The Arrest Question — Comments

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Comment on the Arrest Question: “What more can be done to secure the arrest and surrender of persons subject to arrest warrants issued by the International Criminal Court?”

Security Council’s Lack of Follow-up Support for its ICC Referrals: A Need for a Change to Ensure Cooperation and Effectuate Arrests

Introduction

The International Criminal Court (ICC) has faced many challenges since its inception. Nonetheless, securing an arrest for its suspects has been the Court’s “Achilles’ heel.”1 As the first president of the ICC, Philippe Kirsch, noted executing arrest warrants is one of the Court’s most difficult challenges.2 The ICC faces these problems because it has no option but to rely on State parties to implement arrests.3 Getting suspects arrested becomes even more problematic when the Security Council refers a situation to the ICC because, in the case of such referral, the target State has not agreed to an Office of the Prosecutor’s (OTP) investigation and is therefore unlikely to cooperate with the ICC and help effectuate arrests.4 Sudan’s lack of cooperation with the ICC after the Darfur referral is a good illustration of this problem.5 Thus, the Council’s follow-up support to help ensure States’ cooperation becomes particularly important. As of now, however, the UNSC has neither supported the ICC nor insisted on cooperation after its referrals.6

Furthermore, the Security Council has declared that the referred situations are a threat to international peace and security.7 So, it seems plausible that a failure by States to cooperate with the Court and help execute the arrests for suspected perpetrators of atrocities after the referral would also constitute a threat to peace and security.8 Hence, it would make sense if the UNSC would continue to support the Court under its Chapter VII enforcement powers, since “willing the ends” of maintaining or restoring international peace and security also “requires willing the means” of taking the steps towards such realization.9 As such, a referral should only be the beginning of Council’s continued ICC assistance and support.10

Therefore, the Security Council should change its policy from simply referring situations to the ICC to a policy of using its Chapter VII powers to provide follow-up support and push States to assist the ICC in executing arrest warrants.11 Having such a definite policy in place would clarify what kind of actions, obligations, and sanctions may arise from UNSC referrals in case of non-cooperation as well as help deal with the threat to peace and security.12 Hence, Part I discusses why the UNSC should provide follow-up support, looking at the Council’s role in maintaining or restoring international peace and security. Part II then examines the challenges resulting from lack of UNSC follow-up support in the case of Darfur referral. Finally, Part III sets up a series of steps that the UNSC could take in order to successfully enforce cooperation and help facilitate arrest warrants for its referrals.13

I. Helping ICC to Deliver Justice Would Help Maintain or Restore International Peace and Security

The role of the UNSC is to determine the existence of threat to the peace and then take steps to maintain or restore international peace and security.14 The ICC referrals are a good example of this role because the UNSC has first determined the existence of threat and then referred the situation to the ICC to try to deal with that threat.15 Hence, it is reasonable to infer that a failure by States to cooperate with the Court after the referral would also constitute a threat to the peace and security.16 As such, the UNSC should provide follow-up support for its ICC referrals and help arrest perpetrators of atrocities in order to help deal with the threat.

Furthermore, past UNSC actions demonstrate that the Council considers it to have the responsibility, as well as powers, to help deliver justice under its Chapter VII powers to individuals allegedly responsible of international crimes.17 Such actions seem to be also premised on an idea that lack of prosecution for international crimes constitutes a threat to the peace.18 For example, in order to ensure the extradition of the Lockerbie bombing suspects from Libya, the UNSC first passed resolutions to urge Libya to cooperate and then, after lack of cooperation, imposed sanctions against Libya.19 Ultimately, these sanctions ended up playing a part in the surrender of the suspects.20 Similar resolutions were also implemented in 1996 when the UNSC called upon Sudan to extradite suspects, who were “wanted in connection with the assassination attempt,” to Ethiopia for prosecution.21 Hence, the UNSC has taken steps in the past in order to ensure prosecution for international crimes and therefore try to restore and maintain international peace and security. So, once the UNSC determines that threat to peace and security exists and makes a referral, the Council should also follow through with the referral and ensure States’ cooperation in order to help successfully prosecute those responsible for grave human rights violations.

The follow-up support is also necessary because the States that are parties to the referred situation are unlikely to cooperate with the ICC.22 Generally, the ICC’s jurisdiction extends to the territory of State parties or nationals of State parties23 and the Court relies on its member States to execute arrest warrants.24 In cases that involve State parties and self-referrals the likelihood of cooperation is greater because of States’ general commitment to assist and help follow through with the investigation and referral.25 However, the Security Council referrals usually involve States who are not a party to the Rome Statute, since the Security Council referrals are meant to extend the jurisdiction of the ICC to situations that occur “outside the territory of a State party and with respect to acts committed by non-nationals of a State party.”26 Hence, such a State would be very reluctant to cooperate with the investigation and execute arrests because it has not agreed to fall under the Court’s jurisdiction in the first place.27 Therefore, because a State has not agreed to an OTP investigation and is thus unwilling to cooperate and effectuate arrests, the referred situation would most likely continue to constitute a threat to international peace and security.28

II. Challenges with Past UNSC Referrals: Darfur as an Example29

On March 31, 2005, the Security Council adopted resolution 1593 by a vote of 11 in favor, none against and four abstentions referring the situation in Darfur to the ICC.30 The resolution notes that government of Sudan and all other parties to the conflict in Darfur alone have an obligation to “cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to [this] resolution.”31 However, it only “urged” cooperation from other States and international organizations.32 In addition, the resolution lacked any specificity in terms of level of cooperation needed or obligations bestowed upon Sudan.33 Notably, the distinctions in States’ obligation and lack of specificity have induced non-compliance.

Next, after the OTP investigation and request, the Pre-Trial Chamber issued arrest warrants for four Sudanese officials, including for Sudan’s President al-Bashir.34 Nevertheless, regardless of the cooperation obligation bestowed upon Sudan’s government, Sudan defied ICC by refusing to cooperate and hand over the indictees.35 In addition to non-cooperation, the Sudanese government has kept in position and even promoted persons who are charged with the atrocities in Darfur.36 Since Sudan is not a State party to the Rome Statute it does not fall under the ICC’s jurisdiction.37 Therefore, as discussed above, it would have been unlikely that Sudan would cooperate with the ICC and Sudan has demonstrated this unwillingness throughout the ICC proceedings.38

Moreover, President al-Bashir has continued to visit foreign countries, including some States who have a legal obligation to enforce the ICC warrants for arrest.39 For example, Omar al-Bashir traveled to Chad, Kenya and Djibouti in 2011.40 Most recently, in January 2013, he again visited Chad.41 The ICC responded to its members’ defiance by filing decisions about these visits referring the matter to the Security Council in order for the Security Council to “take any action [it] may deem appropriate.”42 An option for such a referral is available when the UNSC has referred a case to the ICC.43

In addition, the Prosecutor has repeatedly asked the UNSC to assert cooperation with the Court.44 Most recently, the ICC Prosecutor Fatou Bensouda expressed its dissatisfaction about lack of support when she presented the ICC’s sixteenth report on Darfur to the Council: “My Office and the Court as a whole have done their part in executing the mandate given by this Council in accordance with the Rome Statute. The question that remains to be answered is how many more civilians must be killed, injured and displaced for this Council to be spurred into doing its part?”45

The Security Council, however, has chosen not to take any action demonstrating its lack of interest in following through on its resolution and enforcing States’ cooperation with the ICC.46 Unfortunately, this UNSC approach has not been effective in maintaining or restoring peace and security in Darfur.47

III. Steps the UNSC Can Take to Effectuate Arrests for its Referrals

Currently, the Security Council does not appear committed to using its authority under Chapter VII powers to help ensure arrests.48 However, in order to follow-through with the referral, make the referral effective, and ensure cooperation, a legitimate threat of repercussions should be put in place.49 The examples of Milošević, Karadžić, and Taylor show that consistent and informed pressure on State cooperation helps effectuate arrests.50 These arrests also show that implementing a concrete strategy helps achieve compliance and cooperation.51 As such, it is important to bear in mind the main incentives available to induce States’ cooperation: political pressure, threat of sanctions, the imposition of sanctions, or other enforcement measures, and finally the possibility of use of force to effectuate arrests.52 The UNSC could use these incentives under its Chapter VII powers to ensure States’ cooperation with the ICC.

1. First, the referral itself could have a language stating that all States are obligated to cooperate with the ICC, including with executing arrests

There is a need for a greater level of State cooperation with the ICC in order to effectively combat impunity and fulfill the ICC’s mandate.53 In order to achieve this, the Security Council should issue a referral resolution requiring all the States and the international community, not just the States that are parties to the conflict, to assist the ICC.54 This is what the UNSC did when it established the International Criminal Tribunal for the former Yugoslavia in Resolution 827 and the International Criminal Tribunal for Rwanda in Resolution 955.55 However, in case of Darfur and Libya referrals, the resolutions only required the situation countries to cooperate with the court.56

Furthermore, past ICC referrals lack specificity or directives in its resolutions regarding cooperation and executing arrests.57 For example, the UNSC could specify the steps that a target State can take to ensure full cooperation with the court and explain the cooperation obligation of all the States with regard to executing arrests.58 Furthermore, the UNSC could specify the consequences for non-cooperation, like sanctions and severance of diplomatic relations.59 Otherwise, if there is no actual and explicit threat of penalty, uncooperative States have little incentive to cooperate with the ICC.60 Therefore, the Council should take a stronger stance and, under its Chapter VII powers, compel all UN Member States to cooperate with the ICC in referral situations, list the obligations of States, as well as note the penalties in case of non-cooperation.61

2. Second, UNSC could notify the non-cooperative State and remind the State of its obligation to assist the ICC in all matters, including arrests

In the case of non-cooperation, the UNSC could show its support for the Court by issuing declaratory or presidential statements “recalling the need to observe applicable norms of international law and stressing the importance of accountability for those most responsible for serious violations of these rules.”62 However, with the exception of one presidential statement, the UNSC has not issued any statements in support of the ICC.63

In addition, especially when ICC refers the issue of State non-cooperation to the UNSC under Article 87 of the Rome Statute, the Council could issue a resolution condemning the non-cooperation and demanding compliance with the Court.64 In its resolution, the Security Council should also explain any direct consequences for continued non-cooperation, like economic sanctions or other penalties permitted under UNSC Chapter VII powers.65 It is very likely that much more would be happening in terms of cooperation and executing arrests if the UNSC would use declarations, presidential statements, and binding resolutions to make the non-cooperation more of a public phenomenon and demonstrate its support for the Court.66

3. Third, UNSC could use economic sanctions and other non-military penalties under its Chapter VII powers to help ensure cooperation

If the non-cooperation continues, regardless of the UNSC notifications, the Security Council could take action under Article 41 of the UN Charter to influence States to cooperate with the ICC.67 The measures that the UNSC may take under Article 41 are non-exhaustive.68 For example, the Council could use its powers to impose sanctions and freeze assets in order to induce cooperation69 as well as avoid all non‐essential contacts with the ICC indictees or non-cooperating States.70

Such Security Council powers have been successfully used in the past and would likely help induce cooperation by States. For example, as discussed above, the UNSC used sanctions in relation to Libya in order to induce extradition of the two Lockerbie bombing suspects.71 These sanctions included embargoing Libya’s civil aviation and military procurement efforts, reducing diplomatic presence for Libya, an oil technology ban, and limited asset freeze.72 Ultimately, Libya surrendered the suspects.73 More recently, the UNSC also imposed economic sanctions in order to penalize a State for not abiding by its obligations involving nuclear weapons testing.74 Hence, the UNSC has shown its willingness to use economic measures to induce State compliance and such measures also appear to be effective.75

Furthermore, recent history demonstrates that fear of economic consequences can significantly influence State behavior. When Malawi, which is a Member State of the ICC, hosted Omar al-Bashir in a regional summit the US opted to freeze a $350 million energy grant and European States threatened to withhold development aid if Malawi hosts al-Bashir again.76 As a result, Malawi decided not to host an African Union Summit because al-Bashir’s presence in the Summit would have been contrary to Malawi’s economic interest.77 Hence, by imposing sanctions and affecting States’ economic interests, the UNSC can induce States’ compliance with the referrals the Council has made to the ICC.

4. Fourth, if nothing else works, UNSC could consider the use of force under its Chapter VII powers in order to execute the warrants

Only if States fail to respond to any UN-imposed non-military actions should the UNSC consider using force to execute the warrants under its Chapter VII powers.78 Once the UNSC determines that use of force is needed to effectuate arrest, however, it could equip the peace-keeping forces that are already involved in the situation with the authority to execute the arrests.79

For example, such measures were used in the case of Charles Taylor when the Security Council passed a resolution giving UNMIL the authority 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.”80 Interestingly, the Security Council has also used such measures recently when it authorized the new MONUSCO Brigade, located in DRC, to help the DRC government to arrest ICC indictees.81 Therefore, the UNSC has demonstrated its willingness to authorize peace-keeping forces to execute arrests, including in situations involving the ICC. Hence, the Council could effectively use the same strategy for its referrals.

Conclusion

At the moment, the Court’s “Achilles’ heel” seems to be securing arrests for its suspects.82 Securing arrests for situations referred by the UNSC appear to be even more challenging, partly because of lack of any follow-up support to ensure successful delivery of justice.83 However, a referral ought to be only the beginning of Council’s continued ICC assistance and support.84 As such, the Security Council should change its policy from simply referring situations to the ICC to a policy of using its Chapter VII powers to provide follow-up support and influence States to assist the ICC in executing arrest warrants.85 Such UNSC dedication to follow-through with its referrals and help arrest the indictees would demonstrate that the UNSC is serious about the threat that these atrocities pose to the international peace and security.86

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

  1. 1.

    Richard Dicker & Elizabeth Evenson, ICC Suspects Can Hide—And that is the Problem, JURIST (Jan. 24, 2013), available online; Nick Donovan, Introduction, in The Enforcement of International Criminal Law (Nick Donovan, ed., Aegis 2009), 3, available online. Archived.

  2. 2.

    See Gwyneth C. McClendon, Building the Rule of International Criminal Law: The Role of Judges and Prosecutors in the Apprehension of War Criminals, 10 Hum. Rts. Rev. 349, 350 (2009).

  3. 3.

    Christopher D. Totten & Nicholas Tyler, Arguing for an Integrated Approach to Resolving the Crisis in Darfur: The Challenges of Complementarity, Enforcement, and Related Issues in the International Criminal Court, 98 J. Crim. L. & Criminology 1069, 1107 (2008).

  4. 4.

    Cedric Ryngaert, The International Prosecutor: Arrest and Detention, Working Paper No. 24 (Apr. 2009), available online.

  5. 5.

    Id.

  6. 6.

    Statement and Recommendations on the Open Debate of the Security Council on Peace and Justice, with a Special Focus on the Role of the International Criminal Court, Amnesty Int’l Public Statement, IOR 53/021/2012 (Oct. 16, 2012), available online.

  7. 7.

    See S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005), available online; S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 26, 2011), available online.

  8. 8.

    See Annalisa Ciampi, Current and Future Scenarios for Arrest and Surrender to the ICC, 66 ZaöRV 719 (2006); see also Kevin Jon Heller, Pre-Trial Chamber Puts Ball in Security Council’s Court Re: Chad, Opinio Juris (Apr. 3, 2013), available online.

  9. 9.

    The UN Security Council and the International Criminal Court, Chatham House Int’l Law Meeting Summary 18 (Mar. 16, 2012), available online; Lawrence Moss, The UN Security Council and the International Criminal Court: Towards a More Principled Relationship, FES Int’l Pol. Analysis (Mar. 2012), available online.

  10. 10.

    See The Rule of Law: The Security Council and Accountability, 1 S.C. Rep. (Jan. 18, 2013), hereinafter The Rule of Law, available online.

  11. 11.

    See Elizabeth Minogue, Increasing the Effectiveness of the Security Council’s Chapter VII Authority in the Current Situations Before the International Criminal Court, 61 Vand. L. Rev. 647, 675 (2008).

  12. 12.

    See The Relationship Between the ICC and the Security Council: Challenges and Opportunities, Int’l Peace Institute Meeting Notes (Mar. 2013), hereinafter Security Council Relationship, available online.

  13. 13.

    Moss, supra note 9.

  14. 14.

    See U.N. Charter art. 39.

  15. 15.

    S.C. Res. 1593, supra note 7; S.C. Res. 1970 supra note 7; see also The Rule of Law, supra note 10.

  16. 16.

    See Ciampi, supra note 8; Heller, supra note 8.

  17. 17.

    Ciampi, supra note 8.

  18. 18.

    See id.

  19. 19.

    Donovan, supra note 1.

  20. 20.

    Id.

  21. 21.

    S.C. Res. 1044, S/RES/1044 (Jan. 31, 1996), available online; S.C. Res. 1054, S/RES/1054 (Apr. 26 1996), available online.

  22. 22.

    See Ryngaert supra note 4.

  23. 23.

    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], Article 12.

  24. 24.

    Totten & Tyler, supra note 3, at 1107.

  25. 25.

    See Steven Roper & Lilian 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, 464 (2008).

  26. 26.

    Dapo Akande, The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC, 10 J. Int’l Crim. Just. 299 (2012).

  27. 27.

    Ryngaert supra note 4.

  28. 28.

    Id.

  29. 29.

    I will concentrate on Darfur and not Libya here because Libya’s challenge to the admissibility of the case is currently pending in the ICC, and both ICC indictees are held in Libya. Hence, without any doing from the UNSC, Libya’s referral has not been as much of a challenge to the ICC as the Darfur referral.

  30. 30.

    See S.C. Res. 1593, supra note 7.

  31. 31.

    Id. § 2.

  32. 32.

    Id.

  33. 33.

    See id.

  34. 34.

    The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), Case No. ICC-02/05-01/07, Warrant of Arrest for Ahmad Harun (Apr. 27, 2007), available online. Archived.; The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), Case No. ICC-02/05-01/07, Warrant of Arrest for Ali Kushayb (Apr. 27, 2007), available online. Archived. ; The Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC—02/05-02/09-15-AnxA, Decision on the Prosecutor’s Application under Article 58 (Jul. 29, 2009); The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Mar. 4, 2009), available online. Archived. ; The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Jul. 12, 2010), available online. Archived.

  35. 35.

    Security Council Relationship, supra note 12.

  36. 36.

    Id.

  37. 37.

    Penal Matters: Rome Statute of the International Criminal Court, U.N. Treaty Collection Database (last visited May 13, 2013), available online.

  38. 38.

    Sudan also demonstrated its unwillingness to cooperate by communicating to the Secretary General that “…Sudan does not intend to become a party to the Rome Statute. Accordingly, Sudan has no legal obligation arising from its signature on 8 September 2000.” Id.

  39. 39.

    Security Council Relationship, supra note 12.

  40. 40.

    The Rule of Law, supra note 10; Gwen P. Barnes, Note: The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir, 34 Fordham Int’l L.J. 1584 (2011).

  41. 41.

    Heller, supra note 8.

  42. 42.

    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 the States Parties to the Rome Statute about President 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 informing the United Nations Security Council and the Assembly of the 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; 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; The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmed Al-Bashir (Mar. 26, 2013), available online. Archived.

  43. 43.

    Rome Statute, supra note 23, Art. 87(7) (“[w]here a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute…the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.”).

  44. 44.

    Id.

  45. 45.

    Press Release, Statement to the United Nations Security Council on the situation in Darfur, the Sudan, pursuant to UNSCR 1593 (2005), ICC-OTP-20121213-PR862 (Dec. 13, 2012), available online.

  46. 46.

    The Rule of Law, supra note 10.

  47. 47.

    Id.

  48. 48.

    See Minogue, supra note 11, at 649.

  49. 49.

    See id.

  50. 50.

    Tracey Gurd, Arresting the “Big Fish”: Lessons on State Cooperation for the International Criminal Court, in The Enforcement of International Criminal Law (Nick Donovan, ed., Aegis 2009), 27, available online. Archived.

  51. 51.

    See id.

  52. 52.

    See generally Ciampi, supra note 8.

  53. 53.

    Thomas Mayr-Harting, EU Statement, United Nations Security Council: Role of the ICC (Oct. 17, 2012), available online.

  54. 54.

    See generally Lucas Buzzard, Comment: Holding an Arsonist’s Feet to the Fire?—The Legality and Enforceability of the ICC’s Arrest Warrant for Sudanese President Omar Al-Bashir, 24 Am. U. Int’l L. Rev. 897 (2009).

  55. 55.

    Statement and Recommendations on the Open Debate of the Security Council on Peace and Justice, with a Special Focus on the Role of the International Criminal Court, Amnesty Int’l Public Statement, IOR 53/021/2012 (Oct. 16, 2012), available online.

  56. 56.

    Id.

  57. 57.

    David Scheffer, Video Lecture, Comment on the Arrest Question: What Steps Can and Should the ICC Take to Secure the Arrest and Surrender of Indictees?, ICC Forum (Feb. 5, 2013), available online.

  58. 58.

    The UN Security Council and the International Criminal Court, supra note 9.

  59. 59.

    See generally Scheffer, supra note 57; David Kaye, Responsibility to Object, Foreign Pol. (Jan. 10, 2013), available online.

  60. 60.

    Minogue, supra note 11, at 674.

  61. 61.

    See The Rule of Law, supra note 10.

  62. 62.

    Phakiso Mochochoko, Address on behalf of the Prosecutor, United Nations Security Council Open Debate, in Peace and Justice, With a Special Focus on The Role of The International Criminal Court (Oct. 17, 2012), available online.

  63. 63.

    See, e.g., Richard Dicker, Speech, 10th Anniversary of the Rome Statute of the International Criminal Court (Jul. 3, 2008), available online.

  64. 64.

    See The Rule of Law, supra note 10.

  65. 65.

    Totten & Tyler, supra note 3, at 1110 (listing restrictions on trade, monetary fines, and limitations on air travel as potential sanctions).

  66. 66.

    See Scheffer, supra note 57.

  67. 67.

    Minogue, supra note 11, at 675.

  68. 68.

    U.N. Charter art. 41.

  69. 69.

    Security Council Relationship, supra note 12.

  70. 70.

    See David Kaye et al., The Council and the Court: Improving Security Council Support of the International Criminal Court, UCI Int’l Just. Clin. 21 (May 2013), available online.

  71. 71.

    Donovan, supra note 1.

  72. 72.

    Id.

  73. 73.

    Id.

  74. 74.

    Totten & Tyler, supra note 3, at 1111.

  75. 75.

    Id.

  76. 76.

    Mark Kersten, Politics, a Poison for Justice?, Justice in Conflict (Jun. 5, 2012), available online.

  77. 77.

    Malawi Gives Up AU Summit Over Pressure to Host Sudan’s President, Sudan Tribune (Jun. 8, 2012), available online.

  78. 78.

    Totten & Tyler, supra note 3, at 1111; Minogue, supra note 11, at 669.

  79. 79.

    See generally Ciampi, supra note 8; Gurd, supra note 50; Totten & Tyler, supra note 3, at 1111.

  80. 80.

    S.C. Res. 1638, U.N. Doc. S/RES/1638, (Nov. 11, 2005), available online.

  81. 81.

    See S.C. Res. 2098, U.N. Doc. S/RES/2098 (Mar. 28, 2013), available online; Kaye et al., supra note 70.

  82. 82.

    See Dicker & Evenson, supra note 1; Donovan, supra note 1.

  83. 83.

    Ryngaert, supra note 4.

  84. 84.

    See The Rule of Law, supra note 10.

  85. 85.

    See Minogue, supra note 11, at 675.

  86. 86.

    See Mochochoko, supra note 62.

Mending the Fences: Strengthening the International Criminal Court’s Arrest Apparatus Through Renewed U.S. Partnership

Introduction

On March 18, 2013, Bosco Ntaganda, a former Congolese general and leader of the M23 rebel group in the Democratic Republic of the Congo (DRC), turned himself in to the U.S. embassy in Kigali, Rwanda seeking transfer to the International Criminal Court (ICC). After years as a fugitive on the basis of seven counts of war crimes and three counts of crimes against humanity detailed in multiple ICC arrest warrants dating back as early as 2006,1 Ntaganda had just handed himself over to U.S. authorities without incident. The question remained, however, whether and how the United States, a Rwandan ally and non-state party to the ICC with no obligation to surrender Ntaganda to the Court, would facilitate Ntaganda’s transfer from U.S. soil to ICC authorities in the Hague, Netherlands for prosecution.2 State Department officials quickly confirmed the U.S. Government’s intent to facilitate Ntaganda’s request, and on March, 22, 2013, the ICC Office of the Prosecutor (OTP) confirmed Ntaganda’s transfer with a statement of gratitude for the “support of the authorities of the United States of America” as well as a call to action to renew efforts to secure the arrest of others “subject to ICC warrants in the region [who] remain at large.”3

Ntaganda’s arrest represented a timely victory for the ICC,4 but as alluded to by ICC Prosecutor Fatou Bensouda, the timely arrest of individuals facing prosecution for genocide, war crimes, and crimes against humanity at the ICC remains an elusive goal. Since its establishment in 2002, the ICC has issued arrest warrants for twenty-one individuals, yet nine remain at large and three others are in the custody of state authorities.5 Critics of the ICC will often cite the Court’s incapacity to effectuate such arrests as evidence of its failure— their arguments bolstered by the continued freedom of alleged war criminals such as Sudanese President Omar al-Bashir, whose indictment by the ICC has failed to result in his arrest despite travel to the territories of States Parties obligated to cooperate with the ICC in such matters.6 The ICC lacks an international police force or any other mechanism to effectuate arrests, leaving it woefully reliant on the inconsistent cooperation of States Parties. As in the case of Ntaganda, the support of non-states parties such as the U.S., which boast expansive diplomatic, military, and intelligence apparatus as well as overlapping interests in the promotion the rule of law and universal human rights, may prove most critical to improving the ICC’s arrest record.

Unfortunately, the prospect of future partnership between the U.S. and the ICC is belied by a checkered past in which the two parties often found their interests inextricably at odds. The U.S. Government has long demonstrated an unwillingness to submit to binding international obligations that might implicate its nationals,7 and in 1998 the United States joined six other nations including Iraq, Libya, and China to vote against the establishment of Rome Statute establishing the ICC.8 The treaty was ultimately signed but not ratified by the United States. More than ten years after the Rome Statute’s official entry into force on July 1, 2002,9 this comment argues that the Obama Administration has demonstrated a renewed willingness to engage with the ICC. This resetting of the U.S.ICC relationship presents a timely opportunity to improve prospects for the arrest of persons indicted by the ICC in the short and long-term, and without major amendments to the ICC’s structure or independent arrest-making authority.

I. An Evolving Partnership: A Historical Review of the U.S.ICC Relationship

A. Orphaned at Birth: United States Cautious Protectionism and Non-Ratification of the Rome Statute

The United States, a patriarchal presence in the creation of international criminal tribunals such as the International Military Tribunal in Nuremberg, the ICTY, and the ICTR, similarly found itself in a leadership role during the initial push to create an international criminal court and in the early stages of drafting what would become the Rome Statute establishing the ICC. As negotiations wore on, however, primary objections to the treaty by the United States could not be overcome, including opposition to the ICC’s authority, in specific situations, to assert jurisdiction over non-state party nationals for crimes, the ability of the ICC Prosecutor to independently initiate investigatory proceedings absent U.N. Security Council (UNSC) approval (proprio motu authority), and provisions related to the crime of aggression.10 Ultimately, the international community would move ahead without the support of the United States. As recalled by David Scheffer, then-head of the U.S. negotiating team in the United Nations talks leading to the creation of the Rome Statute, the United States “tried so hard for so many years to support the creation of the International Criminal Court and we had contributed so much to the text of the treaty. All that we had accomplished would be swamped by the global memory of…[our] vote against the Rome Statute.”11 President Clinton, in a lame-duck action just one month prior to leaving office, did sign the treaty, albeit with the qualification that it would not be submitted to the Senate for ratification due to outstanding and “significant flaws.”12

Conceptual, albeit qualified, support for the ICC during President Clinton’s tenure did not carry over into President George W. Bush’s first term. The Bush Administration took several actions aimed at disassociating the United States from the Rome Statute in anticipation of its impending entry into force in 2002. On May 2, 2002, John Bolton, then-Under Secretary of State for Arms Control and International Security, communicated in writing to the United Nations that “the United States does not intend to become a party to the treaty.”13 Presumably seeking to relieve the United States of its responsibility as a signatory to act in accordance with the treaty,14 Under Secretary Bolton asserted that “[t]he United States has no legal obligation arising from its signature on December 31, 2000.”15 From its position on the UNSC, the U.S. delegation to the United Nations later pushed through a controversial UNSC resolution exempting individuals from non-state parties from ICC prosecution for cases arising from UN authorized missions or operations.16 Perhaps most directly adverse to ICC interests during this period of increasing U.S. isolation from the Court was the passage of the American Servicemembers Protection Act (ASPA), signed into law by President George W. Bush on August 2, 2002.17 This legislation prohibited U.S. military aid to ICC States Parties,18 and continues to restrict U.S. cooperation with the ICC. The ASPA, vesting in the President the authority to “use all means necessary and appropriate” to recover U.S. nationals or other specified persons detained by or at the behest of the ICC,19 evoked images of the U.S. military storming the ICC facilities in The Hague, Netherlands, and came to symbolize a period of antagonistic relations toward the court.

B. A Politic Embrace: The Bush Administration Warms to the Court

President Bush’s second term, served as a turning point for U.S. recognition of the ICC, and was marked by increasing implicit and explicit acceptance of the “reality” of the Court’s role in holding accountable those responsible for the worst international crimes.20 Contrary to the United States’ historically rigid opposition to the assertion of ICC jurisdiction over nationals of non-states parties to the Rome Statute, on March 31, 2005 the United States abstained from voting against a UNSC resolution referring to the ICC Prosecutor the situation in the Darfur region of Sudan, a non-state party to the ICC.21 One year later, the United States supported the trial of former Liberian President Charles Taylor following his surrender by Nigerian authorities to the Court the Special Court for Sierra Leone which utilized ICC facilities.22 And in President’ Bush’s final term in office, the State Department acknowledged the U.S. Government would consider a request by the ICC for information related to the Darfur case.23 Although explanations of the causal factors behind President Bush’s increasingly public tolerance of the ICC range from practical to ideological, the shift was in line with domestic political realities. As President Bush reached his final year in office, the American public broadly supported the prospect of U.S. engagement with the ICC across party lines.24

C. Resetting the Relationship: The Obama Years

On June 15, 2010, State Department officials returned from participating at the first-ever Review Conference on the Rome Statute of the ICC (Review Conference) with a special press briefing announcing, “[W]e have reset the default on the U.S. relationship with the Court from hostility to positive engagement.”25 A range of direct and indirect support from the Obama Administration has accompanied the new U.S. policy of “positive engagement,” both diplomatic and material in nature. In late 2009, the Obama Administration initiated a formal review of U.S. policy toward the ICC, sent a U.S. delegation to participate as an observer at an Assembly of States Parties meeting for the first time since the ICC’s inception, and pledged in-kind support for “existing ICC cases and investigations, and for the development of States Parties’ judicial-system capacity to prosecute ICC crimes.”26

In the face of crisis in Libya, the United States leveraged its position as a UNSC member to lobby on behalf of, co-sponsor, and vote in favor of the UNSC resolution referring the situation to the ICC.27 In Congress, controversial statutory prohibitions on U.S. aid to States Parties were allowed to lapse by 2009.28 The Lords Resistance Army Disarmament and Northern Uganda Recovery Act of 2009 was signed into law on May 24, 2010, accompanied by a statement of support by President Obama for bringing the LRA leadership to justice.29 President Obama later announced the deployment of 100 combat troops to support the apprehension of the LRA leadership.30 The State Department went on to expand its War Crimes Reward Program, “offering up to $5 million for information that leads to the arrest, transfer, and conviction of the top three leaders of the LRA.”31

Upon entering the White House, President Obama vigorously promoted a foreign policy agenda focused on maintaining international peace and security without sacrificing U.S. values, including a respect for universal human rights, personal dignity, and security.32 Consistent with these goals, and following a cascade of overt actions signaling a shift toward U.S. re-engagement with the ICC, it appears the U.S. has identified a number of mutually aligned interests on which to form a basis for improved partnership with the Court.33

II. Limitations on United States Support for Arrests Pursuant to ICC Warrants

The primary limitations on the ability of U.S. agencies and officials to cooperate with the ICC in securing the arrest of at large criminals are statutory, and can be found in The American Servicemembers Protection Act.34 The most relevant constraints include:

  • A prohibition on the obligation of U.S. funds to directly or indirectly “support” the ICC.35 “Support” in this context is defined by statute to mean “any kind, including financial support, transfer of property or other material support, services, intelligence sharing, law enforcement cooperation, the training or detail of personnel, and the arrest or detention of individuals.”36

  • Prohibition on cooperation by U.S. Courts and government agencies with the ICC, including responding to ICC requests for cooperation and transferring individuals from U.S. territory to the ICC, among other proscriptions.37

Supplementing these statutory limitations are several qualifying provisions providing the Executive Branch a modicum of unilateral authority to act in cooperation with the ICC when serving U.S. interests, including:

  • A provision otherwise known as the “Dodd Amendment”, stating that “[n]othing in this [Act] shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of Al Queda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity.38

  • A provision identifying the ASPA’s prohibitions on cooperative activities as inapplicable with regard to actions taken by the President on “specific” matters before the ICC in exercise of his authority as “Commander in Chief of the Armed Forces.”39

  • Authorization for the President to waive ASPA prohibitions where they would “prevent United States cooperation with an investigation or prosecution of a named individual by the International Criminal Court.”40

Should the Executive Branch choose to interpret them as such, these provisions could provide adequate flexibility for federal, state, and local agencies to significantly and directly support efforts to arrest individuals pursuant to ICC warrants. First, the Dodd Amendment could be interpreted to limit the application of the prohibition on U.S. cooperation in investigations and prosecutions to cases involving American nationals, and thereby protect the U.S. Government’s ability to assist in efforts to secure foreign nationals accused of crimes under the ICC’s jurisdiction.41 The final two provisions appear to grant the President wide latitude to exercise unilateral discretion in his capacity as Commander and Chief as well as to waive certain ASPA restrictions in cases involving an individual “named” by the ICC.42 The latter situation would appear to cover cases in which the Pre-Trial Chamber has considered and issued specific warrants for arrest.

