Similarly, the OTP could bring pressure to bear on the DRC to step up its efforts to arrest LRA leaders on its territory, in return for a ‘promise’ not to indict sitting DRC officials.14

This strategy will of course only work if the different States could be played against each other. This will be the case if they all have something to lose from not cooperating with the OTP, in particular when the odds are high that the OTP could target their own officials in case of non-cooperation, or when overwhelming international pressure is applied. While the signs for success of this strategy may be propitious in the Great Lakes region, in light of the fact that a number of ICC arrest warrants relate to different but interconnected situations, other controversial questions may in fact beg an answer. First, is it morally defensible not to seek the enforcement of arrest warrants, however temporarily? Second, can the indictee challenge, before the Court, the OTP’s decision to have arrest warrants enforced, or to seek indictments, in spite of OTP’s earlier promises to the contrary?

As to the first concern, it may be feared that the legitimacy of international justice will be undermined if the selectivity of enforcement efforts is not only attributable to States or the international community, but even to the very organ that has initially sought the arrest warrant: the OTP. How can the OTP exert credible pressure on States and the international community using moral arguments if its own decisions are seen as morally dubious?

Such a selective enforcement may deserve support if it is the only method of securing any arrest at all. Given the fact that ‘the big men’ in charge in the various States often provide each other political cover, such serious enforcement difficulties are not fanciful. It may be argued that in such cases, the effectiveness of international criminal justice, which is in itself a moral value, should be allowed to trump considerations of moral evenhandedness. Moreover, elective enforcement of arrest warrants should not be viewed as the abandonment of efforts to have certain warrants enforced. Rather, it should be seen as giving priority to the enforcement of some warrants over others, on grounds of political desirability, feasibility, or gravity of the crime. The enforcement of warrants that are deprioritized is only deferred to a later stage, when the political reality is possibly more favorable. In the Uganda situation, for instance, the OTP has confirmed that it does not equate the simultaneous pursuit of important obligations other than that of effectuating the arrest warrants with unwillingness to effectuate those warrants.15 Those other obligations or responsibilities include, according to the OTP, “to achieve peace and security and improve the humanitarian situation for the victims.”16 The OTP may thus—at least temporarily—relax pressure on States when those States pursue legitimate policy objectives that clash with the aim of arresting the indictees. In general, apart from the specific situation of multiple arrest warrants relating to different situations, (immediate) arrest is not an overriding aim; instead, the OTP may countenance a temporary scaling back of enforcement efforts for the benefit of a more pressing social need.

Secondly, if the OTP does not live up to the promises of non-enforcement or non-indictment which it has made toward certain States, and the individuals it is supposedly protecting, the question may be asked whether those individuals have a case in court challenging the OTP arrest strategy. It may appear that in such cases, the OTP failed to act in good faith, and that it has frustrated the legitimate expectations of the State and the individual. But whether, in so doing, the OTP has vitiated the legal proceedings against the individual is another question. It is doubtful whether the OTP’s promises would be legally binding at all. Even if they were, the challenging party, on whom the burden of proof lies, will probably face an uphill battle to adduce sufficient evidence to substantiate the claim that the deal between the OTP and the State (with the individual as a beneficiary) was really meant to produce legally enforceable obligations. Arguably, the challenge should not be dismissed a priori, however. The OTP is supposed to behave as a diligent and faithful actor. Any serious due diligence failures should therefore result in remedies being granted to the victim of those failures, the very annulment of the proceedings being the most extreme remedy.

Success in enforcing arrest warrants not only depends on cunning diplomatic strategies and high politics, but also on grassroots support for the enforcement of arrest warrants (although both will often be entwined).17 Without the involvement of civil society groups who translate the need for enforcement of international criminal law into a local, recognizable vernacular,18 serious enforcement difficulties might be encountered. States, even if authoritarian, often do not want to go against the wishes of their populations for fear of violent uprisings. Also, they might cite the demands of the ‘street’ as a useful excuse for not enforcing arrest warrants, even in the face of pressure by the international community. Therefore, the development of specific outreach strategies geared toward positively influencing local public opinion is appropriate.19 More specifically, the enforcement of arrest warrants of those deemed most responsible (and those bearing command or superior responsibility in particular) may have to be presented as a moment of moving beyond a shameful past toward a more hopeful future.

It is to be borne in mind that the grassroots level is not atomized: it does not consist of millions of separate individuals who share no bonds with each other. While the most readily identifiable bond which they share with each other is obviously their citizenship of (or residence in) the State where they live, they often have a stronger, more emotional bond with certain groups at the sub-State level, such as religious groups or tribal communities. The OTP may have to target the leaders of those groups, or other opinion-makers (such as influential editorialists). Convincing those leaders of the added value of arresting persons accused of international crimes, whatever their rank or political constituency, may be equated with actually convincing the population at large.

In some situations, the OTP may lobby for sanctions against non-cooperative States. A word of caution in relation to sanctions is appropriate, however. It is well-known that sanctions do not always work.20 At times, instead of encouraging cooperation, they precisely contribute to the radicalization of a beleaguered regime, and hence to even less cooperation with the tribunal. It is, for instance, not clear whether sanctions imposed on Sudan with a view to obtaining more cooperation with the ICC would be very effective. The effectiveness of sanctions also depends on the international support they can muster. If important international players do not implement a sanctions regime, its effectiveness will be limited. As a substantial number of major powers have not ratified the ICC Statute (e.g., the United States, Russia, China, India), securing sufficient support for sanctions aimed at ensuring compliance with ICC arrest warrants will always be an uphill struggle.

II. Sealed Arrest Warrants

Yet even if strategies aimed at enlisting State cooperation turn out to be successful, arrest may not be forthcoming for the simple reason that the indicted person has disappeared. To prevent this, the ICC OTP may want to, and does often apply for sealed arrest warrants. Such warrants are typically issued in case public knowledge of the proceedings might result in the suspect hiding, fleeing, and/or obstructing or endangering the investigations of the proceedings of the Court.21 The Court, at the request of the OTP, has indicated that the fact that the suspect is still fighting may in this connection also be one of the reasons to issue a sealed warrant.22 For the OTP, requesting a sealed indictment/arrest from the Court will be an attractive option in case public knowledge of the proceedings might result in the suspect hiding, fleeing, and/or obstructing or endangering the investigations or the proceedings of the Court. If the Court has honored the OTP’s request, the Prosecutor may choose the time and reasons of unsealing, and again apply the Court for a decision on unsealing the warrant. The OTP has applied for unsealing warrants in case one or more of a number of criteria are fulfilled.23 These criteria do not appear as cumulative conditions. Rather, they should be seen as indications that unsealing the arrest warrant may, at that moment, prove more effective in securing the arrest of the suspect.

Although the ICC Prosecutor has typically sought a sealed warrant, his application for the issuance of a warrant for the arrest of the Sudanese President Al-Bashir was not for a sealed warrant. This raises the question as to what factors acted in favor of applying for a public warrant in that case. The single most important factor contributing to the Prosecutor’s decision to apply for a public warrant was probably the position of the suspect: incumbent president. Al-Bashir was only the third sitting head of state ever against whom an arrest warrant was issued (after Slobodan Milošević of Yugoslavia in 1999, and Charles Taylor of Liberia in 2003). The prosecutor will ordinarily not pin much hope on the swift execution of such a warrant. The cooperation of the State which the indicted person heads will obviously not be forthcoming as long as they remain in power. Moreover, the cooperation of other States, even States Parties to the ICC Statute, where the head of state may be found (e.g., at an international conference), may not be forthcoming either: for political-strategic reasons, heads of state and government of those States will typically be loath to embarrass their counterparts by executing arrest warrants against them, and it is even open to doubt whether, in light of Article 98 of the ICC Statute, third States’ arrest and surrender of a head of state or government protected by international immunities is even lawful.24

Because the execution of an arrest warrant against a sitting head of state will normally prove elusive, even if the person is caught by surprise, applying for a sealed warrant will not prove advantageous, rather the contrary. The issuance of such a ‘secret’ warrant could be perceived in the target State as casting doubt on the State’s good faith, and lead to a hardly cooperative stance on its part.25 By issuing a public warrant, in contrast, the Court may be seen as playing by the rules, showing that it has nothing to hide, while at the same time marginalizing the regime headed by the indicted head of state.26 Marginalization is helped by the international publicity generated by a public arrest warrant against the head of state. As Gosnell has noted, such a warrant is nothing less than a demand for regime-change.27 Ideally, it may strengthen the hand of domestic reformers, backed up by pressure exerted by the international community. This will hopefully eventually result in the downfall of the regime, and the arrest of the regime’s leaders, including the (deposed) head of state, with a view to international, or as the case may be domestic, prosecution. For that to succeed, however, the regime’s crimes need to be proven as quickly as possible. Therefore, it is probably advisable that the OTP follows up on the issuance of an arrest warrant against a head of state by issuing arrest warrants against a number of ‘smaller fry,’ who may more readily be sacrificed by States. Securing their conviction and the concomitant establishment of the legal ‘truth’ could keep the momentum going for regime change and the eventual surrender of the head of state.28

III. Support of International Troops

Let me finally dwell on the enlisting of the support of international troops to enforce ICC arrest warrants. It is no secret that in the Great Lakes region, one of the focal areas of the ICC’s investigative activities, OTP requests for direct support of international troops in enforcing warrants has with a lukewarm response. Article 16 of the Memorandum of Understanding between the ICC and MONUC (the UN mission in the DRC)29 is rather clear on the support which the OTP can expect: the memorandum does not envisage the OTP directly requesting the aid of MONUC in supporting arrest efforts, but instead, views the territorial State to be the party with the obligation to request support in aid of execution of warrants of arrest.30 This is understandable in light of Article 89(1) of the ICC Statute, which only provides for the transmission of a request for the arrest and surrender of persons to States. The parties to the memorandum may possibly have wanted to prevent the awkward situation of MONUC (provisionally) arresting an individual at the request of the Court (the legal basis of which is Article 87(6) i.o. Article 92 of the ICC Statute), and the individual not being able to be transferred to the ICC because the State is not willing to cooperate. The initiative is therefore safely left to States, with which the OTP can obviously remain in close contact.

This system may work well in case the State is willing to cooperate. One could, however, easily imagine a Yugoslavia—or Sudan-like situation of international troops being deployed in a certain area, and the local authorities opposing the international presence as well as any arrest operation those troops may carry out. For such a situation, a direct transfer from international custody to ICC custody, without the State acting as an intermediary, appears desirable. It is not fully clear whether the ICC Statute provides a legal basis for such a direct transfer, however. A possible way out could be for the international forces to have the arrested person first transferred to a (third) State that is willing to cooperate. After all, persons could be surrendered to the ICC by any State on the territory of which that person may be found,31 arguably irrespective of how their presence on that territory was brought about. Alternatively, and more appropriately, a UN Security Council resolution authorizing the transfer by international forces may be sought.32

Even if legal obstacles could be overcome, it remains doubtful whether international troops are truly willing to enforce arrest warrants. Illustrative of this reluctance is UN Secretary-General Kofi Annan, responding to a request from the Security Council (Resolution 1663) to make proposals on the topic of how UN agencies and missions could more effectively address the problem of arresting LRA leaders, underscored “the difficulties that the UN missions in the Congo and Sudan would face in mounting operations to support arrest,” and endorsed the notion that the most promising means of addressing the LRA threat by force would be for the governments in the region [to] find a mutually agreeable way to strengthen cooperation on the ground among their security forces.33 Within the UN administration, there appears to be serious political resistance against endowing UN forces with a mandate of arresting war crimes suspects and surrendering them to the tribunals. It is noted that the ICC OTP has implicitly criticized this resistance when it urged that UN troops deployed in the eastern regions of the DRC be provided with special forces with a mandate to arrest fugitives.34 But as international arrest (law enforcement) operations against warlords, even by the best special forces in the world, have turned out very deadly, it is unlikely that the UN will change its position soon.35

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Author’s Note: this text is, in large part, drawn from Cedric Ryngaert, Arrest and Detention, in International Prosecutors 647–699 (Luc Reydams, Jan Wouters & Cedric Ryngaert eds., OUP 2012). An earlier working paper version is available online.

  2. 2.

    Gavin F. Ruxton, Present and Future Record of Arrest War Criminals; the View of the Public Prosecutor of the ICTY, in Arresting War Criminals 19 (W.A.M. van Dijk & J.L. Hovens eds., Wolf 2001).

  3. 3.

    E.g., 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 ICC Statute], Article 63(1): “The accused shall be present during the trial.” Compare Article 22.1 of the Statute of the Special Tribunal for Lebanon, available online.

  4. 4.

    See also Steven D. Roper & Lilian A. Barria, State Co-operation and International Criminal Court Bargaining Influence in the Arrest and the Surrender of Suspects, 21 Leiden J. Int’l L. 457, 458 (2008), available online. “The inability to apprehend suspects not only undermines the credibility of a justice system but, more fundamentally, thwarts the prosecution of cases and ultimately denies the possibility of justice to individuals as well as the establishment of a historical record which can serve as a basis for possible national reconciliation. Therefore we regard the apprehension of suspects as a more fundamental problem than just enforcement—the inability to apprehend suspects undermines the entire international human rights regime.”

  5. 5.

    See also Rod Rastan, Testing Co-operation: the International Criminal Court and National Authorities, 21 Leiden J. Int’l L., 431, 455 (Jun. 2008).

  6. 6.

    Cf. Christopher Gosnell, The Request for an Arrest Warrant in Al Bashir: Idealistic Posturing or Calculated Plan, 6 J. Int’l Crim. Just. 841, 845 (2008) arguing that once a decision is made to go public with an arrest warrant, the Prosecutor “becomes a political actor, despite the putatively legal and objective foundations of his charging decision.”

  7. 7.

    See also Roper & Barria, supra note 4, at 464. “ICC bargaining influence will be greater in those cases involving state party self-referrals because of the need to follow through with their referral commitment.”

  8. 8.

    In such a case, the OTP could call for a UN Security Council resolution forcing a State not Party to enforce the arrest warrant against the person. Cf. Rastan, supra note 5, at 444.

  9. 9.

    Even States not Parties to the Statute may be obliged to cooperate with the Court, in case the Security Council has referred a situation on their territory to the Court under a Chapter VII Resolution (e.g., the situation in Sudan).

  10. 10.

    See also Roper & Barria, supra note 4, at 464.

  11. 11.

    See also Roper & Barria, supra note 4, at 464. Nonetheless, even before the Court had issued a warrant for the arrest of the Sudanese President Al-Bashir, States—even States Parties to the ICC Statute—indicated that they would not arrest the indictee. See Le Ghana ne compte pas arrêter Béchir, LE JDD, Sep. 24, 2008.

  12. 12.

    The OTP, with the help of the international community, may also want to make an ‘internal’ deal with a State, pursuant to which the OTP would not seek the enforcement of a warrant if the State commits itself to enforcing other warrants. E.g., one solution proposed for the situation in Sudan, of which the ICC is seized, would see the President shielded from arrest, while two other officials would be sacrificed.

  13. 13.

    William Burke-White, Bargaining for Arrests at the International Criminal Court: A Response to Roper and Barria, 21 Leiden J. Int’l L. 477, 480–482 (2008).

  14. 14.

    Id.

  15. 15.

    The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Case No. ICC-02/04-01/05, Submission of Additional Information on the Status of the Execution of the Warrants of Arrest in the Situation in Uganda, (Dec. 8, 2006), available online.

  16. 16.

    Id.

  17. 17.

    It was reported by the ICC that it met regularly with civil society representatives. Report of the International Criminal Court for 2009/10, 65th Sess., para. 105, UN Doc. A/65/313 (Aug. 19, 2010), available online.

  18. 18.