The ASPA, as originally passed, included stronger, even punitive, prohibitions aimed at limiting U.S. relations with nations supportive of the ICC— a strategy which degraded the military-to-military relationships of the United States abroad and for which the many in the Pentagon ultimately dropped their support.43 Contemporary efforts to repeal or amend the ASPA, in whole or in part, would likely still face domestic political opposition but such legislative actions would not be without precedent given prior congressional modifications to the ASPA. Challenges by U.S. elected officials’ to the ICC’s authority persist, however, including repudiations of the ICC’s jurisdictional claims as well as blanket resistance to broader UN frameworks considered a threat to U.S. national sovereignty.44

The ICC must also be cognizant of the public perceptions that might accompany increased collaboration with the United States in light of persistent criticism regarding the selective nature of ICC prosecutions and the undue influence of powerful, mostly Western, nations.45 Such considerations might be of particular concern to the ICC amidst sensitivities surrounding the Office of the Prosecutor’s closure of its Preliminary Examination of potential war crimes in Iraq and forthcoming conclusions with regard to the ICC’s preliminary examination in Afghanistan. The ICC also faces the prospect of renewed U.S. tensions as a result of the ICC’s adoption of two new crimes at the 2010 Review Conference including a prohibition on the use of certain additional weapons in non-international armed conflicts and the crime of aggression.46 Although the United States could not vote on conference proposals, the U.S. did inform the process as an observer and appeared optimistic following the Review Conference, publicly asserting that the “outcome protected [the United States’] vital interests.”47

Because the United States has not yet ratified the Rome Statute, as a non-state party any assistance they provide to the ICC in securing the arrest of individuals pursuant to ICC warrants would be on a voluntary basis. The elective nature of U.S. support for the ICC makes it vulnerable to changes in political leadership within the United States, and any related decline in U.S.ICC relations. Some argue that the ICC can actually compel non-states such as the United States to cooperate with the ICC on situations referred to the ICC under Chapter VII. It is doubtful, however, that the ICC, rather than allied states through the diplomatic processes, would attempt to compel the cooperation of non-state parties under these circumstances, especially given the ICC’s lack of meaningful authority to even hold those State Parties that have refused to cooperate accountable to their obligations under the Rome Statute.48 And in light of the U.S. veto power within the UNSC, this hypothetical would be irrelevant due to U.S. support serving as a prerequisite for UNSC referral under Chapter VII.

Lastly, it is worth noting that any future decision by the United States to ratify the Rome Statute, however remote in possibility, would also face several legal hurdles in addition to previously mentioned political resistance. U.S. ratification would likely be barred by the ASPA, and therefore require modification by congressional amendment or repeal.49 Further, questions regarding the constitutionality of the Rome Statute, which also prohibits unilateral treaty reservations by States Parties, would first need to be resolved.50 Primary concerns in this area relate to constitutional limitations on Congress’s ability to delegate judicial authority to a non-U.S. court, as well as concerns regarding the protection of American nationals’ constitutionally guaranteed due process rights.51

III. Opportunities for United States Support of Arrests Pursuant to ICC Warrants

Under Article 87(5) of the Rome Statute, “The Court may invite any State not party to [the Rome] Statute to provide assistance…on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.”52 Formal ICC requests to the United States under this authority might trigger the ASPA’s prohibition on “responding to requests” and thereby limit the ability of the United States to consider and fulfill such a request. As detailed above, the several ASPA provisions may still allow for U.S. response and cooperation under certain circumstances involving foreign nationals or in the event the President decides to exercise his waiver or constitutional authority as Commander in Chief. Additionally, there is precedent from the Bush Administration for consideration of ICC requests, notably in the Darfur case in which the State Department publicly acknowledged the receipt of an ICC request for information as well as their policy to “consider” such requests.53

Normative and political support for the ICC as well as assistance in key areas such as witness relocation would greatly benefit the ICC, but “[b]y far the most critical area where the Court requires State support is in apprehending suspects.”54 The ICC has not shied away from welcoming U.S. support in securing the arrest of current and future fugitives. Staff within the Office of the Prosecutor has called on the United States to be a first-mover on this issue, arguing that “[t]he American government first has to lead on one particular issue, the arrest of sought war criminals.... [Other countries] will follow, but we need the U.S. in the lead.”55 High-ranking U.S. officials likewise point to improving the ICC’s track record in apprehending individuals subject to ICC warrants as one of the foremost challenges facing the court, and have encouraged states to take action to assist the ICC in securing arrests.56 Despite the high cost and delay associated with ICC trials to-date, the ICC still offers the United States a cost-effective mechanism for removing bad actors from the playing field— one which doesn’t require the use of force, insulates the United States from expending finite political capital, and advances its long-term peace and security interests.57

The ICC and the United States appear to agree on their mutual interest in apprehending those individuals who remain at large despite pending ICC indictments, but where can U.S. resources be most helpful to the ICC?

The United States can bring significant diplomatic pressure to bear on State Parties refusing to comply with their obligations under the Rome Statute. As a permanent member of the UNSC and a dominant economic power within the international community, the U.S. may be best situated to exert political and economic pressure, particularly where the ICC indicts a sitting head of state. In the case of President Omar al-Bashir, despite a pending indictment, al-Bashir was allowed to freely travel to State Party countries including Kenya and the Republic of Chad without consequence despite specific requests from the ICC Pre-Trial Chamber for the enactment of appropriate “responsive measures.”58 Situations in which the Assembly of States Parties or UNSC has refused to take collective action to enforce the obligations of States Parties to the Rome Statute illustrate the need for forceful, and unilateral U.S. pressure aimed at bolstering the ICC’s ability to improve reliability amongst States Parties and subsequent arrest outcomes.

Perhaps most importantly, the United States can ramp up cooperative military support, direct and indirect, to assist arrest efforts worldwide. The text of the Dodd Amendment to the ASPA specifically safeguards U.S. authority to assist “international efforts to bring to justice…foreign nationals accused of genocide, war crimes or crimes against humanity.”59 The United States has already deployed combat-ready to seek out and capture individuals in the LRA leadership wanted for such crimes.60 Because these individuals are facing named indictments by the ICC, the President could conceivably exercise his waiver authority under the ASPA in order to facilitate their transfer to the ICC. Similar to Bosco Ntaganda requesting transfer to the ICC after turning himself in to U.S. authorities, once in the hands of U.S. military forces, the LRA fugitives may also opt to request relocation to The Hague as a preferable alternative to being placed in custody or facing criminal prosecution domestically. In such circumstances, the Obama Administration might also avoid ASPA limitations all together by arguing that the ASPA does not prohibit the United States from fulfilling an individual’s request for transport to the Netherlands, particularly if U.S. involvement is limited to placing the individual on the necessary mode of transport. The ICC would also greatly benefit from U.S. intelligence sharing, both in support of investigating potential violators of international humanitarian and human rights laws and in securing their arrest. Military assistance might also include U.S. technical advisors, military training, and equipment for states working to secure the arrest of ICC suspects.

Finally, U.S. officials have already promised direct support to improve States Parties’ judicial-system capacity to prosecute ICC crimes, most recently co-sponsoring a program with Norway to strengthen judicial capacity in the Democratic Republic of the Congo.61 Efforts to improve domestic legal systems will help to make the international community’s conception of the ICC as a “court of last resort” a reality. By enabling states’ to more effectively execute domestic prosecutions national governments may be emboldened to independently pursue and prosecute those responsible for violations of those crimes under the ICC’s jurisdiction. U.S. capacity building programs will strengthen the ICC as a system of courts working to end impunity, and although indirect in its support, will free up much needed resources for the ICC to expend in pursuit of those individuals that remain at large years after their indictment.

Conclusion

As a result of both parties having identified increasingly aligned normative and practical interests, the relationship between the United States and the ICC has shifted over time from distanced criticism to pragmatic partnership. In order to improve the ICC’s track record in apprehending those indicted for grave violations of international law, the ICC should capitalize on this period of renewed U.S. engagement by seeking to expand U.S. support, both direct and indirect, for arrests pursuant to ICC warrants.

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

  1. 1.

    The Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, Background Information, available online.

  2. 2.

    Diana Jenkins, Terminus for the Terminator?, Huff. Post, available online.

  3. 3.

    Press Release, ICC, ICC Prosecutor welcomes news of Ntaganda’s transfer to the Court (Mar. 22, 2013), available online.

  4. 4.

    Especially following the unanimous acquittal of Mathieu Ngudjolo Chui by the ICC Trial Chamber just a few months earlier. Press Release, ICC, ICC Trial Chamber II acquits Mathieu Ngudjolo Chui, available online.

  5. 5.

    Situations and Cases, ICC, available online.

  6. 6.

    Eric Posner, The Absurd International Criminal Court, Wall St. J., Jan. 10, 2012, available online.

  7. 7.

    David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals at 165 (Princeton Univ. Press, 2012) (“[T]he United States has a tradition of leading other nations in global treaty-making endeavors to create a more law-abiding international community, only to seek exceptions to the new rules for the United States.”)

  8. 8.

    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].

  9. 9.

    Id.

  10. 10.

    Tod Lindberg, A Way Forward with the International Criminal Court, 159 Pol. Rev. 28 (2010); William H. Taft et al., Am. J. Int’l L., Independent Task Force, U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement, at iv (Mar. 2009), available online.

  11. 11.

    See Scheffer, supra note 4, at 224.

  12. 12.

    U.S. President Bill Clinton, Statement Authorizing the US Signing of the Rome Statute of the International Criminal Court (Dec. 31, 2000), available online.

  13. 13.

    United Nations Treaty Collection, Rome Statute of the International Criminal Court, note 11 (May 6, 2002), available online (last visited May 14, 2013) [hereinafter Bolton Letter].

  14. 14.

    Vienna Convention on the Law of Treaties, art. 18, May 23, 1969, 1155 U.N.T.S. 331, available online.

  15. 15.

    See Bolton Letter, supra note 13. The functional legal impact of this “unsigning” continues to be debated, with some experts concluding that U.S. obligations as a signatory to the Rome Statute were relieved but its status as a Signatory remains unchanged. See Taft, supra note 10, at 30-31.

  16. 16.

    S.C. Res. 1422, U.N. Doc. S/RES/1422 (Jul. 12, 2002), available online. Some legal experts argue this resolution is incompatible with the Rome Statute and the UN Charter. See Coalition for the Int’l Crim. Court, Res. 1422/1487, 2004, available online (last visited May 10, 2013). The immunity provision was not renewed in 2004, following controversy surrounding the actions of U.S. military service members in Iraq at Abu Ghraib prison. Stephen Eliot Smith, Definitely Maybe: The Outlook for U.S. Relations With the International Criminal Court During the Obama Administration, 22 Fla. J. Int’l L. 155, 163 (2010).

  17. 17.

    American Servicemembers Protection Act of 2002, HR 4775, 22 U.S.C. §§ 7421-7433 (2002), available online. [hereinafter ASPA].

  18. 18.

    These punitive measures were accompanied by additional punitive measures, attached to related Appropriations legislation and referred to as the “Nethercutt Amendment,” all of which were later repealed or allowed to lapse by 2009. Emily C. Barbour & Matthew C. Weed, Cong. Research Serv., R41116, The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy at 4 (Mar. 16, 2010), available online.

  19. 19.

    ASPA, supra note 17.

  20. 20.

    Jess Bravin, U.S. Accepts International Criminal Court, Wall St. J., Apr. 26, 2008.

  21. 21.

    S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005), available online.

  22. 22.

    See Taft et al., supra note 18, at 15.

  23. 23.

    Id.

  24. 24.

    See Smith, supra note 16, at 165.

  25. 25.

    Special Briefing, Harold Koh & Stephen J. Rapp, U.S. Department of State, U.S. Engagement With the ICC and the Outcome of the Recently Concluded Review Conference (Jun. 15, 2010), available online. State Department Legal Advisor Harold Koh, contrary to the Bush Administration’s purported “unsigning” of the Rome Statute, has since repeatedly and publicly re-affirmed the United States commitment to the “object and purpose” of the Rome Statute. See Jennifer Trahan, U.S. Affirms that It Adheres to Rome Statute Signatory Obligations: It Should Put This In Writing, Opinio Juris (Feb. 27, 2013, 7:30 PM), available online.

  26. 26.

    Id.

  27. 27.

    S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 26, 2011), available online.

  28. 28.

    See Barbour & Weed, supra note 18, at 15.

  29. 29.

    U.S. President Barack Obama, Statement by the President on the Signing of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009 (May 24, 2010), available online.

  30. 30.

    Joe Sterling, Obama Orders U.S. Troops to Help Chase Down African ‘Army’ Leader, CNN, Oct. 18, 2011, available online.

  31. 31.

    Press Release, U.S. Department of State, Secretary Kerry on Bringing War Criminals to Justice Through Expansion of the War Crimes Rewards Program (Apr. 3, 2013), available online.

  32. 32.

    See generally U.S. President Barack Obama, Remarks by the President on a New Beginning (Jun. 4, 2009).

  33. 33.

    Barbour & Weed, supra note 18; see also Douglas Dunbar, AMICC, The Obama Administrations Evolving Policy Toward the International Criminal Court (2011); See also Office of the President of the United States, National Security Strategy 48 (2010) (noting U.S. active engagement with States Parties to the Rome Statute and support for “the ICC’s prosecution of those cases that advance U.S. interests”).

  34. 34.

    ASPA, supra note 17. For a detailed discussion of the legal restrictions presented by the ASPA on U.S. cooperation with the ICC, see Taft, supra note 10, at 32-34.

  35. 35.

    Id. at § 7401(b) (emphasis added).

  36. 36.

    Id. at § 7432(12).

  37. 37.

    Id. at § 7423.

  38. 38.

    Id. at § 7433 (emphasis added).

  39. 39.

    Id. at § 7430.

  40. 40.

    Id. at § 7422 (emphasis added).

  41. 41.

    See Smith, supra note 16, at 187.

  42. 42.

    ASPA, supra note 17.

  43. 43.

    See Scheffer, supra note 4, at 198.

  44. 44.

    Republican Nat’l Comm., 2012 We Believe in America: Republican Platform at 45 (2012), available online.

  45. 45.

    David Bosco, Why is the International Criminal Court Picking Only on Africa?, Wash. Post, Mar. 29, 2013, available online.

  46. 46.

    Note that “any crime of aggression couldn’t become operational unless it were affirmatively adopted after another review by consensus or a two-thirds decision of all states parties no earlier than January 1, 2017.” See Koh, supra note 25.

  47. 47.

    Id.

  48. 48.

    Cf. Rome Statute, art. 87; African Union Opposes Warrant for Qaddafi, AP, Jul. 2, 2011, available online.

  49. 49.

    See Taft, supra note 10, at xi.

  50. 50.

    See Smith, supra note 16, at 180-86.

  51. 51.

    Id.

  52. 52.

    Rome Statute, art. 87.

  53. 53.

    Sean McCormack, U.S. State Department, Remarks at Daily Press Briefing (Jul. 14, 2008), available online.

  54. 54.

    See Taft, supra note 10, at 22.

  55. 55.

    Interview by Christiane Amanpour with Beatrice Le Fraper, Special Adviser to the ICC Prosecutor, CNN, Mar. 24, 2010, available online.

  56. 56.

    Stephen J. Rapp, U.S. Ambassador-at-Large for War Crimes, Remarks to the Assembly of States Parties of the International Criminal Court (Dec. 14, 2011) (“[I]t is a persistent and serious cause for concern that eight individuals who are the subject of existing ICC arrest warrants remain at large.... [St]ates can also lend expertise and logistical support to efforts to apprehend these fugitives.”), available online.

  57. 57.

    Marlise Simons, U.S. Grows More Helpful to International Criminal Court, a Body It First Scorned, N.Y. Times, Apr. 2, 2013, available online. (“To use the court as an adjunct to soft power makes sense for the U.S....It’s cost-effective. If you can remove a warlord through the court, it’s a lot cheaper and more acceptable than using force.” quoting Courtenay Griffiths, defense lawyer for former Liberian President Charles Taylor).

  58. 58.

    John F. Murphy, Gulliver No Longer Quivers: U.S. Views on and the Future of the International Criminal Court, 44 Int’l Law. 1123, 1136-37 (2010).

  59. 59.

    ASPA, supra note 17 at § 7433.

  60. 60.

    See Sterling, supra note 30.

  61. 61.

    See Trahan, supra note 25; see also Barbour & Weed, supra note 18, at 19.

Response to Nadia Banteka: "The ICC Prosecutor should stick to her legal job; politics will only add more to the current criticism against the Court".

Hi Nadia, I enjoyed reading your article and find it really interesting. To add to some of your points, here is what I think:

I doubt that “The pursuit of international justice” is an international interest of any State on its own. Be this at the internal or the international level. Instead, I think based on a realtpolitics reading that international justice is more often used as a means to achieve a State interest at the international level. The correlation between the quest for international justice of the EU and its cooperation in the arrest of ICTY indicted individuals is quite illustrative of this. In this sense, EU members States intervened mainly because they were fearing for their borders security and their commercial interests although they publicly use the concept of the quest for the international justice in that Region. Also, the same discourse is valid with the USA intervention in the arrest of ICTY figutives. The USA's alliances with other NATO's members States, and the will to maintain its leadership in the Region were the main reasons for its intervention.

Based on your reasoning, drawing similarities between the ICTY's situation and the ICC would prove quite unfeasible. As we all know that, conditionalities (East European State's accession to the EU was one of the conditions to cooperate in the arrest and surrender of suspects) and the quest to play a major political role in the region while curtailing the Russian influence (as far the USA cooperation is concerned) were among the most important priorities of major States in that situation in the ICTY case. Clearly enough, I will add that major States did not intervene in Rwanda during the genocide not because they did not want to see international justice and peace be kept but because their interest were not threatened.

I also doubt that “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”. We are living a new era in which China is becoming one of the most important trade actors (China's exports of gas from Sudan have grown impressively during the last years after Omar Al Bashir indictment). Are we really sure that EU member States that are individually commercial partners of many African States will be keen to disregard their interests and support the lovely cause of “international justice”? In addition, I don't know any African States that is requesting accession to the EU.

I would not mind asking myself more than one question:
The Court (or mainly the OTP) has always been targeted as a an anti African institution as it is going only against African delinquents. Are we suggesting that the OTP should gain more political backing from the most powerful States (that is any State that has an interest to inflence the political stability of Africa) to gain her arrest and surrender?
In addition, I thought and it has always been the ICC Prosecutor's policy to claim her non political affiliation. Are begging the Prosecutor and the Court (that is the maximal judicial institution) to engage in politics? As the ICC Prosecutor have claimed in the past, there are international institutions more equiped to play international politics such as the UN, the EU, the AU and others.

That said,
I always think that untill international justice or the trial of international crimes will be seen as a “western / imported” solution into the problems of any State, arrest will always remain a great challenge. The current perception nowadays while discussing with many fellow Africans that are not expert of ICL is that the average man knows that the fight against international crimes means “Westerns coming to target some African leaders!”
If we keep the arrest debate to “what can we impose to them to get them turn their criminals?; at the end of the day, States are sovereign and no westerrn State will get into an African State to arrest an indicted individual. I don't really see any major success.
But if the question becomes “how can we make a populution understand that the society should punish international criminals no matter who they are? I think we have a completely win-win situation. In fact, parents often call the police to arrest their sons who have committed a crime not because they are afraid they will be arrested themselves but mainly because of the belief that there are certain values that should be protected in a society. To extend this reasoning to multicultural societies, at times parents will have a very bad perception of the governing authorities if they think their ethnies are not part of the governing bodies but will still cooperate with the police to punish their delinquent son. That is, even an African man that percieves the international system (in which the ICC operates) as unfair will cooperate to arrest and punish an international criminal if he internally thinks that the delinquent has breached the most important social value.

I am sure that there is no social group that is essentially inclined to commit crimes. Informing and educating the public (not to be confused with educating the salvage!) should be a key to make any world's citizen understand the importance of fighting international crimes by any means.

The Viability and Efficacy of International Bounty Hunters

I. Introduction

In its eleven-year history, the International Criminal Court (“ICC”) has indicted thirty persons. Nine, including Joseph Kony and Omar al-Bashir, remain at large.1

This paper analyzes what measures the ICC may take in order to reduce this unacceptable figure. Ultimately, it argues that an improbable source, bounty hunters, provides the most practical and effective solution to the Court’s vexing arrest problem. In order to fully understand and appreciate this conclusion’s viability, however, a review of the unsatisfactory solutions offered by both the Rome Statute and contemporary scholarship is required.

II. Statutory and Scholarly Shortcomings

A. The Rome Statute

Article 89 of the Rome Statute requires States Parties to comply with Court requests for the “arrest and surrender” of its indictees.2 This provision is part of the Statute’s overall schema, initially outlined in Article 86, demanding that States Parties “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”3

Problematically, the Statute scarcely provides the Court with a means of ensuring that States Parties actually comply with Court requests regarding the arrest of its indictees. Article 87(7) states:

Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.4

The Statute fails to elaborate beyond this language. We therefore know not the nature or possible effect of either an ASP or UNSC finding/referral. Rather, as Richard Cooper and Juliette Kohler note, the Statute merely equips the ASP/UNSC to “name a noncomplying state, hoping that official shaming will bring the state back into compliance.”5

The Court’s statutory inability to punish non-cooperative States Parties is not its only shortcoming in this context. As always, the Court is further plagued by the fact that its founding Statute binds States Parties only. Non-states parties thus have no duty to comply with Court requests regarding the arrest or surrender of its indictees.6 This dichotomy “effectively creates safe havens for international fugitives.”7

B. Scholarly Remedies

1. The Proposals

As a result of the Statute’s nondescript enforcement provision and lack of universal application, the international community must appeal to non-statutory remedies in an effort to solve the Court’s arrest problem.

David Scheffer, former U.S. Ambassador-at-large for War Crimes Issues, offers at least three solutions. First, States Parties’ domestic legislatures should pass laws affirming that compliance with the Court’s arrest warrants are obligatory, not optional. According to Scheffer, “there should be a presumption in the international community, like there is in the domestic context, that when the ICC issues an arrest warrant the indictee must be arrested and brought before the ICC.”8 Second, the Court should require non-cooperative states to publicly assert their reasons for disobeying Court requests.9

Third, Scheffer argues that the international community should ratify a protocol establishing a “special operations force, drawn from the militaries of States Parties who sign the protocol.”10 This force would be equipped with the “special apprehension skills and intelligence” necessary to “track and ultimately arrest indicted fugitives on the territory of the States Parties who signed the protocol.”11 Moreover, deployment of this unit would first require consent from the targeted state.12

Scheffer is not alone in championing some form of international force. Cooper and Kohler advocate the establishment of an International Marshals Service (“IMS”), whose responsibilities, inter alia, would include enforcing international justice and executing warrants issued by the ICC’s Pre-Trial Chambers.13 The authors propose two competing IMS models: one created and controlled by the ICC’s ASP and the other by the UNSC.14

Judge Patricia Wald, by contrast, takes a different approach altogether. Recognizing that most countries are “reluctant to give a free pass to any country or international body to enter their territory and arrest their residents,”15 Wald instead argues that “conditionality—on aid, group membership, or trade benefits—has been the most successful in securing arrests.”16 Examples of this conditionality approach include denying the non-cooperating state membership into NATO or the EU or even halting the removal of such a state from the U.S.-designated State Sponsor of Terrorism list.17

2. The Problems

Respectfully, I doubt both the viability and potential impact of these proposals. Wald’s “conditionality” approach is unlikely to incentivize the majority of non-compliant states to actually cooperate. For example, neither NATO nor EU membership is relevant to Libya or Sudan; equally improbable is the belief that Khartoum would surrender its President, Omar-al Bashir, in exchange for a less stigmatizing U.S. designation.

Scheffer’s first two recommendations are also suspect. Bolstering domestic support for ICC warrants in States Parties’ legislatures does nothing to ensure compliance of non-states parties; however, it is non-states parties who are most likely to ignore ICC cooperation requests in the first place. Similarly, forcing non-cooperative states to publicly justify their reasons for ignoring Court requests is unlikely to achieve positive results. Consider the case of Sudan. In July 2012, then Chief Prosecutor Louis Moreno-Ocampo sought a non-cooperation ruling against Khartoum for its refusal to arrest al-Bashir.18 Nevertheless, to date, no UNSC resolution has required Sudan to articulate its reasons for defying the Court’s requests.19 That the UNSC initially referred this case to the Court further belies Scheffer’s second proposition.

Lastly, Scheffer’s plan regarding an international special operations force and Cooper and Kohler’s recommendation concerning an IMS face a multitude of logistical, legal, and financial obstacles. Who would run and monitor these entities? How might they operate without violating a state’s sovereignty? From where would they receive their funding? The latter question is particularly troublesome, especially as the EU—the largest contributor to the budgets of the ICC (60%),20 UN (40%),21 and UN peacekeeping operations (40%)22—continues on its march towards austerity. Legitimacy, too, is a concern. An ICC-run IMS would bind, and therefore operate in, States Parties only; such a force would thus be unable to capture fugitives like al-Bashir. Similarly, an UN-run IMS poses its own challenging hurdles; Cooper and Kohler themselves concede that “many countries will resist empowering a nonrepresentative and overly political body with an enforcement mechanism.”23 Unfortunately, these and other pressing issues are wholly unaddressed in the literature. To date, then, the notion of an internationally run paramilitary unit is but a theoretical pipe dream.

In short, the aforementioned proposals are unlikely to meaningfully fortify the ICC’s currently toothless enforcement arm. For this reason, the international community should seriously consider facilitating a system of international bounty hunters as a means of capturing ICC-indicted fugitives.

III. International Bounty Hunters

A. Bounty Hunters in the United States: A Prototype

Bounty hunters tend to conjure up images from popular culture. We associate the trade with Django Unchained or Duane Lee “Dog” Champman and his television show, Dog the Bounty Hunter.

Less publicized, however, is the reality that bounty hunters exist and are actually quite effective. In the United States, bounty hunters capture approximately 90% of the roughly 35,000 fugitives who jump bail each year.24 Their efforts save law enforcement agencies tremendous amounts of financial and human capital.25

How and why are American bounty hunters so successful? The answer, according to Professor Jonathan Dimmer, lies in an 1872 U.S. Supreme Court case, Taylor v. Taintor. The court held:

When bail is given, the principal is regarded as delivered to the custody of his sureties. [The latter’s] dominion is a continuance of the [former’s] original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. In 6 Modern it is said: ‘The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge.’ The rights of the bail in civil and criminal cases are the same. They may doubtless permit him to go beyond the limits of the State within which he is to answer.26

Thanks to Taylor, bounty hunters enjoy a very broad set of rights. In fact, Drimmer notes that Taylor provides bounty hunters with “the same rights of search and arrest as a sheriff over an escaping prisoner.”27 Bounty hunters are even “legally entitled to break into a suspect’s home and use whatever force is necessary, including deadly force, to arrest a fugitive.”28

Unsurprisingly, these rights are critical to bounty hunters’ success. Christopher M. Supernor, author of the leading article on point, writes:

Financial incentives alone do not provide bounty hunters the necessary tools to hunt fugitives. Domestic bounty hunters could not exist without the legal immunity for the forceful acts necessary to arrest a fugitive. Without this immunity, domestic bounty hunters would face criminal and civil liability for their forceful acts in apprehending fugitives.”29

In this sense, Taylor encourages and facilitates bounty hunters by guaranteeing their legal protection “for the forceful acts necessary to arrest a fugitive.”30 As will be discussed below, ensuring parallel protections in the global context will be equally vital to the success of international bounty hunters.

Prior to shifting to this analysis, however, it is worth noting that American law limits the profession to private, non-state actors only.31 As Drimmer succinctly summarizes, “although bounty hunters and bondsmen functioned as state proxies for the pretrial criminal process, they were not considered state actors.”32 This distinction, as discussed below, must also be exported to the international arena.

B. Internationalizing the American System

The American bounty hunter system serves as an instructive prototype for the international community. Indeed, the latter’s adoption of this system could very well mitigate the Court’s current arrest problem. Therefore, despite its general anathema to do so, the international community should follow the American precedent. Two aspects of this system are particularly worthy of emulation: immunizing bounty hunters and limiting the craft to private, non-state actors.

1. Immunizing International Bounty Hunters

First and foremost, the international community should grant bounty hunters legal immunity from every state’s domestic laws for any “forceful acts” committed while arresting indicted war criminals.33 Such immunity is imperative: the international bounty hunters who captured Dragan Nikolić and Stevan Todorović were subsequently convicted of kidnapping by a Serbian court and, ultimately, were sentenced to several years in prison.34 Accordingly, Supernor argues that an “efficient system of international bounty hunters cannot be established without legal immunity for the forceful acts necessary to apprehend and deliver a war criminal to trial.”35

Fortunately, securing this immunity is not a pipe dream. Although states obviously retain the right to criminalize conduct occurring on their own soil, the international community has made certain exceptions to this rule when seeking to broadly immunize specific groups of persons from domestic prosecution.36 For example, UN representatives, “while exercising their functions and during the journey to and from the place of meeting,” are “immune from personal arrest or detention and from seizure of their personal baggage and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind.”37 This exception’s rationale—rooted in the international community’s desire to foster the UN’s work and, by extension, transnational cooperation and justice—is equally applicable to this paper’s proposal. Indeed, it is difficult to contend that a system of international bounty hunters, tasked with arresting the world’s most wanted fugitives, fails to promote these very same objectives. Therefore, as it did with respect to UN officials, the international community could and should exempt international bounty hunters from domestic criminal prosecution.

How the international community might actually achieve this result is a more complicated inquiry. Theoretically, a treaty could guarantee this immunity. In practice, however, a treaty would inevitably bind consenting states only, which would in turn create safe havens for fugitives (a la the Rome Statute) and thereby impede international bounty hunters’ efforts.38

A UNSC resolution, by contrast, is a far more viable option. Critically, Articles 25 and 48 of the Charter of the United Nations specify that UNSC resolutions are binding on all UN Members.39 Furthermore, the Charter grants the UNSC broad powers with respect to enforcing international peace and security. Article 39 states: “The Security Council shall determine the existence of any threat to the peace…and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”40 Together, these articles afford the UNSC “very broad discretion in crafting enforcement mechanisms.”41

Evidently, the UNSC is in fact legally empowered to pass a resolution shielding international bounty hunters from states’ domestic laws. A system of legally-protected international bounty hunters, capable of actually arresting ICC fugitives, clearly satisfies Article 39’s “maintain and restore international justice” provision: apprehending ICC-fugitives not only deters future atrocities, but also legitimizes the ICC and emboldens the Court’s stature and work.42 As in the American context, such immunity would ensure international bounty hunters’ success.