    Cf. the need for vernacularization for the universality to be fully realized, in particular Abdullahi A. An-Na‘im, “Area Expressions” and the Universality of Human Rights, in Human Rights and Diversity: Area Studies Revisited 1 (D.P. Forsythe & P.C. McMahon eds., University of Nebraska Press 2003), available online; Sally Engle Merry, Human Rights and Gender Violence 1 (University of Chicago Press 2006): “In order for human rights ideas to be effective … they need to be translated into local terms and situated within local contexts of power and meaning.”

  19. 19.

    In this sense see also Roper & Barria, supra note 4, at 466; Burke-White, supra note 13, favoring direct negotiation with domestic actors within the State.

  20. 20.

    Compare Roper & Barria, supra note 4, at 466–467, regarding political pressure as having only limited effectiveness, as opposed, however, to military and economic pressure.

  21. 21.

    E.g., The Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, Decision to Unseal the Warrant of Arrest Against Bosco Ntaganda (Apr. 28, 2008), available online.

  22. 22.

    Id. Arguably, the OTP may fear that the issuance of the arrest warrant may embolden the suspect not to lay down arms. A continuation of the conflict runs afoul of one of the purposes of ICC proceedings: to pacify conflict zones.

  23. 23.

    (i) The suspect is no longer fighting; (ii) the suspect may have become aware of the existence of the warrant for his arrest; (iii) protective measures have been taken to ensure the adequate security of the witnesses; (iv) the suspect may flee or seek refuge in other (neighboring) countries, a risk which may be decreased when the international actors are officially informed of the existence of the warrant; (v) the State which has already been notified of the warrant has taken steps to apprehend the suspect, a process which may be facilitated by unsealing the arrest warrants, and (vi), obviously, the State has already executed the sealed arrest warrant. Cf. Prosecution’s Application for Unsealing the Arrest Warrant against Bosco Ntaganda, ICC-01/04-02-06-15-US-Exp, Feb. 29, 2008, with ICC Pre-Trial Chamber agreeing by Decision of April 28, 2008, supra note 22, at 4–5. See also The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision to Unseal the Warrant of Arrest Against Mr Thomas Lubanga Dyilo and Related Documents at 3 (Mar. 17, 2006), available online.

  24. 24.

    Von Michiel Blommestijn & Cedric Ryngaert, Exploring the Obligations for States to Act upon the ICC’s Arrest Warrant for Omar Al-Bashir. A Legal Conflict between the Duty to Arrest and the Customary Status of Head of State Immunity, 5 Zeitschrift für Internationale Strafrechtsdogmatik 428–444 (Jun. 2010), available online.

  25. 25.

    It has even been suggested that the conflict could, as a result of a sealed warrant, become more violent. Cf. Gosnell, supra note 6, at 844.

  26. 26.

    See also Richard Goldstone, Od-Ed., Catching a War Criminal in the Act, N.Y. Times, Jul. 15, 2008, available online, stating that “[t]he arrest warrants for President Bashir reveal to the world what type of regime holds power in Khartoum.”

  27. 27.

    Gosnell, supra note 25, at 845.

  28. 28.

    Id. at 847–848.

  29. 29.

    Memorandum of Understanding between the United Nations and the International Criminal Court Concerning Cooperation Between the United Nations Organization Mission in the Democratic Republic of Congo (MONUC) and the International Criminal Court, ICC-01/04-01/06-1267-Anx2 (Nov. 8, 2005) [hereinafter Memorandum of Understanding] available online.

  30. 30.

    The Prosecutor v. Joseph Kony et al., supra note 15, at ¶ 14. The Memorandum of Understanding, supra note 29, indeed provides that MONUC may agree to a request from the DRC government to carry out the arrest of persons sought by the Court in the areas where it is deployed and where this would be consistent with its mandate.

  31. 31.

    Article 98(1) ICC Statute.

  32. 32.

    Cf. S.C. Res 1638, U.N. Doc. S/RES/1638 (Nov. 11, 2005), available online, operational para. 1: “Decides that the mandate of the United Nations Mission in Liberia (UNMIL) shall include the following additional element: to apprehend and detain former President Charles Taylor in the event of a return to Liberia and to transfer him or facilitate his transfer to Sierra Leone for prosecution before the Special Court for Sierra Leone and to keep the Liberian Government, the Sierra Leonean Government and the Council fully informed.”

  33. 33.

    The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Case No. ICC-02/04-01/05, Submission of Information on the Status of the Execution of the Warrants of Arrest in the Situation in Uganda at ¶ 19 (Oct. 6, 2006), available online. This statement was informed by the death of eight Guatemalan soldiers in an arrest operation against Joseph Kony in the DRC. See also The Christmas Massacres: LRA attacks on Civilians in Northern Congo, HRW (Feb. 2009) at 17–18, available online. The unwillingness of the UN to authorize UN missions to arrest fugitives is also reflected in UN Security Council Resolution 1565, relating to the MONUC mission in the DRC. Admittedly, this resolution authorizes MONUC to “co-operate with efforts to ensure that those responsible for serious violations of human rights and international humanitarian law are brought to justice, while working closely with the relevant agencies of the United Nations,” but it does not authorize the use of force to that effect. S.C. Res 1565, para. 5(g), U.N. Doc. S/RES/1565 (Oct. 1, 2004), available online. As stated at supra note 30, however, the Memorandum of Understanding authorizes MONUC to arrest fugitives if the DRC, as opposed to the Court itself, requests it to do so. See also Rastan, supra note 5, at 445.

  34. 34.

    Peter Eichstaedt, ICC Chief Prosecutor Talks Tough, IWPR, May 7, 2008, available online. In the international media, it was reported that a joint UN and DRC forces had undertaken military operations against the LRA in the DRC, but the Vice President of the Government of Southern Sudan, who is also the Chief Mediator of the Uganda peace talks, denied the allegations. James Gatdet Dak, Sudan’s Machar dismisses allegations of war against Ugandan rebels, Sudan Tribune, Sep. 12, 2008, available online.

  35. 35.

    E.g., the hunt for Somali warlord Mohamed Farrah Aidid in Mogadishu by U.S. troops under UNOSOM II command in 1993, which cost over a thousand lives. For an overview of the UNOSOM II operation and the fatal events, which eventually led to the withdrawal of U.S. troops from Somalia, see United Nations Operation in Somalia II: UNOSOM II (March 1993 – March 1995), UN, available online, and Lester H. Brune, The United States and Post-Cold War Interventions: Bush and Clinton in Somalia, Haiti and Bosnia 1992–1998 31–34 (Regina Books 1998).

Van Schaack Avatar Image Professor Beth Van Schaack Visiting Scholar The Center on Security & Cooperation, Stanford University

ICC Fugitives: The Need for Bespoke Solutions1

Strategies aimed at gaining custody of one fugitive will not necessarily be relevant to any other. Instead, the international community in coordination with the Court needs to devise bespoke solutions. That said, there are some common approaches that, if pursued, might bring closure to the pressing problem of at-large defendants.

Summary

I. Introduction

It is axiomatic that the International Criminal Court (ICC) depends on the cooperation of the international community, including state parties and non-party states alike,2 to carry out its mandate to prosecute the “most serious crimes of international concern.” Nowhere is this dependency more apparent than with respect to the imperative of gaining custody of the accused. The Court cannot proceed in absentia;3 if it is to carry out its mandate, the accused must be detained and transferred to The Hague. Given the centrality of this issue to the Court’s success, the ICC’s Assembly of States Parties in a consensus resolution on cooperation recently

Express[ed] serious concerns that arrest warrants or surrender requests against 14 persons remain outstanding, and call[ed] on States to cooperate fully in accordance with their obligation to arrest and surrender to the Court…4

It is anticipated that the Assembly of States Parties will consider its provisional Arrest Strategy Roadmap5 in greater detail over the course of 2013–14 with an eye toward creating a something akin to an action plan6 at the next meeting of the ASP in December 2014 in New York.

The custody issue is a vexing one. Those situation countries that willingly submitted themselves to the ICC’s jurisdiction are often weakly governed; their authorities may find it difficult (logistically, politically, or both) to gain custody of rebel leaders in areas in which the state exercises little control or authority, notwithstanding Rome Statute obligations to “cooperate fully” with the Court.7 Those situation countries whose officials are subject to ICC charges pursuant to Security Council referrals may be hostile (e.g., Sudan) or ambivalent (e.g., Libya) toward ICC jurisdiction. As non-ICC parties, they are subject only to those obligations that have been imposed on them by virtue of the referral resolution, which may employ imprecise language on this point—no doubt by design. Such states may refuse, or find it difficult in light of internal political realities, to cooperate voluntarily with the Court or to appear to be doing so. All told, given this situational variation, strategies aimed at gaining custody of one fugitive will not necessarily be relevant to any other. Instead, the international community in coordination with the Court needs to devise bespoke solutions. That said, there are some common approaches that, if pursued, might bring closure to the pressing problem of at-large defendants.

The international community must make a firm and concerted commitment to the goal of ending this enduring impunity. The current state of affairs undermines the ICC itself and also the global commitment to ensuring accountability for the worst international crimes.8 As the Court noted in its 2013 Report on Cooperation:

Failure to arrest these individuals emboldens them and potential future perpetrators, and fuels the perception that they can remain beyond the reach of the Court and perpetrators can continue to commit crimes with impunity.9

Moreover, as noted by the Court in its Report on Cooperation for the 12th ASP,

there are costs related to preserving evidence, maintaining contact with witnesses, monitoring security and mitigating threats [to victims and witnesses]. These costs will continue to run for as long as the relevant cases cannot be presented to the Judges.10

At the same time, attaining this goal is important for reasons that are independent of the legitimacy and efficacy of the ICC or of the system of international justice writ large. Many of the ICC’s at-large defendants are today associated with the commission of grave international crimes against civilians in the volatile region that encompasses eastern Democratic Republic of Congo, the Central African Republic, Darfur State, and the contested border regions of Southern Sudan and the Republic of South Sudan. The international community has invested considerable treasure and some blood in establishing stability in these regions; these efforts are being undermined by the ICC fugitives, who are sources of persistent instability. Denying these individuals safe haven and successfully transferring them to the Court thus serves an atrocities prevention imperative in addition to making good on the promise of accountability for horrific crimes already committed.

Argument

II. Background

The ICC is not the first international tribunal to experience difficulty in gaining custody of indictees. Devotees to this field will remember the frustration of the International Criminal Tribunal for the Former Yugoslavia (ICTY)’s first prosecutors, whose indictments went unexecuted even after allegations that the NATO-led Implementation Force (IFOR)11 and then Stabilization Force (SFOR)12 allowed indictees to pass through checkpoints or otherwise go about their business unmolested. Indeed, the conventional wisdom is that ICTY prosecutors initiated the case against Duško Tadić—a relatively small fish who at the time was facing charges in Germany by way of its universal jurisdiction statute—out of desperation to have something to do.13 It took 18 years to finally obtain custody over all the ICTY defendants,14 including Ratko Mladić, Radovan Karadžić, and Goran Hadžić, all of whom had long eluded capture with the help of a network of nationalistic supporters. That this feat was finally accomplished is largely attributed to the fact that economic assistance as well as European Union accession and closer ties to NATO via the Partnership for Peace were made contingent upon cooperation by the states of the former Yugoslavia with the Tribunal.15

By contrast, the ICTY was able to start its work almost immediately given that—not without controversy16—all of its indictments targeted members and supporters of the former Hutu Power regime, whom the triumphant Rwandan Patriotic Front (RPF) was generally all too glad to see in the dock. Twenty seven states in the region (including Kenya, Zambia, the Central African Republic, and Cameroon) and beyond (Belgium, the United States,17 and Switzerland) also facilitated the arrest of Rwandan suspects on the run and transferred them to the Tribunal.18 Nonetheless, almost twenty years after the formation of that tribunal, nine fugitives (of 93 indictees) still remain at large.19 Tracking teams formed by the ICTY20 remain at work cultivating a network of informants within the Rwandan diaspora and elsewhere;21 the government of Rwanda has launched a similar team.22 It is anticipated that three high-value defendants23 will be prosecuted by the Arusha branch of the Mechanism for International Criminal Tribunals (MICT);24 the files of the other six have been forwarded to the Rwandan authorities for eventual prosecution in domestic courts. All nine remain subject to rewards for their capture25 pursuant to the U.S. State Department’s War Crime Rewards Program (WCRP),26 which allows for the payment of rewards leading to the arrest, transfer, or conviction of foreign nationals charged with war crimes, crimes against humanity, or genocide. The Special Court for Sierra Leone (SCSL)27 obtained custody over all indicted individuals except Johnny Paul Koroma, the leader of the Armed Forces Revolutionary Council (AFRC),28 who is rumored to be dead, although no definitive proof of this has emerged. Likewise, the Extraordinary Chambers in the Courts of Cambodia (ECCC)29 had no trouble launching proceedings against charged individuals, who were mostly septuagenarians already in government custody (such as Duch) or easily located. If the ECCC decides to pursue Cases 003 and 004,30 however, gaining custody of the accused may become an issue, since the Government of Cambodia opposes further cases.31

The challenges to obtaining custody of each current ICC fugitive are to a certain extent of a different order. There is no regional political organization such as the European Union to exert concerted pressure on actual or potential member states to execute arrest warrants. The ICC is an independent body, rather than a subsidiary organ of the Security Council or an institution created with a host state’s consent. The Court has received very little in the way of concrete support from the Security Council, even in those cases that owe their provenance to a Chapter VII resolution. Even states parties subject to treaty-based obligations to cooperate with the Court have not done enough in this regard. Furthermore, the Court does not at present stand to benefit from any tracking teams, transnational law enforcement efforts, or peacekeepers dedicated to the capture and transfer of these individuals. In short, the ICC is in a much weaker position than the prior ad hoc tribunals. As such, the international community needs to think creatively about new solutions to the problem of fugitives and do more to make the capture of these individuals a global priority.

III. Situations-by-Situation Challenges & Opportunities

A. Uganda

The first arrest warrants32 issued by the ICC Office of the Prosecutor in 2005 were against Joseph Kony and four of his Lord’s Resistance Army (LRA) henchmen. Of the four, Dominic Ongwen and Okot Odhiambo are still alive and at large. Vincent Otti and Raska Lukwiya are now dead—the former was apparently executed on Kony’s orders33 and the latter died in combat with the Ugandan People’s Defense Forces.34 The remaining LRA defendants have been on the run in one of the most inaccessible and insecure parts of the world, which sits at the juncture of a set of nations with only the most tenuous control over their hinterlands: the Republic of South Sudan (RSS), the Central African Republic (CAR), Southern Darfur State in Sudan, the disputed Kafia Kingi enclave between Sudan and RSS, and northeastern Democratic Republic of Congo (DRC). Dense foliage confounds aerial surveillance, and the LRA’s areas of activity are generally outside established communications networks.35 The remaining few hundred LRA fighters are reportedly living a nomadic lifestyle, traveling in small bands36 with their wretched abductees—including a number of children—in tow. They are rumored to be a fractured bunch,37 suffering from low morale and increasingly alienated from their messianic leader38 with whom they communicate by courier.39

These apparent schisms within the LRA offer an opportunity to divide and conquer by weakening Kony’s protective network and sources of support. Uganda, its Western partners, NGOs,40 and the Security Council41 have all endorsed a policy of encouraging defections.42 Regional forces and NGOs have been dropping “come home” leaflets43 and broadcasting related messages through the radio and from helicopter-mounted speakers in areas where there have been LRA sightings. Many of the 33 individuals who defected in 2012 indicated that these efforts influenced their decision to desert the LRA.44 Indeed, this defections strategy has motivated some high-profile desertions45 (including one of Kony’s abducted “wives”),46 which have undoubtedly generated valuable, if dated, information about Kony’s whereabouts and modus operandi. Moreover, some key LRA leaders have been captured (e.g., Caesar Achellam47 in May 2012) or killed (e.g., Vincent Binany Okumu48 in January 2013).

Uganda has enacted, let partially lapse,49 and re-activated50 an amnesty law that encourages the defection of individuals engaged in an armed rebellion in exchange for promises of impunity and reintegration. The Amnesty Act51 established an Amnesty Commission, which has to date issued over 12,000 certificates of amnesty to LRA fighters. While such amnesty opportunities may be acceptable for breaches of laws penalizing mere membership in the rebel group, or for forms of armed rebellion, they raise acute international law, human rights, and fairness concerns when they purport to extinguish liability for the commission of international crimes. The Ugandan authorities must work to find the right balance between encouraging LRA members and abductees to leave the group, while prosecuting those most responsible for serious human rights violations. The donor community must maintain its support for regional efforts toward the demobilization, disarmament, reintegration, and rehabilitation of current and former child soldiers as well as and LRA abductees so that these individuals have something to “come home” to.

The United States has made significant contributions to the regional Kony manhunt52 and related efforts to suppress the LRA and rehabilitate LRA-affected regions. The Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009,53 signed into law by President Obama in 2010, states that it is the policy of the United States to “work vigorously” to:

eliminat[e] the threat posed by the Lord’s Resistance Army to civilians and regional stability through political, economic, military, and intelligence support for a comprehensive multilateral effort to protect civilians in affected areas, to apprehend or otherwise remove Joseph Kony and his top commanders from the battlefield, and to disarm and demobilize Lord’s Resistance Army fighters; and … further support comprehensive reconstruction, transitional justice, and reconciliation efforts.

The Legislation also authorized the President to “provide assistance to respond to the humanitarian needs of populations in northeastern Congo, Southern Sudan, and Central African Republic affected by the activity of the Lord’s Resistance Army.”

In 2011, President Obama with bipartisan support launched Operation Observant Compass54 and sent 100 combat-equipped military advisors drawn from U.S. Special Operations Forces55 to assist the Ugandan People’s Defense Forces (UPDF) and an African Union Regional Task Force (AU-RTF)56 in their efforts to track Kony and “remov[e him] from the battlefield.” This is on top of the provision of substantial matériel57 (including communications equipment; logistical support; tactical equipment e.g., night vision goggles; and vehicles) to this initiative. This operation has since been re-authorized and expanded58 and is estimated to cost in the range of $4.5 million per month.59 The advisors are meant to be just that—they are not mandated to engage LRA forces unless necessary for self-defense. However, they are now authorized to conduct joint patrols with their regional counterparts. Although Kony’s trackers have come very close to capturing him,60 their efforts have been hindered by a whole host of challenges, including: the continued need for training and capacity-building among local forces; variable permission to operate in DRC;61 the unrest in neighboring CAR following the Seleka alliance coup, which suspended the program for a spell;62 a lack of coordination between the troops of different sending states;63 the difficult terrain and triple canopy jungle; potential intelligence leaks; the area’s porous borders; and, at times, a lack of resolve among the regional troops. In addition, in the past, there were allegations that Sudan was providing safe haven to LRA bands64 in retaliation against Uganda for its support of the Sudan People’s Liberation Movement, although this support appears to have subsided.

A major challenge to effectuating Kony’s capture has been the dearth of real-time information about his whereabouts and movements. By the time word emerges of Kony’s appearance, he has moved on, leaving a trail of destruction, abduction, displacement, and poaching behind him.65 One solution to this obstacle is the development of better telecommunications capabilities in LRA-affected communities (building cell towers, distributing cell and Thuraya66 satellite phones with geo-location capacities, providing high-frequency radios, and creating hotlines and tip lines), so people have a quick, secure, and costless ways to contact Kony’s pursuers in the event that the LRA passes through an area. Such efforts will have the secondary effect of contributing infrastructure to the much needed development of these regions.

The United States has also added Kony, Ongwen, and Odhiambo to its WCRP.67 This program originally applied only to indictees of three ad hoc tribunals: the ICTY, ICTY, and SCSL. The U.S. Congress amended the law in January 201368 to allow rewards to be offered for information leading to the arrest or conviction of foreign nationals charged by any international tribunal, including hybrid and mixed tribunals (such as the Bosnian Special Chambers or the proposed mixed chambers for the DRC69 and Syria).70 In April 2013, Secretary of State John Kerry designated the ICC’s LRA defendants into the expanded program.71 The program does not authorize the payment of a “bounty” for delivering a fugitive “dead or alive”;72 rather, designees must be fully prosecuted before any rewards will be issued. Nor does the program apply to government agents (U.S. or foreign) who furnish information “while in the performance of his or her official duties.” Thus, members of the UPDF and U.S. special forces may be ineligible for rewards (although the former’s friends or relatives could conceivably benefit if they provide the actionable information). To further motivate the UPDF, other states or entities could enact complementary programs that would enable the payment of “bonuses” to UPDF or AU-RTF troops who successfully capture Kony or his co-defendants and facilitate their transfer to The Hague.

In parallel with this effort, the Department of Defense (DoD)’s African Command (AFRICOM) also manages its own rewards programs73 in areas in which it operates. The DoD program enables the payment of rewards for the provision of information with the primary goals of force protection and counter-terrorism, including the arrest of wanted persons and the capture of weapons caches.74 Rewards can be paid in connection with the Kony operation on either ground since the LRA has been on the United States’ Terrorist Exclusion List since 2001,75 and Kony has been on the list of Specially Designated Nationals and Blocked Persons76 created by Executive Order 1322477 since 2008. The DoD rewards, while not subject to the same restrictions as the WCRP, tend to be smaller78 than those of the WCRP and can also be paid collectively and in kind (with, e.g., food, vehicles, non-lethal equipment, infrastructure improvements, and local amenities). Moreover, they can be paid close to immediately upon the provision of information. An expansion of this program could amplify incentives to provide useful information to U.S. personnel in the region. Both programs have benefited from an aggressive marketing campaign involving posters, fliers, and other “bling.”

U.S. advisers have been in the region for months. Kony’s elusiveness is undoubtedly a source of great frustration to members of the world’s most capable military. Nonetheless, it is the UPDF and the AU-RTF who must ultimately effectuate Kony’s capture. Their endeavors quite simply must be more professional and robust. Uganda must be encouraged to ensure that the U.S. advisors are fully embedded with their host units and able to assist in coordinating the work of AU-RTF units. Other donor states could assist the United States with maintaining coordinated diplomatic support for the Operation, providing additional capacity building and matériel, detailing more advisors and other personnel to the operation, encouraging regional cooperation with the AU-RTF, or even pushing the relevant states to allow joint offensive operations. States in the region must allow these teams free passage, refrain from offering any assistance to the LRA, and provide Uganda, the United States, or the ICC with relevant information in a timely fashion as it emerges.

Since the ICC arrest warrants were issued, Uganda has created a specialized International Crimes Division (ICD),79 with jurisdiction over war crimes, crimes against humanity, and genocide. The Ugandan Supreme Court, which has had difficulty constituting itself for lack of a quorum,80 is set to hear an appeal of Thomas Kwoyelo, a mid-level LRA commander who is being prosecuted in the ICD,81 even though he is ostensibly entitled to amnesty under the Amnesty Act. There is, of course, some chance that Uganda would choose to prosecute the LRA defendants itself in the event that they are captured alive. President Museveni referred Uganda to the ICC in 2004,82 effectively outsourcing these prosecutions notwithstanding a relatively effective and fair judicial system.83 Given that the regional and domestic politics have evolved since the time of the referral, he may decide to invoke complementarity and assert Uganda’s prerogative to prosecute Kony et al. domestically. (Uganda’s Minister of Justice, however, has indicated Kony would be sent to the ICC for trial).84 Given that the ICC has its hands full with its current caseload, an admissibility challenge coupled with a robust domestic process may not be entirely unwelcome.

In sum, while there are areas where current efforts could be plussed up, the hunt for Joseph Kony obviously does not lack for high level attention or resources. Accordingly, capturing the LRA fugitives may just be a matter of time, persistence, and patience.

B. Darfur, Sudan

The Sudanese fugitives present a different set of challenges. Most importantly, they enjoy the support and protection of the government of Sudan, which strenuously objects to ICC jurisdiction. For the most part, and unlike the LRA defendants, the Darfur indictees’ whereabouts are often all too well known.85 Janjiweed leader Ali Muhammad Ali Abd al Rahman86 (a.k.a. Ali Kushayb) was injured in battle last year87 and until recently was receiving treatment in a Khartoum hospital.88 Abdel Raheem Muhammad Hussein89 is the Minister of National Defense and former Minister of the Interior and Special Representative in Darfur. Ahmad Muhammad Harun90 was Minister of Humanitarian Affairs until he was appointed Governor of South Kordofan state in May 2009. He was appointed in 2007 to lead the investigation into human rights violations in Sudan—no doubt presenting an excruciating irony to Darfuri victims. Harun has endeavored to rehabilitate himself by becoming essential to negotiations with the SPLM-N rebel group91 over the disputed South Kordofan area, one of the “Two Areas” currently wracked by violence in southern Sudan.92 Indeed, in January 2011, the UN was excoriated for allowing Harun to travel on a UN helicopter93 in connection with negotiations around ethnic clashes in the Abyei region of South Kordofan. It was also criticized for the fact that Karen Tchalian, later chief of staff of the U.N./African Union Mission in Darfur (UNAMID), met daily with Harun94 when the former worked for the U.N. Mission in Sudan (UNMIS) in Southern Kordofan. Harun remains an acting governor in the newly reconstituted Kordofan states.

The fourth and final ICC fugitive, Omar Hassan Ahmad Al Bashir is—of course—Sudan’s head of state, which presents its own set of challenges. Bashir appears regularly in the local media and has travelled extensively—including to ICC state parties—effectively flaunting the two outstanding arrest warrants against him. Indeed, since he was indicted in 2009, he has visited a whole range of countries95 (including Chad (who also hosted Defense Minister Hussein in 2013), China, Djibouti, Egypt, Eritrea, Ethiopia, Iran, Iraq, Kenya, Libya (pre—and post-Qaddafi), Qatar, and South Sudan), where he often enjoys a dignitary’s welcome.

Bashir’s radius has diminished considerably, however, in recent years. In 2013, for example, he fled an African Union Special Summit on HIV/AIDS, Tuberculosis, and Malaria in Nigeria after being in the country less than 24 hours96 following an effort by members of the local NGO community to serve a summons on him.97 This happened amidst expressions of concern about the visit from influential states98 and rumors that foreign powers might actually arrest him.99 It also followed upon the issuance of a request to Nigeria by ICC Pre-Trial Chamber II to immediately take him into custody100 and indications that Nigeria was “considering the necessary steps to be taken in respect of his visit in line with [its] international obligations.”101 Prior to that, and following a visit to Kenya, a court there issued a ruling indicating that Kenya was under an obligation to arrest Bashir if he returned to the country.102 Bashir subsequently did not attend the Kenyatta inauguration.103 Chad postponed its 2013 Greenbelt Conference of the Community of Sahel-Saharan States upon learning Bashir would attend on Sudan’s behalf.104 Even in advance of his 2011 trip to China—a non-party state that is ambivalent, at best, toward international justice efforts, Bashir reportedly felt the need to confirm that he would not be arrested.105

Other states that once allowed him to visit have since withdrawn their welcome, including Malawi, which hosted Bashir in October 2011 for a summit of the Common Market for Eastern and Southern Africa (COMESA).106 When confronted with a finding of non-cooperation by the Court, Malawi replied that it had “accorded him all the immunities and privileges guaranteed to every visiting Head of State and Government; these privileges and immunities include freedom from arrest and prosecution within the territories of Malawi.”107 The newly installed administration of Joyce Banda, however, relinquished the opportunity to host an AU summit in June 2012 —losing tens of thousands of dollars in income for its hotels and other benefits in the process—when Bashir indicated his intention to represent Sudan.108 In addition, Bashir has not pursued or has cancelled potential visits to CAR, Zambia, Botswana, Uganda, and South Africa (for the World Cup). Even Saudi Arabia and Turkmenistan, ICC non-parties, refused permission for Bashir’s plane to cross into their air space when Bashir sought to attend the Iranian inauguration and meetings with China, respectively.

Bashir remains welcome in Ethiopia, a non-ICC party and the headquarters of the African Union. Since Bashir was charged, tension has mounted between the AU and the ICC.109 Although African states were instrumental in the formation of the ICC Statute and its entry into force, the indictment of Bashir, as a sitting head of state, caused a volte-face, at least among some AU members. The AU has also rallied around President Kenyatta, who was indicted before he became Kenya’s head of state but is now facing trial in The Hague along with his Deputy President William Ruto. On their behalf, the AU has several times attempted to prompt the Security Council to invoke Article 16 of the ICC Statute,110 which allows the Council to defer ICC proceedings for a year in the exercise of its Chapter VII powers.111 Although Article 16 language has been floated in the Council for both the Sudan and Kenya cases, it has been continually blocked by the United Kingdom, France, the United States, and other Council members. When the Council did not act upon one such request other than to take note of it in Resolution 1828 and pledge to consider matters further,112 the AU adopted a decision in 2009113 calling on its members to withhold cooperation with the Court pursuant to Article 98114 of the Rome Statute with respect to the arrest or surrender of Bashir. Elements within the AU have tried to foment a broader anti-ICC campaign, as reflected in an Extraordinary Summit devoted to the ICC hosted recently in Addis Ababa;115 however, AU members that remain supportive of the Court have managed to temper these impulses.116 Although the Extraordinary Summit was poorly attended, the AU did decide to seek the postponement of the Kenya and Sudan cases until the two heads of state are no longer in office,117 although there has been no action yet at the Council and the Court has postponed the start of the Kenyatta case until 2014—the third such delay.118 Although it is doubtful that the Council would defer the Sudan cases in light of Sudan’s recalcitrance vis-à-vis the Court, the Kenya case may present a different set of considerations.119 The Council, however, recently rejected another deferral request for that situation.120

Bashir even had the temerity to signal an intention to attend the 68th session of the UN General Assembly (UNGA) meetings in September 2013 in New York, generating speculation as to whether the United States would issue him a visa.121 Granting him permission to travel was arguably mandated by two instruments: the 1947 Headquarters Agreement between the UN and the United States—which states at Section 11 that “the federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of … representatives of Members”122—and the 1946 Convention on the Privileges and Immunities of the United Nations (the so-called “General Convention”).123 A breach of the former Agreement might have subjected the United States to binding arbitration with the UN according to Section 21; a breach of the latter treaty, to claims before the International Court of Justice under Section 30. The UN, however, had the power to waive the United States’ obligations under these instruments (including under Article 20 of the General Convention if the immunity in question “would impede the course of justice”),124 which it did not do. Per the Headquarters Agreement, the UN can also “expel or exclude persons from the headquarters district for violation of its regulations adopted … or for other cause” (emphasis added) In addition, there may have had a basis to refuse Bashir entry pursuant to Section 9(b) of the Agreement, which states that the UN shall

prevent the headquarters district from becoming a refuge either for persons who are avoiding arrest under the federal, state, or local law of the United States or are required by the Government of the United States for extradition to another country, or for persons who are endeavouring to avoid service of legal process.

While acknowledging that the U.S. was under no formal obligation to arrest Bashir, PTC II “invited” the United States to arrest and surrender him to the Court, and the ICC Registry sent a note verbale to the U.S. embassy in The Hague requesting cooperation in this respect.125 The President of the Assembly of States Parties, Tiina Intelmann, reminded potential transit states that are also ICC States Parties “of their obligation to arrest and surrender Mr. Omar Al-Bashir to the ICC.”126 (Bashir had indicated his intention to stop in Morocco, which has signed but not ratified the Rome Statute, and may have been obliged to fly over European Union air space above the Canary Islands).127 The UN remained largely silent about his potential visit and scheduled him to address the Assembly on September 26.128 In the end, he did not attempt the trip, and UNGA proceeded without him.