2. Private Actors Only

In addition to following the U.S. precedent vis-à-vis immunizing bounty hunters, the international community should also follow America’s lead in limiting such immunity to private, non-State actors only. In fact, the international community has little choice in the matter: Article 2(4) of the U.N. Charter explicitly prohibits Member States from using force against each other.43 Critically, however, this provision does not ban “the abduction of an individual from a foreign state by an international bounty hunter…[who] is a private party.”44 Because government-sponsored abductions violate international law, global bounty hunters, like their American counterparts, must be private, non-state actors.45

C. International Bounty Hunters in Practice

Having established that a system of international bounty hunters is in fact legally viable, it is worth highlighting why this solution is more preferable than those discussed above.

First, it is far simpler and cheaper to fund international bounty hunters than it is an international police force. The United States, for example, very recently announced the expansion of the War Crimes Rewards Program. The Department of State is now offering “up to $5 million for information that leads to the arrest, transfer, and conviction” of three war criminals (Joseph Kony, Okot Odhiambo, and Dominic Ongwen).46 Presumably, other nations and possibly even NGOs would be similarly inclined to finance rewards for the capture of ICC-indicted fugitives. What is clear, however, is that the cost of such rewards pale in comparison to those of a standing paramilitary apparatus.

In fact, the most complicated funding-related question in this context is not one of source but of timing: when should international bounty hunters be paid? Supernor recommends rewarding bounty hunters only upon their successful delivery of a living war criminal to The Hague. This approach is logical, as it ensures that international bounty hunters do not become “international assassins.”47

In addition to avoiding the thorny funding problem, a system of international bounty hunters also dodges the difficult operational issues triggered by the Scheffer and Cooper/Kohler proposals. Unlike an IMS or specialized unit, a system of international bounty hunters would not be run by a politicized and non-representative entity. Rather, it would consist solely of private men and women acting of their own volition.

In fact, Supernor goes so far as to argue that international bounty hunters need not even be licensed:

Many individuals who decide to forcefully capture an indicted war criminal may do so only as the result of a one-time opportunity rather than a decision to pursue a career as an international bounty hunter. The best person to apprehend a particular war criminal might not be the full-time professional bounty hunter but an acquaintance, friend, business partner, political rival, or estranged spouse of the war criminal. If licenses were not required, individuals who have no interest in a career as a professional bounty hunter would be free to capture fugitive war criminals.48

Here, however, Supernor’s conclusion is irresponsible. Unleashing a system of unlicensed actors amounts to recklessness. Instead, the UNSC or ICC should be tasked with licensing international bounty hunters. Such a measure guarantees that these actors receive a modicum of training and simultaneously affords the international community a means of preventing certain individuals, like convicts, from participating in high-profile manhunts. Naturally, the UNSC or ICC would merely license bounty hunters; once licensed, these huntsmen would remain fully independent practitioners. Therefore, unlike the Scheffer and Cooper/Kohler proposals, neither the UNSC nor the ICC would be charged with managing or overseeing those attempting to capture ICC-fugitives.

Finally, a system of international bounty hunters not only evades the funding and operational issues associated with the pair of “international force” proposals, but also avoids the pitfalls plaguing both Wald’s “conditionality” scheme and Scheffer’s first recommendation. These two suggestions—conditioning membership into international organizations on a state’s willingness to comply with ICC arrest requests, and encouraging States Parties’ domestic legislatures to pass laws ensuring their compliance with such requests—lack universal appeal and application. By contrast, because UNSC resolutions are binding on every Member State, international bounty hunters would have the authority to arrest fugitives on any Member State’s soil.

There is, however, one caveat: international bounty hunters, whether unlicensed or licensed, would be responsible for securing their own, legal means of entering a state’s territory.49 Otherwise, “illegal aliens, drug traffickers, and other international criminals could falsely claim that they were acting as international bounty hunters when caught entering a State illegally.”50 Notwithstanding this minor limitation, international bounty hunters could freely operate throughout the globe (save Kosovo, Taiwan, Vatican City, and Palestine). The other proposals precisely lack this important capability.

IV. Final Thoughts

Apparently, relying on international bounty hunters to track and capture ICC indictees is not an entirely farfetched solution to the Court’s arrest problem. The American paradigm offers powerful precedent that such a system could in fact work. Moreover, the international community, through the UNSC, is legally empowered to secure the necessary immunity for bounty hunters to effectively carry out their missions. Finally, the troubling issues undermining the traditional solutions to this problem are seemingly inapplicable to a system of bounty hunters.

Naturally, there are problems with this paper’s proposal. For one, just because the UNSC is capable of passing a resolution hardly guarantees that it would actually do so. Moreover, insofar as the ICC indicts the so-called “worst of the worst,” including heads of state and senior military officials, one may fairly question whether international bounty hunters could actually access, and no less capture, the Court’s indictees.

These and several other concerns are legitimate. However, given that the ICC’s inability to secure the arrest or surrender of its indictees continues to threaten the Court’s legitimacy, any and all legal remedies, however imperfect, should be fully explored. At the very least, this solution would put fugitives on notice that the international community is unafraid to think outside of the box.

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

  1. 1.

    In addition to Kony and al-Bashir, Okot Odihambo, Dominic Ongwen, Vinceti Otti (purportedly deceased), Ahmed Haorun, Ali Kushayb, Abdel Rahim Hussein, and Sylvestre Mudacumura all remain at large. Moreover, Saif al-Islam Gaddafi and Abdullah Senussi, though in Libyan custody, are wanted by the Court. See Mark Kerston, Libya vs. The ICC: The Stalemate Over Saif and Senussi, Global Policy Forum (Aug. 15, 2012), available online.

  2. 2.

    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], Article 89.

  3. 3.

    See Rome Statute, Article 86. See also Article 87 (stating that “The Court shall have the authority to make requests to States Parties for cooperation”), Article 88 (requiring States Parties to “ensure that there are procedures available under their national laws for all forms of cooperation which are specified in [the Statute]”), and Article 93 (“requiring States Parties to provide “any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.”)

  4. 4.

    Rome Statute, Article 87.

  5. 5.

    Richard H. Cooper & Juliette Voinov Kohler, Moving From Military Intervention to Judicial Enforcement: The Case for an International Marshals Service, in Responsibility to Protect: The Global Moral Compact for the 21st Century, 243, 252, (Cooper & Kohler, eds., 2009).

  6. 6.

    There is one exception to this rule. Non-states parties must only cooperate with Court requests in this context if “the UNSC referred the situation to the Court and, within its referral, explicitly specifies that non-states parties are obligated to arrest the indictee and send him to The Hague. David Scheffer, Video Lecture on the Arrest Question, ICC Forum (Feb. 5, 2013), available online.

  7. 7.

    Christopher M. Supernor, International Bounty Hunters for War Criminals: Privatizing the Enforcement of Justice, 50 A.F. L. Rev. 215, 225 (2001).

  8. 8.

    See Scheffer, supra note 6.

  9. 9.

    Id.

  10. 10.

    Id.

  11. 11.

    Id.

  12. 12.

    Id.

  13. 13.

    See Cooper & Kohler, supra note 5, at 255-59.

  14. 14.

    Id.

  15. 15.

    Patricia M. Wald, Apprehending War Criminals: Does International Cooperation Work?, 27 Am. U. Int’l L. Rev. 229, 246 (2012).

  16. 16.

    Id. at 244.

  17. 17.

    Id. at 243-45

  18. 18.

    See ICC Prosecutor Urges UN to Consider Sudanese Arrests, Voice of America (Jun. 5, 2012), available online.

  19. 19.

    A database of all UNSC resolutions can be found on the Security Council’s website. See Security Council Resolutions, UNSC, available online (last visited May 9, 2013).

  20. 20.

    ICC FAQ, ICC Watch, available online, (last visited May 9, 2013).

  21. 21.

    Assessment of Member States’ contributions to the United Nations regular budget for 2012, United Nations Secretariat (Dec. 27 2011), available online.

  22. 22.

    How the European Union and the United Nations cooperate, UNRIC, available online, (last visited May 9, 2013).

  23. 23.

    See Cooper & Kohler, supra note 5, at 258.

  24. 24.

    Rachel Clarke, Above the Law: US Bounty Hunters, BBC News, Jun. 19, 2003, available online. See also Supernor, supra note 7, at 232.

  25. 25.

    See Clarke, supra note 24.

  26. 26.

    Taylor v. Taintor, 83 U.S. 366, 371-2 (1872).

  27. 27.

    Jonathan Drimmer, When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L. Rev. 731, 752 (1996).

  28. 28.

    Id. at 750-53.

  29. 29.

    See Supernor, supra note 7, at 234.

  30. 30.

    Id.

  31. 31.

    See In Nicolls v. Ingersoll, 7 Johns. 145, (N.Y. 1810) (holding that “the power of taking and surrendering is not exercised under any judicial process, but results from the nature of the undertaking by the bail.”).

  32. 32.

    See Drimmer, supra note 27, at 754-55. See also Ryan M. Porcello, International Bounty Hunter Ride-Along: Should U.K. Thrill Seekers Be Permitted to Pay to Experience a Week in the Life of a U.S. Bounty Hunter?, Vand. J. Transnat’l L. 953, 969 (2002).

  33. 33.

    See Supernor, supra note 7, at 235.

  34. 34.

    Id. at 217.

  35. 35.

    Id. at 235.

  36. 36.

    Id.

  37. 37.

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

  38. 38.

    See Supernor, supra note 7, at 236.

  39. 39.

    See Charter of the United Nations, [hereinafter U.N. Charter], Articles 25, 48, available online. Currently, only Taiwan, Kosovo, Palestine, and Vatican City are not Members of the UN. The latter two, however, are permanent non-Member Observer States.

  40. 40.

    U.N. Charter, supra note 39, Article 39. See also Article 41 (stating that the UNSC “may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measure.”) and Article 42 (stating that the UNSC “may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”)

  41. 41.

    See Supernor, supra note 7, at 238.

  42. 42.

    Id.

  43. 43.

    See U.N. Charter, supra note 39, Article 2(4) (“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”)

  44. 44.

    See Supernor, supra note 7, at 239.

  45. 45.

    See Porcello, supra note 32, at 978.

  46. 46.

    John Kerry, More Work to Bring War Criminals to Justice, Huff. Post, Apr. 3, 2013, available online.

  47. 47.

    See Supernor, supra note 7, at 246.

  48. 48.

    Id. at 244.

  49. 49.

    Id. at 242.

  50. 50.

    Id.

While the use of bounty hunters may be an effective solution to the arrest issue, the idea of immunizing private parties who claim to act as bounty hunters strikes me as particularly troubling and impractical. A carte blanche for bounty hunters to arrest suspected war criminals by a wide variety of means seems to be a slippery slope, and a plan with which few nations would likely agree. Many countries, including world powers, but also nations in which war criminals “hide out,” would likely vehemently oppose this type of incursion on state sovereignty. Immunity may also legitimize means of arresting suspects that are not condoned by the international community, or even provide a shield to illegal and violent acts in the name of “international justice.” Instituting a licensing scheme would not likely reign in the actions of bounty hunters, particularly when the oversight or approval is tasked to the ICC itself, where resources are already scarce. The authority or precedent to provide immunity also seems lacking. The immunity of UN officials, rooted in a worldwide, well established, and widely accepted institution, is a far cry from providing immunity to private actors.

How Regime Change Increases Arrest Frequency in International Criminal Courts

Introduction

The International Criminal Court has come under criticism for its failure to secure the arrests of many of the people for whom it has issued warrants.1 Under Article 59 of the Rome Statute, States Parties are responsible for execute warrants when instructed to do so by the Court.2 Other states may also arrest accused persons; if those people were allegedly involved in cases referred to the Court by the United Nations Security Council, their assistance may be required.3 However, the ICC itself lacks any enforcement power. Thus, without state cooperation, the Court cannot obtain custody of the accused.

Unfortunately, States Parties are reluctant to assist in arrests or transferred accused persons from local custody to The Hague. In 2009, the African Union instructed its members not to cooperate with the ICC’s arrest warrant against Sudanese President Omar Hassan al-Bashir, and did the same in 2011 with respect to Col. Muammar el-Qaddafi of Libya.4 Of the nine people for whom the Court has outstanding warrants, three remain in local custody, and eight are still at large.5 The problem of state cooperation is likely to continue due to accusations of an Africa bias on the part of the Court and the rift with the African Union opened by the issuing of a warrant of sitting heads of state in Africa .6

The inability of the Court to execute many of its warrants contributes to doubts about the Court’s efficacy. The refusal of States Parties to cooperate with the ICC highlights the weakness of the Court’s enforcement mechanisms and casts doubt on its staying power as a court. The greatest criticism revolves around the case in Sudan, which provoked a backlash by the African Union, hitherto one of the ICC’s strongest supporters.7 Alex de Waal, among others, has argued that the warrant against al-Bashir is highly unlikely to be arrested, and the only benefit of the warrant is to “[try] President al-Bashir…in the Court of world opinion.”8 That statement is particularly disturbing when one considers that the ICC was intended to dispense impartial justice via the law. While some A.U. countries have since increased pressure on al-Bashir in the international arena, the A.U. itself continues to support him.9 By publicly defying the ICC and instructing its member states to do the same, the A.U. is depriving the Court of its crucial enforcement powers in the place it needs them most, as all of the Court’s current cases are in Africa. Without local assistance, and given the limited support the world’s most powerful states have offered the Court,10 the ICC has had limited success in ensuring the execution of its warrants.

Limitations on the Court’s ability to act translate to an inability for it to achieve its desired ends. The declared purpose of the ICC is to “help end impunity for the perpetrators of the most serious crimes of concern to the international community,”11 which, in turn, should deter perpetrators from engaging in “heinous crimes.”12 The Court cannot end impunity unless it successfully brings perpetrators to account, which requires the capture and trial of the accused. Barring results of this kind, it faces severe limitations on its value as a deterrent; as James F. Alexander points out, “[t]he fewer perpetrators who are brought to justice, the less certainty of public punishment and consequent deterrent effect may be expected.”13 As the Court has only completed three cases since it came into effect in 2002, only one of which has resulted in a conviction,14 the strong deterrent described by Alexander has not yet materialized.

The most common suggestions for improving the effectuation of warrants--fostering better relations with States Parties, encouraging the world’s most powerful states to play a more active role in enforcement, and creating an international police force--are unlikely to bear fruit in the short term.

But events outside the ICC’s control can influence whether the target of an arrest warrant is arrested and transfer to The Hague. In this essay, I argue that the likelihood that an international arrest warrant will be executed increases with changes in politico-military regimes, and that the rate of regime change in Africa in particular is high enough for the effectuation of ICC arrests to improve absent the introduction of any new policies. For the purposes of this paper, I define regime change as a change of leadership that results in a shift in the control of a state’s government or military forces.15 Such changes in regime increase the likelihood that an accused person will lose the political and/or military protection that shields him or her from arrest, or reduce local reluctance to transferring a person in local custody to The Hague.

Regime change is not an immediate solution. While it is a frequent occurrence, particularly in Africa, it does not occur at a constant rate in specific countries or follow a particular pattern. Nor does it necessarily guarantee that a new regime will be more supportive of the ICC and be more willing to collaborate with respect to arrests. However, several reasons suggest, and the experience of the International Criminal Tribunal for the Former Yugoslavia (ICTY) seems to confirm, that changes in military and political control increase the likelihood that those accused by international criminal tribunals will be arrested over time.

In Part One, I briefly explain why the common suggestions improving the Court’s ability to execute its duties are difficult for the Court itself to foster and will be difficult for anyone to implement. In Part Two, I demonstrate that changes in regime increase the likelihood that a state will arrest those indicted by an international tribunal and transfer them to the tribunal’s custody. I explore the reasons why a change in political and/or military power should result in the increased likelihood of a state to cooperate with an international tribunal, and consider these factors in light of Serbia’s experience with the International Criminal Tribunal for the Former Yugoslavia (ICTY) and Rwanda’s experience with the International Criminal Tribunal for Rwanda (ICTR). In Part Three, I analyze the rate of regime change in Africa from 1965 to 2012 using an Ordinary Least Squares regression analysis. The rate of change, while decreasing, remains high. I also use an OLS regression to examine the rate of regime change in the rest of the world over the same period, which is nearly identical to that seen in Africa, and informally compare those rates to the rates in current situation parties. I conclude by remarking on the potential applicability of this theory to future ICC cases outside of Africa.

I. Proposals to Improve the Rate of Execution of ICC Warrants

Common proposals for improving the efficacy of the ICC, both in general and with respect to the effectuation of warrants, include increasing outreach to States Parties, particularly in Africa, to improve the Court’s image; encouraging the U.S., China, and Russia to take a more active role in supporting the Court; and creating an international police force that could arrest alleged criminals independently. The ICC has little control over whether these proposals will come to fruition, and in any case, they proposals are unlikely to become reality within the next ten years if at all.

A. Outreach

The experience of the ICTY and ICTR suggest that states will not cooperation with international tribunals absent if they do not trust the institutions, and outreach is one way to increase confidence in such a court’s good intentions. Scholars of the ICTY have identified Serbia and Croatia’s skepticism about the tribunal’s function and impartiality as a barrier to eliciting their cooperation in the ICTY’s early years.16 Diane Orentliche criticizes the ICTY for waiting six years to establish an outreach program, by which time distrust of the tribunal in Serbia was always deeply ingrained.17 A polity that is supportive of collaboration with the ICC may be able to pressure political and military leaders to cooperate, particularly if the state in question is a democracy. To that end, it seems likely that increased outreach, both to locals and directly to governments, could improve relations between the ICC and African countries and thus increase the likelihood of collaboration with respect to arrest warrants.

However, achieving state cooperation is a lengthy process. It took eight years for the ICTY to gain custody of Milošević, fifteen to gain custody of Radovan Karadžić and Goran Hadžić,18 and eighteen to gain custody of Ratko Mladić, who had been living freely as late as 2009.19 It is possible that Mladić’s arrest would not have occurred absent continued pressure from the European Union, which refused to open membership talks with Serbia until he was arrested.20 The ICTY’s belated outreach process, targeted at victims rather than high-level officials, had not communicated the tribunal’s purpose to many victims even through the late 2000s.21

The process of persuading an unfriendly regime to tolerate an international criminal tribunal, much less actively support it, is time-consuming and appears to require external support in order to be effective. The ICC is facing difficulties similar to those of the ICTY with respect to Sudan, and similar issues are likely to arise in the Court’s case against Uhuru Kenyatta, the current president of Kenya, who, while currently cooperating with the Court, has little incentive to provide it with incriminating evidence.

Other difficulties face the ICC in improving its relationship with situation countries via outreach. First, while Court’s relationship with situation countries has improved since Fatou Bensouda became Prosecutor,22 the alleged Africa bias continues to weigh heavily on the relationship between the ICC and the A.U. Questions of bias are unlikely to be assuaged unless and until Ms. Bensouda opens a formal investigation in a non-African country.

Second, the Court cannot expand its outreach programs without funding, and the Court’s overall budget is subject to constraints, particularly given the current state of the world economy.23 The Court’s budget in 2011 was €103.6 million24 and €108 million in 2012;25 the proposed budget for 2013 is €118.75 million.26 The Court has explicitly asked that some of the additional fund be allotted to outreach.27 Even if the proposed budget is approved, there is no guarantee that the Court will be able to expand outreach activities given the Court’s other financial needs. Since 2011, the Court has taken on new investigations in Libya, Côte d’Ivoire, and Mali.28 The trial of Uhuru Kenyatta is scheduled to begin this July.29 Moreover, most cases still have not reached the trial stage, two appeals are underway, and eight countries are still under preliminary investigation. Thus, an expansion of outreach activities of any kind may not be feasible.

B. Great Power Assistance

Absent the cooperation of States Parties, the Court may benefit from the assistance of powerful countries. The U.S., Russia, and China have deep pockets, well-equipped military forces, and trained law enforcement at their disposal, none of which are available to the ICC. Moreover, China and the U.S. may be able to use their vast resources to provide States Parties incentives to cooperate by offering foreign aid, conditional trade deals, or other forms of assistance.

In the past, however, these states have not offered unequivocal support to international criminal tribunals, even when they were perfectly suited to do so. For instance, in the former Yugoslavia, NATO forces initially refused to arrest indicted suspects in Bosnia even though NATO forces were active there and had the authority to arrest ICTY indicted suspects.30 The U.S., Russia, and China will prove similarly reluctant to offer their support to the ICC.

While Russia and the U.S. are signatories to the Rome Statute, neither they nor China are among the Court’s greatest proponents. China and the U.S. have expressed major reservations regarding some of the Rome Statute’s provisions.31 With respect to the U.S., the American Service-members’ Protection Act prevents the U.S. from supporting the ICC, formally cooperating with it, or assisting it in any way should the Court target an American citizen.32 However, over time, the U.S. has become more supportive of the ICC, and on April 3, 2013, Secretary of State John Kerry announced the expansion of a program offering rewards for information leading to the arrest, transfer, and conviction of four of the nine people for whom the Court has outstanding warrants.33 Even so, the U.S. is highly unlikely to ratify the convention given Congress’s persistent partisan divide and the unpopularity of international law among conservatives.34 Moreover, China and Russia rarely support efforts to intervene in states’ domestic affairs, particularly when military force is involved.35 Therefore, while the U.S. is now offering indirect assistance, and China and Russia are not actively obstructing the Court, the ICC cannot rely on them as an alternative to the cooperation of States Parties.

For the same reasons, the Security Council is not likely to increase its assistance in securing the arrest of the accused in referral cases, as the U.S., Russia, and China all have veto power.

C. An International Police Force

Discussions of a global police force arise regularly in both the legal and international relations literature. Scholars who take the possibility seriously tend to treat the idea favorably, and contemplate different possibilities for structuring an international police force.36 Others, notably international relations realists, do not believe that a world government is viable under the international nation-state system.37

The question of an international police force’s feasibility is too complex to address within the confines of this essay. However, assuming that a global police force is an achievable goal, such a force still will not arise in the near future, would take years to develop into a functional, competent force, and in any case would be limited in its reach without military support.

Given the sovereignty concerns of the U.S., China, and Russia discussed above, and in particular the U.S.’s reluctance to submit to an international institution with jurisdiction over its military, neither those countries nor the U.N. Security Council are likely to sponsor the creation of a global police force without a radical shift in outlook and policy. In their absence, there are few alternative sponsors. While the European Union has a Europe-wide police force, it is an investigative body only. If E.U. member states will not entrust a trans-Europe force with arrest powers, they are unlikely to support vesting such powers in an institution over which they have even less control.38 The A.U.’s current discomfort with the ICC would likely extend to institutions intended to strengthen it, and even if it were supportive of such a force, it lacks the money to fund it independently. Thus, any efforts towards the creation of a world police force have a low probability of success, at least for now.

Even were a world police force to be created tomorrow, it would still encounter difficulties. First, any new global institution requires time to build its reputation, develop standard operating procedures and best practices, and harmonize its staff. Those tasks are more difficult when, as with a military or police force, international practices diverge wildly. Second, even once the police force gained experience and competence, it would still be limited by the fact that police are not equipped to force their way into places where they are not wanted. If a state refused it entry, as Sudan likely would at present, the force’s entrance into the country would cause a diplomatic crisis at best. Equally problematic would be cases in which the accused are under heavy military protection, as is the case in the Democratic Republic of the Congo. Police are not trained to protect themselves in a war zone without military backing, which will not always be on hand.

For those reasons, the creation of an effective international police force with the ability to successfully execute ICC warrants is also doubtful.

D. Alternatives to Action

For the reasons explained above, increasing the ICC’s rate of arrest via deliberate action will prove difficult, at least for now. However, even absent such action, state cooperation with the ICC, and therefore the arrest rate, is likely to increase. Independent factors also play a role in determining whether and well the accused will be arrested. One is international pressure and the provision of carrots and sticks, as was the case in Serbia. Another is political or military regime change.

II. How Regime Change Increases the Effectuation of International Criminal Arrest Warrants

For the purposes of this paper, regime change does not necessarily mean government overthrow, though in Africa the two frequently overlap. Regime change can involve a switch in either political or military control. What matters is not a change in formal titles but a shift in real power, particularly if the shift results in a loss of power by the accused. That shift need not be absolute; it may involve the loss of power by some in a regime but not others.

The reasons why a change in regime may improve cooperation with the ICC are manifold. First, cooperation with the ICC can demonstrate a break with the old regime, which may be desirable if the old regime is unpopular or allegedly responsible for the country’s past problems. Because the ICC only investigates the most severe situations, alleged crimes committed in situation are likely to have had a deleterious effect on the surrounding territory. New leaders can increase their popularity by blaming their predecessors for their country’s ailments and demonstrate their commitment to change by holding their predecessors accountable. Most obviously, in cases involving a civil war, the winning side will have a natural inclination to foist blame on their opponents, and may hope that cooperation will divert the Court’s attention to the other side. Something similar seems to have occurred in Rwanda, where the government cooperated with the ICTR until it began to investigate crimes allegedly committed by President Kagame’s allies.

Even if new leadership does not result in an immediate shift of blame, political developments may encourage political leaders to cease providing the accused with legal protections and members of the military to defect from accused military leaders protected by their own forces. Political shielding of accused persons was a frequent occurrence in Serbia and is currently a concern in the Sudan. Likewise, in Rwanda, Joseph Kony and his subordinates are protected by their own forces and remained unmolested by the Rwandan authorities. Without political or military protection, the accused are more likely to be arrested. Additionally, change in, and solidification of, new political and military regimes can result in new and potentially more effective policies regarding rebel groups such as the Lord’s Resistance Army.

Finally, time and distance from the regime allegedly responsible for criminal acts may decrease tensions associated with holding the accused responsible for events the polity does not believe took place.

A. Serbia

While Serbia was initially reluctant to cooperate with the ICTY, the ICTY nonetheless achieved unique success with respect to arrests: as of July 2011, it had obtained custody of all 161 persons indicted by the tribunal.39 Even though the ICTY’s experience is singular, the fact that all of its warrants were eventually executed suggests that with sufficient political and military evolution, even the least willing of countries may eventually comply with an international tribunal.

Unsurprisingly, under Slobodan Milošević, who was President of Yugoslavia throughout the Yugoslav Wars, Serbia refused to cooperate with the ICTY.40 Similarly, his successor, Vojislav Koštunica, actively obstructed tribunal early in his tenure. For instance, Koštunica approved the grant of an Army pension to Ratko Mladić in 2002, which Mladić continued to receive through 2005.41 Likewise, in 2001, Koštunica created a “Commission of the General Staff of the Army of Serbia and Montenegro for Cooperation with the Hague Tribunal” staffed by current and former army members under the control of Ratko Mladić’s former deputy, who had also been indicted.42

However, at the same time, Serbian Prime Minister Zoran Djindjić pressed for cooperation with the ICTY and engineered the surrender of Milošević to the tribunal over Koštunica’s objections and in spite of his protests that the arrest was illegal.43 The government continued to surrender indicted Serbians throughout the next two decades, though the degree to which it cooperated with both arrests and trial proceedings varied according to current events —for instance, the assassination of Djindjić in 2003 sparked an increase in cooperation--and the number of ultra-nationalists in the National Assembly.44

It is particularly telling that the extent of Serbia’s cooperation with the ICTY varied as control of government and the security services shifted between the pro-Hague reformists and the anti-Hague nationalists. Neither had absolute control of Serbia after 2001, but whenever the reformists gained ground, Serbia increased its collaboration with the tribunal, even though the nationalists still limited its extent. In Serbia’s case, political change had a discernable effect on cooperation with the court, both generally and with respect to warrant effectuation.

Many other factors affected the Serbian situation, including pressure from the E.U. However, it is important to note that while the European Union’s influence encouraged the reformists to collaboration with the ICTY, the ultra-nationalists still resisted cooperation despite support for E.U. membership among a majority of Serbs.45 If they had retained total control over Serbia, the government might have rebuffed the E.U.’s efforts. It seems likely that some regimes are more receptive to certain external pressures than others. Regime change increases the probability that whoever holds power will be responsive to such pressure.

B. Rwanda

The ICTR faced difficulty not with executing warrants but with ensuring the fair and effective prosecution of those aligned with the regime of President Paul Kagame. However, the Rwandan experience demonstrates how regimes can and will shelter their allies from international criminal tribunals.

The UN tasked the ICTR with investigating the genocide of Hutus in Rwanda and other serious violations of international humanitarian law in 1994.46 Notably, the UN extended the Tribunal’s temporal jurisdiction past the end of the genocide but before the end of Tutsi retaliation, and deliberately located the tribunal outside Rwanda “to ensure not only the reality but also the appearance of complete impartiality and objectivity in the prosecution of persons responsible for crimes committed by both sides to the conflict.”47 While Rwanda was initially supportive of the ICTR’s efforts, it ceased to cooperate with the tribunal in 2001, after new Chief Prosecutor Carla Del Ponte launched an investigation alleged crimes committed by Tutsi members of the Rwandan Patriotic Front (RPF), which Kagame led in 1994.48 Rwanda proceeded to block would-be witnesses from leaving the country to testify, resulting in the suspension of three trials.49 Del Ponte’s successor, rather than press the issue, forwarded the trials of RPF to courts in Rwanda, and refrained from contesting the fairness of procedurally defective trials by military tribunals.50

Political and military leaders are naturally reluctant to aid in the capture of investigation of their allies, particularly when those allies might retaliate by providing a tribunal with sufficient evidence to implicate those leaders in the same or other crimes. The likelihood of Rwandan cooperation with the ICTR with respect to the alleged crimes of RPF members would increase dramatically if Kagame’s opponents were to take power, as they would have no special solicitude for the current president’s allies.

Due to a lack of statistically significant data from the ad hoc tribunals or a way for controlling other variables specific to situation countries, I cannot determine a numerical correlation between the rate of regime change and the rate of arrest. However, the evidence above suggests that such a correlation exists, and that change in the regimes of situation countries would increase the likelihood that the ICC’s accused will be captured and transferred to The Hague. The question, therefore, is whether regime change is likely to occur in those countries. An analysis of the frequency of regime change in Africa, where all current situation countries are located, indicates that such changes are likely to occur.

III. Regime Change Frequency in Africa

The analysis below is not meant to test any hypothesis. Rather, it demonstrates statistically and graphically the frequency of regime change in Africa and in the rest of the world. For the purpose of statistical analysis, I limited my data set to instances of 1) coups, both bloodless and otherwise, 2) democratic transitions, including both caretaker regimes and the successful introduction of democracy, 3) rebellions resulting in government overthrow, 4) government overthrow resulting from military invasions51 and 5) peaceful breakups.52 Coups are defined as military interventions that resulted in the installation of a new government that lasted for at least one week,53 though in the cases presented here, they persisted for months if not years. The set does not include partial shifts in political or military power, such as civil wars or peaceful transitions between democratic leaders, because they are more difficult to identify.

A. Data

The analyses below use data from Monty G. Marshall’s Systemic Peace in Africa, Stephen Haggard et al.’s Distributive Conflict and Regime Change: A Qualitative Dataset, Patrick McGowan’s African Military Coups d’Etat,”, and Jonathan M. Powell and Clayton L. Thyne’s Global Instances of Coups from 1950 to 2010.54 McGowan is frequently cited in studies of political stability in Africa; Marshall and Powell and Thyne, while lesser known, use the same definition of coup, and their data is therefore compatible.

I made two primary modifications to the combined data set. First, the sets often differed on the year in which a change in regime took place. In these cases, I selected whichever year was the most commonly used. Second, some of the data sets included shifts in regime type that did not amount to regime change as defined in this paper. For instance, the Haggard data set included changes in constitutional regimes that did not result in a change in political leadership. Those data points were removed.

There was at least one instance of regime change in Africa between 1965 and 1994. The same is true of the rest of the world for every year but 1977. After 1994, instances of regime change dropped, but changes in regime occurred 21 times in Africa between 1995 and 2012 and 21 times in the rest of the world.55

B. Calculations

I calculated the mean and standard deviation of the number of regime changes in Africa per year between 1965 and 2012. Then I ran an Ordinary Least Squares regression to determine change in the rate of regime change during those years. I did the same for regime changes in the rest of the world from 1965 to 2012, and then repeated the process counting the breakup of the Soviet Union in 1991 as a single data point.

C. Results

The mean for regime change in Africa was 2.63 changes year with standard deviation 0.25. In the rest of the world, regime change was slightly lower at 2.44 changes per year with standard deviation 0.39. When data from 1989-1991 was excluded, the rate of African regime change dropped to 2.56 changes per year with variance 0.26, and plummeted in the rest of the world at 2.08 changes per year with variance 0.23.

Table 1. Mean Regime Change/Year
Mean r
Regime Change 
(Africa) 2.63 0.24
Regime Change (Other) 2.44 0.39
Regime Change
(Africa 1) 2.56 0.25
Regime Change (Other 1) 2.08 0.23

While the number of situation countries is too low for statistical analysis, for the purposes of this essay, an informal comparison is sufficient. I exclude Kenya from the list below because all the Kenyan accused are cooperating voluntarily with the Court. The mean rate of change in situation countries, at 3.29 changes per year, is higher than the rate for Africa as a whole.

Table 2. Regime Change in Situation Countries
Situation Country # Regime Changes
Uganda 4
Democratic Republic of the Congo 3
Sudan 3
Central African Republic 5
Libya 2
Côte d'Ivoire 1
Mali 5
Total Regime Changes 23
Mean 3.29

Both OLS regressions demonstrated a downward trend in regime change rate. The unadjusted African regime change coefficient was—3.65; for the rest of the world, indicating a slower deceleration. However, when data from 1989 to 1991 was removed, the coefficients were—2.94 and—5.30, respectively indicating that, barring radical changes in the global landscapes, regime change in Africa is actually decelerating more slowly.

Table 3. Ordinary Least Squares (OLS) Regression Results for Regime Change (Africa)
Year Coef. Std. Err. t P>|t|
(rc = regime change in Africa, unadjusted)
Regime Change -3.03 1.13 -2.68 0.01
Scatter Graph for Table 3 on Regime Change (Countries in Africa)
Table 4. Ordinary Least Squares (OLS) Regression Results for Regime Change (Other, unadjusted)
Year Coef. Std. Err. t P>|t|
(rcother = regime change in other countries than Africa, unadjusted)
Regime Change -2.91 1.10 -2.66 0.01
Scatter Graph for Table 4 on Regime Change (Countries other than Africa)
Table 5. Ordinary Least Squares (OLS) Regression Results for Regime Change (Africa, adjusted)
Year Coef. Std. Err. t P>|t|
Regime Change -2.94 1.11 -2.66 0.01
Table 6. Ordinary Least Squares (OLS) Regression Results for Regime Change (Other, adjusted)
Year Coef. Std. Err. t P>|t|
Regime Change -5.30 1.00 -5.28 0.000

D. Analysis

While the rate of regime change in Africa decreasing, it is doing so in an unpredictable manner, and, when one controls for the breakup of the Soviet Union, is decelerating more slowly in Africa than it is in the rest of the world.

African countries in particular have a high rate of regime change, one that, on average, is higher than the rate of change in the rest of the world, more so when data from 1991 is excluded from the calculations. The rate of African regime change decreased between 1965 and 2012, and probably will not return to its former height, which reflected rapid overturn in the wake of decolonization. The number of regime changes per year has decreased since the mid-1990s, but at least one change continues to take place each year, and varies wildly from year. In the absence of the break-up of the Soviet Union, the rate of regime change in Africa is decelerating more slowly than in the rest of the world, and because Africa’s mean regime change per year is higher, it seems likely that the continent’s rate of regime change will remain higher than the rate of change in other regions, at least for now. It is also important to note the model does not take into account shifts from single-party to multi-party democratic regimes or changes in ruling political parties, which, while hitherto uncommon in Africa, are likely to increase given the apparent stabilization of democracies in countries such as Kenya.

Because OLS regressions cannot be used for extrapolations, I cannot predict the future rate of regime change in Africa as a whole, much less the rate in the ICC’s current situation countries, for which I do not have statistically significant data. However, the data, when combined with recent African political history and the persistence of military regimes on the continent, suggests that regime change in Africa will continue to arise frequently, increasing the opportunity for the evolution of policy towards the ICC and the likelihood of situation countries’ eventual cooperation.

Conclusion

Changes in military and political control gives new leaders incentives to place responsibility for their countries’ ills on their predecessors, can increase the ideological differences between the old regime and the new, and lessens the likelihood that a regime will offer the accused political protection or that his military forces will shield him from arrest, regime change is likely to increase the rate of arrest in Africa, and, if the experience of the ICTY in Serbia is any guide, eventually result in the arrest or surrender of all of the accused to the Court. The process may take time, but it indicates that we should not fear that the perpetrators of crimes under investigation by the Court will be shielded from justice forever.

The question remains how this correlation will affect future ICC cases, which will not always be limited to African countries. The rate of regime change is lower in the rest of the world than it is in Africa. If a future situation country refuses to cooperate with the Court, probability suggests that there will be fewer opportunities for transition to a regime less hostile to the ICC.

However, it is important to note that regime change does not occur in a vacuum. Shifts in power are far more frequent in some countries than in others. They arise because of a confluence of internal and external factors that this paper does not seek to identify. The fact that regime change is currently more likely to occur in Africa than it is elsewhere does not preclude the possibility that other countries will undergo regime change.

Furthermore, regime change is only one factor that improves the likelihood of cooperation with the ICC. International pressure is also a crucial component. As the Court’s strength and legitimacy increase, so does pressure on situation countries and the people therein to cooperate, as the U.S., Russia, and China’s evolving attitude towards the ICC demonstrates. Even in the absence of regime change, more arrests may be effectuated. It is only a matter of time.

Appendices

Appendix 1. Regime Change by Country (Africa)
Country Year Type
Benin 1965 Coup
  1965 Coup
  1967 Coup
  1969 Coup
  1975 Coup
Burkina Faso 1966 Coup
  1974 Coup
  1976 Coup
  1980 Coup
  1982 Coup
  1983 Coup
  1987 Coup
Burundi 1966 Coup
  1976 Coup
  1987 Coup
  1996 Coup
CAR56 1966 Coup
  1979 Coup
  1981 Coup
  1985 Democratic Transition
  2003 Coup
Chad 1975 Coup
  1982 Coup
  1990 Coup
Comoros 1975 Coup
  1978 Coup
  1989 Coup
  1999 Coup
Republic of Congo 1968 Coup
  1977 Democratic Transition
  1979 Democratic Transition
DRC 1965 Coup
  2001 Coup
  2012 Coup
Equatorial Guinea 1979 Coup
Ethiopia 1974 Coup
  1974 Coup
  1977 Coup
Gambia 1994 Coup
Ghana 1966 Coup
  1969 Coup
  1972 Coup
  1978 Coup
  1979 Coup
  1981 Coup
  1993 Democratic Transition
Guinea 1984 Coup
  2008 Coup
Guinea-Bissau 1980 Coup
  1998 Coup
  1999 Coup
  2000 Democratic Transition
  2003 Coup
  2012 Coup
Côte d’Ivoire57 1999 Coup
Lesotho 1970 Coup
  1986 Coup
  1990 Coup
  1991 Coup
  1993 Democratic Transition
Liberia 1980 Coup
Libya 1969 Coup
  2011 Revolution
Malawi 1993 Uprising
  1994 Democratic Transition
Mali 1968 Coup
  1991 Coup
Mali 1992 Democratic Transition
  2012 Coup
  2012 Democratic Transition
Mauritania 1978 Coup
  1980 Coup
  1984 Coup
  2003 Coup
  2005 Coup
  2008 Coup
Niger 1974 Coup
  1996 Coup
  1999 Coup
  2000 Democratic Transition
Nigeria 1966 Coup
  1966 Coup
  1974 Coup
  1975 Coup
  1983 Coup
  1985 Coup
  1993 Coup
  2010 Coup
Rwanda 1973 Coup
  1994 Coup
Sierra Leone 1967 Coup
  1968 Coup
  1992 Coup
  1996 Coup
  1997 Coup
Senegal 2000 Democratic Transition
Somalia 1969 Coup
Sudan 1969 Coup
  1985 Coup
  1989 Coup
Togo 1967 Coup
  2005 Coup
Uganda 1966 Coup
  1971 Coup
  1980 Coup
  1985 Coup
Algeria 1965 Revolution
  1992 Coup
South Africa 1993 Democratic Transition
  1994 Democratic Transition
Zambia 1990 Democratic Transition
  1991 Democratic Transition
Madagascar 1972 Coup
  2009 Democratic Transition
Swaziland 1973 Coup
Seychelles 1977 Coup
Algeria 1965 Coup
Tunisia 2011 Revolution
Egypt 2011 Coup
Appendix 2. Regime Change by Country (Other)
Country Year Type
Haiti 1986 Coup
  1988 Coup
  1988 Coup
  1991 Coup
  1994 Democratic Transition
Dominican Republic 1965 Coup
Grenada 1979 Coup
  1983 Coup/Military Invasion
Guatemala 1982 Coup
  1983 Coup
  1986 Democratic Transition
Honduras 1972 Coup
  1975 Coup
  1978 Coup
  2009 Coup
El Salvador 1979 Coup
  1984 Democratic Transition
Panama 1968 Coup
  1989 Military Invasion
Suriname 1980 Coup
Ecuador 1966 Coup
  1972 Coup
  1976 Coup
  2000 Coup
Peru 1986 Coup
  1975 Coup
  1975 Coup
  1980 Democratic Transition
Brazil 1969 Coup
Bolivia 1969 Coup
  1970 Coup
  1971 Coup
  1978 Coup
  1979 Coup
  1980 Coup
  1981 Coup
Paraguay 1989 Coup
Chile 1973 Coup
  1990 Democratic Transition
Argentina 1966 Coup
  1970 Democratic Transition
  1976 Coup
Uruguay 1973 Coup
  1985 Democratic Transition
Portugal 1974 Coup
Greece 1967 Coup
  1973 Democratic Transition
Cyprus 1974 Military Invasion
Russia 1991 Peacful Separation
Belarus 1991 Peacful Separation
Romania 1991 Revolution
Azerbaijan 1991 Peacful Separation
Tajikistan 1991 Peacful Separation
Kyrgyzstan 1991 Peacful Separation
Uzbekistan 1991 Peacful Separation
Turkmenistan 1991 Peacful Separation
Armenia 1991 Revolution
Moldova 1991 Revolution
Ukraine 1991 Revolution
Estonia 1990 Revolution
Latvia 1990 Revolution
Lithuania 1990 Revolution
East Germany 1989 Revolution
Bulgaria 1990 Revolution
Albania 1991 Revolution
Poland 1989 Revolution
Macedonia 1991 Revolution
Turkey 1971 Coup
  1980 Coup
Iraq 1968 Coup
  2003 Military Invasion
Syria 1966 Coup
  1969 Coup
  1970 Coup
Yemen 1967 Coup
  1974 Coup
  1978 Coup
  1986 Coup
Qatar 1972 Coup
  1995 Coup
Oman 1970 Coup
Afghanistan 1973 Coup
  1978 Coup
  2001 Military Invasion
Pakistan 1971 Coup
  1977 Coup
  1999 Coup
  2008 Democratic Transition
Bangladesh 1975 Coup
  1975 Coup
Myanmar 1988 Coup
  2010 Democratic Transition
Thailand 1976 Coup
  1977 Coup
  1991 Coup
  2006 Coup
Cambodia 1997 Coup
Vietnam 1965 Coup
  1965 Coup
Indonesia 1966 Coup
  1999 Democratic Transition
Fiji 1987 Coup
  2006 Coup
Czech Republic 1993 Revolution
Slovakia 1993 Revolution
Serbia & Montenegro 1992 Revolution
Bosnia & Herzegovina 1992 Revolution
Croatia 1991 Revolution
Serbia 1996 Peacful Separation
Montenegro 2006 Peacful Separation
Slovenia 1991 Revolution
Ghana 1993 Democratic Transition
Madagascar 1972 Revolution
  1992 Democratic Transition
Nepal 1990 Revolution
São Tomé and Príncipe 1975 Revolution
South Korea 1988 Democratic Transition
Appendix 3. Number of Regime Changes by Year, Grouped by Region
Year Africa Countries Other Countries
1965 5 3
1966 7 2
1967 3 4
1968 3 2
1969 5 3
1970 1 4
1971 1 4
1972 2 4
1973 2 4
1974 5 3
1975 4 6
1976 2 4
1977 3 2
1978 3 4
1979 5 3
1980 5 4
1981 2 1
1982 3 2
1983 2 1
1984 4 1
1985 1 0
1986 2 4
1987 0 1
1988 2 4
1989 3 4
1990 4 6
1991 3 17
1992 5 3
1993 4 3
1994 0 1
1995 3 1
1996 1 1
1997 2 1
1998 4 0
1999 3 2
2000 1 1
2001 0 1
2002 3 0
2003 0 1
2004 5 0
2005 2 0
2006 0 3
2007 0 0
2008 2 1
2009 1 1
2010 1 1
2011 3 0
2012 4 0

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

  1. 1.

    See, e.g., David Kaye, Who’s Afraid of the International Criminal Court?, 90 Foreign Aff. 118, 118 (2012); Lisa Clifford, “Terminator” Case Casts Shadow over International Criminal Court, Times (London), Oct. 7, 2010, available online.

  2. 2.

    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], Article 52.

  3. 3.

    See Dapo Akande, The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC, 10 J. Int’l Crim. Just. 299 (2012).

  4. 4.

    Andrew England, Malawi pulls out of hosting AU summit, Fin. Times, Jun. 8, 2012, available online; African Union Opposes Warrant for Qaddafi, AP, Jul. 2, 2011, available online.

  5. 5.

    See All Situations, The Int’l Criminal Court, available online (last visited May 6, 2013).

  6. 6.

    See Rome Statute, supra note 2; Akande, supra note 3; Africa Debate—Is the ICC Targeting Africa Inappropriately?, ICC Forum, available online (last visited May 7, 2013).

  7. 7.

    See Max du Plessis, The International Criminal Court that Africa Wants, Inst. For Sec. Studies 67-76 (2010), available online.

  8. 8.

    Alex de Waal & Gregory H. Stanton, Should President Omar-al-Bashir of Sudan be Charged and Arrested by the International Criminal Court? An Exchange of Views, 4 Genocide Stud. & Prevention 329, 332-33 (2009); but see Emily Henken Ritter & Scott Wilford, Bargaining and the Effectiveness of International Criminal Regimes, 24 J. Theoretical Pol. 149 (2011) (arguing that the suggest that the ICC is deliberately issuing warrants despite the low likelihood that they will be executed because it wants to appear “tough” and is unable to do so via strategic prosecutions; thus, it is cementing its legitimacy by going after anyone it can).

  9. 9.

    Marlise Simons, Wanted, Sudan’s President Can’t Escape Isolation, N.Y. Times, May 2, 2010, available online (noting that al-Bashir has stayed away from conferences in South Africa, Uganda, and Nigeria, the latter of which concerned Darfur); Malawi drops AU summit over Sudanese leader, CNN, Jun. 9, 2012, available online (“Malawi said it won’t host an African Union summit next month because the organization wants Omar al-Bashir, the Sudanese leader accused of war crimes in Darfur, to attend”).

  10. 10.

    See Part II, infra.

  11. 11.

    ICC—About the Court, Int’l Criminal Court, available online (last visited May 7, 2013).

  12. 12.

    Judge Sang-Hyun Song, Written Submissions on Mr Lubanga’s Application for My Disqualification, Mar. 8, 2013, available online.

  13. 13.

    James F. Alexander, The International Criminal Court and the Prevention of Atrocities: Predicting the Court’s Impact, 54 Vill. L. Rev. 1, 12 (2009). The possibility of investigation may still deter potential perpetrators, but it is unclear how long that effect will last if the Court proves unable to try most accused persons.

  14. 14.

    Africa Debate—Is the ICC Targeting Africa Inappropriately?, supra note 6.

  15. 15.

    The Oxford English Dictionary defines regime change as “the replacement of one administration or government by another, especially by means of military force.” I contend that it is the shift in power, and not formal control of a particular institution, that increases the likelihood that a state will cooperate with the ICC. A broader definition is therefore more appropriate in the context of this essay. However, because it is difficult to quantify the definition, and no data sets using that definition have been constructed, I rely on the traditional definition of a coup for my statistical analysis.

  16. 16.

    See, e.g., Diane F. Orentliche, Shrinking the Space for Denial: The Impact of the ICTY in Serbia, Open Society Justice Initiative (2008), available online (noting that the popularity of accused political figures and perception of bias against Serbs have hampered cooperation, and suggesting that absent EU pressure, cooperation would not have materialized); Patrice C. McMahon & David P. Forsythe, The ICTY’s Impact on Serbia: Judicial Romanticism Meets Network Politics, 30 Hum. Rts. Q. 412, 422-23 (2008) (noting that while Serbian perceptions of the ICTY have improved, in 2006, only 16 percent completely approved of cooperating with the tribunal), Victor Peskin & Mieczyslaw P. Boduszynski, Croatia’s Moments of Truth: The Domestic Politics of State Cooperation with the International Criminal Tribunal for the Former Yugoslavia, Jan. 1, 2003, available online (arguing that the Croatian nationalist movement has stymied Croat cooperation with the ICTY despite the desire of some politicians to cooperate).

  17. 17.

    See Orentliche, supra note 16.

  18. 18.

    War Crimes Fugitive Radovan Karadzic Arrested, The Guardian, Jul. 21, 2008, available online.

  19. 19.

    Murray Wardrop & Damien McElroy, Ratko Mladic: War Crimes Fugitive Arrested in Serbia, The Telegraph (London), May 26, 2011, available online.

  20. 20.

    Stephen Castle, Mladic Arrest Opens Door to Serbia’s Long-Sought European Union Membership, N.Y. Times, May 26, 2011, available online. Catherine Ashton, the High Representative of the European Union for Foreign Affairs and Security Policy, was visiting Serbia at the time of the arrest. It remains unclear whether the timing of the arrest was coincidental.

  21. 21.

    Janine Natalya Clark, International War Crimes Tribunals and the Challenge of Outreach, 9 Int’l Crim. L. Rev. 99, 101-106 (2009).

  22. 22.

    Rick Gladstone, A Lifelong Passion is Now Put to Practice in the Hague, N.Y. Times, Jan. 18, 2013, available online.

  23. 23.

    As of 2010, six of the top ten contributors to the ICC were European states; Europe suffered particularly badly from the financial crash due to the eurozone crisis. See The European Council, The European Union and the International Court (2012), at 12, 14, available online; Adam Davidson et al., Europe’s Financial Crisis, in Plain English, N.Y. Times, Dec. 4, 2011, available online.

  24. 24.

    Assembly of States Parties, Res. 4, ICC, ASP, 9th Sess., ICC-ASP/9, at 30-33 (Dec. 10, 2010), at 30-33, available online.

  25. 25.

    Assembly of States Parties, Res. 4, ICC ASP, 10th Sess., ICC-ASP/10/Res.4 (Dec. 21, 2011), at 24-27, available online.

  26. 26.

    Assembly of States Parties, Proposed Program Budget for 2013, ASP, 11th Sess., ICC-ASP/11/10 (Aug. 16, 2012), available online.

  27. 27.

    Id.

  28. 28.

    All Situations, supra note 5.

  29. 29.

    Id.

  30. 30.

    Patricia M. Wald, Apprehending War Criminals: Does International Cooperation Work?, 27 Am. U. Int’l L. Rev. 229, 235 (2012); Kaye, supra note 1.

  31. 31.

    See, e.g., Bing Bing Ja, China and the International Criminal Court: Current Situation, 10 Singapore Year Book of Int’l Law and Contributors 1 (2006) (noting China’s preference for opt-in jurisdiction and a definition of command responsibility that excluded civilian superiors, as well as its distaste for the Prosecutor’s proprio motu powers); Press Release, U.S. Department of Defense, Statement on the ICC Treaty (May 6, 2002), available online (expressing concern that the Court would target American servicemembers involved in counterterrorist or military operations).

  32. 32.

    22 U.S.C. § 7423.

  33. 33.

    Press Release, U.S. Department of State, Secretary Kerry on Bringing War Criminals to Justice Through Expansion of the War Crimes Reward Program (Apr. 3, 2013), available online.

  34. 34.

    See, e.g., Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013), available online, (limiting severely the ability of foreign defendants to file universal jurisdiction claims in American federal court unless their claim has a direct bearing on U.S. interests); Full Written Transcript of Scalia-Breyer Debate on Foreign Law (Feb. 27, 2012 5:44 PM), available online, Jennifer Steinhauer, Weighing the Effect of an Exit of Centrists, N.Y. Times, Oct. 8, 2012, available online,

  35. 35.

    See, e.g., Andrew Jacobs, China Urges Quick End to Airstrikes in Libya, N.Y. Times, Mar. 22, 2011, available online (quoting a front-page article in the People’s Daily, an organ of the Central Committee of the Communist Party which stated that “[h]istorical experience has shown that humanitarian intervention is only an excuse for military intervention into other countries’ domestic affairs”); Neil MacFarquhar, Russia and China Block U.N. Action on Syria, N.Y. Times, Feb. 4, 2012, available online (quoting the Russian Foreign Minister, who warned against “taking sides in a civil war”). Note, however, that both countries appear comfortable to allow, if not support, some degree of intervention. Both approved strikes by U.N. peacekeepers in Sierra Leone against local military bases in 2011, and neither vetoed the Security Council resolution authorizing the use of force in Libya. Dan Bilefsky, Recent U.N. Actions Show Policy Shift, Analysts Say, N.Y. Times, Apr. 5, 2011, available online.

  36. 36.

    See, e.g., Luis Cabrera, Global Governance, Global Government: Institutional Visions for an Evolving World System (2011); Alexander Wendt, Why a World State is Inevitable, 9 European J. of Int’l Rel. 491 (2003); Robert C. Johansen & Saul H. Medlovitz, The Role of Enforcement of Law in the Establishment of a New International Order: A Proposal for a Transnational Police Force, 6 Alternatives: Global, Local, Political 307, 322 (1980); John J. Davenport, Just War Theory Requires a New Federation of Democratic Nations, 28 Fordham Int’l L.J. 763 (2004).

  37. 37.

    See, e.g., John J. Mearsheimer, The Tragedy of Great Power Politics (2003).

  38. 38.

    Europol, About Europol, Europa.eu, available online. Edu/content/page/about-europol-17 (last visited May 13, 2013).

  39. 39.

    Tribunal Welcomes the Arrest of Goran Hadžić, ICTY, Jul. 20, 2011, available online.

  40. 40.

    Orentliche, supra note 16, at 12.

  41. 41.

    Id. at 31-32.

  42. 42.

    Eric Gordy, Serbia After Dindjic: War Crimes, Organized Crime, and Trust, 51 Problems of Post-Communism 10, 16 at note 11 (2004).

  43. 43.

    R. Jeffrey Smith, Serb Leaders Hand Over Milosevic for Trial by War Crimes Tribunal, Wash. Post, Jun. 29, 2001, at A1.

  44. 44.

    See Orentliche, supra note 16, at 39-50. Within four months of Djindjić’s assassination, one Serb had been arrested and four had surrendered themselves to the ICTY. Cooperation with the tribunal fell sharply following the Serbian Radical Party winning the December 2003 parliamentary elections. Support again increased after the election of the reformist Boris Tadić to the Presidency in 2004, and thereafter wavered depending on whether Tadić or Koštunica, who became Prime Minister in 2003 and had control over the security services, had the upper hand.

  45. 45.

    Dan Bilefsky, Serbs Losing Fervor for European Union Accession, N.Y. Times, May 4, 2012, available online. In 2009, 75% of Serbs favored E.U. membership.

  46. 46.

    About the International Criminal Tribunal for Rwanda, available online (last visited May 12, 2013).

  47. 47.

    Leslie Haskell & Lars Waldorf, The Impunity Gap of the International Criminal Tribunal for Rwanda: Causes and Consequences, 34 Hastings Int’l & Comp. L. Rev. 49, 55 (2011).

  48. 48.

    Rwandan President Kagame ‘sparked 1994 genocide’, BBC, Oct. 4, 2011, available online.

  49. 49.

    Id. at 57; Victor Peskin, Courting Rwanda—The Promises and Pitfalls of the ICTR Outreach Programme, 3 J. Int’l Crim. Just. 950 (2005).

  50. 50.

    See Haskell & Waldorf, supra note 47 at 60-71.

  51. 51.

    E.g. the American invasions of Afghanistan in 2001 and Iraq in 2003.

  52. 52.

    Limited to the Soviet states that broke amicably with Russia and the separation of Serbia and Montenegro.

  53. 53.

    See Patrick J. McGowan, African Military Coups d’Etat, 1956-2001: Frequency, Trends and Distribution, 41 J. African Studies 339, 343 (2003); Jonathan M. Powell & Clayton L. Thyne, Global Instances of Coups from 1950 to 2010: A New Dataset, 48 J. Peace Research 249, 252 (2011); Monty G. Marshall, Systemic Peace in Africa, Annex 2b (2004), available online.

  54. 54.

    McGowan, supra note 53; Mashall, supra note 53; Powell & Thyne, Global Instances of Coups from 1950 to 2010; Powell & Thyne, Coups d’etat, 1950-Present, Dataset 2 (2011), available online; Stephen Haggard et al., Distributive Conflict and Regime Change: A Qualitative Dataset (Sep. 12, 2012), available online. For the complete dataset, see Appendices I-III.

  55. 55.

    See Appendices I and II for lists of regime changes and their classifications.

  56. 56.

    While the incident is not included in the data set, CAR experienced another coup in March 2013. See Scott Sayare, Mystery Shrouds Rise and Aims of Rebel at Helm of Central African Republic, N.Y. Times, Apr. 14, 2013, available online.

  57. 57.

    While the incident is not included in this dataset, U.N. and French forces, in an excellent example of partial regime change, successfully ousted military leader Laurent Gbagbo in 2011. See Colum Lynch & William Branigin, Ivory Coast Strongman Arrested After French Forces Intervene, Wash. Post, Apr. 11, 2011, available online.

Can the International Criminal Court (ICC) rely on the International Criminal Police Organization (ICPO/Interpol) for effective assistance in securing the arrest of ICC indictees?

Summary

The International Criminal Police Organization (“ICPO” or “Interpol”) is an enormous intergovernmental organization that maintains an information-sharing network for member states’ national police bureaus to exchange internal intelligence in order to combat transnational crime. Among its many focus areas, Interpol’s purview includes war crimes, genocide, and crimes against humanity, the crimes over which the International Criminal Court (“ICC” or “the Court”) currently has jurisdiction. Interpol maintains an international notice system that alerts member states of police-related matters, including the existence of an arrest warrant and a request for assistance in extraditing wanted persons. The ICC has previously requested Interpol’s assistance in notifying police bureaus of outstanding warrants issued by the Court. However, these ICC-related notices have been objectively unsuccessful—with zero notices leading to the arrest and transfer of indicted individuals to the ICC in seven years—and relatively unsuccessful compared to Interpol’s thousands of other notices. Given the unique character of ICC indictees and arrest warrants, Interpol’s decentralized, non-binding model likely does not provide the assistance the ICC requires to secure the arrest and transfer of indicted individuals.

I. Introduction

Since it began operations in 2002, the ICC (or “the Court”) has indicted 30 individuals in eight situation countries.1 Of these 30 indictments, 21 were issued as arrest warrants.2 Unfortunately for the ICC, just seven of these warrants have resulted in the arrest and transfer of wanted indictees to the custody of the Court. This is a matter of grave concern to the ICC, its Office of the Prosecutor (“OTP”), and the Assembly of States Parties to the Rome Statute of the ICC (“ASP”). Whether the ICC can secure the arrest of indicted persons cuts to the heart of the Court’s legitimacy and success. A court, after all, is only as effective to the extent to which it can issue judgments and enforce the laws on which it is based. If the ICC cannot secure the arrest and transfer of indicted persons, its ability to function as a true international criminal court is seriously limited. It is critical, then, to consider all ways in which the ICC can improve its ability to secure the arrest and transfer of indicted individuals.

Although the ICC’s ability to compel states to assist in the arrest of indicted individuals is limited by the structure created by the Rome Statute of the ICC (“Rome Statute”),3 there are other resources possibly available to the Court. The ICPO (or “Interpol”), an intergovernmental police information-sharing organization counting 190 nations among its members, is one such possible resource. This comment examines Interpol’s ability to help the ICC by issuing Red Notices—internationally distributed messages notifying member police bureaus of the existence of an outstanding arrest warrant. Red Notices have been issued for ten individuals indicted by the ICC, but none of these individuals have been arrested and transferred to the custody of the ICC. This low success rate of ICC-related Red Notices compares unfavorably to the success of Interpol’s international notices in general. Based on this track record and other complicating factors, this comment suggests that the ICC should focus on alternative means of securing arrest than police-based mechanisms. The information-sharing networks unlocked by the issuance of Red Notices are undoubtedly valuable—especially because they allow the ICC, in theory, to make use of the police intelligence of non-States Parties. But police bureaus are necessarily constrained by sovereignty limitations as well as by the complex relationships between Red Notices and national extradition and cooperation laws. While the relationship between the ICC and Interpol might be valuable, Interpol does not present what the ICC needs with regard to securing arrests.

II. Interpol and the ICC

A. Capabilities and Limitations of Interpol

ICPO/Interpol is the second-largest intergovernmental organization in the world by membership, after the United Nations. It has 190 member states.4 Interpol is often inaccurately described as an international police force. Unlike true police organizations, however, Interpol does not have dedicated agents empowered to arrest or detain individuals. Instead, Interpol functions as an information-sharing network among the national police bureaus of its member states.5 In the United States, for example, Interpol might coordinate with the Federal Bureau of Investigation (“FBI”), a national investigative body, by liaising with the National Central Bureau (“NCB”), an office controlled by the Attorney General of the United States that functions as the designated Interpol point of contact in the US.6 Interpol was created in 1923 in order to facilitate the quick transfer of information between states in order to combat transnational crime.7

Interpol’s purview is very broad: the organization aims to assist in combating corruption, crimes against children, cybercrime, drug-related crime, environmental crime, financial crime, firearm-related crime, fugitives, maritime piracy, organized crime, pharmaceutical crime, terrorism, human trafficking, illicit good trafficking, counterfeiting, vehicle crime, and art-related crime.8 Indeed, Interpol’s purview allows it to focus on all transnational crime except investigations motivated solely by political, military, religious, or racial considerations;9 it thus claims to be politically neutral.

As a subset of the “fugitives” crime area, Interpol assists in investigations of genocide, crimes against humanity, and war crimes,10 the three crimes that the ICC is currently empowered to investigate.11 According to Interpol’s website:

Genocide, crimes against humanity and war crimes are the most serious crimes of concern to the international community as a whole....As the world’s largest international police organization, INTERPOL possesses the police networks, technical tools and mandate to complement the ongoing efforts in the area of war crimes.12

Article 41 of the Interpol Constitution allows Interpol to establish relations and collaborate with other intergovernmental or non-governmental international organizations pending approval from the Interpol General Assembly.13 Interpol has worked with the International Criminal Tribunal for the former Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”), the Special Court for Sierra Leone (“SCSL”), and the Special Tribunal for Lebanon (“STL”) in the area of war crimes, crimes against humanity, and genocide.14 As discussed below, Interpol has also worked with the ICC with regard to several indicted individuals.

B. Provisions of the Rome Statute Regarding Arrest

In general, parts 5 and 9 of the Rome Statute, which encompass Articles 53-61 and 86-102 respectively, detail at length the procedure for issuing arrest warrants and requesting assistance in securing the arrest of indicted individuals. Article 58(1) empowers the Pre-Trial Chamber of the ICC to issue a warrant of arrest if it is satisfied that there are reasonable grounds to believe that the indicted individual has committed the alleged crimes, and that a warrant is necessary to ensure the individual’s appearance in the Court or to avert certain specified undesirable outcomes.15 Article 86 places a positive obligation on States Parties to cooperate with the investigation and prosecution of crimes under the ICC’s purview.16 The Court is empowered by Article 87(1)(a) to make requests to States Parties for cooperation.17

Unfortunately for the Court, there are not strong built-in mechanisms for the OTP or the ASP to respond to the noncooperation of States Parties. Article 87(7) of the Rome Statute allows the Court to make a finding of noncooperation and refer the matter to the ASP or to the United Nations Security Council (“UNSC”), if the UNSC referred the matter in the first place.18 Beyond this referral, there are no explicit punitive measures written into the Rome Statute for the Court, the ASP, or specific States Parties to respond to noncooperation. This gap between stated treaty obligation and real punitive power has allowed, for example, Sudan’s president Omar al-Bashir, indicted by the Court in March 2009 on five counts of crimes against humanity and two counts of war crimes,19 to travel to States Parties such as Chad, Djibouti, Malawi, and Kenya.20 This lack of a mechanism to enforce the cooperation of States Parties stands in contrast to the charters of other intergovernmental institutions, such as the Organization of American States (“OAS”) and the United Nations (“UN”), which both allow for the suspension or expulsion of member states for violating foundational treaty agreements.21 This creates a gravely detrimental gap in the ability of the Court to function as a true criminal court without case-by-case support from cooperative states. Domestic courts, in contrast to the ICC, are empowered to issue binding court orders, which are enforced by police.