The international community could be more assertive about preventing Bashir’s travel. Obviously, all states—and particularly ICC members—should refrain from inviting him to events or otherwise facilitating his travel through granting fly-over or refueling rights. At the same time, a strategy of containing Bashir presents a paradox. The more he is confined to Sudan, the less likely it is that he might be arrested extraterritorially. He remains relatively safe from capture within Sudan so long as he retains control over the reins of power and there are no insiders or members of the burgeoning opposition willing to act against him.129 At the same time, as his ability to travel internationally or visit with UN and other officials is further constrained, the less effective he becomes as a representative of Sudan’s interests on the world stage. This will decrease his base of support and signal to his inner circle that he has become a liability. Were the United States to issue a reward for his and his compatriots’ arrest or capture under the WCRP, it might further incentivize insiders to offer the ICC defendants up as a way to rehabilitate Sudan’s standing in the international community (and advance their own pecuniary interests).

Assuming that he continues to travel, state supporters of the Court should focus their intelligence gathering on tracking his plans; share information on his whereabouts; establish an early warning system when he is on the move; and generally do more than issue nebulous démarches to potential host countries whenever Bashir reveals plans to travel beyond his borders. Hosting or enabling the travel of Bashir should lead to tangible adverse consequences, including potentially the loss of voting rights in international institutions such as the ASP.130 Likewise, states that respect their international obligations and demonstrate a commitment to international justice, the rule of law, and the promotion of international human rights should be rewarded. For example, due to “a pattern of actions … inconsistent with the democratic governance criteria,” including allowing the Bashir visit,131 the United States—at the urging of Republican Representative Frank Wolf, a long-time critic of the Sudanese government—suspended Malawi’s $350M compact with the Millennium Challenge Corporation (MCC), a foreign aid agency dedicated to alleviating global poverty.132 The compact was re-instated following President Banda’s courageous decision to forgo hosting the AU summit.133 Malawi subsequently received a number of favorable loans from the International Monetary Fund and the World Bank134 as well as a visit from Hillary Rodham Clinton and later her husband and daughter.135 France, for its part, refused to attend a Presidential ceremony in CAR if Bashir were present; the event proceeded without him.136

Members of civil society must also remain attuned to Bashir’s travel and pressure potential destination countries to either refrain from inviting him to events or to signal that he is an unwelcome distraction at international gatherings. To extent that their legal systems allow for private parties to initiate criminal proceedings pursuant to principle of universal jurisdiction or other forms of jurisdiction over extra-territorial crimes, NGOs should prepare complaints against Bashir and have them ready to be filed in the event he indicates an intention to visit.137 Public prosecutors and investigating judges should likewise pursue charges against him if they are empowered to act independently of their executive branch (which would presumably have extended any invitation). When Bashir does travel, these states should send extradition requests to his destination countries. According to Amnesty International, 75 % of states have the ability to exercise some form of universal jurisdiction over the three core international crimes.138

Indeed, if Bashir had come for UNGA, the US could conceivably have arrested and prosecuted Bashir under its genocide,139 torture,140 or use/recruitment141 of child soldiers142 statutes, all of which allow for the assertion of universal jurisdiction. (Denmark hinted that it might take this route when it hosted a 2009 UN Conference on Climate Change to which it felt obliged to invite all heads of state).143 Or, the U.S. could have issued Bashir a visa with exceedingly tight restrictions, an approach contemplated by Section 13(e) of the Headquarters Agreement, and then arrested him on immigration violations in the event that he breached the terms of his visa.144 Such an approach, however, may have implicated Section 13(a) of the Headquarters Agreement, which states “[l]aws and regulations in force in the United States regarding the entry of aliens shall not be applied in such manner as to interfere with the privileges referred to in Section 11.” But it would be for the UN to assert any breach, unless Bashir were considered a third party beneficiary to the Headquarters Agreement, which seems doubtful given that the immunities therein accorded are for the benefit of the organization and not the personal benefit of representatives of member states.145 The US could also have invoked its “security reservation”146 to the Headquarters Agreement (as it did with respect to Yasser Arafat in 1988),147 providing that:

[n]othing in this agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the [U.N.] headquarters district and its immediate vicinity…148

Had the United States taken Bashir into custody, there were potential impediments to the United States transferring Bashir to The Hague directly. Although the American Servicemembers’ Protection Act (ASPA) limits the United States’ ability to provide some forms of assistance to the Court,149 such a transfer would likely be permitted by the Dodd Amendment to ASPA, which allows case-by-case assistance to the ICC.150 And, there is no Article 98 agreement between the United States and Sudan that might have prevented the U.S. from transferring a Sudanese national to the Court.151 However, a transfer would have required a valid extradition treaty or executive agreement between the U.S. and the Court152—such as the 1994 and 1995 congressional-executive Agreements on Surrender of Persons153 between the United States and the ICTY and ICTY—or applicable legislation.154155 No such agreement is in place with the ICC. (Because Bosco Ntaganda voluntarily surrendered himself to the Court,156 the lack of such a legal framework was not an issue to his transfer to The Hague.) However, the U.S. could conceivably have transferred Bashir to an ICC member state, such as the Netherlands, for onward transit to the Court. Finally, the U.S. could have extradited Bashir to another state with a live arrest warrant for him. The existence of such a warrant in South Africa likely prevented Bashir’s travel to the inauguration of President Zuma in May 2009.157

At the behest of the ICC, and pursuant to a 2005 cooperative agreement between the two institutions, the International Criminal Police Organization (Interpol) has circulated red notices against almost all the individuals subject to ICC arrest warrants.158159 One notable exception is Bashir, apparently due to concerns about his entitlement to head-of-state immunity.160 If the OTP were to seek a red notice against Bashir, and if Interpol were willing to issue one, it might make it slightly more difficult for him to travel, particularly to non-ICC member states that have no treaty-based obligation to effectuate the ICC’s arrest warrants. Although a red notice does not obligate Interpol members to arrest a suspect, many Interpol members consider a red notice to be a valid request for a provisional arrest. Such a notice would provide a separate basis of authority to effectuate an arrest (particularly among non-ICC state parties) as well as signal international opprobrium and offer states an excuse to withhold an invitation for him to visit when it might otherwise be diplomatically awkward to do so.

Any Bashir arrest scenario requires the resolution of the issue of whether Bashir continues to enjoy any form of head of state immunity under customary international law or any applicable treaty.161 Arguably, Resolution 1593 removed any such immunity with respect to acts related to ICC charges, either on its own force (by waiving on Sudan’s behalf any immunity in order to effectuate Sudan’s UN Charter-based duty to cooperate with the Court) or by virtue of placing Sudan in the same situation as a state party. All state parties are subject to Article 27, which abrogates all such immunities before the Court.162 If he were indeed stripped of any immunity, all UN member states could thus arrest him on the strength of the Security Council-backed arrest warrant. Although, and as discussed below, the resolution makes clear that non-states parties are not obligated to cooperate with the Court when it comes to effectuating its arrest warrants, the resolution would permit states to do so by lifting Bashir’s immunities.

In conclusion, the situation involving the Sudanese defendants is categorically different than that of the LRA defendants. There is no international manhunt for these individuals. Most of them hold positions in government and are confined to Sudan, which gives them safe haven. Bashir is increasingly trapped within his own borders. To date, no state has had the courage, political will, or wherewithal to arrest him when he has traveled, in part because he has enjoyed the support of the AU. The other Sudanese defendants, by contrast, are perhaps more dispensable and vulnerable because they do not benefit from any claims to head-of-state immunity. Effectuating the arrest and surrender of the remaining Darfur defendants may require a change in the domestic political environment or an act of sovereign bravery coupled with an act of bravado by Bashir.

C. Democratic Republic of Congo (DRC)

All but one of the DRC defendants is in custody, in trial, or pursuing an appeal.163 Sylvestre Mudacumura, a commander in the Forces Démocratiques pour la Libération du Rwanda (FDLR) and the lone fugitive, is reportedly billeted somewhere in eastern DRC.164 The Hutu-dominated FDLR is composed of ex-génocidaires who fled Rwanda when the Rwandan Patriotic Front (RPF) assumed control of the country following the 1994 genocide. For many years, it has controlled territory and preyed on the civilian population in the DRC,165 particularly those of Tutsi ancestry.166 A rival armed group, the M23 Movement, which is supported by the current Rwandan Government in part as a proxy force against the FDLR,167 is also alleged to be responsible for abuses against the civilian population in DRC.168 It has recently been defeated by the Forces Armées de la Republique Démocratique de Congo (FARDC), with the crucial assistance of the UN Stabilization Mission in the DRC (MONUSCO).169 It is now expected that the FARDC and MONUSCO will turn their attention toward the FDLR.170 Additionally, there are rumors that Mudacumura may be injured or ill.171 So far, other allegations that he might be negotiating his surrender have not come to pass.172 Whatever his circumstances, it cannot be gainsaid that his presence in the region is a source of continued regional instability. The Security Council has called expressly for his arrest;173 such arrest would demonstrate that the DRC and MONUSCO are as committed to go after Rwanda’s enemies as they are to going after its allies.

The situation in the DRC benefits from a Security Council peacekeeping mandate that is the most robust yet when it comes to the capture of fugitives. When the Security Council renewed the mandate of the MONUSCO in 2013, it created an Intervention Brigade (IB) at the recommendation of the International Conference on the Great Lakes Region (ICGLR)174 and the Southern African Development Community (SADC)175 to address the continued instability and threat posed by numerous armed groups (including the FDLR, M23, LRA, and various local and loosely connected Mai Mai groups)176 in the region. Resolution 2098 of 2013 included language to the effect that MONUSCO may “take all necessary measures” to protect civilians, neutralize armed groups through the IB, and

support and work with the Government of the DRC to arrest and bring to justice those responsible for war crimes and crimes against humanity in the country, including through cooperation with States of the region and the ICC.

It also requests the Government of the DRC to arrest and hold accountable those responsible for international crimes, including Mudacumura, in cooperation with the ICC. Prior formulations of the mandate (e.g. UNSCR 2053 of 2012)177 had placed the primary responsibility for apprehending fugitives in the hands of the Government of the DRC, in cooperation with the ICC, but called upon MONUSCO to “support” the Congolese authorities in this regard. This new mandate is a far cry from the days when SFOR/IFOR insisted that capturing war criminals from the war in the former Yugoslavia—even though indicted by an international tribunal enjoying a Chapter VII provenance—fell outside of their mandate and institutional competency. Similar language now appears in the mandate of the peacekeeping force deployed in Mali—the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA)178—which since 2012 is also an ICC situation country, although no arrest warrants have been issued.179

In the event that Mudacumura has some freedom of movement, he may undertake the same calculus as his compatriot, Bosco Ntaganda,180 who turned himself in when his followers were routed by forces controlled by rival Sultani Makenga and were forced to flee across the border into neighboring Rwanda.181 Ntaganda thus found himself in a country that had placed him in charge of its proxy forces when they integrated with the FARDC in 2009, supported his M23 mutiny against the FARDC in 2012, but then dropped him in favor of Sultani Makenga in early 2013.182 Ntaganda obviously decided that facing charges before the ICC was a safer bet than the fate that might befall him were he to remain on the run, go undercover in Rwanda, or linger embedded within forces of dubious loyalty.183 The fact that the United States had recently authorized the payment of a reward under the WCRP, a development that had not yet been formally announced but had been made public in Jason Stearns’ well-read blog,184 may have played a role in his decision to turn himself in on his own terms, rather than on the terms of a reward-seeker.185

Because Mudacumura may have similar incentives to voluntarily surrender, members of MONUSCO should develop a contingency plan in the event that he arrives on their doorstep. This would include the establishment of temporary detention facilities meeting international standards and an advanced agreement with the ICC on how to smoothly effectuate a transfer of custody. MONUSCO should also use its communications channels with warring parties to encourage this outcome. In coordination with the Court, it could also convey assurances regarding travel, the fate of family members, legal aid, and sentence enforcement. For its part, the ICC should ensure it has ready access to a charter plane that can safely extricate Mudacumura from the region and transport him to The Hague to face trial.

D. Côte d’Ivoire (CDI)

The CDI defendants are technically no longer “at large.” Laurent Gbagbo was transferred to The Hague in November 2011 and is currently in pre-trial detention for crimes against humanity in connection with the 2010 post-election violence.186 The charges have yet to be confirmed, and the Prosecutor was invited in June 2013 to submit more evidence in support of her proposed charges.187 Although the other two of the Ivorian indictees—Simone Gbagbo188 and Blé Goudé189—remain outside of ICC custody, it is perhaps too early to consider them true fugitives. Both were subject to sealed arrest warrants that were eventually made public in 2012 and 2013, respectively. Both are now in CDI custody, and the country indicated that it is both willing and able to prosecute them itself,190 notwithstanding that Mme Gbagbo’s husband will—if the charges are confirmed—be tried by the ICC. CDI has begun a formal admissibility challenge pursuant to Article 19, which is ongoing.

The country has recently initiated prosecutions against several former Gbagbo associates,191 including his son, many of whom were extradited from neighboring Ghana192 after an initial period of reluctance by Ghana to surrender Gbagbo’s partisans.193 This one-sided focus has drawn criticism that President Alassane Ouattara is only interested in victor’s justice,194 since none of his supporters has faced charges even though violence was perpetrated by both sides. CDI’s commitment to launching a genuine transitional justice and national reconciliation process has also been erratic.195

When it comes to CDI, the international community and global civil society must maintain respectful but firm pressure on the government to either (1) move forward with credible trials of those ICC defendants in custody coupled with its formal admissibility challenge or (2) relinquish jurisdiction to the Court, so the two CDI defendants can joint their compatriot Laurent Gbagbo in The Hague.

E. Libya

Likewise, the Libyan defendants are not fully “at large.”196 Libya just recently won an admissibility challenge with respect to Abdullah Al-Senoussi, paving the way for his domestic prosecution (barring a successful appeal by the defense).197 The situation with respect to Saif Al-Islam Gaddafi remains more complicated. He is in the custody of the Zintan brigade in Western Libya, where he was captured in November 2011 trying to flee the country.198 Libya appears poised to prosecute the two along with three dozen other Qaddafi insiders.199 It is widely assumed that once sufficient concessions are extracted from the central government, the Zintanis will consent to Gaddafi’s transfer to Tripoli.

The fact that the central authorities do not currently have custody of Gaddafi fils was a major factor in the PTC ruling that his case is admissible before the Court.200 Specifically, PTC I focused on prong two of the complementarity analysis—which relates to the national court’s ability to stage the prosecution—as opposed to under prong one (willingness), primarily because Libya was not able to secure the transfer of Gaddafi “into state custody.” The inadmissibility ruling is currently on appeal. At the moment, the PTC has merely “remind[ed] Libya” of its obligation to surrender Gaddafi to the Court, an obligation that had been suspended during the consideration of the admissibility challenge. The Appeals Chamber rejected Libya’s motion for continued suspensive effect of this obligation, even during the appeal of the admissibility challenge. In July 2013, Gaddafi asked the Appeals Chamber to find Libya non-compliant and refer the matter to the Security Council. The Chamber determined it did not have proper jurisdiction over the request.201 So, the Court and Libya are poised on the verge of a confrontation that may eventually go before the Security Council. It should be noted that Libya and the Court have a memorandum of understanding in place with regard to the investigation of suspects.202

IV. Bilateral & Multilateral Strategies

Although the situation involving each fugitive is different, there is a range of ways that the international community and international institutions can better support the ability of the Court to carry out its mandate. In some cases, finding effective sources of pressure on the territorial/custodial state may be useful to effectuate the capture and transfer of fugitives to the Court. In other cases, it may be a neighboring or influential state(s), or a multilateral organization, that has the real power to bring about this outcome. Ideally, of course, members of the international community and the web of international institutions would be united in their commitment to supporting the work of the Court and ending this unacceptable state of impunity.

A. The Assembly of States Parties

The Assembly of States Parties (ASP) is the natural place for this work to be coordinated, especially given that states parties are obligated under the Statute to ensure that they devise domestic procedures to provide all forms of cooperation with the Court,203 including with respect to the arrest and surrender of charged persons.204 Indeed, the recent arrest by France, the DRC, the Netherlands, and Belgium of four individuals accused of offenses against the administration of justice in the Central African Republic case is an example of the kind of coordination that is possible when political will exists.205

The ASP has consistently called for states parties and non-party states alike to work toward this end through the provision of both operational/technical assistance as well as political support on a bilateral and multilateral level.206 Indeed, the ASP’s Bureau207—the body’s executive committee, which is made up of a President, two Vice Presidents, and 18 member representatives who serve three-year terms upon election—issued in 2007 a report dedicated to the issue of cooperation containing a set of 66 recommendations, of which several concern this issue.208 The ASP endorsed these recommendations by consensus that year at the ASP plenary.209

For example, Recommendation 17 states:

All States Parties should contribute where appropriate to generating political support and momentum for the timely arrest and surrender of wanted persons both in their bilateral contacts and activities in regional and international organisations.210

Thus, states parties should in their public statements and private consultations/démarches encourage cooperation around fugitives. In addition, states can provide technical support (such as specialized training to police and immigration officials) or second gratis personnel directly or through expert rosters such as Justice Rapid Response211 to territorial states, as per recommendation 48:

All States Parties should consider whether it would be possible, on request, to provide a State on whose territory suspects are located with technical assistance and support such as information-sharing and specialised training of law enforcement personnel.212

The ASP elevated the issue of cooperation during its 11th session in The Hague,213 with an emphasis on the tracing and freezing of assets and, less so, on effectuating arrests,214 and asked the Bureau to establish a foundation for cooperation among NGOs, states, relevant organizations, and the Court.215 With facilitation by Norway, the Bureau followed up with a more fulsome report on cooperation in 2013 containing an Arrests Strategy Roadmap.216 As a next step, the ASP should create a more permanent body or mechanism (e.g., a standing committee or working group) devoted to this issue to provide inter-sessional opportunities to engage in information sharing, exchange best practices and lessons learned to develop and hone an experience-based analysis, host expert-level discussions, and develop a network of committed states and individuals.

B. The United Nations

Pursuant to Article 2 of the ICC Statute,217 the Court and the United Nations have entered into a Relationship Agreement that confirms the independence of both institutions and provides a basis for a range of cooperative endeavors.218 This Agreement implies a role for the entire United Nations when it comes to securing custody of the accused, but the Security Council deserves special consideration. Although the situation in Darfur is before the Court by virtue of Security Council Chapter VII Resolution 1593 issued in March 2005,219 the Council has done little to effectuate the Court’s Darfur cases.220 When the Council referred the situation to the Court, it echoed the language of Article 86221 and decided that the “Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully and provide any necessary assistance to the Court and the Prosecutor.” With this language, the Council arguably placed Sudan in the position of a State Party with respect to the situation in Darfur and its obligations toward the Court. Regrettably, however, these same obligations do not extend to other U.N. Member states. Rather, all other states are merely “urged” to render such cooperation.222 Thus, only ICC Member states are under any express obligation to execute the ICC’s Darfur arrest warrants by virtue of their ratification of the Rome Treaty.223 In addition, the Council also noted that states that are not parties to the Rome Statute “have no obligation under the Statute” to cooperate with the Court.

Since the Darfur referral, the Council has received eighteen briefings by the Office of the Prosecutor. The OTP’s interventions have conveyed mounting frustration at the lack of progress in gaining custody of Sudanese fugitives and the “inaction and paralysis” within the Council.224 The Council, for its part, has offered only vague rhetorical support for the Prosecutor’s efforts and the imperative of ensuring accountability for abuses in Darfur. For example, when it recently renewed the mandate of the United Nations‐African Union Mission in Darfur (UNAMID)225 in Resolution 2113,226 the Council made no mention of the ICC, although it did make more oblique reference to the importance of “ending impunity,” “ensuring justice for crimes committed in Darfur,” “bring[ing] perpetrators … to justice,” “ensur[ing] accountability,” and also called on all parties “to comply with their obligations under international human rights and humanitarian law.” Most importantly, the Council has reacted with silence to findings of non-cooperation227 by the Court with respect to Sudan,228 Malawi,229 Kenya,230 Djibouti,231 CAR,232 and Chad,233 although the United States for one has called for more follow up by the Council. By way of comparison, the Council was much more aggressive in addressing the need to capture fugitives from the ICTY. In Resolution 1207 (1998), for example, the Council:

Condemn[ed] the failure to date of the Federal Republic of Yugoslavia to execute the arrest warrants issued by the Tribunal [ICTY] against the three individuals […] and demand[ed] the immediate and unconditional execution of those arrest warrants, including the transfer to the custody of the Tribunal of those individuals.234

The Security Council must work internally to get to the point at which it can consider punitive measures, especially in the face of flagrant non-compliance in Council-referred cases. The Council could also issue an omnibus resolution in support of international justice generally, and its two referrals specifically, enhancing the obligations on all states to cooperate in the arrest and transfer of fugitives. At a minimum, members of the Security Council—either permanent or temporary—should introduce specific language in appropriate resolutions to bolster existing treaty-based or U.N. obligations around arrests.

Security Council Resolutions 1591235 and 1672236 (among others) established a UN Sanctions Committee that imposed a range of sanctions on other Sudanese actors (including travel bans237 and assets freezes).238 Remarkably, none of these applies to any of the ICC defendants. To be sure, the standards employed to impose sanctions are not co-extensive with the standards employed for issuing an arrest warrant. In particular, the former requires a host of bio-identifiers (national identity number, proper name, etc.) in order to be effective. That said, if the Sanctions Committee is able to create a dossier for the likes of Musa Hilal, a notorious janjiweed leader, it should be able to pull something together for indicted government officials.239 Indeed, the whole Bashir UNGA travel debacle might have been avoided if he had been the subject of a comprehensive Security Council travel ban.240 The Panel of Experts of the Sudan Sanctions Committee has recommended his inclusion several times, but members of the Council have blocked his addition to the sanctions list.241 Were the Council to freeze assets of these defendants, these funds could be used to pay reparations to victims and to cover legal fees of defendants who claim indigency, thus alleviating the financial strain on the Court posed by Council referrals.

The Security Council must do more to render its ICC referrals effective, including through the provision of more robust diplomatic support. Following the Prosecutor’s most recent report on the Darfur situation in December 2013, the Council could issue a new resolution heightening the duties of cooperation of all UN member states and encouraging them to do more to effectuate the arrest warrants, working alone or collectively. Such a resolution could contain an express ban on member states’ hosting ICC defendants, even for diplomatic gatherings. It could also explicitly abrogate any head-of-state immunity Bashir might enjoy, dispelling any lingering legal ambiguity in this regard.242 Working through the Sanctions Committee, the Council could also institute a travel ban and other sanctions on Bashir and the other ICC indictees, which it has done for other international outlaws.

Another option would be for the Council to strengthen UNAMID’s mandate to give peacekeepers the power to arrest ICC fugitives. Such an authority could be passive, authorizing an arrest in the event peacekeepers encounter an indictee in the course of their normal duties and if the tactical situation would allow it, which was the model first adopted in the former Yugoslavia.243 Or, it could be more robust, enabling peacekeepers to hunt indictees down—the policy eventually adopted in Bosnia.244 Although appealing, such a move would further jeopardize UNAMID’s ability to operate in the country. The Council has already criticized Sudan for placing “increased restrictions and bureaucratic impediments … upon UNAMID movement and operations, particularly to areas of recent conflict.”245 Furthermore, Bashir’s repeated acts of retaliation against humanitarian organizations reveal the depth of his willingness to sacrifice the well-being of his own people to retain power and avoid accountability.246 It has been argued that empowering UNAMID in this fashion would also threaten its credibility as a neutral steward of operative peace agreements, including the 2011 Doha Document for Peace in Darfur (DDPD).247

No doubt, these concerns prompted the prior Chief Prosecutor of the ICC, Luis Moreno-Ocampo, to recommend against any such arrest authority when he delivered his fifteenth, and last, report to the Council.248 Instead, he boldly suggested that the Council should consider asking UN members and regional organizations to launch targeted arrest operations in furtherance of the warrants. This could be done unilaterally or through an arrest working group composed of states with the capacity and will to participate. Such “snatch and grab” operations are not unprecedented. Indeed, a notable unilateral example is the United States’ recent capture of Abu Anas al-Libi from Libya249 pursuant to 18 U.S.C. § 3052,250 which has been interpreted to grant the Federal Bureau of Investigations broad apprehension authority in connection with crimes against the United States, including permission to undertake the extraterritorial capture of an individual without the cooperation or consent of the custodial state.251 In the past, the ad hoc tribunals have generally adhered to the principle of male captus, bene detentus,252 which states that a fugitive brought into a court’s jurisdiction by means of an illegal arrest or forcible abduction in violation of the defendant’s rights or the rights of the territorial state does not automatically divest the court of jurisdiction unless the individual is seriously mistreated by court personnel. The ICC has yet to confront this issue, but it would have ample precedent to accept custody following such an operation if it were so inclined.

Obviously, any of these options will require a significant amplification of political will among members of the Council. Among the current crop of Council members, a record eleven have ratified the Rome Statute (France, UK, Argentina, Australia, Chad, Chile, Jordan, Republic of Korea, Lithuania, Luxembourg, and Nigeria). Significantly, this number is up from seven in light of Jordan’s election to the surrendered Saudi seat. The P5 (only two of which are ICC members) would have to consent to any increased engagement on the fugitive issue. Although all five permanent members allowed the referral to go forward back in 2005, Russia and China may be reluctant to authorize more concrete support for the Court’s cases in the referred situations. Indeed, in connection with Ocampo’s final presentation to the Council, Russia indicated that invoking Chapter VII to carry out arrest warrants “is unlikely to solve problems arising for the ICC in the Sudan.”253 The U.S. for its part stated:

We agree with the Prosecutor that the lack of progress to date in executing the arrest warrants and bringing those most responsible to justice merits renewed attention by the Council. We think it is a serious cause for concern that the individuals subject to outstanding arrest warrants in the Darfur situation remain at large and continue to travel across borders. This is an area where cooperation is particularly crucial.

To that end, we continue to urge all States to refrain from providing political or financial support to the Sudanese suspects subject to ICC arrest warrants and to bring diplomatic pressure to bear on States that invite or host these individuals. We stand with the many States that refuse to welcome the ICC indictees to their countries, and we commend those that have spoken out against President Al-Bashir’s continued travel, including to next month’s African Union Summit. For our part, the United States has continued to oppose invitations, facilitation or support for travel by those subject to ICC arrest warrants in Darfur and to urge other States to do the same.

We would welcome additional efforts by, and better coordination with, other members of the international community on these issues. We encourage the Council to consider creative approaches and new tools. As members of the Security Council, we can and should review additional steps that could be taken to carry out the ICC’s work in Darfur, execute outstanding arrest warrants and ensure States’ compliance with relevant international obligations.254

The Council must recognize that the flagrant impunity of the at-large Darfur defendants, and Sudan’s recalcitrance in the face of its clear Charter obligations, present a serious challenge to the credibility and authority of the Council (not to mention the ICC) that only it can rectify. The Assembly of States Parties, working through the Bureau which has taken up this issue,255 should maintain pressure on state parties that might have occasion to host Bashir.

At the same time, the U.N. must limit its own interactions with ICC defendants. The incident discussed above in which ICC defendant Harun traveled on a UN helicopter was not the only controversial contact between a U.N. official and an ICC defendant. There were allegations in 2009 that the U.N. Mission in the DRC (MONUC,256 since renamed MONUSCO) had offered medical and transportation assistance to Sylvestre Mudacumura.257 More troubling, was a 2012 incident in which the joint UN-AU special representative to Darfur, Ibrahim Gambari, was photographed socializing with ICC-indictee President Al Bashir at a wedding.258

The UN has since issued a revised contacts policy,259 restricting UN engagement260 with individuals subject to ICC arrest warrants to those contacts that “are strictly required for carrying out essential UN mandate activities.” There are no restrictions on contacts with those who are the subject of summons to appear (vice arrest warrants), as with the Kenyan defendants, and who are cooperating with the Court. While this distinction ostensibly respects the principle of innocent until proven guilty, it should not be forgotten that the confirmation of charges indicates that an ICC Pre-Trial Chamber (PTC) has determined that there were “substantial grounds to believe that the person committed the crime charged” pursuant to Article 61(5), which might merit at least some restrictions on non-essential contacts, such as at honorary, ceremonial, or social events or courtesy calls. In addition, it is difficult, at times, to ensure that defendants subject to summons are genuinely cooperating with the Court. In this regard, the assessment of the Office of the Prosecutor as well as of states with particular insights gleaned from intelligence and other sources should be given great weight.


This new contacts policy is considerably softer than prior practice as reflected in the policy generated by the UN’s Office of the Legal Affairs. That longstanding policy governed the contacts between UN representatives and persons indicted by all international courts who also held positions of authority in their respective counties.261 It required that such contacts

should be limited to what is strictly required for carrying out UN mandated activities. The presence of UN representatives in any ceremonial or similar occasion with such individuals should be avoided. When contacts are absolutely necessary, an attempt should be made to interact with non-indicted individuals of the same group or party.262

Respecting the pronouncements of the Court confirming charges against individuals is an essential element of the U.N.-ICC Relationship Agreement, which states at Article 3 that

The United Nations and the Court agree that, with a view to facilitating the effective discharge of their respective responsibilities, they shall cooperate closely, whenever appropriate, with each other and consult each other on matters of mutual interest pursuant to the provisions of the present Agreement and in conformity with the respective provisions of the Charter and the Statute.

To be sure, it is necessary to leave an opening for principals of the UN to maintain some contact with ICC indictees (such as UN Under-Secretary-General for Peacekeeping Hervé Ladsous’s multiple meetings with Bashir,263 the most recent being in July 2013)264 under exigent circumstances. This is particularly true when there are peace talks underway that require a head of state or state official to participate; however, the elements of “strictly required” and “essential … activities” should be interpreted narrowly by those concerned to prevent all but the most pressing engagements at which no other individual could represent the state in question. Isolating ICC fugitives is crucial to respecting the authority of the Court and the principles of justice it embodies as well as to signaling that an alleged involvement in international crimes has tangible consequences. It also shows respect to victims and pays tribute to their suffering. If the UN maintains the distinction between individuals subject to arrest warrants versus those voluntarily appearing before the ICC, it should ensure that such individuals, and the government agencies they control, are genuinely cooperating with the Court, in their public and their private actions.265 Moreover, the UN should continually and critically assess whether its contacts with ICC defendants have actually contributed to the effectuation of the UN mandate and related UN efforts. As Prosecutor Fatou Bensouda argued to the Council in June 2013,

We must be careful not to embolden fugitives from justice into thinking that they will be rewarded for manipulating their way into positions of indispensability even as they continue to commit crimes.266

Although this guidance has already been issued, it is not necessarily etched in stone. There should be no “business as usual” when it comes individuals who are being prosecuted for the worst crimes known to humankind.267

This contacts policy governs only U.N. personnel. States parties, who are bound by the Rome Statute’s cooperation regime, will need to devise a more rigorous contacts policy, especially for individuals subject to arrest warrants. No matter how “essential” some contact may appear to be, states parties are under a pre-existing duty to arrest and transfer such individuals. Coming up with consensus language, however, has so far eluded the ASP some of whose members have raised concerns about the creation of new legal obligations that might impinge on their ability to manage their foreign relations.268

C. Regional & Bilateral Pressure

Besides the ASP, there is no regional political body that is likely to be as effective as the European Union and Commission were in pressuring the Balkan states to cooperate with the ICTY. The most obvious candidate—the AU—has soured on the ICC, primarily surrounding the Sudan and Kenya cases, although its membership is not monolithic in this regard. The World Bank, International Monetary Fund, and African Development Bank, with their ability to condition their support on good governance and adherence to the rule of law, could be more effective sources of influence.269

Without an obvious multilateral lever, like-minded states will have to be willing to commit to utilizing unilateral and coordinated forms of pressure and incentives (such as appropriations for bilateral assistance, programming including capacity building, or participation in intergovernmental organizations) for states that are either the unwilling host of fugitives or that are providing them safe haven. For example, the United States’ refusal to attend a donor conference for Serbia in Brussels in 2001 was instrumental in the ICTY’s gaining custody of Slobodan Milošević.270 The United States also made certain types of aid (excluding humanitarian and democratization aid) to Serbia dependent on a presidential certification that, inter alia, the country had met certain conditions, including ICTY cooperation.271 Typically, Serbia would arrest272 or facilitate the surrender of indictees to the Tribunal273 in the vicinity of the certification deadline.274 Some aid was suspended over the years until all the indictees were finally in custody.