The ICC is, however, empowered to pursue other avenues of cooperation in securing the arrest of indicted individuals. The Rome Statute makes explicit mention of possible collaboration between the ICC and Interpol. Article 87(1)(b) empowers the Court to send requests for cooperation through Interpol or other appropriate regional organizations.22 In addition, Article 54(3) allows the OTP to seek the cooperation of intergovernmental organizations23 and enter into agreements that are necessary to facilitate cooperation with intergovernmental organizations.24 As discussed below in Part III, the ICC has requested Interpol’s assistance with regard to three open situations: Uganda, Sudan, and Libya.

C. Interpol’s International Notice System

As part of its information-sharing network, Interpol issues different types of alerts for different crimes. These notices are distributed to the 190 national police bureaus of Interpol’s member states. Notices are color-coded based on the type of alert. Red Notices, which are Interpol’s highest level of international notice, are issued “to seek the location and arrest of wanted persons with a view to extradition or similar lawful action.”25 Interpol aims to assist national police bureaus in identifying and locating persons for whom Red Notices are issued.26 Interpol has issued over 1,100 Red Notices in connection with war crimes, crimes against humanity, and genocide.27

Just as Interpol is often inaccurately described as an international police force, Red Notices are often inaccurately called international arrest warrants. (The United States Attorney Criminal Resource Manual, for example, describes Red Notices as “the closest instrument to an international arrest warrant in use today.”)28 Unlike true arrest warrants, however, Red Notices are not binding orders on Interpol’s member states. Red Notices are issued on the request of a national police bureau or court (such as the ICC) that has itself issued an arrest warrant.29 Red Notices put Interpol’s member states on notice that there exists an arrest warrant for a particular individual. As one commentator puts it, “Some countries routinely ignore notices; some countries treat the Red Notice as good as an arrest warrant itself; some countries require further action before arrest and extradition. It is really up to national authorities to decide how they treat the Red Notice.”30 Depending on the particular arrangement of a state’s extradition laws, an arrest warrant issued by a governmental body of one state may have binding effect on another state. Some states, for example, have built Red Notices into their extradition laws, so the issuance of a Red Notice creates a sort of binding effect on the state to extradite wanted individuals if the national police bureau is able to arrest a wanted individual.31 In the case of the ICC’s arrest warrants, Article 86 of the Rome Statute places a binding obligation on States Parties to cooperate with the execution of arrest warrants and the effecting of arrest of indicted individuals. (As discussed above in Section B, the Court has limited ability to enforce this binding obligation.) Red Notices in themselves do not have any broad binding effect but they alert police bureaus of the existence of an arrest warrant for a particular individual. This also allows concerned states to make use of Interpol’s information-sharing network to identify and locate wanted individuals.

The potential ineffectiveness of Red Notices with regard to ICC arrest warrants is apparent. States Parties are already made aware of the existence of arrest warrants issued by the ICC by the particular individual relationship a State Party has with the ICC: “through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or acceptance.”32 Article 86 already creates an obligation for States Parties to cooperate as is possible.33 In effect, the Red Notice repeats information already known to States Parties—for whom cooperation is already obligatory—and further spreads it to non-States Parties that are not bound to act by the ICC or Interpol.

However, Red Notices can have two important positive effects: (1) they notify non-States Parties, which might not have been aware of the ICC’s arrest warrants, of the existence of such warrants (although, given the prominence of the ICC and the notoriety of most ICC indictees, it’s unlikely that an ICC arrest warrant will slip under the radar); and (2) they allow cooperative non-States Parties to assist relevant states in identifying and locating wanted individuals through Interpol’s formalized and highly developed information-sharing mechanisms. Despite the limitations of Red Notices, these two effects might be of assistance to the ICC.

III. The Success Rate of ICC-requested Red Notices

As discussed above, the ICC is empowered to request cooperation for its investigation and prosecution of crimes through Interpol, under Article 87(1)(b) of the Rome Statute. Article 4 of Interpol’s constitution allows it to cooperate with intergovernmental organizations, such as the ICC. Under the terms of this relationship, Interpol has issued ten Red Notices notifying its 190 member states’ national police bureaus that arrest warrants exist for certain ICC indictees. These Red Notices have been issued in connection with three open situations, in Uganda, Sudan, and Libya.

Table 1. Interpol Red Notice Issuances Upon the Request of the ICC.
Name of Indictee Situation State Date of ICC Arrest Warrant Date of Interpol Red Notice Issuance Status of Individual
Okot Odhiambo Uganda Jul. 8, 200534 Jun. 1, 200635 Fugitive36
Joseph Kony Uganda Jul. 8, 200537 Jun. 1, 200638 Fugitive39
Dominic Ongwen Uganda Jul. 8, 200540 Jun. 1, 200641 Fugitive42
Raska Lukwiya Uganda Jul. 8, 200543 Jun. 1, 200644 Deceased45
Vincent Otti Uganda Jul. 8, 200546 Jun. 1, 200647 Deceased48
Ahmad Muhammed Harun Sudan Apr. 27, 200749 Sep. 19, 200750 Fugitive
Ali Kushayb Sudan Apr. 27, 200751 Sep. 19, 200752 Fugitive
Muammar Gadhafi Libya Jun. 27, 201153 Sep. 9, 201154 Deceased
Saif al-Islam Gadhafi Libya Jun. 27, 201155 Sep. 9, 201156 In Libyan custody57
Abdullah al-Senussi Libya Jun. 27, 201158 Sep. 9, 201159 In Libyan custody60

Interpol first issued a Red Notice in connection with an ICC arrest warrant on June 8, 2006, for five individuals indicted for alleged crimes committed in Uganda. Among those five individuals, three remain at large and two are deceased. The Red Notices were issued almost one year after the five individuals had been indicted on July 8, 2005. In 2007, Interpol issued two Red Notices for Ahmad Muhammed Harun and Ali Kushayb, two Sudanese officials for whom warrants had been issued on April 27, 2007. This time, Red Notices were issued within five months, on September 19, 2007. Both of these individuals remain at large from the ICC. Most recently, the ICC issued arrest warrants for Muammar Gadhafi, Saif al-Islam Gadhafi, and Abdullah al-Senussi on June 27, 2011, in connection with crimes committed in Libya. Interpol issued Red Notices even quicker this time, within three months, on September 9, 2011. Muammar Gadhafi is deceased, while the other two are in the custody of the transitional government in Libya.

Out of ten Red Notices, not a single one has resulted in the successful arrest and transfer of wanted individuals to the ICC. It is remarkable that there is such a low rate of success given Interpol’s outsized organizational capacity for information-sharing and locating individuals. In addition, there is an unusual amount of international scrutiny on the individuals indicted by the ICC because of the Court’s prominent position in the international system, as well as the fact that the indictees are widely seen as some of the most egregious international criminal offenders.

It is difficult to directly compare Red Notices to each other, since by the very nature of Red Notices, the circumstances surrounding each notice are different. Some, like the ten Red Notices described above, are issued on behalf of courts; others are issued for states. Some Red Notices are treated as binding by some states; some Red Notices are ignored altogether. It is a heterogeneous group.

Beyond ICC-related Red Notices, however, the record of Interpol international notices in general is much larger and clearer. In 2011 alone, Interpol issued 7,678 Red Notices.61 (In comparison to this record, ICC-related Red Notices seem like a drop in a large bucket, even if ICC indictees are unusually infamous.) Overall, it issued 15,708 notices and diffusions in 2011.62 (Diffusions are similar to notices, but distributed to one specific member country rather than all members.) By the end of 2011, there were nearly 90,000 notices and diffusions in circulation.63 These notices led to the arrest of 7,958 people in 2011.64 Not all notices were related to criminals, of course—Yellow Notices, for example, are used to locate (non-criminal) missing persons; there were 1,059 Yellow Notices in 2011.65 Interpol has not released data on the precise breakdown of how those 7,958 arrested individuals match to the type of notice/diffusion issued for them. But using the available numbers, it appears that Interpol’s international notice system had at least a 9% success rate in securing the arrest of criminals in 2011.66 This is not an extraordinarily large success rate, but in 2011 more individuals were arrested (7,958) than Red Notices were issued (7,678)—and this success rate of 9% is still greater than the nil success rate of ICC-related Red Notices.

IV. Unique Complications Associated with ICC-related Red Notices

ICC-related Red Notices are uniquely complex for several reasons: the associated arrest warrant is issued by a court, not a state; unlike with other international courts, many influential states show very limited cooperation with the ICC; many of the wanted individuals are located within situation countries themselves, so the ability for other states to intervene using their national police bureau (i.e., without military or diplomatic means) is extremely limited.

As discussed in Part I, only States Parties are obligated to respond to requests for cooperation from the ICC under their Rome Statute treaty obligations; arrest warrants issued by the ICC do not create obligations on non-States Parties. However, because of the lack of an enforcement mechanism built into the Rome Statute regime, there is no way for the ICC to guarantee the cooperation of even States Parties. Red Notices are generally non-binding, too, unless particular states have specific Red Notice-related extradition laws. Generally, they are a request for assistance and a notification to all member states of the existence of an arrest warrant for an individual. Taken in combination with the lack of an enforcement mechanism for States Parties and non-States Parties cooperation, the Red Notice regime does not carry much weight.

In addition to the limited ability of the ICC to enforce cooperation among States Parties, some non-States Parties have domestic legislation that limits the ability of its government to cooperate with the ICC. This means that even if a Red Notice comes to pass before a non-State Party’s national police bureau, the ability of the government to act on that Red Notice is limited by the bounds of the domestic law. For example, in the United States in 2002, the American Service-members’ Protection Act (“ASPA”) was signed into law by a national legislature and executive that were hostile to the idea of an international criminal court.67 Section 2004 of the ASPA prohibits several types of cooperation with the ICC. Section 2004(b) prohibits courts and state and local governments from responding to requests for cooperation from the ICC; section 2004(d) prohibits extraditing individuals from the U.S. to the ICC; and section 2004(e) generally prohibits giving “support” (defined broadly) to the ICC.68 The U.S. president may authorize a temporary (and renewable) waiver of these sections under certain circumstances,69 but national police bureaus might be very cautious in determining whether a Red Notice for a particular individual is critical enough to warrant a request of a presidential waiver. Complicating this issue further are some states’ own initiatives to pursue individuals wanted by the ICC. For example, the U.S. State Department has offered a reward for information leading to the capture of Joseph Kony, Okot Odhiambo, and Dominic Ongwen,70 for whom ICC arrest warrants as well as Interpol Red Notices have been issued.

Finally, the effectiveness of Red Notices with regard to ICC-related arrest warrants is limited by the nature of the particular indicted individuals. Most, if not all, current ICC fugitives are assumed to be located in the original situation countries—Joseph Kony is suspected to be in Uganda, and Ali Kushayb is known to be in Sudan, for example—so even if the Red Notice puts the international community on notice of the existence of an arrest warrant for these individuals, all states have limited capabilities to respond to the Red Notice by intervening in the situation country’s territory. Since Red Notices are issued to national police bureaus, whose purviews are limited to their own state’s borders—in contrast to a state’s military, foreign ministry, or transnational intelligence bureau—their general ability to intervene in foreign affairs is extremely limited. Red Notices seem to be ideal for situations in which a fugitive is traveling between several countries, and a country can be put on notice that a fugitive might be traveling through its territory. With many of the ICC-related Red Notices, however, the fugitive is moving within the original situation country, so that idealized Red Notice situation is unlikely to occur. However, as discussed above, Red Notices can unlock information-sharing networks which can assist situation countries in obtaining information that was not previously available, so they are not completely moot in ICC-related situations.

V. Conclusion

One of the most pressing of the ICC’s persistent challenges is developing reliable mechanisms to secure the arrest of indicted individuals. Several supporters of the ICC have suggested that an international police force should be introduced in order to enforce the arrest warrants of the ICC. This is unlikely to ever garner significant state support because of concerns over sovereignty and the nature of such a police force. An international police force is, for many states, a non-starter. Under current circumstances, Interpol is likely the closest the international community will ever get to an international police force—and it is not an international police force. Red Notices are likely the closest the international community will get to international arrest warrants71—and they are not international arrest warrants. So if the existing model is framed by Interpol and Red Notices, success rates with Red Notices may continue to look like they have so far, with no success, for the reasons described above. This might suggest that it is altogether misguided to pursue police-based recommendations for improving the ICC’s ability to secure the arrest of indicted individuals. Since the “international policing” model likely to persist for now is an information-sharing network of state-specific police bureaus rather than an internationally empowered police force, then actual police action will necessarily be limited by the territorial borders of a state. This limits possible action by all countries’ police forces except for those of situation countries. In contrast, a state’s military, foreign ministry, and transnational intelligence bureaus are designed to be cross-border. While the ICC might not find fruitful assistance for arrests in a police-based model, other avenues might be more successful. Interpol Red Notices might be helpful, but Interpol does not provide a convincing solution to the ICC’s arrest problem.

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

  1. 1.

    The ICC indictees—all African, 516 New Afr. 26 (2012), available online. See also All Situations, Int’l Crim. Ct., available online (last visited Apr. 30, 2013).

  2. 2.

    Id.

  3. 3.

    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].

  4. 4.

    The only countries that are not members of Interpol are Micronesia, Kiribati, the Democratic People’s Republic of Korea (North Korea), Palau, the Solomon Islands, the Republic of China (Taiwan), Tuvalu, and Vanuatu. All save Vanuatu are not States Parties to the Rome Statute.

  5. 5.

    Overview, Interpol, available online (last visited Apr. 30, 2013).

  6. 6.

    United States, Interpol, available online (last visited Apr. 30, 2013).

  7. 7.

    Overview, supra note 5.

  8. 8.

    Crime Areas, Interpol, available online (last visited Apr. 30, 2013).

  9. 9.

    ICPO-Interpol Constitution and General Regulations, Article 4, available online, [hereinafter Interpol Constitution].

  10. 10.

    War Crimes, Interpol, available online (last visited Apr. 30, 2013).

  11. 11.

    Rome Statute, supra note 3, at art. 5.

  12. 12.

    War Crimes, supra note 10.

  13. 13.

    Interpol Constitution, supra note 9, at art. 41.

  14. 14.

    War Crimes, supra note 10.

  15. 15.

    Rome Statute, supra note 3, at art. 58(1)(b): “The arrest of the person appears necessary: (i) To ensure the person’s appearance at trial, [or] (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings, or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.”

  16. 16.

    Rome Statute, supra note 3, at art. 86: “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.” (emphasis added).

  17. 17.

    Id. at art. 87(1)(a).

  18. 18.

    Id. at art. 87(7).

  19. 19.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Mar. 4, 2009), available online. Archived.

  20. 20.

    Chad: Don’t Welcome Back Al-Bashir, HRW (Apr. 9, 2013), available online.

  21. 21.

    Gwen P. Barnes, The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir, 34 Fordham Int’l L.J. 1584, 1595-96 (2011).

  22. 22.

    Rome Statute, supra note 3, at art. 87(1)(b).

  23. 23.

    Id. at art. 54(3)(c).

  24. 24.

    Id. at art. 54(3)(d).

  25. 25.

    Notices, Interpol, available online (last visited Apr. 30, 2013).

  26. 26.

    Id.

  27. 27.

    War Crimes, supra note 10.

  28. 28.

    U.S. Department of Justice, Interpol Red Notices, 9-15.635, Criminal Resource Manual, available online.

  29. 29.

    What An “Interpol Red Notice” Actually Means, UN Dispatch (Dec. 1, 2010), available online.

  30. 30.

    Id.

  31. 31.

    Id.

  32. 32.

    Rome Statute, supra note 3, at art. 87(1)(a).

  33. 33.

    Id., art. 86.

  34. 34.

    The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, ICC-02/04-01/05, available online, [hereinafter Prosecutor v. Kony, et al.].

  35. 35.

    Press Release, Int’l Crim. Ct., Interpol issues first ICC Red Notices, ICC-OTP-20060601-138 (Jun. 1, 2006), available online.

  36. 36.

    Prosecutor v. Kony, et al., supra note 34.

  37. 37.

    Id.

  38. 38.

    Press Release, Int’l Crim. Ct., supra note 35.

  39. 39.

    Prosecutor v. Kony, et al., supra note 34.

  40. 40.

    Id.

  41. 41.

    Press Release, Int’l Crim. Ct., supra note 35.

  42. 42.

    Prosecutor v. Kony, et al., supra note 34.

  43. 43.

    Id.

  44. 44.

    Press Release, Int’l Crim. Ct., supra note 35.

  45. 45.

    Prosecutor v. Kony, et al., supra note 34.

  46. 46.

    Id.

  47. 47.

    Press Release, Int’l Crim. Ct., supra note 35.

  48. 48.

    Otti ‘executed by Uganda rebels’, BBC News (Dec. 21, 2007), available online.

  49. 49.

    The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), ICC-02/05-01/07, available online, [hereinafter Prosecutor v. Harun and Kushayb].

  50. 50.

    Ahmad Mohammed Harun, Trial, available online (last visited Apr. 30, 2013).

  51. 51.

    Prosecutor v. Harun and Kushayb, supra note 49.

  52. 52.

    Ali Mohammed Ali Abd-Al-Rahman, Trial, available online (last visited Apr. 30, 2013).

  53. 53.

    The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11, available online, [hereinafter Prosecutor v. Gaddafi and Al-Senussi].

  54. 54.

    Press Release, Interpol, INTERPOL issues Red Notice for arrest of Muammar Gaddafi at request of International Criminal Court (Sep. 9, 2011), available online.

  55. 55.

    Prosecutor v. Gaddafi and Al-Senussi, supra note 53.

  56. 56.

    Press Release, Interpol, supra note 54.

  57. 57.

    Gaddafi’s son in Libyan court, N.Z. Herald, Jan. 18, 2013, available online.

  58. 58.

    Prosecutor v. Gaddafi and Al-Senussi, supra note 53.

  59. 59.

    Press Release, Interpol, supra note 54.

  60. 60.

    Laura Smith-Spark & Nic Robertson, ICC orders Libya to hand over Gadhafi’s former spy chief, CNN, Feb. 7, 2013, available online.

  61. 61.

    Interpol, Interpol Fact Sheet: International Notices System, available online.

  62. 62.

    Id.

  63. 63.

    Id.

  64. 64.

    Id.

  65. 65.

    Id.

  66. 66.

    7,958 arrested individuals in 2011, compared to 89,l46 notices and diffusions in circulation by the end of 2011. Id.

  67. 67.

    American Service-members’ Protection Act, 2 U.S.C. §§ 2001-2015 (2006), available online.

  68. 68.

    Id. at § 2004.

  69. 69.

    Id. at § 2003(c).

  70. 70.

    U.S. offers $5 million for information leading to Joseph Kony, top associates, CNN, Apr. 4, 2013, available online.

  71. 71.

    The U.S. Department of Justice at least thinks so: “An Interpol Red Notice is the closest instrument to an international arrest warrant in use today.” U.S. Department of Justice, supra note 28.

I. Introduction

One of the greatest challenges facing the International Criminal Court (ICC) is securing the custody of the accused. Without an international police force, the ICC must rely on the cooperation of States to effectuate these arrests. Unfortunately, this system has not been adequate thus far. Nearly half of those with arrest warrants, 9 out of 21, are still at large.1 Furthermore, the whereabouts of several of these fugitives is fairly well known, as these suspects continue to be shielded from arrest by the Sudanese government and some African Union States.2 This ineffectiveness has led some commentators to suggest new methods for effectuating arrests, such as the use of private international bounty hunters.3

Whatever means chosen, an omnipresent concern surrounding arrests is that of illegal abduction. Illegal abduction refers to the gaining of custody of a suspect without using lawful procedures, usually by force or trickery. Abductions tend to undermine the rule of law and the fundamental rights of the accused. Additionally, when agents of one State abduct someone in the territory of a different State (transnational abduction), this practice raises significant sovereignty concerns. Because of this, several courts refuse to assert jurisdiction over those brought before them by means of illegal abduction.4 However, other courts have asserted jurisdiction, in part due to the gravity of the crimes charged.5 This comment explores the circumstances under which the ICC should be able to try a defendant brought before the court by means of illegal abduction. While the ICC deals with the most egregious crimes known to man, it must ensure fair process to the accused “consistent with internationally recognized human rights” standards.6

Part II discusses whether the violation of State sovereignty due to a transnational abduction should lead the court to refuse jurisdiction. Due to the importance of apprehending fugitives accused of committing the universally condemned offenses that the ICC has jurisdiction over, sovereignty violations should not divest the court of jurisdiction. Part III analyzes the effect of violations of procedure. Deliberate circumvention of extradition procedures may counsel against asserting jurisdiction if the Office of the Prosecutor was responsible for the violation. In Part IV, this comment explores the defendant’s right to be treated humanely. If he or she is subjected to egregious abuse during or after the abduction, the court should not allow the trial to proceed. Part V concludes.

II. Sovereignty Considerations7

One of the most fundamental tenets of State sovereignty is the ability to exclude any other State from exercising police powers within one’s borders. Thus, when agents of one State enter another in order to abduct a suspect, significant sovereignty concerns are raised. Transnational abductions fuel tensions between the States and might lead to an international incident.8 However, some suspects wanted for extreme international crimes are so dangerous that more international destabilization might occur if they are left unarrested than if sovereignty is breached in order to gain custody over the person. In cases where the injured State does not protest (i.e., there is no danger of an international incident), the ICC can assert jurisdiction. Furthermore, because the ICC deals with the most dangerous criminals in the world, case law indicates that sovereignty concerns should not divest the court of jurisdiction over a transnationally abducted individual.

Because sovereignty violations raise the issue of a potential international incident, the level of protest by the injured State sometimes enters a court’s calculus when determining whether asserting jurisdiction is proper. In Öcalan v. Turkey, the European Court of Human Rights (ECHR) considered whether a Turkish court acted lawfully in asserting jurisdiction over a suspected terrorist who was abducted in Kenya.9 The suspect, Öcalan, was staying at the Greek embassy in Kenya and was asked to leave the country by Kenyan officials after Kenya learned about Öcalan’s past.10 As Öcalan was being driven to the airport as part of a convoy, his car suddenly split from the convoy and was taken to the international transit area of the airport, where Turkish officials arrested him.11 In determining that the Turkish court’s jurisdiction was proper, the ECHR found no violation of Kenyan sovereignty or international law because the arrest did not lead to any “international dispute between Kenya and Turkey” and “[t]he Kenyan authorities did not lodge any protest.”12 While the decision did not discuss what would have been the case had the Kenyan government protested, it at least indicated that asserting jurisdiction over an abductee can be acceptable in the absence of an official protest by the injured State.13

Additionally, courts have found jurisdiction to be proper even in the face of an injured State’s protest when the suspect is wanted for certain universally condemned offenses. The most relevant case for this comment’s analysis is the International Criminal Tribunal for the Former Yugoslavia (ICTY) trial of Dragan Nikolić. Nikolić was charged with multiple counts of crimes against humanity and war crimes for his role as commander of a detention camp in Bosnia.14 Serbian officials refused to arrest Nikolić, so certain unknown private individuals kidnapped Nikolić in Serbia and brought him to NATO forces in Bosnia, where he was officially arrested.15 Nikolić challenged jurisdiction based on the fact that his arrest was unlawful. This challenge was ultimately ruled on by the Appeals Chamber, which, after analyzing domestic cases from around the world, noted “in cases of crimes such as genocide, crimes against humanity and war crimes which are universally recognized and condemned as such (‘Universally Condemned Offenses’), courts seem to find in the special character of these offenses and, arguably, in their seriousness, a good reason for not setting aside jurisdiction.”16 In the opinion of the Appeals Chamber, “the damage caused to international justice by not apprehending fugitives accused of serious violations of international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by a limited intrusion in its territory.”17 Thus, the court held that no matter how bad an intrusion on a State’s sovereignty, the court should not divest itself of jurisdiction if the accused is wanted for universally condemned offenses.18

As with the subject-matter jurisdiction of the ICTY, the ICC’s jurisdiction covers the universally condemned offenses of war crimes, crimes against humanity, and genocide.19 Perpetrators of these offenses disrupt the international order and must be dealt with swiftly. Furthermore, there has been no transnational abduction case that involved these crimes in which a court refused to assert jurisdiction on the basis of a sovereignty violation. Thus, any injury to the sovereignty of a State due to an abduction should not divest the ICC of jurisdiction to try the suspect, especially when the injured State decides not to protest.

III. Violations of Procedure

The Rome Statute makes clear that during an investigation, a person “shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.”20 Furthermore, “[a] person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that… (b) The person has been arrested in accordance with the proper process.”21 Illegal abductions violate the proper process by definition; however, it does not necessarily follow that a case must be dismissed due to this violation.22 For dismissal determinations, what seems to matter in such cases is whether the State executive or prosecution was involved in the abduction, or, in other words, whether the prosecution comes to the court with “clean hands.”23

Some jurisdictions refuse to try a case if the State was involved in the abduction. In State v. Ebrahim, the South African Supreme Court decided not to assert jurisdiction over the defendant because he was abducted in Swaziland “by agents of the South African state.”24 The court reasoned that “[w]hen the state is a party to a dispute… it must come to court with ‘clean hands.’ When the state itself is involved in an abduction across international borders, as in the present case, its hands are not clean.”25 This approach was followed by Zimbabwe’s Supreme Court in State v. Beahan.26 In that case, the state secured custody over the defendant by deliberately circumventing extradition procedure. The opinion held that a “court should decline [jurisdiction when the defendant’s appearance] has been facilitated by an act of abduction undertaken by the prosecuting State. … For abduction is illegal under international law, provided the abductor was not acting on his own initiative and without the authority or connivance of his government.”27

Other jurisdictions hold that the judges have discretion to drop a case if the State was involved in the abduction. The UK House of Lords exercised this discretion in Ex parte Bennett when the English police decided not to use the extradition process to secure the defendant’s custody from South Africa.28 Lord Griffiths noted that “[e]xtradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country.”29 He added that if a court were to allow such a case to go forward, it “would be flouting the extradition procedures and depriving the accused of the safeguards built into the extradition process for his benefit.”30 An Australian case, Levinge v. Director of Custodial Services, also held that the court has discretion to assert jurisdiction. “Where a person… is brought… before a court in this State, that court has undoubted jurisdiction to deal with him or her. But it also has discretion not to do so, where to exercise its discretion would involve an abuse of the court’s process.”31 Because there was no showing that the Australian executive was directly or indirectly involved in the unlawful conduct, the case was allowed to proceed.32

One case that found it irrelevant that the prosecuting State was directly involved in the defendant’s abduction is Attorney-General of the Government of Israel v. Eichmann.33 In that case, the defendant was kidnapped from Argentina by Israeli agents to be put on trial in Israel for crimes against humanity and war crimes committed during the Holocaust.34 The court held that “there is no immunity for a fugitive offender save in the one and only case where he has been extradited by the country of asylum to the country applying for extradition by reason of a specific offense, which is not the offense for which he is being tried;” however, because Israel did not use the extradition treaty to secure custody, “Israel [was] not bound by any agreement with Argentina to try the accused for any other specific offense.”35 The court stated that any other argument based on abduction had to do with an injury to the State of Argentina and was therefore not an argument that the defendant had standing to make.36 Additionally, the court claimed that it was “established rule of law” that a defendant “may not oppose his trial by reason of the illegality of his arrest.”37 Thus, jurisdiction was found to be proper because of the universal character of the offense and because the defendant had no right to challenge how he was brought to court. However, this case has been seen as an outlier in terms of procedural rights and is therefore not authoritative on the subject. The Rome Statute ensures that the ICC will apply international human rights standards,38 and it is assumed that defendants will have the ability to raise sovereignty violations in their defense and the ability to challenge how they arrived at the court.39

Finally, in the only international criminal tribunal case to deal with the matter, the ICTY found in Nikolić that the proceedings must “fully respect due process of law,” which includes “questions such as how the Parties have been conducting themselves in the context of a particular case and how an Accused has been brought into the jurisdiction of the Tribunal.”40 The tribunal based this, in part, upon standards “contained in article 14 of the International Covenant on Civil and Political Rights.”41 After approving the Ebrahim case and noting that “the Prosecution coming to a Trial Chamber of this Tribunal” must do so with “clean hands,” the court found jurisdiction was proper because the abduction could not “be attributed to SFOR or the Prosecution.”42

The majority of cases seem to put great weight on whether the prosecution was involved in deliberately circumventing proper arrest procedures, deciding not to assert jurisdiction if the prosecution’s hands are not clean. Additionally, the precedent most on-point takes this approach and affirms procedural obligations laid down in international human rights instruments such as the International Covenant on Civil and Political Rights. The Rome Statute holds that the Court shall apply law “consistent with internationally recognized human rights.”43 Thus, there is strong authority to hold that the ICC should divest itself of jurisdiction if the Office of the Prosecutor has been involved in orchestrating a defendant’s abduction.

IV. Humane Treatment

A major concern with unlawful abductions is with the treatment of the abductee. Those who kidnap others typically do not have much respect for the rule of law, and they are often unusually violent with their subjects. In instances of egregious abuse, many courts refuse to assert jurisdiction, thus removing the incentive to treat suspects inhumanely. Therefore, the ICC should not try an abducted defendant if his or her abductor has severely abused the defendant.

In Barayagwiza v. The Prosecutor, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) elaborated on the abuse of process doctrine, noting that courts should decline jurisdiction whenever “exercis[ing] that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity.”44 The ICTY affirmed this reasoning in Nikolić in the context of a defendant’s pre-trial treatment. The chamber held that “where an accused is very seriously mistreated, maybe even subjected to inhuman, cruel or degrading treatment, or torture, before being handed over to the Tribunal, [it] may constitute a legal impediment to the exercise of jurisdiction over such an accused.”45 Importantly, the judges noted that it did not matter who was responsible for the abuse. “[E]ven without [involvement by the Prosecution,] this Chamber finds it extremely difficult to justify the exercise of jurisdiction over a person… after having been seriously mistreated.”46

Some courts in the United States have held that severe abuse of an accused should result in jurisdiction divestment. For instance, in United States v. Toscanino, the defendant had been kidnapped in Uruguay and was “incessantly tortured” with the knowledge and participation of United States agents before arriving in the United States.47 The Second Circuit held that “due process [requires] a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.”48 Thus, the court “could not tolerate such abuse without debasing ‘the process of justice.’”49 However, since Toscanino, there have been no cases of an abductee’s abuse so shocking to the conscience that United States courts have refused jurisdiction, and some courts refuse to follow the Toscanino rule.50

In addition to ensuring due process standards in conformance with “internationally recognized human rights,” the Rome Statute ensures in Article 55(1)(b) that no person “[s]hall be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment.”51 As such, the ICC should treat its accused with as much dignity as do other domestic courts as well as other international tribunals, such as the ICTY and ICTR. Because these other courts refuse to assert jurisdiction over a defendant who has been egregiously abused before reaching trial, it would be improper for the ICC to do otherwise.

V. Conclusion

Unlawful abductions raise several concerns about whether asserting jurisdiction over the abducted person is proper. Such abductions can violate State sovereignty, degrade a court’s integrity by condoning breaches of the rule of law, and increase the risk that suspects will be treated inhumanely. Being a respected international institution based on international human rights standards, the ICC must strive to be an exemplar of fair process for the accused. At the same time, it must be recognized that the Court has to deal with very dangerous criminals who tend to evade capture. Due to the universally condemned offenses that the ICC has jurisdiction over, sovereignty violations should not preclude the exercise of jurisdiction in cases of abduction. Furthermore, the ICC can conform to international standards when it asserts jurisdiction over abducted defendants so long as the Prosecutor comes to trial with “clean hands” and so long as the defendant was not seriously abused before trial.

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

  1. 1.

    International Criminal Court, Prosecutions, available online (last visited May 1, 2013).

  2. 2.

    Most Sudanese fugitives are still active in politics in Sudan. For instance, Omar Hassan Ahmad al-Bashir is the current President of Sudan and Abdel-Rahim Mohamed Hussein is the current Minister of Defense of Sudan. See Sudan Tribune, Omar Hassan Ahmad al-Bashir, available online, (last visited May 1, 2013); Sudan Tribune, Abdel-Rahim Mohamed Hussein, available online, (last visited May 1, 2013). Additionally, Bosco Ntaganda’s Goma residence was known to many in the years leading up to his surrender. See David Smith, Hunting the Terminator: Congo continues search for Bosco Ntaganda, The Guardian, Nov. 28, 2012, available online, (last visited May 1, 2013).

  3. 3.

    See David Kramer, Comment, The Viability and Efficacy of International Bounty Hunters, ICC Forum (Feb. 24, 2014), available online.

  4. 4.

    See, e.g., State v. Ebrahim 1991 (2) SALR 553 (S. Afr.); State v. Beahan, 103 I.L.R. 293 (1991) (Zim.).

  5. 5.

    See, e.g., CrimC (Jer) 40/61 Attorney-General of the Government of Israel v. Eichmann, 36 I.L.R. 5 (1961) (Isr.) [hereinafter Eichman].

  6. 6.

    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], article 21.

  7. 7.

    It is assumed that a defendant can have standing to raise sovereignty violations as a defense. Some countries do not allow defendants to argue claims typically reserved for the State. See Eichmann, supra note 5, at ¶ 44. However, it is the view of the International Criminal Tribunal for Yugoslavia that defendants are entitled to a “full defence,” and are therefore able to raise defenses due to sovereignty violations. See Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 55 (ICTY Oct. 2, 1995).

  8. 8.

    Argentina protested vigorously after Adolf Eichmann was abducted by Israeli agents, leading to the involvement of the United Nations Security Council (UNSC) to resolve the dispute. See S.C. Res.138, U.N. Doc. S/RES/138 (Jun. 23, 1960).

  9. 9.

    Öcalan v. Turkey, 2005-IV ECHR at ¶¶ 18, 61.

  10. 10.

    Id. at ¶¶ 15-17.

  11. 11.

    Id.

  12. 12.

    Id. at ¶ 95.

  13. 13.

    Even if a State protests, it is unclear whether the remedy for a sovereignty violation should be the dismissal of the case. Some argue that it is only customary international law to dismiss a case if a State protests and also demands the return of the fugitive. Paul Michell, English-Speaking Justice: Evolving Responses to Transnational Forcible Abduction After Alvarez-Machain, 29 Cornell Int’l L.J. 383, 427 (Apr. 1996).

  14. 14.

    Prosecutor v. Nikolić, Case No. IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, ¶ 2 (ICTY Oct. 9, 2002) [hereinafter Nikolic I].

  15. 15.

    Id. at ¶ 13 (discussing Serbia’s refusal to cooperate); Christopher M. Supernor, International Bounty Hunters for War Criminals: Privatizing the Enforcement of Justice, 50 A.F. L. Rev. 215, 217 (2001) (discussing the arrest by bounty hunters).

  16. 16.

    Prosecutor v. Nikolić, Case No. IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest, ¶ 24 (ICTY June 5, 2003) [hereinafter Nikolic II].

  17. 17.

    Id. at ¶ 25.

  18. 18.

    Id. The Nikolić court may have discounted sovereignty concerns due to the “vertical” nature of the court in relation to States. See Nikolic I, supra note 14 at ¶ 100 (“[I]n this vertical context, sovereignty by definition cannot play the same role.”). A similar vertical relationship exists between the ICC and States parties as well as non-States parties that are obligated to cooperate with the Court due to UNSC resolutions. While the relationship is less vertical between the ICC and those States that are not obligated to cede some sovereignty to the Court, the Nikolić rule should still control.

  19. 19.

    See S.C. Res. 827, Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, arts. 2-5, U.N. Doc. S/RES/827 (May 25, 1993), available online; Rome Statute, art. 5.

  20. 20.

    Rome Statute, art. 55(1)(d).

  21. 21.

    Rome Statute, art. 59(2).

  22. 22.

    It is possible that the proper remedy under the Rome Statute is merely compensation for the wrong. See Rome Statute, art. 85.

  23. 23.

    State v. Ebrahim, supra note 4.

  24. 24.

    Id.

  25. 25.

    Id.

  26. 26.

    State v. Beahan, supra note 4.

  27. 27.

    Id.

  28. 28.

    Ex parte Bennett, [1994] 1 A.C. 42 (H.L.) (appeal taken from Eng.), available online.

  29. 29.

    Id.

  30. 30.

    Id.

  31. 31.

    Levinge v Director of Custodial Services, 9 NSWLR 546 (1987) (Court of Appeal) (Austl.).

  32. 32.

    Id.

  33. 33.

    See supra note 5.

  34. 34.

    Id. at ¶ 1.

  35. 35.

    Id. at ¶ 52.

  36. 36.

    Id.

  37. 37.

    Id. at ¶ 41.

  38. 38.

    Rome Statute, art. 21(3).

  39. 39.

    See supra note 7.

  40. 40.

    Nikolic I, supra note 14, ¶¶ 110-11.

  41. 41.

    Id.

  42. 42.

    Id. at ¶¶ 111, 113.

  43. 43.

    Rome Statute, art. 21(3).

  44. 44.

    Jean-Bosco Barayagwiza v. Prosecutor, Case No. ICTR-97-19, Decision, ¶ 74 (Nov. 3, 1999).

  45. 45.

    Nikolic I, supra note 14, ¶ 114 (emphasis added).

  46. 46.

    Id.

  47. 47.

    United States v. Toscanino, 500 F.2d 267, 269-70 (2d Cir. 1974).

  48. 48.

    Id. at 275.

  49. 49.

    Id. at 276.

  50. 50.

    See e.g., Matta-Ballesteros v. Henman, 896 F.2d 255, 263 (7th Cir. 1990) (“We therefore conclude that Toscanino, at least as far as it creates an exclusionary rule, no longer retains vitality and therefore decline to adopt it as the law of this circuit.”).

  51. 51.

    Rome Statute, art. 55(1)(b).

Hi Benshea; I really enjoyed reading your piece; it's quite well researched and written!

It then came to my mind few points of thought:
- The ICC is not a national court as in the case of the examples that you cited above which means that some of the reasonings at the national level would doubtfully prove useful.
- I also really liked your argument on the Nikolic's case, especially your comment made on footnote 18. That is, the vertical v. horizontal nature of the international tribunals vis-à-vis States (requested States). I then thought you were going to push the reasoning further and evaluate the relevancy of the Nikolic's decision on a situation in front of the ICC where not only not all States where the fugitives hide are members of the ICC and / or the UNSC resolution referring cases to the ICC are drafted in a way not oblige any other State to cooperate with the Court apart from the "situation State".

Here comes my concerns; the ICC on the basis of Art 21 has a source of applicable law well defined and will only resort to general principles of law when the sources of the first and second orders have proven not useful. Do we really think this application of the "abduction type" of arrest will be in line with the Statute?

My second concern: Based on Article 89 (1) - Surrender of persons to the Court - ".... 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." Are we really sure that such an arrest will not conflict with both "the national law" of the requested States and the "Statute" at the same time and further produce the unexpected effect of leading to a lack of respect of the ICC own legal regime?

Finally based on the "abduction" theory, is it the State (State's agent) or some kind of "bounty hunter" that will be going around to arrest and surrender to the ICC? In fact in the current situation, it seems that the Court does not yet have any special police force (as you also mentioned before) to do such a task.

Head of State Immunities and Article 98 of the Rome Statute: Interpretations That Avoid Obstacles to Cooperation in the Execution of ICC Arrest Warrants

I. Introduction.

One of the main obstacles of the International Criminal Court (“ICC” or “Court”) to achieving its objectives of ending impunity for “the most serious crimes of concern to the international community” is the difficulty in arresting suspects. One of the obstacles to arresting suspects is found within the Rome Statute itself. There is a tension between Article 27—which removes immunities of senior government officials—and Article 98(1)—which requires the Court not to issue requests for cooperation that would result in States Parties violating their obligations to provide immunities to senior officials of other States under customary international law. Some international legal scholars and organizations, including the African Union, have argued that Article 98(1) is an exemption for States Parties not to cooperate in the arrest of persons subject to an arrest warrant of the Court, when such individuals are high-ranking government officials of non-States Parties and should be accorded personal immunities.

However, I argue that this interpretation undermines the object and purpose of the Rome Statute, and there are two alternative interpretations of the relationship between Article 27 and Article 98(1) that avoid this conflict between them. The first interpretation is that non-States Parties, over which the ICC has jurisdiction pursuant to a Security Council referral, should be treated as States Parties. The second way to interpret Article 98(1) to avoid a conflict is to read “State and diplomatic immunity” as not including personal immunities for heads of State, along with the secondary analysis that (a) customary international law no longer accords heads of State absolute immunities even before international tribunals or (b) customary international law norms regarding accountability for international crimes trump customary norms to provide personal immunities. Either of these two interpretations demonstrates that States are not in fact exempt from cooperating with the Court in the arrest of high-ranking government officials, including nationals of non-States Parties, even when they would normally be entitled to personal immunities. These interpretations are more in line with the object and purpose of the Rome Statute and facilitate the Court in carrying out its mandate of ending impunity.

II. Functional and Personal Immunities Under Customary International Law.

Under customary international law, there are two types of immunities for government officials: functional immunities (ratione materiae), or diplomatic immunities and personal immunities (ratione personae), or head of State immunities. Both types of immunities protect government officials from civil and criminal jurisdiction in foreign national tribunals.1 Functional immunities protect officials indefinitely for conduct committed as part of their official duties in their official capacity.2 The immunity applies even after the official has abdicated his or her official position with that government, so even former officials can invoke functional immunity.3 However the immunity attaches only to acts committed while the person served in his or her official capacity.4 Functional immunity is based on the rationale that diplomats must be able to conduct their work without fear of prosecution in the receiving state, and because their actions are considered acts of the State, not acts of the individual acting on behalf of the State.5 There are however, exceptions. Serious international crimes such as genocide, crimes against humanity, and war crimes do not receive protection under functional immunities because they can never be considered as being part of government duties.6 This is in accord with norms permitting the exercise of universal jurisdiction.7

A small group of senior government officials including heads of State, heads of government, foreign ministers, and diplomats on special mission in foreign States can simultaneously be protected by personal immunities by virtue of their official high-ranking position.8 The immunity attaches to their status or office.9 Absolute personal immunities are accorded to these individuals for acts conducted as part of official duties, as well as any other private acts.10 Personal immunities only apply while these officials hold the applicable high-ranking position.11 Once they abdicate their official position, they are only protected by functional immunity for acts that were committed as part of their official duties while still in office.12 The rationale for personal immunity is to prevent a foreign State from exercising and even abusing jurisdiction over another State’s high-ranking officials, to facilitate the smooth conduct of foreign relations and cooperation between States, and to allow the sending State to function properly under the leadership of its senior representatives.13 Even the issuance of an arrest warrant for such an official, without any steps being take to actually arrest him or her, would be a violation of customary international law.14

Unlike with functional immunities, personal immunities protect senior officials from civil and criminal prosecution in foreign national courts even for international crimes such as war crimes or crimes against humanity.15 However, there seems to be an exception under customary international law for international crimes committed by high-ranking government officials vis-à-vis international tribunals. Even if this is not a universally agreed upon customary international law norm, at the very least it is an emerging customary norm. Jurisprudence in recent international criminal law tribunals provides support for the existence, or at least development, of this norm. This norm has been affirmed in the Arrest Warrant case before the International Court of Justice, (“ICJ”)16 the Charles Taylor case before the Special Court for Sierra Leone,17 the Augusto Pinochet case before the British House of Lords,18 and in the statutes of the Nuremberg Tribunal,19 the International Criminal Tribunal for the Former Yugoslavia,20 the International Criminal Tribunal for Rwanda,21 and the ICC.22 This recent trend in international criminal prosecutions of sitting heads of State shows that derogation from norms requiring personal immunities is permitted for international crimes in international courts.

III. The Tension Between Article 27 and Article 98(1) of the Rome Statute.

There is a tension between Article 27 and Article 98(1) of the Rome Statute. The issue is whether States Parties can cooperate in the arrest of nationals of non-States Parties for whom arrest warrants have been issued, without violating their customary international obligations to provide certain immunities to senior officials of non-States Parties. If the answer is no, as some scholars have suggested, this presents a challenge to arresting those persons.

Article 27 of the Rome Statute supports the existing, or at least emerging, customary international law norm that incumbent senior government officials stand behind personal immunities to avoid being prosecuted for international crimes in international criminal tribunals. 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.23

One hundred twenty two countries have ratified the Rome Statute to date. They have thereby waived personal immunity for their senior officials who may be subject to jurisdiction under the ICC, and therefore must surrender their nationals, for whom arrest warrants have been issued, to the ICC.24 Nationals of States Parties may not assert personal immunity (or functional immunity) as a substantive defense before the Court, and an individual’s high-ranking government status is not a bar to either the jurisdiction of the Court or a finding of individual criminal responsibility for that person.25 Article 27(1) therefore removes a substantive defense as well as confers jurisdiction. Under Section IX of the Rome Statute, States Parties are also obligated to cooperate with the ICC, including with requests for cooperation and requests for the arrest and surrender of persons subject to arrest warrants.26 When an indicted person of one State Party is on the territory of a second State Party, an arrest warrant has been issued for the indicted person, and the Court has submitted a request for the arrest and surrender of that person to the second State Party, the Second State Party has an obligation to arrest that individual and transfer him or her to the custody of the ICC.

Article 27 should be interpreted as removing immunities with respect to both the ICC and national authorities acting in response to a request for assistance or request for arrest and surrender issued by the Court.27 To find that Article 27 does not remove immunities between States at the national level “would render parts of that provision practically meaningless” and create a serious obstacle to effecting arrests.28 The ICC does not have its own police force so it primarily has to rely on States to voluntarily turn over their nationals who are subject to arrest warrants.29 If the ICC could only rely on securing the custody of suspects by relying on States to waive immunity (in which case Article 27 would not be applicable) and surrender the suspect, or on suspects to voluntarily appear before the Court, the State or suspect would never claim immunity and the Court would never need to apply Article 27 at all.30 Such a result would be contrary to that required by canons of treaty interpretation: “[A] treaty interpreter must read all applicable provisions of a treaty in a way which gives meaning to all of them harmoniously and ‘is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility.’”31

Furthermore, Article 27 must be read to apply between states at the national level because Article 27(2) explicitly applies “under national or international law.” The provision is unambiguous that immunities under national law, as applies by national authorities, shall not be a bar to jurisdiction. This clause “would be redundant unless it was directed at [national] authorities who would otherwise be bound by national law.”32 Hence, Article 27 should be read to remove immunities at the national level between States.

International law scholars and organizations, including the African Union, have argued that Article 98(1) of the Rome Statute provides an exemption to States Parties’ obligation to cooperate with the Court’s requests to cooperate and particularly requests to arrest and surrender suspects, particularly when the suspect is a national of a non-State Party.33 Article 98(1) states that:

[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 customary international law with respect to the State or diplomatic immunity of a person or property of third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.34

Some scholars and organizations interpret “third State” to mean a non-State Party, and “State or diplomatic immunity” to mean personal immunities, or ratione personae, for incumbent senior government officials.35 If “third State” indeed refers to a non-State Party, the only circumstance in which Article 98(1) would practically apply is when the Security Council refers a situation in a non-State Party to the ICC under Article 13(b), thereby conferring jurisdiction of the ICC over nationals of that situation country and implicitly removing personal immunities of senior government officials in accord with Article 27.36 Even if “third State” also includes States Parties, Article 98(1) would not exempt a State Party from arresting a national of a sending State or “third State” that is also a Party, because States Parties have already waived immunity between States Parties under Article 27 when they ratified the Rome Statute.37 A State cannot be acting “inconsistently with its obligations under customary international law” vis-à-vis another State Party if it arrests a national of the second State Party when that individual is on the territory of the first State.38 States Parties actually have an obligation to arrest a national of a State Party for whom a request to arrest and surrender has been issued when that individual is on their territory.39 Hence, “third State” likely refers to non-States Parties.

Scholars and organizations have argued that Article 98(1) requires the Court to refrain from transmitting to States Parties requests for cooperation and requests for the arrest and surrender of a national of a non-State Party, because this would require the State Party to choose between competing obligations under the Rome Statute and customary international law.40 In order to cooperate with the request for arrest and surrender, the State Party allegedly would have to violate its obligations under customary international law that require respecting personal immunities of senior government officials of other States.41 Scholars argue that before issuing such requests for cooperation to States Parties, the Court must first seek to obtain a waiver of immunity from the State of which the indicted person is a national with respect to other States.42 Without the waiver, the request would be invalid and States Parties would not be required to cooperate.43 When the Court has obtained jurisdiction over a national of a non-State Party, there is no violation of international customary law regarding immunities as between the indicted person and/or their property and the Court.44 However, this does not automatically remove obligations regarding certain immunities owed by States Parties to non-States Parties who have not expressly waived immunity by ratification of the Rome Statute.45

However, this interpretation would create the undesirable consequence that senior officials may be immune to arrest, but not from prosecution. This would handicap the work of the Court, particularly regarding Security Council referrals. Not being able to secure the arrests of suspects would frustrate the object and purpose of the Rome Statute to end impunity for those most responsible for the “most serious crimes of concern to the international community.”46 Furthermore, this fails to consider the changing landscape of international law, where an ever-increasing value is placed on the protection of human rights. Especially in a context where national courts often fail to effectively hold perpetrators of international crimes accountable, it is critical for the Rome Statute to be interpreted in such a way that ensures the ICC can be as effective as possible in fulfilling its mandate.

IV. Article 98(1) of the Rome Statute Does Not Provide An Exemption for State Cooperation in the Arrest of Suspects of Non-States Parties and States Are Not In Violation of Competing Customary International Law Norms Regarding Immunities.

There are two primary ways to interpret the relationship between Article 27 and Article 98(1) such that there is no conflict between them. With these interpretations, States Parties are not exempted from cooperating with the Court, and would still be required to cooperate with the Court’s requests to arrest and surrender suspects, including nationals of non-States Parties. The first interpretation is that non-States Parties, over which the International Criminal Court has jurisdiction on the basis of a Security Council referral, should be treated as States Parties. The second way to interpret Article 98(1) to avoid a conflict is to read “State and diplomatic immunity” as not including personal immunities for heads of State, along with the secondary analysis that (a) customary international law no longer accords heads of State absolute immunities even before international tribunals or (b) customary international law norms regarding accountability for international crimes trump customary norms to provide personal immunities.

A. Non-States Parties Over Which the International Criminal Court Has Jurisdiction Should Be Treated As States Parties.

As several scholars have argued, a Security Council referral of a situation in a non-State Party implicitly makes the Rome Statute, including Article 27, binding on that State, and the State should be treated as a State Party.47 As argued above, questions regarding obligations to cooperate with the Court under Article 98(1) will ordinarily arise when the Security Council refers a situation in a non-State Party to the Court and thereby confers jurisdiction under Article 13(b) of the Rome Statute.

By referring the situation in Darfur to the ICC, the Security Council “intends the Court to take action (to investigate and prosecute as appropriate)…in accordance with the statutory framework provided for in the [Rome] Statute.”48 Because any investigation and prosecution done by the Court must be within the statutory framework of the Rome Statute, all States, including non-States Parties, must accept that the Court will act in accordance with this governing framework.49 When the Security Council refers a situation to the Court, the referred State is bound by Article 25 of the United Nations Charter and implicitly by the relevant Security Council resolution to accept any decisions and requests of the Court.50 This puts the State “in an analogous position to a Party to the Statute.”51

Accordingly, the referral of a situation to the ICC does more than to confer jurisdiction of the Court over the situation.52 Article 27 applies and immunities are removed between the indicted person and the Court, as well as between States at the national level.53 “This lack of immunity then means that under Article 98, a State Party to the [Rome] Statute would not be acting ‘inconsistently with its obligations under international law by arresting and surrendering’” a national of a non-State Party to the ICC in response to a request to arrest and surrender the individual.54 This means Article 98 does not apply, as it does not apply between States Parties, and States Parties must cooperate with the Court with regard to cases in that situation.55 States Parties must comply with requests for assistance regarding the arrest and surrender of indicted persons, the freezing and seizure of assets, or other forms of assistance. It must be regarded as binding for all States Parties to treat the non-State Party in question as a State Party and to cooperate in “the effective prosecution of the most responsible persons” who are nationals of that State.56

Furthermore, Article 98 is not a provision allowing States Parties to refuse to cooperate with the Court, rather it is a directive to the Court to avoid issuing requests for cooperation in the first place that would require States Parties to choose between competing norms.57 Accordingly, “States cannot be allowed to decide unilaterally that the Court has acted ultra vires and to attach to such determination the consequences they deem fit…[T]he Court should itself examine whether a request for cooperation would require a State to act inconsistently with its obligations under international law…”58 Hence, even where States are forced into a situation where they have to choose between competing obligations, they do not have the right not to cooperate with the Court.

B. The “State and Diplomatic Immunities” Under Article 98(1) Do Not Include Head of State Immunities.

Another approach to interpreting Article 98(1) to avoid a conflict with Article 27, as Dire Tladi has argued, is to read the phrase “State or diplomatic immunity of a person or property” in Article 98(1) as not encompassing “personal immunity” for heads of State.59 There is no guidance in the Rome Statute itself about the meaning of “State or diplomatic immunity.” The ICJ and the International Law Commission (“ILC”) have distinguished between forms of immunity for diplomats and heads of State. Additionally, a restrictive reading of the phrase “State or diplomatic immunity” is reasonable.

In the ICJ’s Arrest Warrant case, the ICJ recognized the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations as instructive on the functional immunities of diplomats under customary international law.60 But the ICJ noted that these conventions do not “contain any provision specifically defining the immunities enjoyed by Ministers for Foreign Affairs,” heads of State, or other senior officials—or in other words, personal immunities.61 The ICJ thereby distinguished “diplomatic immunities,” or functional immunities guaranteed in these two Conventions from “head of State immunities,” or personal immunities.62 The dissenting opinion in the Arrest Warrant case by Judge Van den Wyngaert further highlights the difference between “‘individuals holding diplomatic status’ or diplomats and ‘ministers of foreign affairs.’”63 Diplomats are sent to a receiving State to reside and carry out their duties in the receiving State to facilitate foreign relations between the sending State and the receiving State.64 The receiving State also has the power to accept a diplomat or reject him or her as persona non grata.65 As discussed above, the rationale for functional immunities for these diplomats is to allow them to carry out their official duties without fear of prosecution. This is different from heads of State and foreign ministers, over whose appointment foreign countries have no control.66 Heads of State and foreign ministers furthermore, do not carry out their primary duties in a receiving State. Personal immunities accorded such high-ranking officials serve a different purpose—if these officials were subject to civil or criminal jurisdiction in another country this would prevent their home State from functioning entirely and would prevent the home State from engaging in any foreign relations with any country. This is not the case with diplomats who can be rejected as persona non grata. Additionally, in the Mutual Assistance case, the also ICJ “makes a clear distinction between state immunity, diplomatic immunity and ‘other personal immunities’ with the latter referring to” ratione personae accorded only to the most senior government officials.67 Hence, the jurisprudence of the ICJ supports the interpretation that the phrase “diplomatic immunities” expressed in Article 98(1) of the Rome Statute refers to functional immunities, not personal immunities.

The ILC, in its Draft Articles on Diplomatic Discourse and Immunities (“Draft Articles I”) implicitly distinguished “diplomatic immunities,” or functional immunities, from “head of State immunities,” or personal immunities.68 In these Draft Articles I, “diplomatic immunities” referred solely to members of diplomatic missions in a receiving State to represent the sending State, including Embassy and Consulate staff such as an Ambassador, Chargé d’Affaires, and other supporting diplomatic staff. Nowhere in the Draft Articles I did the ILC discuss personal immunities or other immunities for heads of State or foreign ministers. The Draft Articles I are clear that “diplomatic immunities” refer to functional immunities. In addition, in the ILC’s Draft Articles on Jurisdictional Immunities of States and their Property (“Draft Articles II”), the ILC also distinguished between diplomatic immunities accorded to “persons connected” with a State’s “diplomatic missions, consular posts, special missions, missions to international organizations, or delegations to organs of international organizations or to international conferences,” and personal immunities accorded to “Heads of State.”69 Hence, the ILC’s analyses of immunities further supports the interpretation that the phrase “diplomatic immunities” expressed in Article 98(1) of the Rome Statute refers to functional immunities, not personal immunities.

As Tladi has further argued, State immunity referred to in Article 98(1) also does not include personal immunity for heads of State.70 Under the ILC’s Draft Articles II, State immunity refers to the right of the State and its property to be free “from the jurisdiction of the courts of another State.”71 The Draft Articles II also clearly states that they do not apply to functional or personal immunities.72 There is no basis to argue that “State immunity” includes personal immunities for sitting heads of State.73

Tladi has further argued that Article 98(1) narrowly refers to functional diplomatic and State immunities, not to personal immunities, with the view that nothing should be read into the treaty provisions that is not expressly provided for.74 Recalling the Vienna Convention on the Law of Treaties, “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty…”75 Tladi explains:

If the intention of the drafters was to broadly include all immunities it would be unnecessary to qualify the phrase immunities with ‘state or diplomatic.’ If Article 98(1) does not cover head of state immunity, then it cannot be said that the request to arrest and surrender [a sitting head of state] would require the requested state to act inconsistently with its obligations under customary international law on state or diplomatic immunity. This interpretation of Article 98(1), based on the ordinary meaning of the phrase ‘State or diplomatic immunity,’ is consistent with a contextual interpretation, taking into account Article 27 and the object and purpose of the Statute, namely to end impunity and hold those responsible for the most egregious crimes accountable.76

If the drafters of the Rome Statute had wanted to include personal immunity in the provisions of Article 98(1), they could and would have done so. Furthermore, in looking at the drafting history of the Rome Statute it is evident that States considered “how wide or narrow” the provisions for exemptions from cooperation should be.77 Several States insisted on a “restrictive approach to exceptions” and that any “exceptions should be specifically enumerated.”78 Hence, is can be persuasively argued that Article 98(1) is not in direct conflict with Article 27 when one interprets the phrase “State or diplomatic immunity” in a restrictive manner to not include “personal immunities.”

If one accepts this argument, however, one must also resolve the secondary question of whether a treaty obligation trumps a customary obligation or vice versa.79 Even if Article 98(1) does not include personal immunities and there is no conflict with Article 27, the States Parties still have an independent customary obligation not to arrest a senior government official of another State.80

The first, and most convincing, argument that resolves this issue is that customary international law can be changed. States can erode a customary international law norm by withdrawing consent “or at least modify their consent such that the obligation to respect the immunities of heads of state is inapplicable to cooperation with international tribunals.”81 As discussed above, there is clearly an existing, or at least rapidly emerging, customary international law norm that personal immunities protect senior government officials from being prosecuted for international crimes before international criminal tribunals.82 In addition, the fact that the Rome Statute has been ratified by 122 States—about two-thirds of all States who are members of the United Nations—supports the argument that these norms are changing, and creating an exception for personal immunities concerning international crimes before international criminal tribunals.83 The fact that the Rome Statute also provides for Security Council referrals to confer jurisdiction to the Court over situations in non-States Parties, and that the Security Council, including some of the most powerful nations who are non-States Parties, have referred two situations in non-States Parties to the ICC lends further support. The growth of the field of international criminal justice provides evidence that there is a changing customary norm allowing States to derogate from having to provide personal immunities for senior government officials in order to end impunity for international crimes before international criminal tribunals.

The second argument to resolve States Parties’ competing obligations is that there is a hierarchy of customary international law obligations, and that preventing impunity for violations of jus cogens norms, including prohibitions on war crimes, crimes against humanity, and genocide, trump less important obligations concerning personal immunities.84 It can be argued that accountability for such serious international crimes has risen to the status of erga omnes obligations, and that obligations regarding immunities are less important.85 Therefore, States obligations to cooperate with the ICC according to their treaty obligations under the Rome Statute trump their customary obligations to other States regarding personal immunities.

C. Even If Article 98(1) Exempts States From Cooperation In The Arrest of Non-State Party Nationals, The Security Council Should Require Cooperation in its Referral Resolutions.

Finally, even if one accepts the interpretation of Article 98(1) put forth by the African Union and scholars including Paola Gaeta, there is still one way to resolve the conflict between Article 98(1) and Article 27. Since Article 98(1) would ordinarily apply in the context of Security Council referrals of non-States Parties, the Assembly of States Parties should encourage Security Council members to not only impose obligations on the referred State to cooperate with the Court, but also impose obligations on all United Nations members to cooperate with the ICC with regard to that situation.86 This would bind all United Nations members, especially States Parties, to cooperate with the Court in the arrest and surrender of indicted persons, or provide other forms of assistance, without a concern of violating other competing international customary norms.87 This would implicitly remove personal immunities between States, and thereby eliminate the conflict between competing norms.

V. Conclusion.

There are two ways to interpret the relationship between Article 27 and Article 98(1) to eliminate the tension between them. Non-States Parties, over which the ICC has jurisdiction pursuant to a Security Council referral, can and should be treated as States Parties. Alternatively, the phrase “State and diplomatic immunity” in Article 98(1) can be read as not including personal immunities for heads of State. Interpreting the relationship between Article 27 and Article 98(1) in one of these two ways removes the conflict between them. Either of these two interpretations demonstrates that States are not in fact exempt from cooperating with the Court in the arrest of high-ranking government officials, including nationals of non-States Parties. These interpretations are more in line with the object and purpose of the Rome Statute. Most importantly, these interpretations allow the Court to more effectively carry out its mandate and more effectively secure the arrests of persons suspected of having committed the gravest crimes of international concern.

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

  1. 1.

    Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am. J. Int’l L. 407, 409 n.11 (2004) [hereinafter Akande, Immunities] (citing Vienna Convention on Diplomatic Relations, arts. 29, 31, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 [hereinafter VCDR]; see e.g., Antonio Cassese, When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 Eur. J. Int’l L. 853, 862-65 (2002).

  2. 2.

    Akande, Immunities, supra note 1, at 409, 412 n.38 (citing Chanaka Wickremasinghe, Immunities Enjoyed by Officials of States and International Organizations, in International Law 403 (Malcolm D. Evans ed., 2003); see also VCDR, supra note 1, at art. 39(2) (in relation to former diplomats); Vienna Convention on Consular Relations, art. 43(1), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter VCCR] (in relation to consular officials)); see Cassese, supra note 1, at 863; Micaela Frulli, The Question of Charles Taylor’s Immunity: Still in Search of a Balanced Application of Personal Immunities? 2 J. Int’l Crim. Just. 1118, 1125 (2004); Steffen Wirth, Immunities, Related Problems, and Article 98 of the Rome Statute, 12 Crim. L. Forum 429, 431 (2001).

  3. 3.

    Akande, Immunities, supra note 1, at 412 n.38 (citing Wickremasinghe, supra note 2, at 403; VCDR, supra note 1, at art. 39(2); VCCR, supra note 2, at art. 43(1)).

  4. 4.

    Akande, Immunities, supra note 1, at 412-13 n.38.

  5. 5.

    Id. at 413 nn.42, 43.

  6. 6.

    Id. at 413-15 nn.45, 46, 52, 53, 54; see Andrea Bianchi, Immunity Versus Human Rights: The Pinochet Case, 10 Eur. J. Int’l L. 237, 262-66 (1999); Cassese, supra note 1, at 864-65; Frulli, supra note 2, at 1126; Wirth, supra note 2, at 437; Salvatore Zappallà, Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case Before the French Cour de Cassation, 12 Eur. J. Int’l L. 595, 601 (2001).

  7. 7.

    Akande, Immunities, supra note 1, at 415 n.56 (citing Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 49, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, art. 50, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War, art. 129, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War, art. 146, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 85(1), Jun. 8, 1977, 1125 U.N.T.S. 609).

  8. 8.

    Akande, Immunities, supra note 1, at 409 n. 13, 14, 411-12 n. 29 (citing Arrest Warrant of 11 April 2000, ¶ 51 (Congo v. Belgium, 41 ILM 536 (Feb. 14, 2002) [hereinafter Arrest Warrant]), 30, 31 (citing VCDR, supra note 1, at arts. 29, 31), 32 (citing Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 Recueil Des Cours 13, 106-08 (1994)), 33 (Arrest Warrant, supra, at ¶ 53); see Cassese, supra note 1, at 864; Frulli, supra note 2, at 1125-26; Wirth, supra note 2, at 432; Hazel Fox, The Law of State Immunity 423, 429 (2002).

  9. 9.

    Akande, Immunities, supra note 1, at 409.

  10. 10.

    Id. at 410 n.19 (citing Arrest Warrant, supra note 8, at ¶ 54; Fox, supra note 8, at 441); see Cassese, supra note 1, at 863-64; Wirth, supra note 2, at 432.

  11. 11.