Although the World Bank or other IFIs might not take an institutional stand in favor of justice, individual donor countries can always vote their shares275 in multilateral development banks276 and other such fora in a way that encourages accountability and otherwise make cooperation with the Court a condition for assistance. They could also encourage other members to do the same. For example, in the United States, legislation also gave congressional authorization to vote for the provision of loans and aid from international financial institutions (IFIs) to the states of the former Yugoslavia if the conditions were met. Similar voting guidance has been provided for Sudan by way of the 2002 Sudan Peace Act,277 but is has not been linked to ICC cooperation or the surrender of fugitives. The U.S. Department of Treasury is unlikely to withhold its IFI vote in favor of a harboring state without some form of Congressional direction in this regard. Given the high degree of congressional interest in capturing the LRA defendants and in the human rights situation in the Sudan, this authorization might be obtainable even in today’s political climate. More indirectly, donor states must continue to support justice and accountability measures and to strengthen local capacity in areas victimized by the depredations of ICC fugitives.

A state such as Sudan is largely impervious to many forms of pressure that would work on weaker states, and it has the means to retaliate against states or organizations that might take action against it.278 Members of the international community must thus actively seek new levers against Sudan, including potential forms of financial pressure, as well as constructively engage with states such as China and Russia that can exercise unique forms of influence.

D. Civil Society

NGOs and other civil society actors need to raise awareness of all fugitives, not just high profile ones. The success of the Kony2012279 movement in galvanizing political support for the hunt for Joseph Kony, especially among young people, can be replicated for all fugitives, including those who are less telegenic, such as Mudacumura. Civil society actors should also use all available fora, including the Human Rights Council in Geneva and other treaty bodies, to pressure states to adhere to their ICC obligations.

E. The Court

For its part, there are some steps that the Court, and specifically the Office of the Prosecutor, should consider in order to effectuate its arrest warrants. The Court as a whole has already begun working on arrest strategies and has pledged to issue focused and specific requests for assistance.280 Continuing to issue sealed indictments,281 like those for two of the three CDI defendants, and confidentially sharing information with trusted partners, is one aspect of this strategy. The Court has also identified the need for:

a systematic results-orientated discussion among States Parties on concrete steps or measures that can be taken to facilitate arrests, in particular with regards to explicit situations and obstacles faced by the Court…282

Several meetings of representatives of the Court, States Parties, INTERPOL, the U.N. Office of Legal Affairs, civil society, and experts from the ad hoc tribunals have taken place to share experiences in this regard.

The OTP also should move forward with its consideration of a dedicated tracking team like those of the ad hoc tribunals to seek out those individuals whose whereabouts are unknown or even to remain aware of the movements of those individuals who are not at large. Such a team could foster cooperation with local law enforcement agencies, develop contacts within the local population, recruit and cultivate sources and informants, manage and contain security risks, and coordinate with personnel engaged in substantive investigations. Such a team would have to operate with the consent of the territorial state, although it would no doubt benefit from the Security Council giving it a boost in an overarching international justice resolution. ICC members and other concerned states should enter into confidentiality agreements with the OTP to enable information sharing about the whereabouts of fugitives. The OTP should also consider making more concrete requests of the Council for forms of assistance it might render in furtherance of its referrals.

Finally, the OTP also must ensure that its cases are strong and compelling. If the cases prove to be weak, it might discourage members of the international community from taking bold but politically-difficult steps to effectuate the Court’s arrest warrants.

Conclusion

The situation of each fugitive is unique, and the entire international community—ICC member states, other “friends of the Court”, Security Council members, and civil society—must work together to harmonize a range of coercive measures, appeals to self-interest, and forms of normative persuasion to maximum effect. The project of international criminal law and the imperative of justice demand such concerted efforts to ensure that fugitives are not allowed to enjoy impunity or safe haven. To be sure, this is a long game, but one that can be accelerated and won if the political will is there. The victims of horrific international crimes deserve nothing less.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Author’s Note: I offer these suggestions solely within my personal, academic capacity. The ideas expressed herein do not necessarily reflect the views of the U.S. State Department or Government.

  2. 2.

    Eric Leonard, ICC Effectiveness Depends on Member State Cooperation, Jurist (Jan. 3, 1012), available online.

  3. 3.

    Article 63 states: “The accused shall be present during the trial.”

  4. 4.

    Assembly of States Parties, Cooperation, ICC-ASP/12/Res.3 (Nov. 27, 2013) available online.

  5. 5.

    Assembly of States Parties, Report of the Bureau on Cooperation, ICC-ASP/12/36 (Nov. 21, 2013), available online.

  6. 6.

    Press Release, Coalition for the International Criminal Court, ICC Must be Defended from Political Interference (Nov. 28, 2013) available online.

  7. 7.

    Article 86 of the Rome Statute states: “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

  8. 8.

    Richard Dicker & Elizabeth Evenson, ICC Suspects can Hide—and That is the Problem, Jurist (Jan. 24, 2013), available online.

  9. 9.

    Assembly of States Parties, Report of the Court on Cooperation, ICC-ASP/12/35 (Oct. 9, 2013), at ¶ 14, available online, [hereinafter Cooperation].

  10. 10.

    Id. at ¶ 64.

  11. 11.

    S.C. Res. 1031, U.N. Doc. S/RES/1031 (Dec. 15, 1995), available online

  12. 12.

    S.C. Res. 1088, U.N. Doc. S/RES/1088 (Dec. 12, 1996), available online.

  13. 13.

    William Schabas, Genocide in International Law: The Crime of Crimes 379 (2000), available online.

  14. 14.

    Julian Borger, The Hunt for the Former Yugoslavia’s War Criminals: Mission Accomplished, The Guardian, Aug. 3, 2011, available online.

  15. 15.

    Julie Kim, Cong. Research Serv., RS22097, Balkan Cooperation on War Crimes Issues (Jan. 14, 2008), available online.

  16. 16.

    Rory Carroll, Genocide Tribunal “Ignoring Tutsi Crimes,” The Guardian, Jan. 12, 2005, available online.

  17. 17.

    Paul Magnarrella, Is US Cooperation with the UN Criminal Tribunal for Rwanda Unconstitutional?, African Studies Quarterly, available online.

  18. 18.

    Prosecuting Genocide in Rwanda: a Lawyers Committee Report on the ICTR and National Trials, UN Watch (Jul. 1997), available online.

  19. 19.

    Prosecutor of UN Rwanda Genocide Tribunal Urges Cooperation to Catch Roaming Fugitives, UN News Centre (Jun. 11, 2013), available online.

  20. 20.

    U.N. SCOR, Statement by Justice Hassan B. Jallow, Prosecutor of the ICTR, to the UNSC, UNICTR.com (Jun. 6, 2011), available online.

  21. 21.

    ICTR/Kenya—Presumed Doctor of Kabuga Questioned by ICTR Tracking Team, Hirondelle News Agency, Jul. 7, 2007, available online.

  22. 22.

    Rwanda/Genocide—Rwanda Sets Up Tracking Team for Persons Accused of Genocide, Hirondelle News Agency, Nov. 11, 2007, available online.

  23. 23.

    Searching for the Fugitives, UN Mechanism for Int’l Crim. Trib., available online (last visited Dec. 11, 2013).

  24. 24.

    Id.

  25. 25.

    Fugitives from Justice: Seeking Information—Wanted for Serious Violations of International Humanitarian Law, U.S. Dept. of State, available online (last visited Dec. 11, 2013).

  26. 26.

    War Crimes Rewards Program, U.S. Dept. of State, available online (last visited Dec. 11, 2013).

  27. 27.

    The Special Court for Sierra Leone, available online (last visited Dec. 11, 2013).

  28. 28.

    Koroma, Johnny Paul, HJJ, available online (last visited Dec. 11, 2013).

  29. 29.

    Extraordinary Chambers in the Courts of Cambodia, available online (last visited Dec. 11, 2013).

  30. 30.

    The Future of Cases 003/004 at the Extraordinary Chambers in the Courts of Cambodia, Open Society Foundation (Oct. 2012), available online.

  31. 31.

    Khmer Rouge tribunal: UN rebuffs Cambodia criticism, BBC News, Jun. 15, 2011, available online.

  32. 32.

    Situation in Uganda, Int’l Crim. Ct., available online (last visited Dec. 11, 2013).

  33. 33.

    Vincent Otti, LRA Crisis Tracker, available online (last visited Dec. 11, 2013).

  34. 34.

    Letter from L. Tibaruha, Solicitor General of Uganda, to Honourable Bruno Cathala, Registrar of the International Criminal Court (Oct. 30, 2006), available online.

  35. 35.

    Adan Salazar, Clinton Wants More Powerful Drone Surveillance Technology to Find Kony, Infowars, Aug. 3, 2012, available online.

  36. 36.

    Gabe Joselow, US Uses Advanced Intelligence to Hunt LRA in Central Africa, Voice of America, Apr. 18, 2012, available online.

  37. 37.

    Michael Poffenberger, Loosening Kony’s Grip: Effective Defection Strategies for Today’s LRA, Relief Web, Jul. 31, 2013, available online.

  38. 38.

    Kasper Agger, Completing the Mission: US Special Forces Are Essential for Ending the LRA, Enough Project (Oct. 2013), available online.

  39. 39.

    Joe Wacha, Kony Drops Communication Gadgets, Resorts to Human Couriers, The Observer, Mar. 20, 2012, available online.

  40. 40.

    Defection Fliers, Invisible Children, available online (last visited Dec. 11, 2013).

  41. 41.

    Press Release, Security Council, Security Council Issues Presidential Statement Demanding Immediate End to Atrocities by Lord’s Resistance Army in Central Africa; Members Hear Briefing by Special Representative of Secretary General, African Union Chair’s Special Envoy on LRA Issues, U.N. Press Release SC/6796 (Jun. 29 2012).

  42. 42.

    John Vandiver, US Special Ops, Activists Working Together Against LRA, Stars and Stripes, Feb. 28, 2013, available online.

  43. 43.

    See generally, LRA Crisis Tracker, available online (last visited Dec. 6, 2013).

  44. 44.

    Danny Porter, One Million Opportunities to Escape the Lord’s Resistance Army, Invisible Children, Sep. 27, 2013, available online.

  45. 45.

    Deputy of Uganda’s rebel LRA executed—deserters, Sudan Tribune, Nov. 30, 2007, available online.

  46. 46.

    Escape of Kony’s Former Wife, Invisible Children, Sep. 27, 2012, available online.

  47. 47.

    Bazi Kanami, Joseph Kony Top Commander Captured in Central Africa, ABC News, May 13, 2012, available online.

  48. 48.

    Top LRA Commander Killed // New Details, Invisible Children, Jan. 21, 2013, available online.

  49. 49.

    Kasper Agger, End of Amnesty in Uganda: Implications for LRA Defections, Enough Project (Aug. 2012), available online.

  50. 50.

    Rebel Amnesty Reinstated in Uganda, IRIN, May 30, 2013, available online

  51. 51.

    The Amnesty Act, Uganda Legal Info. Inst., available online (last visited Dec. 11, 2013).

  52. 52.

    Alexis Arieff & Lauren Ploch, Cong. Research Serv., R42094, The Lord’s Resistance Army: The U.S. Response (Apr. 11, 2012), available online.

  53. 53.

    Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009, H.R. 2478, 111th Cong. (May 19, 2009), available online.

  54. 54.

    See Operation Observant Compass, Global Security, available online (last visited Dec. 6, 2013).

  55. 55.

    See Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate Regarding the Lord’s Resistance Army (Oct. 14, 2011), available online.

  56. 56.

    Fight Against the LRA: UN welcomes handover of troops to the African Union Regional Task Force, UN Regional Office for Central Africa, available online (last visited Dec. 6, 2013).

  57. 57.

    Agger, supra note 38.

  58. 58.

    Rajiv Chandrasekaran, Kony 2013: U.S. Quietly Intensifies Effort to Help African Troops Capture Infamous Warlord, Wash. Post, Oct. 28, 2013, available online.

  59. 59.

    Arieff & Ploch, supra note 52.

  60. 60.

    Olivier Knox, Warlord Kony ‘in a Box,’ U.S. War Crimes Chief Says, Yahoo News, Sep. 20, 2013, available online.

  61. 61.

    Elias Biryabarema, In Spotlight, Uganda Says Congo Slows Hunt for Kony, Reuters, Mar. 12, 2012, available online.

  62. 62.

    William Lloyd George, Joseph Kony Gets a Break as U.S. and African Forces Stop Their Search, Daily Beast, Apr. 6, 2013, available online.

  63. 63.

    Jonathan Dowdall, U.S. Special Forces Make Headway Against Kony’s Lord’s Resistance Army, Defence Report, May 29, 2013, available online.

  64. 64.

    Mareike Schomerus, The Lord’s Resistance Army in Sudan: A History and Overview (Small Arms Survey, Graduate Institute of International Studies, Working Paper No. 8, Sep. 2007), available online.

  65. 65.

    See generally, LRA Crisis Tracker, supra note 43.

  66. 66.

    Thuraya, available online (last visited Dec. 6, 2013).

  67. 67.

    Department of State Rewards Program, 22 U.S.C. § 2708 (2008), available online.

  68. 68.

    S. 2318, 112th Cong. § 2 (Apr. 2012), available online.

  69. 69.

    See, e.g., Richard Lee, Plans for a Hybrid Court in Congo-Pascale Kambale, Open Society Init. for S. Africa, Mar. 6, 2012, available online; The Chautauqua Blueprint for a Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes, PILPG (2014), available online.

  70. 70.

    Chautauqua Blueprint, supra note 69.

  71. 71.

    Media Note, Office of the Spokesperson, Secretary Kerry on Bringing War Criminals to Justice Through Expansion of the War Crimes Rewards Program, U.S. Dept. of State (Apr. 3, 2013), available online.

  72. 72.

    Knox, supra note 60.

  73. 73.

    Department of Defense Rewards Program, Center for Army Lessons Learned, Handbook 09–27 Chap. 6 (United States Army Combined Arms Center, Apr. 2009), available online (last visited May 18, 2012).

  74. 74.

    Charles Thompson, Department of Defense Rewards Program Making a Difference in Cyclone’s AO, DVIDS, Feb. 11, 2010, available online.

  75. 75.

    Press Release, Philip T. Reeker, U.S. Dept. of State, Designation of 39 Organizations on the USA PATRIOT Act’s “Terrorist Exclusion List” (Dec. 6, 2011), available online.

  76. 76.

    U.S. Dept. of State, Individuals and Entities Designated by the State Department Under E.O. 13224, Sep. 26, 2013, available online; see also, U.S. Dept. of the Treasury, Office of Foreign Assets Control, What You Need to Know About U.S. Sanctions, Nov. 13, 2013, available online.

  77. 77.

    Id.

  78. 78.

    Office of the Secretary of Defense, Global War on Terror, Operations and Maintenance, Defense Wide Budget Activity 04, Administrative and Service-Wide Activities, available online.

  79. 79.

    Justice for Serious Crimes Before National Courts: Uganda’s International Crimes Division, HRW (Jan. 2012), available online.

  80. 80.

    Alex Masereka, Justice Ogoola: Supreme Court Can’t Execute Its Mandate, Red Pepper, Aug. 20, 2013, available online.

  81. 81.

    Tristan McConnell, Uganda Starts First War Crimes Trial, Global Post, Jul. 12, 2011, available online.

  82. 82.

    Press Release, ICC, President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC (2004), available online.

  83. 83.

    Mark Kersten, Outsourcing Justice to the ICC—What Should be Done?, Justice in Conflict, Oct. 31, 2012, available online.

  84. 84.

    Id.

  85. 85.

    The Darfur defendants on the rebel side appeared voluntarily before the ICC in 2009 and 2010. The case against Abdallah Banda Abakaer Nourain is underway, with trial set for May 2014. See The Prosecutor v. Abdallah Banda Abakauer Nourain, Case No. ICC-02/05-03/09, Situations and Cases, available online (last visited Dec. 6, 2013). The proceedings against co-defendant Saleh Mohammed Jerbo Jamus, who was not in custody pending trial, were terminated following his battlefield death on or about April 19, 2013. See Darfur War Crimes Suspect Rebel Jerbo ‘Killed in Sudan’, BBC News, Apr. 24, 2013, available online. The charges against Bahar Idriss Abu Garda were not confirmed for lack of evidence. See The Prosecutor v. Bahar Idriss Abu Garda, Case No. ICC-02/05-02/09, Situations and Cases, available online (last visited Dec. 6, 2013).

  86. 86.

    See The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-02/05-01/07, Warrant of Arrest for Ali Kushayb, (Apr. 27, 2007), available online.

  87. 87.

    Update on ICC-Suspect Ali Kushayb and Nyala Violence, Operation Broken Silence, available online (last visited Dec. 10, 2013).

  88. 88.

    Darfur Attack Wounds Sudan War Crimes Suspect, Arab News, Jul. 9, 2013, available online.

  89. 89.

    The Prosecutor v. Abdel Raheem Muhammad Hussein, Case No. ICC-02/05-01/12, Situations and Cases, available online (last visited Dec. 10, 2013).

  90. 90.

    The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Al Abd-Al-Rahman, Case No. ICC-02/05-01/07, (Apr. 27, 2007), available online.

  91. 91.

    Harum may lead Sudan’s talks with SPLM-N, Radio Tamazuj, available online (last visited Dec. 10, 2013).

  92. 92.

    Angelia Sanders, Sudan’s Southern Rebellion: The “Two Areas”, Relief Web, available online (last visited Dec. 10, 2013).

  93. 93.

    Wanted Sudan war criminal given UN transport: spokesman, AFP, Jan. 22, 2011, available online.

  94. 94.

    Matthew Russell Lee, In Sudan, UN’s Tchalian “Met Daily” With Harun, Now UNAMID Chief of Staff: War Criminals Not Banned, Inner City Press, Apr. 11, 2012, available online.

  95. 95.

    Bashir Travel Map, Bashir Watch, available online (last visited Dec. 12, 2013).

  96. 96.

    Bashir Adigun & Michelle Faul, Omar Al-Bashir, Sudan President, Has Fled Nigeria, Diplomat Claims, Huff. Post, Jul. 16, 2013, available online.

  97. 97.

    Summons to Federal Republic of Nigeria, Coalition for the Int’l Crim. Court, available online (last visited Dec. 12, 2013).

  98. 98.

    Press Release, Foreign and Commonwealth Office, Minister for Africa Expresses Disappointment that Nigeria Has Chosen to Host President Al Bashir of Sudan Despite ICC Arrest Warrants (Jul. 15, 2013), available online.

  99. 99.

    Political Cartoon, Ghana Must Go, Leadership (Jul. 16, 2013), available online.

  100. 100.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision Regarding Omar Al-Bashir’s Visit to the Federal Republic of Nigeria (Jul. 15, 2013).

  101. 101.

    Al-Bashir Fled just Before Arrest—FG, Vanguard (Aug. 23, 2013), available online.

  102. 102.

    High Court of Kenya, Misc. Criminal Application No. 685 of 2010 (2010), available online.

  103. 103.

    Omondi Oloo & Maria Macharia, Bashir Skips Kenyatta’s Inauguration, News 24 Kenya, Sep. 4, 2013, available online.

  104. 104.

    Postponement of Greenbelt Conference Means No Trip to Chad for Bashir, Int’l Justice Project (Mar. 18, 2013), available online.

  105. 105.

    Andrew Higgins, Oil Interests Tie China to Sudan Leader Bashir, Even as He Faces Genocide Charges, Wash. Post, Jun. 22, 2011, available online.

  106. 106.

    Malawi Ignores Outcry at Bashir Visit for Trade Summit, AFP, Oct. 14, 2011, available online.

  107. 107.

    Malawi Tells Off ICC on Omar Al-Bashir, ZBS, available online (last visited Dec. 12, 2013).

  108. 108.

    Malawi Cancels AU Summit Over Sudan’s Bashir, Al Jazeera, Jun. 9, 2012, available online.

  109. 109.

    Beth Van Schaack, Kenya, With African Union Backing, to Seek Again Deferral of the Cases Before the ICC? Just Security (Oct. 14, 2013, 9:02 AM), available online.

  110. 110.

    African Union, Communique of the 151st Meeting of the Peace and Security Council, PSC/MIN/Comm.1(CLI) (Sep. 22, 2008), available online.

  111. 111.

    Article 16 of the Rome Statute reads: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”

  112. 112.

    S.C. Res. 1828, U.N. Doc. S/RES/1828 (Jul. 2008), available online.

  113. 113.

    Assembly of the AU, Decisions and Declarations of 13th Ordinary Session (Jul. 2009), available online.

  114. 114.

    Article 98(1) of the Rome Statute states: “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

  115. 115.

    AU Extraordinary Summit on ICC, AU (Oct. 12, 2013), available online.

  116. 116.

    African Union Agrees on ICC Community for Heads of State, The Telegraph, Oct. 12, 2013, available online.

  117. 117.

    Press Release, AU, Africa to Request Deferment of Indictments Against Kenyan President and Vice President (Oct. 12, 2013), available online.

  118. 118.

    Judges Postpone Kenyatta Trial for a Third Time, ICC Kenya Monitor, Oct. 31, 2013, available online.

  119. 119.

    Mark Kersten, Putting the ICC’s Kenya Cases on Ice, Justice in Conflict, Oct. 22, 2013, available online.

  120. 120.

    Security Council: Bid to Defer International Criminal Court Cases of Kenyan Leaders Fails, UN News Centre (Nov. 15, 2013), available online.

  121. 121.

    Sudan Calls to Condemn American “Denial” of Visa to President Bashir, All Africa, Sep. 27, 2013, available online.

  122. 122.

    Headquarters of the United Nations: Agreement Between the United Nations and the United States signed June 26, 1947, Avalon Project, available online (last visited Dec. 12, 2013).

  123. 123.

    United Nations Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1 U.N.T.S. 15.

  124. 124.

    IJP Urges UN Secretary General to Clear Way for Bashir Arrest, Int’l Justice Project (Sep. 20, 2013), available online.

  125. 125.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision Regarding Omar Al-Bashir’s Potential Travel to the United States of America (Sep. 18, 2013), available online.

  126. 126.

    Letter from Tiina Intelmann, President of the Assembly of States Parties, to States (2013) available online, (last visited Feb. 24, 2014).

  127. 127.

    Sudanese President Confirms US Travel Plan, Al Jazeera, Sep. 23 2013, available online.

  128. 128.

    Matthew Russell Lee, UN Journal Today Lists Sudan’s Bashir As Speaker for Tomorrow in UNGA, Of Karti, Ladsous and ICC, Inner City Press, Sep. 25, 2013, available online.

  129. 129.

    Sudan: Crackdown on Political Opposition, HRW (Feb. 26, 2013), available online.

  130. 130.

    Human Rights Watch Memorandum for the Twelfth Session of the International Criminal Court Assembly of States Parties, HRW (Nov. 2013), available online.

  131. 131.

    MCC Approves Zambia Compact, Suspends Compact with Malawi, Millennium Challenge Corp. (Mar. 23, 2012), available online.

  132. 132.

    USA is not a member of ICC: Why Punish Malawi Over Bashir? Double standards?, Malawi Voice, Mar. 27, 2012, available online.

  133. 133.

    Malawi Compact, Millennium Challenge Corp., available online (last visited Dec. 13, 2013).

  134. 134.

    Nicolas Cook, Cong. Research Serv., R42856, Malawi: Recent Developments and U.S. Relations (Mar. 21, 2013), available online.

  135. 135.

    Hillary Clinton visits Malawi on Africa trip, N.Y. Post, Aug. 5, 2012, available online.

  136. 136.

    Linawati Sidarto, Bashir’s absence from CAR a “victory,” RNW, Dec. 1, 2010, available online.

  137. 137.

    Case Study 1: Kenya—The Bashir Arrest Warrant: Cooperation in the Courtroom, SALC, available online (last visited Dec. 13, 2013).

  138. 138.

    Universal Jurisdiction: A Preliminary Survey of Legislation Around the World, Amnesty Int’l (Oct. 2011), available online.

  139. 139.

    18 U.S.C. § 1091, available online (last visited Dec. 13, 2013). This statute was amended in 2009 to allow for the exercise of jurisdiction over individuals accused of genocide who are “present within the United States.” Although the law did not allow for “present in” jurisdiction until 2009, the crime of genocide has been punishable in the United States on other jurisdictional bases since 1988, obviating any potential ex post facto concerns. Cook v. United States, 138 U.S. 157, 183 (1891) (noting that “an ex post facto law…does not involve, in any of its definitions, a change of the place of trial of an alleged offence after its commission”) (internal quotations and citations omitted)

  140. 140.

    18 U.S.C. § 2340, available online (last visited Dec. 13, 2013). Human rights groups have documented the widespread use of torture, including of protesters during the recent demonstrations against the government. See Sudan: Torture, Abuse of Demonstrators, HRW (Jul. 11, 2012), available online, and of human rights activists working in the Two Areas, Sudanese activist held incommunicado at risk of torture, Amnesty Int’l (May 10, 2013), available online.

  141. 141.

    Shelley Clark, A Call to Hold Bashir Accountable for the Use of Child Soldiers in Sudan, Int’l Justice Project (Jul. 24, 2013), available online.

  142. 142.

    18 U.S.C. § 2442, available online (last visited Dec. 13, 2013).

  143. 143.

    PM invites world leaders to COP15, Jyllands-Posten, Nov. 13, 2009, available online.

  144. 144.

    See, e.g., 18 U.S.C. §1546.

  145. 145.

    Third Party Beneficiary, The Free Dictionary, available online, (last visited on Feb. 23, 2014).

  146. 146.

    United States Headquarters Agreement, Public Law 80-357 (Aug. 4, 1947), available online.

  147. 147.

    Arafat Denied Visa to Visit UN PLO Protests, Says Assembly Will Have to Meet Outside US, Deseret News, Nov. 27, 1988, available online.

  148. 148.

    Public Law 357, 61 U.S. Statutes at Large 756 (1947).

  149. 149.

    American Service-Members’ Protection Act, HR 4775, Public Law 107-206 (AMICC, Oct. 17, 2006), available online.

  150. 150.

    The Dodd Amendment, 22 U.S.C. §7433, states:

    Nothing in this title shall prohibit the United states from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic and other foreign nationals accused of genocide, war crimes or crimes against humanity.

  151. 151.

    International Criminal Court—Article 98 Agreements Research Guide, Georgetown Law Library, available online (last visited Dec. 13, 2013).

  152. 152.

    18 U.S.C. § 3181, available online (last visited Dec. 13, 2013).

  153. 153.

    Agreement on Surrender of Persons between the Government of the United States and the Tribunal, ICTY, available online.

  154. 154.

    National Defense Authorization Act for Fiscal Year 1996, 104th Congress, Public Law 104-106, available online (last visited Dec. 13, 2013).

  155. 155.

    See Ntakirutimana v. Reno, 184 F.3d 419 (5th 1999) (so holding even when the request came from a Chapter VII tribunal).

  156. 156.

    John Kerry, Bosco Ntaganda’s Expected Surrender to the International Criminal Court, U.S. Dept. of State (Mar. 22, 2013), available online.

  157. 157.

    Sudanese president to skip Zuma’s inauguration, Sudan Tribune, May 9, 2009, available online.

  158. 158.

    INTERPOL—Cooperation agreement between the Office of the prosecutor of the ICC and the Int’l Criminal Police Organization, CEDIM, available online, (last visited on Feb. 23, 2014).

  159. 159.

    Red Notices exist with respect to Abdullah al-Senussi (now the subject of domestic prosecution following Libya’s successful challenge to admissibility. Beth Van Schaack, ICC Case Against Spy Chief Senussi Deemed Inadmissible, Just Security (Oct. 14, 2013, 2:48 PM), available online), Jean Bosco Ntaganda (now at the Court), Vincent Otti (dead), Ali Muhammad Ali Abd al Rahman (at large), Joseph Kony (at large), Dominic Ongwen (at large), Okot Odhiambo (at large), Ahmad Muhammad Harun (at large), and Saif al-Islam Gaddafi (in the custody of the Zintan Brigade in Western Libya and the subject of an admissibility challenge by Libya that is pending in the ICC Appeals Chamber).

  160. 160.

    Sudan doubts reports on Interpol requesting arrest of Bashir at Baghdad summit, Sudan Tribune, Mar. 14, 2012, available online.

  161. 161.

    There are at least four sources of any potential immunity: Article 105(2) of the UN Charter (“Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.”), Charter of the United Nations, UN, available online; the UN-US Headquarters Agreement; the General Convention; and customary international law.

  162. 162.

    Article 27 states:

    1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

    2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

  163. 163.

    Thomas Lubanga Dyilo, who was already in DRC custody when the ICC turned its attention to him, was found guilty in March 2012 and is now appealing the verdict and sentence. Germain Katanga’s trial concluded in May 2012, but the parties continue to litigate a potential change in the charged mode of liability in the case (from indirect co-perpetration to common purpose). See The Trial of Germain Katanga & Mathieu Ngudjolo Chui, Katanga Trial (Feb. 16, 2014), available online. Trial Chamber II acquitted his co-accused, Mathieu Ngudjolo Chui, and the Prosecutor has appealed. Jennifer Easterday, Ngudjolo Acquitted by ICC, Katanga Trial, Dec. 18, 2012, available online. The charges against Callixte Mbarushimana, an FDLR principal who was arrested by French authorities in France in October 2010, were not confirmed. The Prosecutor v. Callixte Mbarushimana, Case No. ICC—01/04-01/10, Situation in the Democratic Republic of the Congo (Dec. 16, 2011), available online. Bosco Ntaganda voluntarily surrendered to the U.S. embassy in Kigali, Rwanda, in April 2013, and was transported to The Hague in an ICC-chartered plane. The hearing on the confirmation of charges against him began on February 10, 2014. See Bosco Ntaganda, HRW, available online, (last visited Feb. 15, 2014).

  164. 164.

    Sylvestre Mudacumura, TRIAL, available online (last visited Dec. 10, 2013).

  165. 165.

    Rebecca Freeley & Colin Thomas-Jensen, Past Due: Remove the FDLR from Eastern Congo, Enough Project (Jun. 3, 2008), available online.

  166. 166.

    DRC—Key players, Stand, available online, (last visited on Feb. 23, 2014).

  167. 167.

    Scott Stearns, Rwandan Support for Rebels Frustrates Attempts to End Fighting in Eastern Congo, Voice of America, Sep. 26, 2013, available online.

  168. 168.

    DR Congo: M23 Rebels Kill, Rape Civilians, HRW (Jul. 22, 2013), available online.

  169. 169.

    Habibou Bangre, After Crushing M23, Kinshasa Sets Sights on Hutu Rebels, Yahoo News, Nov. 6, 2013, available online.

  170. 170.

    MONUSCO’s Martin Kobler Marks 100 Days in Office, Discusses Achievements with Internet Users, MONUSCO (Nov. 21, 2013), available online.