    Akande, Immunities, supra note 1, at 410; Arrest Warrant, supra note 8, at ¶ 61; Frulli, supra note 2, at 1126; Wirth, supra note 2, at 432.

  12. 12.

    Akande, Immunities, supra note 1, at 409; Arrest Warrant, supra note 8, at ¶ 61; Frulli, supra note 2, at 1126; Wirth, supra note 2, at 432.

  13. 13.

    Akande, Immunities, supra note 1, at 409-10 n.15 (citing Wickremasinghe, supra note 2, at 389); see Fox, supra note 8, at 427.

  14. 14.

    Akande, Immunities, supra note 1, at 410 n.21 (citing Arrest Warrant, supra note 8, at ¶¶ 55, 70-71).

  15. 15.

    Akande, Immunities, supra note 1, at 410 n. 22,23 (citing Arrest Warrant, supra note 8, at ¶¶ 55, 58).

  16. 16.

    Akande, Immunities, supra note 1, at 416 n.59 (citing Arrest Warrant, supra note 8, at ¶ 61) (“[T]he immunities enjoyed under international law…do not represent a bar to criminal prosecution in certain circumstances…[A]n incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.”).

  17. 17.

    Akande, Immunities, supra note 1, at 416 n.60, 61 (citing Prosecutor v. Charles Taylor, Immunity from Jurisdiction, No. SCSL-03-01-I (May 31, 2004)), 62, 63, 65 (“[T]he principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.”).

  18. 18.

    Akande, Immunities, supra note 1, at 416 n.65 (citing Prosecutor v. Charles Taylor, supra note 17, at ¶ 54).

  19. 19.

    Id. at 416 n.64.

  20. 20.

    Id.; see Prosecutor v. Milosevic, Indictment, No. IT-99-37 (May 22, 1999); Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 7, ¶ 2, S.C. Res. 827, U.N. Doc. S/RES/827 (May 2, 1993), available online

  21. 21.

    Akande, Immunities, supra note 1, at 416 n.64.

  22. 22.

    Id.; 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] at art. 27.

  23. 23.

    Rome Statute, supra note 22, at art. 27.

  24. 24.

    Akande, Immunities, supra note 1, at 420 n.85.

  25. 25.

    Id. at 419-20 nn.81 (citing Fox, supra note 8, at 429-30), 82.

  26. 26.

    Rome Statute, supra note 22, arts. 86, 87, 89; Paola Gaeta, Expert Comment on Darfur Question, ICC Forum, available online (last visited May 15, 2013).

  27. 27.

    Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. Just. 333, 337-38 (2009) [hereinafter Akande, SC Referrals].

  28. 28.

    Akande, Immunities, supra note 1, at 420-21 n.88; Dire Tladi, The ICC Decisions on Chad and Malawi on Cooperation, Immunities, and Article 98, 11 J. Int’l Crim. Just. 199, 209 (2013); Akande, SC Referrals, supra note 27, at 338.

  29. 29.

    Gaeta, supra note 26; Akande, Immunities, supra note 1, at 408, 420 n.84.

  30. 30.

    Akande, SC Referrals, supra note 27, at 338.

  31. 31.

    Id. at 338 n.18 (citing United States—Standards for Reformulated and Conventional Gasoline, WTO Doc. WT/DS2/AB/R, at 23 (Appellate Body Report, May 1996)).

  32. 32.

    Akande, SC Referrals, supra note 27, at 338.

  33. 33.

    See Tladi, supra note 28, at 201.

  34. 34.

    Rome Statute, supra note 22, at art. 98(1).

  35. 35.

    Gaeta, supra note 26; Akande, Immunities, supra note 1, at 425; see Akande, Immunities, supra note 1, at 422-23 for a discussion of the interpretation that “third State” refers to non-States Parties and discussing relevant domestic implementing legislation of the United Kingdom, Malta, and Ireland. Akande, Immunities, supra note 1, at 422-23; see Akande, SC Referrals, supra note 27, at 339 (same). “If it were always the case that Article 27 removes the international law immunity of officials of states even with respect to national authorities of other states, then Article 98 would, in turn, be deprived of all meaning…meaning given to both provisions by making a distinction between immunities accruing to non-parties to the ICC Statute and those accruing to ICC parties…”

  36. 36.

    Akande, Immunities, supra note 1, at 417. The Prosecutor can investigate other situations upon his or her proprio motu initiative in States Parties, or when a State refers a situation in another State Party to the Prosecutor. Rome Statute, supra note 22, at arts. 11, 13, 14, 15. The same applies for States who have not ratified the Statute, but have submitted an Article 12(3) declaration submitting to the jurisdiction of the International Criminal Court. Rome Statute, supra note 22, at art. 12(3). Hence, a Security Council referral is the only context in which the Prosecutor could open an investigation into a situation into a non-State Party.

  37. 37.

    Gaeta, supra note 26; Akande, Immunities, supra note 1, at 424.

  38. 38.

    Akande, Immunities, supra note 1, at 424 n.110 (citing Bruce Broomhall, International Justice and International Criminal Court: Between Sovereignty and the Rule of Law 145 (2003); Paola Gaeta, Official Capacities and Immunities, in The Rome Statute of the International Criminal Court: A Commentary 993-94 (Antonio Cassese, Paola Gaeta & John R. W. D. Jones eds., 2002); Wirth, supra note 2, at 452), 111, 112 (citing Wirth, supra note 2, at 452), 113 (Rome Statute, supra note 22, at art. 98(1)); Akande, SC Referrals, supra note 27, at 339.

  39. 39.

    Akande, Immunities, supra note 1, at 425.

  40. 40.

    Id. at 419, 420-21 n.87 (citing Broomhall, supra note 38, at 141), 433; Gaeta, supra note 26, at n.17.

  41. 41.

    Gaeta, supra note 26; Akande, Immunities, supra note 1, at 421 n.91. This is the argument the African Union has put forth regarding the issuance of arrest warrants for and requests to arrest and surrender Sudanese President Omar Al-Bashir. Gaeta, supra note 26. “In July 2009 the [African Union (“AU”)] Summit adopted the following decision: In view of the fact the [Article 16] request by the African Union has never been acted upon, the AU member states shall not cooperate pursuant to the provision of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender President Omar Al Bashir of The Sudan.” Tladi, supra note 28, at 202, 204. While the Court attempted to address these issue in the context of the case against Al Bashir, the Court conflated the issue of whether or not the Court may exercise jurisdiction over a national of a non-State Party, with the issue of whether requiring States Parties to comply with requests to arrest and surrender a national of a non-State Party compels them to “act inconsistently with [their] obligations under customary international law” owed to the non-State Party. See Id. at 205-208 for a discussion and critique of the Court’s opinions on the non-cooperation of Malawi and Chad. The Court failed to focus on the real issue—the scope of a request for cooperation in the context of Article 98(1)—and essentially interpreted Article 98 as if it did not exist. Id. at 206, 207; Göran Sluiter, Expert Comment on Darfur Question, ICC Forum, available online (last visited May 15, 2013); Akande, SC Referrals, supra note 27, at 336-37.

  42. 42.

    Gaeta, supra note 26.

  43. 43.

    Tladi, supra note 28, at 206; Gaeta, supra note 26; Akande, Immunities, supra note 1, at 433.

  44. 44.

    But see Akande, Immunities, supra note 1, at 421-22, 424 n.95 (citing Arrest Warrant, supra note 8, at ¶¶ 70-71), 96 (“This follows from the decision of the ICJ in the Arrest Warrant case, which held that the issuance and circulation of an arrest warrant for a person entitled to immunity violates that immunity even where no subsequent steps are taken.”).

  45. 45.

    Akande, Immunities, supra note 1, at 417, 424, 433.

  46. 46.

    Rome Statute, supra note 22, at preamble.

  47. 47.

    Akande, SC Referrals, supra note 27, at 342, 348; Tladi, supra note 28, at 211; Sluiter, supra note 41.

  48. 48.

    Akande, SC Referrals, supra note 27, at 340 n.26.

  49. 49.

    Id. at 341.

  50. 50.

    Id. at 342.

  51. 51.

    Id. at 342.

  52. 52.

    Id. at 341.

  53. 53.

    Id. at 342; Sluiter, supra note 41.

  54. 54.

    Akande, SC Referrals, supra note 27, at 342.

  55. 55.

    Tladi, supra note 28, at 211; Sluiter, supra note 41.

  56. 56.

    Sluiter, supra note 41.

  57. 57.

    Id.

  58. 58.

    Id.

  59. 59.

    Tladi, supra note 28, at 213.

  60. 60.

    Id. at 213-14 n.72 (citing Arrest Warrant, supra note 8, at § 52).

  61. 61.

    Id.

  62. 62.

    Id.

  63. 63.

    Tladi, supra note 28, at 213-14 n.70 (Dissenting Opinion of Judge Van den Wyngaert, Arrest Warrant, at supra note 8, at § 15).

  64. 64.

    Tladi, supra note 28, at 213-14.

  65. 65.

    Id. at 213-14.

  66. 66.

    Id.

  67. 67.

    Id. at 213-14 n.73 (citing Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), § 193, ICJ Reports 177 (Jun. 4, 2008).

  68. 68.

    Tladi, supra note 28, at 214.

  69. 69.

    Id. (citing International Law Commission Draft Articles on Jurisdictional Immunities of States and Their Property, art. 3 (1991), available online (last visited May 16, 2013) [hereinafter Draft Articles II].

  70. 70.

    Tladi, supra note 28, at 215.

  71. 71.

    Draft Articles II, supra note 69, at art. 5.

  72. 72.

    Id. at art. 3.

  73. 73.

    Tladi, supra note 28, at 215 (noting that state immunity could be violated if the court requests cooperation not in the arrest and surrender of an indicted person, but in the freezing of assets or provision of information, noting also that “property qualifies state immunity”).

  74. 74.

    Tladi, supra note 28, at 218.

  75. 75.

    Vienna Convention on the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 331, available online.

  76. 76.

    Tladi, supra note 28, at 216.

  77. 77.

    Id. at 218 n.94.

  78. 78.

    Id. (See “[t]he statement of Peru which stressed the broadest possible cooperation (A/Conf.183/SR.3). Similarly, Austria stated that a ‘mandatory system of cooperation was a prerequisite’ and that ‘any ground for refusal would have to be explicitly enumerated’ (A/Conf.183/SR.4). Japan also stressed the need for a ‘clear definition of the grounds on which a request by the Court’ could be declined (A/Conf.183/SR.20)”).

  79. 79.

    Id. at 218.

  80. 80.

    Id.

  81. 81.

    Id. at 219.

  82. 82.

    Id.

  83. 83.

    Id.

  84. 84.

    Id. at 220.

  85. 85.

    Id. at 220 n.102 (Dissenting Opinion of Judge Van den Wyngaert, Arrest Warrant, at supra note 8, at § 28).

  86. 86.

    Tladi, supra note 28, at 208; see Akande, SC Referrals, supra note 27, at 343-48.

  87. 87.

    Tladi, supra note 28, at 208.

Smarter Sanctions: The Use of Targeted Asset Freezes and Travel Bans by the ICC to Effectuate Arrests

I. Introduction

Of the myriad challenges facing the International Criminal Court (ICC) today, perhaps the most obstructive of its mandate to “put an end to impunity for the perpetrators” of international crimes1 is its frequent inability to effectuate the arrests of its indictees. Of the thirty-two individuals indicted by the court, fourteen remain out of have defied orders to appear and remain out of the custody of the court.2 While some of these individuals, such as those indicted in connection with the Lord’s Resistance Army of Joseph Kony,3 remain fugitives from even the most diligent efforts to track down and capture them, others remain active in international politics or are protected or detained by their home state, including the Sudan and Libya situations.4 Many nations openly hostile to the court, including the United States, have even signed numerous “bilateral immunity agreements,” promising that neither of the signing parties will surrender nationals of the other to the jurisdiction of the court.5

Therefore, the ICC finds itself in the unenviable position of being an international body with no coercive force facing the challenge of apprehending international fugitives, in the face of hostility of many nations. It is forced to rely on the States Parties to the Rome Statute and other nations to effectuate its arrests.6 However, the great powers have shown little inclination to use military force to enforce human rights treaties and norms, as evidenced by the equivocal response of the US and other nations to the genocides in Rwanda7 and Darfur.8 It is thus up to the international system to devise new and creative tools short of military action that nations may utilize to coerce other international actors to comply with ICC arrest warrants.

For decades, the traditional response has been general trade sanctions.9 However, problems of enforcement, compliance, and the collateral consequences to the populace of targeted nations make embargoes particularly ill suited to the human rights context. Therefore, the use of targeted sanctions, frequently referred to as “smart sanctions,” present a promising alternative for states wishing to encourage compliance with an ICC arrest warrant through the use of punitive measures.

The targeted sanctions most useful for achieving this goal include the freezing of financial assets and travel bans (the third type of frequently used targeted sanctions, arms embargoes, is unlikely to be applicable in the context of effectuating an arrest warrant of the ICC). These have the advantage of specifically targeting the leaders of the targeted nations, leading to a reduced costs for the nations citizens, as well as being cheaper to enforce and more difficult to undermine. They also have the advantage of being able to be imposed in conjunction with other techniques, including the promise of foreign aid and general diplomatic pressure. Though they bring with them their own specific set of challenges, they present a promising tool to be used in the struggle to bring international criminals before the tribunal.

II. Historic Efficacy of International Sanctions

Economic sanctions have come to be somewhat disfavored in recent scholarship. This is largely due to the perceived ineffectiveness of traditional trade sanctions. The study of Hufbauer, Schott, and Elliot remains the definitive study on the efficacy of economic sanctions.10 In their study, they observed that the use of trade sanctions alone to influence state policy was only effective in twenty-five percent of the cases.11 They state that general trade sanctions will only be successful under an extremely limited set of conditions. They concluded that the general ineffectiveness of sanctions is due to the fact that “the evolution of the world economy since World War II has been a narrowing of the circumstances in which unilateral economic leverage may be effectively applied.”12

The primary requirement for the successful application of general trade sanctions has been near-total international participation. The effective use of trade sanctions in the post—World War II period has required a very high level of international participation for several reasons. First, a country targeted by trade sanctions can nevertheless usually find an export market for their goods, as there is likely to be a nation not participating in the sanctions, as well as the fact that “for many products—especially bulk commodities such as oil and grains—it is hard to verify the origin of goods entering customs.”13

Additionally, restrictions on imports into the target country are also likely to be ineffective as a wealthy ally of the targeted state may intervene and act as a “black knight” by offering their support, which “can largely offset whatever harm is done by the sanctions themselves.”14 Thus, a sanctioning regime could result in economic damage only to the sanctioning party, as their domestic businesses suffer from decreased export markets and higher prices from alternative import markets while the target country is able to merely shift their imports and exports to other markets with minimal economic consequences.

Finally, Trade embargoes can also have severe humanitarian costs. For example, depriving a nation of necessary food aid will have little direct impact on the leaders of a state as they will be able to pass those costs on to their citizens, but may have a dire impact on the population dependent on this aid to survive. Therefore, in the event of a sanction regime based on human rights concerns, trade embargoes can often hurt the very people they were implemented to protect.

All of these concerns are especially salient when discussed in the context of the International Criminal Court. First, any sanctioning action meant to aid the ICC is likely to encounter opposition from the court’s arguably staunchest opponents, Russia and China. The strength and market power of these two nations is likely more than adequate to fatally undermine any trade sanctioning regime meant to compel a state to comply with an arrest warrant. Their ability to veto any action proposed by the United Nations Security Council (UNSC) also makes it unlikely any sanctioning regime would even survive long enough to be implemented. Additionally, other nations may not be willing to sustain the economic harm that would result from being forced to search for new import and export markets while the nations disregarding the sanctions would reap the benefits of a more favorable market.

More importantly however, any trade sanctioning regime that is effective would likely entail severe humanitarian costs. To date, all ICC Arrest warrants have targeted African citizens.15 The majority of arrest warrants have targeted citizens of the Democratic Republic of the Congo, one of the world’s poorest nations.16 Any trade restriction could have dire consequences on this already impoverished population. Therefore, the issue of unintentional costs could be especially relevant in the context of sanctions imposed on the basis of refusal to cooperate with the ICC.

For all of these reasons general trade embargoes are of suspect efficacy, particularly when attempting to coerce a state official to comply with an international order aimed at furthering human rights protections. It is thus up to the international system to devise a method of exerting coercive pressure on state leaders in a manner that can be enforced, while sparing the general populace from severe difficulties. It is these traits that make targeted sanctions consisting of asset freezes and travel bans such promising alternatives.

III. Targeted Asset Freezes

A. Practical Implementation

Asset freezes are one promising form of targeted economic sanction. Asset freezes consist of tracing funds stored by leaders or powerful individuals of the targeted nation in international banking institutions and blocking their access to these funds. In the context of the International Criminal Court, the assets to be frozen can extend beyond those of the indicted individual. The official assets of the government, as well as those of the governmental leaders and leading figures within the target nation are also frequently stored with international banking institutions and are potential targets for assets freezes.17

The United States has developed extensive procedures for freezing assets, and its Office of Foreign Assets Control (OFAC) “has become the key institution in the freezing of assets.”18 Key to OFAC’s ability to implement sanctions is the way it has convinced banks to cooperate with its investigations, convincing them that the lost confidence and negative publicity of being associated with international pariahs outweighs it’s the risk of lost future deposits by foreign nations and citizens.19 This along with well-developed technological tools has enabled it to play a major role in seizing the assets of North Korea, China, and Iran.20 The Organization of Economic Cooperation and Development, many of whose members are also signatories of the Rome Statute,21 also possesses the mechanisms to impose and coordinate asset freezes internationally. Therefore, it is abundantly clear that the systems and technology exist to successfully impose asset freezes on nations and individuals defying an ICC arrest warrant.

B. Legal Procedures

The freezing of assets of both individuals and nations is not without legal precedent. Chapter VII, Article 41 of the United Nations Charter grants the Security Council the authority to engage in economic interruption to give effect to its decisions.22 When attempting to dislodge the military dictatorship of Haiti in 1993, the Security Council for the first time imposed assets freezes not only over a nation, but over private individuals as well.23 The Security Council has also urged states to impose assets freeze regimes against individuals and nations aiding individuals indicted by international tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY).24 Thus, the use of assets freezes against both the official funds of nations and private citizens to aid in the apprehension of individuals indicted by international courts is legally permissible.

Outside of the Security Council, the United States has constructed its own well-defined legal regime for such sanctions, as well as a robust technical arsenal that allows for such sanctions to be carried out. This system could serve as a model for nations or international organizations wishing to develop the tools for an effective sanctions regime of a state refusing to comply with an ICC arrest warrant. One of the primary statutes invoked by the United States when freezing foreign assets is the International Emergency Economic Powers Act (IEEPA).25 Encompassing 50 U.S. Code §§ 1701-1707, the IEEPA gives the president broad discretion over foreign commerce in relation to specific targeted entities, allowing him to:

Investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.26

This has allowed the president to engage in assets freezes in the past, both over individual as well as over other nations’ official funds, such as those of Iran during the 1979 hostage crisis,27 as well as over individual groups suspected of terrorism.28 The use of IEEPA against the Holy Land Foundation is especially encouraging for its potential to be used to compel compliance with an ICC arrest warrant. Whereas the norm of terrorism is not well established in international law,29 the institutional legitimacy legitimacy of International Criminal Court is generally accepted in most of the international system.30 Thus, the use of IEEPA to compel adherence to the Rome Statute or an order of the UNSC will likely not encounter much resistance on legal grounds.

However, the IEEPA is not the only tool used to effectuate assets freezes by the United States. The Trading with the Enemy Act of 1917 has also been used. This act permits the freezing of assets in a time of war,31 and is therefore more restrictive than the IEEPA, but nevertheless has been used to freeze the assets of the regimes of North Korea and Cuba.32 Finally, executive orders have also been used by the US presidents to freeze the assets of foreign governments and individuals, including Saddam Hussein and the Iraqi government in the lead up to the first Gulf War.33

Additionally, the ICC could rely on other entities to impose asset freeze sanctions to enforce its arrest warrants. The European Union has recently developed a robust legal doctrine for implementing assets freezes.34 The European Union System includes provisions not only enabling assets freezes, but also mandating mutual recognition of one state’s sanctions by the other member states. In this way the European Union system has the potential to be even more far-reaching and powerful than that of the United States.

Thus, the legality of the freezing of financial assets is well established. The United States has developed an extensive array of tools that enable assets freezes. More importantly, the European Union, which includes many signatories of the Rome Statute,35 has also developed the tools for the implementation and enforcement of targeted asset freeze financial sanctions. The ICC therefore would not be without precedent in requesting the freezing of assets to add coercive force to its arrest warrants, and an extensive legal and technical arsenal exists to accomplish this goal.

C. Advantages of Targeted Asset Freezes

Asset freezes are a promising potential tool for enforcement of International Criminal Court arrest warrants for several reasons. Asset freezes have the unique ability “further isolate persons indicted by the International Tribunal, serve as an effective penalty even if such persons evade justice, and, induce such persons to surrender themselves to the International Tribunal.”36 It is these particular characteristics that make them especially fitting for use by the ICC to compel the execution of arrest warrants.

Perhaps their greatest strength is the precisely targeted manner in which they can be used. As stated above, general trade embargoes are particularly poorly suited for use in the human rights enforcement context because of their high incidence of collateral damage, often harming the very population they are intended to benefit more than the leaders responsible for the sanctioned behavior.37 Even purely financial sanctions can have unintended consequences on the target state’s populace. For example, the investment and credit sanctions imposed on Iran in 1979 had far-reaching implications for the Iranian economy, negatively impacting the standard of living of the Iranian populace.38 Asset freezes, on the other hand, can be narrowed to target only those individuals or entities responsible for the sanctioned behavior or with the influence to affect change. These can include the official assets of the state, as well as the personal assets of leaders or those supporting them such as powerful military commanders or leading business individuals.39 Therefore, the goals of sanctioning can be achieved by targeting only those responsible for shielding the individual from the ICC arrest warrant, while sparing the general populace of the state the onerous conditions associated with trade embargoes.

Additionally, the bane of enforcement of general trade embargoes, the need for near total multilateralism, is much less of a concern for the imposition of a successful assets freeze regime. In some cases assets freezes can be successfully imposed unilaterally. Following the Iranian Revolution of 1979, for example, the government of Iran had between $9 billion to $12 billion in American banks, which the US government froze immediately following Iran’s capture of Iranian hostages.40 Even though the United States was acting without the aid of any other nations, “it is unquestionable that…the freeze of some $12 billion in Iranian assets placed a heavy burden on Iran contributed to the ultimate conclusion hat it was in their interest to resolve the crisis.”41 Even in a situation where the wealth of the sanction target was not concentrated in one nation, it is likely that the cooperation of the Organisation for Economic Co-operation and Development (OECD), an entity likely to be in favor of ICC arrest warrant enforcement given the large number of Rome Statute signatories among its members, is likely enough to ensure the effectiveness of asset freezes.42 While more burdensome than unilateral action, this still represents a much smaller hurdle than the near total international participation required for trade embargo enforcement. Furthermore, multilateralism may frequently be much easier to secure for assets freezes over trade embargoes, as “Because these sanctions would be targeted at specific individuals, not governments, it would seem to be easier to gain support of the members of the Security Council for such a measure.”43

Furthermore, asset freezes have a higher likelihood of being accepted and enforced by the international community, as they are less costly to the sanctioning nations than either military force, or other economic sanctions including trade embargoes. Whereas trade embargoes necessarily lead to a decrease of exports or imports for the sanctioning countries, assets freezes have few costs outside of the potential for decreased bank deposits in the future. Therefore, assets freezes are a much less onerous burden for the sanctioning nations and therefore more likely to be accepted and utilized.

Finally, asset freezes maintain the legitimacy costs all international sanctions entail. The very act of applying sanctions will decrease the international legitimacy of a regime. This in turn can decrease the domestic legitimacy of a regime,44 making opposition figures appear stronger and making defying an ICC arrest warrant politically costly. This trend in part explains the groundswell of popular opposition to Milošević in Serbia in 1999 and 2000.45 This also in part explains Libya’s attempt to find “face-saving” ways too cooperate with the UNSC sanctions against it in 1992.46 Therefore, the very act of sanctioning can be productive in and of itself, and asset freezing is able to accomplish this without the onerous collateral costs of other sanctions.

D. Challenges of Asset Freezing

All of this is not to say that asset freezing is a cure-all to the problem of enforcement of ICC arrest warrants. To be sure, it poses its own challenges that must be addressed. First, the ICC has no sanctioning power of its own. It is therefore dependent on the international community to impose sanctions on its behalf. This will necessarily entail some amount of diplomacy.

Unfortunately, this is in direct opposition to the primary requirements for a successful assets freeze regime: speed and secrecy. In the world of international diplomacy, and especially in the field of international human rights, speed and secrecy can both be extremely difficult to maintain, as coming to an international consensus may require protracted negotiation. But without speed and secrecy, a prospective target of sanctions may be able to move its funds out of national banks, leaving the sanctioning party with no assets to freeze. Comparing the cases of the sanctions against Iran in 1979, and against the Taliban regime of Afghanistan in 1999 illuminates the importance of speed and secrecy. In the case of Iran, the Carter administration acted promptly giving no advance warning to the regime in Tehran.47 This resulted in a successful freezing of assets, blocking Iranian access to between $9 billion and 412 billion.48

This contrasts with the example of Afghanistan. Seeking to persuade the Taliban regime to surrender Osama Bin Laden in 1999, the Council debated for weeks preceding the eventual imposition of assets freezes.49 Furthermore, when the UNSC eventually imposed assets freezes, the implementing resolution delayed execution by 30 days.50 While this was ostensibly to allow for negotiations to continue, the end result was that the Taliban regime was able to move or shelter its assets, leading to a limited overall impact and the failure of the policy goal of the sanctions.51

It is thus fortunate that in many cases assets freezes can be implemented unilaterally. However, in the cases in which international participation is necessary, the ICC and the international community must develop streamlined and efficient procedures for implementing the freezes before the sanction target has an opportunity to move, hide, or otherwise shelter its assets.

III. Targeted Travel Bans

A. Practical Implementation

The second form of targeted sanction that could be utilized by the International Criminal Court and its member states is targeted travel bans. While unlikely to generate much coercive force on their own, when combined with other sanctions, including assets freezes, they can have significant persuasive force on the decision-making elites of a state.

Travel bans can take several forms. The first is a general ban on aviation. This type of ban was used against Libya in response to the 1982 Lockerbie bombings.52 This type of sanction bans all aviation into and out of the target country. This form of travel ban has the effect of greatly slowing commerce in the target country at the expense of greater multilateralism and a higher incidence of collateral costs to the population of the targeted nation.

However, more limited forms exist. For example, in certain instances it may be effective to ban certain types of cargo into the target state. Alternatively, banning flights from the sanctioner’s territory into the territory of the targeted state can generate some amount of coercive pressure. Finally, sanctions can also consist of banning the sale of airline parts and services.

B. Legal Procedures for Implementing Travel Bans

Like asset freezes, travel bans are not without international precedent. As stated above, comprehensive travel bans were implemented against Libya in 1993.53 The Security Council also imposed travel bans against Angola in 1997 for violating Lusaka Protocol.54 Other targets have included Sudan, Afghanistan, Sierra Leone, and Haiti.55 These various examples make it clear that travel bans are not a novel concept in international law, especially in the context of human rights, and represent a viable tool that could be utilized by the ICC and its States Parties.

Travel bans can also be implemented unilaterally. Although there are less examples of this than there are of assets freezes, The United States has periodically imposed travel bans. The most prominent example is the ongoing embargo of Cuba, codified by the Helms-Burton Act, which prohibits any travel between the United States and Cuba.56 Thus, legal procedures exist for both the unilateral and multilateral imposition of travel bans.

C. Advantages of Targeted Travel Bans

Several traits of travel bans make them particularly well suited for use with asset freezes to compel ICC arrest warrants. First, like asset freezes they can be targeted at the decision-making elites of the nation. As travel is necessary for international banking, fundraising, and diplomacy, a ban on travel can severely negatively impact a leader’s ability to effectively govern their nation. The travel bans should also aim to deny the leaders access to goods the general populace usually has no access to, such as weapons. All of this can be accomplished with limited impact on the general populace, as exceptions can be made for humanitarian aid and religious travel (such as allowing Muslims to embark on the Hajj) without severely undermining the policy goal of the sanctions as a whole.

The ability of travel bans to target elites was evidenced by their use in the Balkan conflict in the late 1990s. During the conflict, travel bans were placed on over 800 Special Designated Persons (SDPs), who were leading politicians and business people within Serbia.57 Despite petitions of removal from many of the SDPs, the European and US officials held firm in denying them the ability to travel to the US and EU. As a result, many of the SDPs were precluded from substantial business and investment opportunities. This targeted coercive pressure, combined with incentives for the opposition, “no doubt contributed to the groundswell against Milošević and helped convince elites that the costs of supporting the regime were excessive.”58 All of this was achieved with little humanitarian impact caused by the travel sanctions. Thus, travel bans have to potential to target only the decision-making elites.

Secondly, because many airlines are at least in part state-owned, the travel bans can deny valuable income to the sanctioned regime. Security Council Resolution 883 implemented this form of travel sanction against Libya in 1993.59 The result was a loss of approximately $2 billion in aviation losses and another $2.5 billion in damages to Libya’s overburdened road network,60 a substantial amount for a small, relatively poor nation.

Furthermore, unlike most other forms of financial sanctions, travel bans are relatively easy to enforce. The air traffic network is already highly regulated. Little additional effort is necessary to effectively monitor the travel of both individuals and airlines, and so the burden of enforcing travel bans is relatively minimal, especially compared to the vast amount of monitoring necessary to ensure compliance with a general trade embargo.

Finally, as with financial sanctions, the very act of sanctioning a nation sends a strong message to the international community, as discussed above in relation to Iran in 1979 and Libya in 1992. For a regime seeking to maintain its domestic legitimacy, this could make defying an arrest warrant of the ICC too politically costly to be undertaken. Therefore, travel bans could be an effective, relatively easy tool the states supporting the ICC could engage in to further compliance with ICC arrest warrants.

D. Challenge of Implementing Travel Bans

Despite these traits, the successful implementation of a travel ban regime requires being mindful of several limitations. The most severe is that travel bans require a greater amount of multilateralism than financial sanctions. The travel sanctions against Libya, Angola, Afghanistan, Haiti, and Sierra Leone were all imposed by the United Nations Security Council.61 While it is not impossible to get Security Council agreement on an issue related to the ICC (the case against Omar Al Bashir was referred by the security Council),62 the well documented hostility of China, Russia, and occasionally the United States to the Court make it far from guaranteed.

Additionally, travel bans require diligent enforcement. Lax customs or border enforcement can lead to collapse of entire sanctioning regime.63 While enforcement does not require a large resource or time investment, it nevertheless must be undertaken forcefully and comprehensively.

Finally, travel bans do not necessarily have the same coercive force on their own as economic sanctions. If the sanctioned nation has a strong interest in international recognition, stand-alone sanctions may be effective in changing behavior and effectuating arrest. Otherwise however, they likely need to be applied in combination with economic sanctions.64 By being mindful of these limitations travel bans can be successfully implemented, and thus will be a powerful tool for the ICC and its supporting states.

IV. Conclusions

Targeted sanctions are a promising tool for the International Criminal Court. Historically, the opposition to enforcement of human rights treaties has centered on the expense of enforcement, their frequent collateral damage, and the difficulty to ensure compliance within the international community. Targeted sanctions sidestep many of these problems. Enforcement is much easier thanks to the lesser degree of required number of state participants. Also because they do not involve precluding large amounts of trade or investment they are also less costly to enforce, far below the cost of general trade embargoes or military action. Finally, because they focus coercive pressure on the elites and leaders of the state, the pressure of the sanctions is felt only by the decision-making elites, sparing the general population much of the hardship associated with trade embargoes and military action.

This is not to say that targeted actions are a cure—all for the ICC’s challenge of enforcing its arrest warrants. Most limiting is the fact that, because the ICC has no coercive power of its own, Targeted sanctions can only be implemented by members of the international community willing to support the Court. Therefore, the Office of the Prosecutor must continually engage the international community. By building relationships with the Rome Statute’s States Parties in the Organization for Economic Cooperation and Development the Court will have powerful allies capable of lobbying for the use of targeted sanctions, as well as implementing them unilaterally in certain circumstances. Together, coupled with other tools at the disposal of the Court and its States Parties, targeted economic sanctions could prove to be a powerful tool in compelling the execution of the arrest warrants of the International Criminal Court.

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

  1. 1.