  171. 171.

    James Karuhanga, Rwanda: Monuc Comes to the Aid of FDLR Commander, All Africa, Nov. 6, 2009, available online.

  172. 172.

    FDLR Commander General Mudacumura Allegedly Negotiating His Surrender to Rwandan Defense Forces, AfroAmerica Network, Aug. 2, 2011, available online.

  173. 173.

    S.C. Res. 2098, U.N. Doc. S/RES/2098 (Mar. 28, 2013), available online.

  174. 174.

    International Conference on the Great Lakes Region, available online (last visited Nov. 23, 2013).

  175. 175.

    Southern African Development Community, available online (last visited Nov. 23, 2013).

  176. 176.

    Jeffrey Gettleman, Mai Mai Fighters Third Piece in Congo’s Violent Puzzle, N.Y. Times, Nov. 20, 2008, available online.

  177. 177.

    S.C. Res. 2053, U.N. Doc. S/RES/2053 (Jun. 27, 2012), available online.

  178. 178.

    S.C. Res. 2100, U.N. Doc. S/Res/2100 (Apr. 25, 2013) available online. (Specifically, UN Security Council Resolution 2100 empowers MINUSMA to:

    To support, as feasible and appropriate, the efforts of the transitional authorities of Mali, without prejudice to their responsibilities, to bring to justice those responsible for war crimes and crimes against humanity in Mali, taking into account the referral by the transitional authorities of Mali of the situation in their country since January 2012 to the International Criminal Court….

  179. 179.

    Letter from Le Ministre de la Justice, Gardedes Sceaux to Madame La Procureure Pres La Cour Penale Internationale (Jul. 13, 2012), available online.

  180. 180.

    Max Fisher, Why did infamous war criminal Bosco Ntaganda just surrender at a U.S. embassy?, Wash. Post, Mar. 18, 2013, available online.

  181. 181.

    Michelle Nichols & Louis Charbonneau, Exclusive: Fearing death, Congo’s ‘Terminator’ fled with help of family, Reuters, Jun. 28, 2013, available online.

  182. 182.

    DRC: Understanding Armed Group M23, IRIN, Jun. 22, 2012, available online.

  183. 183.

    Mark Kersten, When an Alleged War Criminal Walks into a US Embassy and says: ‘Take me to the ICC, Justice in Conflict, Mar. 19, 2013, available online.

  184. 184.

    Jason Stearns, US Bounty Could Foment M23 Splits, Congo Siasa (Feb. 9, 2013), available online.

  185. 185.

    Daily Press Briefing of Victoria Nuland, Spokesperson, U.S. Dept. of State (Mar. 18, 2013), available online.

  186. 186.

    Gbagbo must stay in pre-trial detention—ICC, News 24 Kenya, Oct. 29, 2013, available online.

  187. 187.

    See The Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/11, Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute, (Jun. 3, 2013), available online.

  188. 188.

    See The Prosecutor v. Simone Gbagbo, Case No. ICC-02/11-01/12, Warrant of Arrest for Simone Gbagbo, (Feb. 29, 2012), available online.

  189. 189.

    See The Prosecutor v. Charles Blé Goudé, Case No. ICC-02/11-02/11, Warrant of Arrest for Charles Blé Goudé (Dec. 21, 2011), available online.

  190. 190.

    Adam Nossiter, Ivory Coast: Former First Lady’s Warrant Is Rejected, N.Y. Times, Sep. 20, 2013, available online.

  191. 191.

    Olivier Monnier, UN Backs Release of Gbagbo Allies Ahead of Trial in Ivory Coast, Bloomberg News, Aug. 6, 2013, available online.

  192. 192.

    Robbie Corey-Boulet, New scrutiny of Ivorian judiciary as Gbagbo allies extradited, RNW, Feb. 8, 2013, available online.

  193. 193.

    Ghana will not extradite top Gbagbo ally to Cote d’Ivoire, AFP, Aug. 30, 2013, available online.

  194. 194.

    Côte d’Ivoire: The Victor’s Law, Amnesty Int’l (Feb. 26, 2013), available online.

  195. 195.

    Ivory Coast: Hopes and Challenges in Addressing the Legacy of the 2010 Violence, ICTJ (Jun. 8, 2012), available online.

  196. 196.

    Situation in Libya, Int’l Crim. Ct., available online.

  197. 197.

    Van Schaack, supra note 159.

  198. 198.

    Colin Freeman, Saif Gaddafi asks for trial to be heard in Zintan rather than Tripoli, The Telegraph, Sep. 19, 2013, available online.

  199. 199.

    Chris Stephen, Gaddafi’s son, intelligence chief and PM among defendants in crucial trial, The Guardian, Sep. 19, 2013, available online.

  200. 200.

    The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11, Decision on the admissibility of the case against Saif Al-Islam Gaddafi (May 31, 2013), available online.

  201. 201.

    The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11 OA 4, Decision on the “Request for an immediate finding of non-compliance and referral to United Nations Security Council” (Sep. 17, 2013), available online.

  202. 202.

    Press Release, Security Council, Security Council’s Support Critical in Untangling Networks Responsible for Ongoing Instability, Says International Criminal Court Prosecutor, U.N. Press Release SC/11175 (Nov. 14, 2013), available online.

  203. 203.

    Rome Statute Article 88 states: “Availability of procedures under national law. States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.”

  204. 204.

    See in particular Rome Statute Articles 89, 90, 91, and 92 (concerning the arrest and surrender of persons of interest).

  205. 205.

    Press Release, International Criminal Court, Bemba Case: Four Suspects Arrested for Corruptly Influencing Witnesses; Same Charges Served on Jean-Pierre Bemba Gombo (Nov. 24, 2013), available online.

  206. 206.

    Assembly of States Parties, Report of the Bureau on Cooperation, ICC-ASP/6/21 (Oct. 19, 2007), available online.

  207. 207.

    International Criminal Court, ASP Officials, available online, (last visited Feb. 23, 2014).

  208. 208.

    Bureau on Cooperation supra note 206.

  209. 209.

    Assembly of States Parties, Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/6/Res.2 (Dec. 14, 2007), available online.

  210. 210.

    Recommendation 21 urges that “States Parties and the Assembly of States Parties should consider ways in which experiences can be shared on issues relating to arrest and transfer, possibly through a general focal point for cooperation appointed by the Assembly of States Parties.” Recommendation 48, which addresses forms of cooperation in the United Nations context, continues: “States Parties should remind States of their duty to cooperate and request in their statements that States fulfil their obligations to cooperate, in particular when it concerns arrest and surrender.”

  211. 211.

    Justice Rapid Response, available online, (last visited Feb. 23, 2014).

  212. 212.

    See also Recommendation 59, which states: “Workshops on practical issues related to cooperation such as arrest and surrender, freezing of assets and financial investigations could be organized, with the participation of relevant United Nations actors.”

  213. 213.

    Assembly of States Parties, Concept Note by the Facilitator for Cooperation Ambassador Anniken Krutnes (Norway) (Nov. 2, 2012), available online.

  214. 214.

    Assembly of States Parties, Cooperation, ICC-ASP/11/Res.5 (Nov. 21, 2012), available online.

  215. 215.

    Id.

  216. 216.

    Bureau on Cooperation, supra note 5.

  217. 217.

    Article 2 reads: “The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.”

  218. 218.

    ICC, Negotiated Relationship Agreement Between the International Criminal Court and the United Nations, available online.

  219. 219.

    Press Release, Security Council, Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court; Resolution 1593 (2005) Adopted by Vote of 11 in Favour to None Against, with 4 Abstentions (Algeria, Brazil, China, United States), U.N. Press Release SC/8351 (Mar. 31, 2005), available online.

  220. 220.

    The Relationship Between the ICC and the Security Council: Challenges and Opportunities, IPI (Mar. 2013), available online.

  221. 221.

    See supra note 3.

  222. 222.

    UN Security Council Resolution 1593, operative paragraph 2, states “while recognizing that States not party to the Rome Statute have no obligation under the Statute, [the Council] urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.” S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005), available online. Similar language appears in UN Security Council Resolution 1970, referring the situation in Libya to the Court. S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 26, 2011), available online.

  223. 223.

    Rome Statute Article 89(1) states: “The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.” That said, non-party states may enter into special agreements or arrangements with the Court pursuant to Article 87(5) of the Rome Statute which reads:

    (a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.

    (b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

  224. 224.

    Fatou Bensouda, Prosecutor of the ICC, Statement to the United Nations Security Council on the situation in Darfur, the Sudan, pursuant to UNSCR 1593 (2005), (Jun. 5, 2013), available online.

  225. 225.

    Doha Document for Peace in Darfur, UNAMID, available online (last visited Dec. 10, 2013).

  226. 226.

    S.C. Res. 2113, U.N. Doc. S/RES/2113 (2013), available online (last visited Dec. 10, 2013).

  227. 227.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Siutation in Darfur, Sudan, available online (last visited Dec. 10, 2013).

  228. 228.

    See The Prosecutor v. Ahmad Muhammad Harun, Case No. ICC-02/05-01/07, Decision informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan (May 25, 2011), available online.

  229. 229.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (Dec. 12, 2011) available online.

  230. 230.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya (Aug. 27, 2010), available online.

  231. 231.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti (May 12, 2011), available online.

  232. 232.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Demande de coopération et d’informations adressée à la République Centrafricaine (Dec. 1, 2010), available online.

  233. 233.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad (Aug. 27 2010), available online; The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir (Dec. 13, 2011), available online.

  234. 234.

    S.C. Res. 1207, U.N. Doc. S/RES/1207 (Nov. 17, 1998), available online.

  235. 235.

    S.C. Res. 1591, U.N. Doc. S/RES/1591 (Mar. 29, 2005), available online.

  236. 236.

    S.C. Res. 1672, U.N. Doc. S/RES/1672 (Apr. 25, 2006), available online.

  237. 237.

    List of Individuals Subject to the Measures Imposed By Paragraph 3 of Resolution 1591 (2005), UN, available online (last visited Dec. 10, 2013).

  238. 238.

    Id.

  239. 239.

    Musa Hilal: Janjaweed Leader, Enough Silence, available online (last visited Dec. 10, 2013).

  240. 240.

    Kristen Boon, Use the Sanctions Power Against Bashir, Opinio Juris (Sep. 20, 2013), available online.

  241. 241.

    Kristen Boon, How to Prevent Bashir From Attending the UN General Assembly, Global Observatory (Sep. 23, 2013), available online.

  242. 242.

    Can the United States Deny Sudanese President Bashir a Visa to Attend the UN General Assembly or Arrest Him?, EJIL Talk, available online (last visited Dec. 10, 2013).

  243. 243.

    Philip Shenon, Hunt for Bosnia War Criminals Stepped Up, N.Y. Times, Feb. 14, 1996, available online.

  244. 244.

    Jim Hooper, Dayton’s Mandate for Apprehending War Criminals, Frontline, available online (last visited Dec. 10, 2013).

  245. 245.

    Security Council, Adopting Resolution 2113 (2013), Renews Mandate of African Union-United Nations Hybrid Operation in Darfur until 31 August 2014, UNSC (Jul. 30, 2013), available online.

  246. 246.

    Sudan Action Campaign, AJWS, available online (last visited Dec. 10, 2013).

  247. 247.

    Doha Document for Peace in Darfur, supra note 225.

  248. 248.

    Luis Moreno-Ocampo, ICC, Fifteenth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant To UNSCR 1593 (2005), (Jun. 5, 2012) available online.

  249. 249.

    Evan Perez & Susan Candiotti, Alleged al Qaeda operative Al Libi taken to New York week after capture in Libya, CNN, Oct. 15, 2013, available online.

  250. 250.

    18 U.S.C. § 3052, available online (last visited Dec. 10, 2013).

  251. 251.

    William P. Barr, Assistant Attorney General, Office of Legal Counsel, Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities (Jun. 21, 1989), available online

  252. 252.

    Beth Van Schaack, Al-Liby: Male Captus, Bene Detentus?, Just Security (Oct. 7, 2013 6:39 PM), available online.

  253. 253.

    United Nations Security Council 6778th Meeting, UN (Jun. 5, 2012), available online.

  254. 254.

    Id.

  255. 255.

    ASP, Report of the Bureau on non-cooperation, ICC-ASP/11/29 (Nov. 1, 2012), available online.

  256. 256.

    MONUC, UN, available online (last visited Dec. 10, 2013).

  257. 257.

    Karuhanga, supra note 171.

  258. 258.

    Colum Lynch, The Schmooze seen ‘round the world, Passport (Mar. 1, 2012), available online.

  259. 259.

    Letter from Ban Ki-moon, Secretary-General, UN, to President, UN Security Council, on ICC Guidelines (Apr. 3, 2013), available online.

  260. 260.

    Colum Lynch, The U.N. idiot’s guide to hanging with war criminals, Passport (Apr. 19, 2013), available online.

  261. 261.

    Yash Ghai, Implications of a Kenyatta and Ruto Presidency, The Star, Mar. 2, 2013, available online.

  262. 262.

    Legal Opinions of the OLA of the UN, Peace and Justice in Post-Conflict Societies—The UN Position, 3(2) Int’l Org. L. Rev. 395, 397 (2006).

  263. 263.

    Sudan’s Bashir Discusses UNAMID Mandate with UN Official, Sudan Tribune, Jul. 5, 2013, available online.

  264. 264.

    United Nations Secretariat, Farhan Haq, Highlights of the Noon Briefing; U.N. Rights Chief Urges All Parties to Restore Calm, Concerned by Reports of Widespread Detentions in Egypt (Jul. 5, 2013), available online.

  265. 265.

    Kenya: Cooperate Fully with International Court Trials, Amnesty Int’l (Sep. 9, 2013), available online.

  266. 266.

    U.N. Doc. S/PV.6974 (Jun. 5, 2013), Records of the 6974th meeting, available online.

  267. 267.

    Coalition for the International Criminal Court, Comments and Recommendations to the Twelfth Session of the Assembly of States Parties (Nov. 6, 2013), available online.

  268. 268.

    Human Rights Watch Memorandum, supra note 130.

  269. 269.

    African Development Bank Group, available online.

  270. 270.

    Rory Carroll, Belgrade to Give Up Milosevic ‘in Days’, The Guardian (Jun. 27, 2002), available online.

  271. 271.

    See Daniel Braaten, Human Rights and U.S. Foreign Policy in the Multilateral Development Banks (Feb. 1, 2012) (unpublished Ph.D. dissertation, University of Nebraska-Lincoln) available online.

  272. 272.

    Daniel Graeber, Vlastimir Djordjevic, Serbian War Criminal, Arrested, Foreign Pol. Assoc. (Jun. 17, 2007), available online.

  273. 273.

    Serb War Crime Suspect Surrenders, BBC News, Apr. 21, 2003, available online.

  274. 274.

    See generally, Steven Woehrel, Cong. Research Serv., RS21686, Conditions on U.S. Aid to Serbia (Jan. 7, 2008).

  275. 275.

    IMF Members’ Quotas and Voting Power, and IMF Board of Governors, International Monetary Fund, IMF (Feb. 24, 2014), available online.

  276. 276.

    Rebecca M. Nelson, Cong. Research Serv.., R41170, Multilateral Development Banks: Overview and Issues for Congress (2013), available online.

  277. 277.

    Sudan Peace Act, Pub. L. No. 107-245, 116 Stat. 1504.

  278. 278.

    DPKO List Of Sudanese Impediments to UNAMID Deployment, Wikileaks, available online (last visited Nov. 23, 2013).

  279. 279.

    Year in Review: Results, Invisible Children, available online (last visited Nov. 23, 2013).

  280. 280.

    Cooperation, supra note 9.

  281. 281.

    Adam Nossiter, Ally of Ivory Coast Strongman Sought by International Court, N.Y. Times, Oct. 1, 2013, available online.

  282. 282.

    Cooperation, supra note 9