    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], preamble, para 5.

  2. 2.

    Situations and Cases, ICC, available online (last visited Dec. 19, 2013).

  3. 3.

    LRA Commanders, LRA Crisis Tracker, available online (last visited Dec. 19, 2013).

  4. 4.

    Situations and Cases, supra note 2.

  5. 5.

    Eric M. Meyer, International Law: The Compatibility of the Rome Statute of the International Criminal Court with the U.S. Bilateral Immunity Agreements Included in the American Servicemembers’ Protection Act, 58 Okla. L. Rev. 97, 100 (2005).

  6. 6.

    Eric Leonard, ICC Effectiveness Depends on Member State Cooperation, Jurist, (Jan. 3, 2012), available online.

  7. 7.

    Samantha Power, “A Problem from Hell”: America in the Age of Genocide 363 (2002).

  8. 8.

    Economic Sanctions, Iraq, and U.S. Foreign Policy, 11 Transnat’l L. & Contemp. Probs. 345, 346 (2001).

  9. 9.

    Id. at 345.

  10. 10.

    See Gary Clyde Hufbauer, Jeffrey J. Schott & Kimberly Ann Elliott, Economic Sanctions Reconsidered: History and Current Policy (1990) at 1.

  11. 11.

    Id. at 71.

  12. 12.

    Id. at 114.

  13. 13.

    Id. at 36.

  14. 14.

    Id. at 13.

  15. 15.

    Situations and Cases, supra note 2.

  16. 16.

    Id.

  17. 17.

    Jayantha Dhanapala, Final Expert Seminar on Smart Sanctions: the Next Steps: Arms Embargoes and Travel Sanctions, in Smart Sanctions: the Next Steps: The Debate on Arms Embargoes and Travel Sanctions Within the “Bon-Berlin Process” 35 (Michael Brzoska ed., 2001).

  18. 18.

    David A. Cortright, George A. Lopez & Elizabeth S. Rogers, Targeted Financial Sanctions: Smart Sanctions That Do Work, in Smart Sanctions: Targeting Economic Statecraft 24 (David Cortright & George A. Lopez eds., 2002) [hereinafter Smart Sanctions].

  19. 19.

    Id.

  20. 20.

    Id.

  21. 21.

    List of Member Countries-Ratification of the Convention on the OECD, Organization of Economic Cooperation and Development, available online (last visited Dec. 19, 2013).

  22. 22.

    U.N. Charter art. 41, para. 1.

  23. 23.

    See S.C. Res. 841, U.N. SCOR, 3238th mtg. at 3, U.N. Doc. S/RES/841 (1993).

  24. 24.

    Security Council Resolution 1503, at para. 6, U.N. Doc. S/RES/1503 (2003), available online.

  25. 25.

    Meghan L. O’Sullivan, Shrewd Sanctions: Statecraft and State Sponsors of Terrorism 177 (2003).

  26. 26.

    50 U.S. Code § 1702(a)(1)(B).

  27. 27.

    O’Sullivan, supra note 25, at 94.

  28. 28.

    Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162 (D.C. Cir. 2003).

  29. 29.

    United States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003).

  30. 30.

    Margaret M. deGuzman, Gravity and the Legitimacy of the International Criminal Court, 32 Fordham Int’l L.J., 1400, 1443 (2008), available online.

  31. 31.

    12 U.S. Code § 95 (a)(1).

  32. 32.

    United States Government Accountability Office, Report to Congressional Requesters, Foreign Regimes’ Assets—The United Faces Challenges in Recovering Assets, but has Mechanisms that Could Guide Future Efforts, GAO-04-1006, 1-58, at 35 (Sep. 2004), available online.

  33. 33.

    O’Sullivan, supra note 25, at 93.

  34. 34.

    Confiscation and Freezing of Assets, Eur. Comm., available online (last visited Dec. 19, 2013).

  35. 35.

    The States Parties to the Rome Statute, ICC, available online (last visited Dec. 19, 2013).

  36. 36.

    Michael P. Scharf, The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal, 49 DePaul L. Rev. 925, 945 (2000).

  37. 37.

    Hossein G. Askari, John Forrer, Hildy Teegen & Jiawen Yang, Economic Sanctions: Examining Their Philosophy and Efficacy 113 (2003).

  38. 38.

    Smart Sanctions, supra note 18, at 25.

  39. 39.

    Id. at 38.

  40. 40.

    Id. at 25.

  41. 41.

    Id. at 26 (quoting Warren Christopher, Deputy secretary of State and Chief US representative in the US-Iran talks).

  42. 42.

    Id.

  43. 43.

    See R. Jeffrey Smith, Secret Meetings Foiled Karadzic Capture Plan; U.S. Says French Jeopardized Mission, Wash. Post, A32 (Apr. 23, 1998).

  44. 44.

    Michael Brzoska, supra note 17.

  45. 45.

    Id. at 36.

  46. 46.

    Smart Sanctions, supra note 18, at 150.

  47. 47.

    Id. at 30.

  48. 48.

    Id. at 26.

  49. 49.

    Id. at 30.

  50. 50.

    S.C. Res. 1267, S/RES/1267 (Oct. 15, 1999), available online.

  51. 51.

    Smart Sanctions, supra note 18, at 30.

  52. 52.

    S.C. Res. 748, S/RES/748 (Mar. 31, 1992), available online.

  53. 53.

    Id.

  54. 54.

    Richard W. Conroy, The UN Experience With Travel Sanctions: Selected Cases and Conclusions, in Smart Sanctions, supra note 18, at 152.

  55. 55.

    Id. at 156-160.

  56. 56.

    22 U.S. Code §§ 6021-6091.

  57. 57.

    Michael Brzoska, supra note 17.

  58. 58.

    Id. at 36.

  59. 59.

    S.C. Res. 883, S/RES/883 (Nov. 11, 1993), available online.

  60. 60.

    United Nations Security Council, Letter Dated 27 May 1997 from the Permanent Representative of Libyan Arab Jamahiriya to the United Nations Addressed to the Secretary-General, S/1997/404, May 27, 1997, 9.

  61. 61.

    Richard W. Conroy, supra note 54, at 145-162.

  62. 62.

    Situations and Cases, supra note 2.

  63. 63.

    Kimberly Anne Elliot, Analyzing the Effects of Targeted Sanctions, in Smart Sanctions, supra note 18, at 181.

  64. 64.

    Id. at 199.

Effectuating Arrest: A Comparative Study of the ICTY and ICC Situation Countries

Introduction

Since its inception in 2002, the International Criminal Court’s Office of the Prosecutor (OTP) opened formal investigations in eight countries: Uganda, Sudan, Libya, Côte d’ Ivoire, Congo, Central African Republic, Kenya, and Mali. With the exception of Mali (still in pre-trial investigation phase), the OTP issued arrest warrants for individuals in each of the other countries. Although certain ICC situation countries were successful in effectuating arrests, several countries struggle with their ability to do so. At this point in time, Congo demonstrates the most success with regard to effectuating arrests, with three arrests and subsequent transfers to the Hague, and additional voluntary surrenders. To the contrary, other situation countries have multiple wanted persons that remain at large, in spite of outstanding arrest warrants. The disparity between particular countries’ ability to arrest and surrender an individual to The Hague suggests that certain factors may be particularly determinative of arrest capability.

The International Criminal Tribunal for the Former Yugoslavia (ICTY) represents an important case study on enforcement of international criminal tribunals, and may offer insight into factors necessary to effectuate arrests, or at best, suggest factors that contribute to successful arrests of individuals wanted by an international criminal tribunal. This paper will provide a further evaluation of those factors critical in securing ICTY arrests and, based on those factors, predict which of the current ICC situation countries possess a potentially greater disposition to secure arrests. Additionally, this paper will also employ those factors integral to ICTY arrests as predictors to which ICC situation country may be least likely to succeed in effectuating arrests.

ICTY History & Discussion of Factors That Contributed to Arrests

Reports of rape, torture in detention camps, and thousands of massacred civilians throughout the Balkans in the 1990s encouraged the United Nations to establish a Commission of Experts charged with investigating the commission of alleged war crimes and human rights violations.1 Documented evidence of such crimes motivated the UN Security Council to pass Resolution 827, which formally established the ICTY.

Without its own police force or military, the ICTY exhibited remarkable success in its arrest record. Since its formation in 1993, ICTY prosecutors indicted 161 individuals for genocide, crimes against humanity, violations of the laws and customs of war, and for grave breaches of the Geneva conventions.2 Most importantly, as of July 2011, not a single individual charged by the ICTY remains at large. The ICTY’s record invites a discussion of what circumstances or factors in particular enabled the ICTY to reach such enormous success in effectuating arrests.

Factors Relevant to ICTY Success

Analysis of ICTY effectuated arrests requires identification of the particular circumstances or factors that may have been integral in securing the ICTY’s capability in making such arrests. During the course of time that individuals were charged by ICTY prosecution, several factors were present and should therefore be considered in light of their ability to facilitate arrest capability. With respect to the ICTY, these factors included conditional membership to the European Union, military presence, intelligence from big powers, aid conditionality, trade sanctions, and lastly, time. This paper acknowledges that each factor mentioned might not in fact share the same relevance to the improvement of arrest capabilities, though it will seek to determine the relative influence each of these factors possessed. Such analysis may provide meaningful insight when applied to the current challenges that face the ICC’s arrest capacity.

1. Conditional Membership to the EU

Serbia’s accession to the European Union hinged, at least in part, on the requirement that it take definite steps to comply with ICTY jurisdiction and assist in arresting individuals wanted by the ICTY. Although taking responsibility for its grave actions in the Balkans was not the only condition required of Serbia as a candidate to join the European Union, it was certainly an important one that contributed to the successful arrests of individuals charged by the ICTY.3

Although numerous arrests warrants were issued by the ICTY soon after it was established, as of 1996, only 7 out of 74 indicted suspects were in custody.4 As of 2004, twelve fugitives were known to be living in Serbia, with Prime Minister Kostunica reluctant to make any arrests.5 The government’s reluctance to openly cooperate with the ICTY at first garnered substantial international criticism towards Serbia, especially because the arrest warrants for both Mladić and Karadžić had been outstanding for nearly a decade. Statements made by Serbian officials suggest that the subsequent arrest and transfer of fugitives to The Hague were predicated on criticism from the international community and refusal of admission to the EU. On May 26, 2011, Serbian authorities arrested Ratko Mladić, whose arrest was “a critical factor for Serbia’s coveted EU membership”.6 Serbian Interior minister Ivica Dačić’s statement regarding the arrest of Hadžić, the 46th indictee demanded of Serbia, also suggested that admission to the EU was, at least, a motivating factor in arresting individuals wanted by the ICTY. Referring to the arrest, Dačić stated “[Serbia]] has come out of the dungeon it had been in for 20 years. The EU should stop blackmailing Serbia; there is no more reason for conditioning Serbia on the road to European Integration”.7 The fact that conditional membership to the EU preceded Serbia’s willingness to cooperate with the ICTY in effectuating arrests demonstrates the integral role that economic incentives played in shifting policy towards a cooperative national government.

2. Boots on the Ground

In addition to incentives created by desired membership to the EU, another factor relevant to the ICTY’s successful arrest record was “boots on the ground”: actual military presence that would facilitate the arrest if individuals wanted by the ICTY. Although the ICTY lacked a formal arrest procedure, Article 29 of the ICTY Statute provides that UN member states “comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including but not limited to… “the arrest of individuals.”8 Under this statute, multinational forces under the authority of NATO possessed the power to arrest, and did so frequently. Ultimately, multinational military forces provided critical supplementary military support and without doubt facilitated the arrest of persons wanted by the ICTY.

On July 10th, 1997, Special Forces in Bosnia launched a NATO—sanctioned operation against suspected war criminals. During “Operation Tango,” two special—forces teams carried indictments issued by the ICTY entered Bosnian towns via helicopters and extracted the suspects.9 Although the teams were British Special Air Force, the US provided logistical support, with President Clinton’s approval 3 months earlier.10 NATO involvement provided tangible manpower critical in effectuating the arrest of individuals wanted ICTY prosecutors. Arrest capability during that period would certainly be limited without the Joint European and American approval for the NATO arrest missions.

3. Intelligence Assistance & Monetary Rewards from Big Powers

National authorities did not act alone in arresting individuals wanted by the ICTY; intelligence agencies from around the world provided additional assistance that provided important information relevant to the arrest and capture of wanted suspects.

At Interpol, the Fugitive Investigative Support Sub-directorate provided operational support, training, and development with regard to suspects wanted by the ICTY.11 Interpol assisted through issuing Red Notices (which led to 35 arrests of individuals wanted for war crimes), and also provided assistance by cooperating with national authorities and international institutions to “locate, arrest, and develop information concerning individuals suspected of these crimes”.12 Additionally, Interpol provided specialist investigative training to national authorities, which furthered ability to gather data and apprehend suspected war criminals.

Although the extent to which western intelligence agencies also assisted in intelligence gathering is not clear, Serbia’s Foreign Minister stated that, at least with regard to the hunt for Mladić, US and British intelligence agencies dispatched officials to Belgrade to assist their Serbian counterparts, with “active assistance on the ground”.13 Thus, even though reports remain silent on the extent to which intelligence agencies were involved, at best there is an acknowledgement that western intelligence agencies did provide assistance in the arrest and capture of wanted individuals.

In addition to intelligence assistance, the United States provided an important contribution to the arrest of individuals wanted by the ICTY by issuing monetary rewards for their capture. Under the War Crimes Rewards Program, the US Department of State offered up to $5 Million in rewards for persons wanted by international criminal tribunals. US press releases state that this rewards program “has led to the arrest and capture of fugitives wanted by the ICTY.”14 Thus, hindsight demonstrates that multinational intelligence gathering and American support through the issuance of monetary reward contributed to the arrest indictment of persons wanted by the ICTY.

4. Aid Conditionality & Economic Leverage

Aid conditions and trade sanctions also played an important role in increasing the arrest frequency for ICTY indicted persons. In 2002, US Congress authorized a multiple year financial assistance package to Serbia-Montenegro worth $100 million, though the funds were made conditional on US Secretary of State evaluations. These evaluations required an assessment of adequate Serbian support of and cooperation with the ICTY. In both 2004 and 2005, Belgrade failed to meet the conditions stipulated by the US, which resulted in Colin Powell’s decision to withhold over $10 million dollars in aid.15 Additionally, enacting pressure to arrest Milosevic, the US threatened to withhold payments to the IMF and World Bank as leverage against Serbia.16 American exertion of aid conditions and economic leverage against Serbia constituted important motivating factors in the arrests of the most wanted persons by the ICTY. Similar to conditional membership to join the EU, aid conditionality provided additional economic incentive for Serbia to shift its attitude towards a more cooperative player with the ICTY.

5. Time

Although the successful arrest of 161 individuals wanted by the ICTY remains an impressive statistic, the fact that those arrests took 18 years to complete must be considered. Arrests were not completed until 2011, nearly two decades after the ICTY was formed. This is an important consideration because it demonstrates the evolving nature of policy as regimes and circumstances change, and how those changes in policy over time would certainly affect a regime’s capacity or willingness to cooperate with the ICTY.

In light of the lack of any formal ICTY arrest apparatus, Theodor Meron, President of the ICTY and the International Residual Mechanism for Criminal Tribunals stated that modern international criminal justice is “totally dependent on cooperation of states”.17 Consideration of how the political atmosphere in the Balkans evolved during the course of time that ICTY arrest warrants were issued will therefore offer important insight into the role that policy and time played in facilitating arrest power. Although perhaps initially the Serbian government did not consider cooperation with the ICTY valuable or necessary, subsequent international pressure to cooperate with the ICTY and economic incentives without doubt contributed to the change in attitude regarding cooperation. This shift becomes evident when one observes the evolution in cooperation from the era of Kostunica to more contemporary and cooperative Tadic regime.

Most Significant Factors in Securing Arrests

Although each of the aforementioned factors contributed to the impressive ICTY arrest record, some were arguably more instrumental than others. Those that yielded the most dramatic results were conditioned membership to the EU, boots on the ground, and time. Conditional membership to the EU and NATO-sanctioned Special Forces were unequivocally important in incentivizing national governments to cooperate with the ICTY in effectuating arrests. Furthermore, supplemental military oversight and resources provided by NATO proved essential in the capture of high-level targets. Additionally, employing the ICTY arrest history as a case study for the ICC Situation Countries’ arrest capability requires analysis that includes the element of time, as the ICC is a much younger international institution than the ICTY.

Prediction for Effectuating Arrests in ICC Situation Countries

Examination of factors integral in facilitating arrests for persons wanted by the ICTY may provide important insight into why certain ICC situation countries are unable to effectuate the arrest of individuals wanted by the ICC. However, important contextual differences should be highlighted prior to comparing the ICTY to the ICC. The ICTY was formed as an arm of the United Nations Security Council nearly two decades ago, included strict statutes that demanded national cooperation with arrest warrants, and enjoyed bolstered enforcement and cooperation trough the presence of NATO military forces and strong economic incentives. Conversely, the ICC was formed in a different context; its Office of the Prosecutor faces a markedly different environment with respect to state cooperation.

The most notable difference between the two institutions is that ICC is a much younger institution than the ICTY. The ICC was formed nearly a decade after the ICTY and should therefore be afforded more leniencies when one assesses arrest capability, especially when one considers that the bulk of ICTY arrests were effectuated in the later years. A decade from now, regimes might have evolved or shifted that would steer ICC situation countries towards or away from cooperation incentives with the ICC. Nevertheless, and in spite of the differences between the ICTY and ICC, military presence and access to resources, whether economic or military in nature, may still be important predictive elements in assessing the arrest capabilities of ICC situation countries.

Situation Countries Most Likely to Succeed

Access to military resources and economic incentives played an important role throughout the years in which ICTY arrest warrants were enforced. Both of those factors are present in Uganda, an ICC situation country that may prove to improve its arrest capacity over time. In light of the fact that Congo has already demonstrated a strong arrest record, this paper will also seek to assess which factors in particular may have provided important contribution to Congo’s arrest capacity, and whether those factors were shared with arrests made for persons wanted by the ICTY.

Uganda

Although 4 LRA suspects wanted by the ICC are still at large in Uganda, the country’s access to military resources and financial assistance suggest that the country might soon exhibit progress in effectuating arrests of its fugitives.

1. Boots on the Ground

Joseph Kony is arguably the most wanted Ugandan fugitive, and is considered “Africa’s Bin Laden”.18 Subsequently, the US very recently provided Uganda with substantial military resources, including actual United States military personnel on the ground. Since 2012, 5.000 African Union peacekeeping troops in addition to a 100—member deployed US Special Forces team are on the ground hunting for Kony.19 The US Pentagon’s recent request to the White House for permission to base sophisticated aircraft in Uganda that can fly like planes yet land like helicopters reflects continued willingness of the US to provide critical military resources to locate and arrest Joseph Kony.20 Just as NATO military forces played a crucial role in the capture of persons wanted by the ICTY, US military special forces and state of the art military-grade equipment might, very soon prove valuable in improving arrests made for Ugandan war criminals wanted by ICC prosecutors.

2. Financial Assistance from Western States

Since 2008, the US State Department has sent approximately $50 Million in funds to support Ugandan Army Logistics and non-lethal operations against the LRA.21 Additionally, the US government remains the largest donor of financial aid to Uganda. Aid to Uganda derives from an additional source: private American Philanthropists also actively contribute to Uganda’s search for Joseph Kony. The Buffet family and Bridgeway Capital Management Foundation pay hundreds of thousands of dollars each month to subsidize specialized tracking dogs, bankroll helicopters and private planes to transport military equipment, and pay an American private security team to train Ugandan soldiers.22 Just as access to finance and military resources were integral to arresting persons wanted by the ICTY, Western aid to Uganda, especially aid that generates access to military resources, may prove very fruitful for Ugandan arrest capability in time.

3. Time

US military involvement in Uganda is only very recent. Access to such sophisticated operational and logistic support may likely rapidly increase Uganda’s ability to see that its 4 outstanding LRA indictees are arrested. Although Kony and other LRA members have at this point in time eluded capture for nearly seven years, the significant increase in western-sponsored military assistance with state of the art technology shows promise for capture. Just as access to military resources were integral to secure ICTY arrests, “donated” military support without doubt secures a more positive outlook for Uganda’s capability to secure arrests of those LRA members wanted by the ICC, in a matter of time.

In addition to military and financial aid that may prove valuable over time, current Ugandan policy may shift in coming years such that its arrest capability is further improved. Uganda’s Amnesty Act, established in 2000, as well as its ICC Act, adopted in 2010, may alter Uganda’s ability to effectuate arrests over time. The Amnesty Act currently hinders authority to arrest LRA members by immediately providing amnesty from prosecution to any LRA member who renounces himself.23 However, time and regime change might see the repeal of this law, removing obvious obstacles to effectuating arrest.

Uganda’s ICC Act makes serious crimes as defined by the ICC’s Rome Statute offenses under Ugandan law. However, the provision is relatively new and will likely require some time to determine whether the act can be retroactively applied to the mass atrocities committed in northern Uganda.24 Nevertheless, Uganda referred itself to the ICC. This action alone demonstrates the regime’s willingness to cooperate with the ICC.

Thus, substantial western military and financial support, coupled with potentially favorable policy and a cooperative regime may provide a cohesive improvement in Uganda’s arrest capabilities over time.

Congo

Similar to Uganda, Congo referred itself to the ICC. However, Congo has demonstrated substantially more success than Uganda regarding its ability to execute arrests, with successful arrests of Ntaganda, Lubanga, Katanga, Chui, and Mbarushimana, and only 1 outstanding fugitive. Just as military presence and economic incentives were important for securing persons wanted by the ICTY, both of those factors are included in present circumstances in the Congo. Additionally, as time was a critical factor for the ICTY, policy shifts in Congolese regime also played an important role in the arrest of persons wanted by the ICC.

1. Boots on the Ground

The Intervention Brigade, an African forces unit within MONUSCO, as well as UN peacekeeper squads, provide current military assistance in the Congo. Although the United States does provide assistance for security through the US AFRICOM initiative, it does not do so to the extent that it currently contributes to the hunt for Joseph Kony. Lack of strong military presence suggests that government diplomatic and economic motivations may have played a more significant role in effectuating arrests. The fact that two individuals turned themselves in and that French authorities were responsible for the arrest and capture of Mbarushimana supports this contention that military resources may not have been as integral to Congo’s ability to effectuate arrests.

2. Financial Assistance & Economic Incentives

Secretary of State Clinton travelled to the Congo in 2009, and US financial backing towards UN Peacekeeping forces in the Congo expanded dramatically shortly thereafter. Congo now receives “7th floor attention,” which has resulted in substantial hikes in aid packages to Congo.25 Furthermore, the US and other countries assisted Congo in securing arrests though implementing travel watch lists, issuing monetary rewards, and freezing assets. The United Nations Security Council placed Ntaganda on a watch list travel ban anywhere outside of Congo. The extent to which this motivated Ntaganda to turn himself is unclear, when Ntaganda “unexpectedly walked off the street into the Rwandan Embassy and demanded to be turned into the ICC”.26 The UNSC also declared asset freezes for any known members of M23, which may have contributed to successful arrests. Additionally, the US Department of State issued up to $5 million in reward money for Mudacumura as part of the War Crimes Reward Program.27 Perhaps collectively, these supportive actions assisted Congo in effectuating arrests.

3. Kabila Regime Change Over Time

Although ultimately Congolese President Kabila became adamant about prosecution of war criminals, he did not initially embrace that attitude. In spite of an outstanding arrest warrant for Ntaganda, President Kabila persisted to promote him within the armed forces; it was not until Ntaganda effectuated a mutiny in subsequent years that the Kabila regime changed its approach towards war criminals.

Sources state that the “US has critical leverage that it can employ in Congo, and President Kabila has renewed interest in deepening the partnership with the Obama Administration”.28 Thus, diplomatic and perhaps economic motivations may have incentivized the Kabila Regime to exhibit an increased level of cooperation with the ICC.

Overall, Congo’s successful arrests are likely a blend of diplomatic and economic considerations, although reasons as to why Ntaganda turned himself in are left to speculation without a formal statement. Congo’s arrest record of individuals wanted by the ICC demonstrates the importance in considering how regime changes over time can dramatically shift cooperative efforts with the ICC. Both Uganda and Congo demonstrate that criticism of the ICC and its situation countries’ ability to effectuate arrests might still be premature.

Situation Country Least Likely to Succeed

Sudan

While certain shared circumstances exist between the ICTY, Uganda and Congo, lack of those factors in Sudan denotes minimal probability for effectuating arrests.

Unlike Uganda and Congo, Sudan did not refer itself to the ICC; it was referred through a UN Security Council Resolution. Sudan is not a signatory if the Rome Statute and therefore remains completely uncooperative with securing the arrests of five wanted individuals (although 3 other suspects have in fact voluntarily responded to Court summons).29 Omar Al-Bashir currently sits as Sudan’s head of state, and the government has seen that other suspects of war crimes were promoted up the ranks.30

1. Boots on the Ground

While military assistance may prove successful in Uganda and Congo, peacekeepers deployed to Sudan in 2007 by the UNSC and brief NATO presence in the region from 2005-2007 (no combat troops) have not demonstrated fruitful with respect to effectuating arrests in the country. Ultimately, any military presence is essentially moot, at least for the purposes of effecting arrests of persons wanted by the ICC, due to the Sudanese government’s refusal to accept ICC jurisdiction. So long as Al-Bashir travels to other nations that refuse ICC jurisdiction, he can effectively insulate himself from being arrested.

2. Economic Incentives

While economic conditions may have largely contributed to the success of arrests, they don’t appear to carry the same weight in Sudan. For example, the US did enact sanctions in 2007, and froze the assets of Sudanese citizens implicated in the Darfur conflict, although those measures have so far not proved effective in motivating the arrest of those Sudanese individuals wanted by the ICC.

3. Time

Time might prove to be the only factor relevant in improving the arrest of ICC—indicted persons in Sudan. However, that would require a substantial shift in the Sudanese Regime; were Sudan to accept ICC jurisdiction, then other factors, namely military presence and economic sanctions, might have more clout in bolstering arrest capability. Ultimately, Sudan’s disregard for ICC jurisdiction and uncooperative behavior would have to be entirely overhauled to secure the arrest of these suspected war criminals.

Conclusion

With respect to current criticism of ICC arrest capacity, important lessons may be drawn from the ICTY’s successful indictment of all 161 persons. Circumstances and factors present during the ICTY years, namely substantial economic incentives, sophisticated military presence, and a timespan of 18 years to complete all arrests lend insight into how or why some ICC situation countries have struggled to secure arrests, and why others are more successful.

However, the ICTY provides at best a limited case study of arrest capability. Although circumstances facing the ICTY and ICC situation countries do share certain similarities, they are in other instances markedly different. Nevertheless, an assessment of the ICTY does suggest that the aforementioned factors may in fact be relevant to arrest capacity in Africa. While limited predictions can be made with respect to which ICC situation countries may be more successful than others in securing arrests, it may well be too soon to tell. Ultimately, time will dictate whether these factors prove crucial, incidental, or irrelevant in enforcing arrests.

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

  1. 1.

    Daphna Shraga & Ralph Zacklin, International Criminal Tribunal for the Former Yugoslavia, EJIL (1994), available online (last visited Jan. 3, 2014).

  2. 2.

    Facts and Figures, ICTY, available online (last visited Jan. 3, 2014).

  3. 3.

    Stephen Castle, Serbia, Once Outcast, is Candidate to Join EU, N.Y. Times, Mar. 1, 2012, available online (last visited Jan. 3, 2014).

  4. 4.

    Brian Tittemore, News from the International War Tribunals, Am. U. Center Hum. Rts. Humanitarian L., , available online (last visited Jan. 3, 2014).

  5. 5.

    Gabriel Partos, Serbia Squeezed Over War Crimes, BBC News, Nov. 25, 2004, available online (last visited Jan. 3, 2014).

  6. 6.

    Iqbal Ahmed, Serbia’s Prospect for EU Membership, Foreign Pol. J. (Oct. 6, 2011), available online (last visited Jan. 3, 2014).

  7. 7.

    Igor Jovanovic, Despite Hadzic Arrest, Serbia Could Still Face EU Hurdles, Southeast Eur. Times, Jul. 21, 2011, available online (last visited Jan. 3, 2014).

  8. 8.

    Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on May 25, 1993, U.N. Doc. S/RES/827 (1993), Article 29(2)(d), available online (last visited Jan. 3, 2014).

  9. 9.

    Operation Tango: SAS Arrest War Criminals, Elite UK Forces, available online (last visited Jan. 3, 2014).

  10. 10.

    Richard Curtiss, As US Shifts in Bosnia, NATO Gets Serious About War Criminals, Wash. Rep. on Mid. East Aff. (Nov. 1997), available online (last visited Jan. 3, 2014).

  11. 11.

    War Crimes, Interpol, available online (last visited Jan. 3, 2014).

  12. 12.

    Id.

  13. 13.

    Julian Borger, Hunt Intensifies for Serbian War Criminal Mladic, The Guardian, Feb. 16, 2009, available online (last visited Jan. 3, 2014).

  14. 14.

    War Crimes Rewards Program, U.S. Dept. of State, available online (last visited Jan. 3, 2014).

  15. 15.

    Citing Lack of Cooperation with ICTY, US Withholds Aid to Serbia-Montenegro, Southeast Eur. Times, Dec. 1, 2005, available online (last visited Jan. 3, 2014).

  16. 16.

    See US House of Representatives, Bill HR 1064, Section 302, Sep. 2000, available online (last visited Jan. 3, 2014).

  17. 17.

    Chris Jenks, Twenty Years of International Criminal Law: From ICTY to ICC and Beyond, ASIL (Apr. 7, 2013), available online (last visited Jan. 3, 2014).

  18. 18.

    Ted Thornhill, Joseph Kony is Africa’s Osama Bin Laden, Says Defense Boss Ivor Ichikowitz, Huff. Post, May 2012, available online (last visited Jan. 3, 2014).

  19. 19.

    Id.

  20. 20.

    Rajiv Chanrasekaran, Kony 2013: US Quietly Intensifies Effort to Help African Troops Capture Infamous Warlord, Wash. Post, Oct. 28, 2013, available online (last visited Jan. 3, 2014).

  21. 21.

    Ted Dagne, Africa: U.S Foreign Assistance Issues, Cong. Research Serv. (Sep. 15, 2011), available online (last visited Jan. 3, 2014).

  22. 22.

    Id.

  23. 23.

    Justice for Serious Crimes before National Courts, HRW (Jan. 16, 2012), available online (last visited Jan. 3, 2014).

  24. 24.

    Id.

  25. 25.

    Aaron Hall & Sasha Lezhnev, US Congo Policy, Enough Project, available online (last visited Jan. 3, 2014).

  26. 26.

    Thomas Escritt, Congolese Warlord to Make First Appearance Before Hague Court, Reuters, Mar. 25, 2014, available online (last visited Jan. 3, 2014).

  27. 27.

    Wanted: Slyvestre Mudacumura, Office Of Global Criminal Justice, U.S. Dept. of State, available online (last visited Jan. 3, 2014).

  28. 28.

    Aaron Hall & Sasha Lezhnev, supra note 25.

  29. 29.

    Cases and Situations, Coalition for the Int’l Crim. Ct., available online (last visited Jan. 3, 2014).

  30. 30.

    Justice for Darfur Campaign Launched, Amnesty Int’l (Apr. 25, 2008), available online (last visited Jan. 3, 2014).

Voluntary Surrender: An Overlooked Strategy to Strengthen Voluntary Cooperation to the International Criminal Court

Cooperation with international justice depends on the law-enforcement action of sovereign States on their own territories or the voluntary action of individuals wherever they are.

—Mr. M.J. Nolan, MP, Ireland
Deputy Convenor of PGA’s International Law and Human Rights Programme.1

I. Introduction

To date, the International Criminal Court (“ICC”) has indicted thirty-six individuals, issued twenty-seven arrest warrants for individuals in eight situations.2 Of the twenty-seven individuals with arrest warrants, ten are at large as fugitives, and five have been arrested, but not in the Court’s custody. Many of these arrest warrants have been long outstanding.3 In the nine cases where the ICC issued summonses to appear, the cases are in the pre-trial stage,4 has a trial date set,5 or the proceedings terminated upon death of the indictee or upon the charges being dismissed.6

Article 63 of the Rome Statute of the International Criminal Court provides that the accused shall be present during the trial, although the accused may be removed from the courtroom in exceptional circumstances. (e.g., the accused, if present in the courtroom, disrupts the proceedings).7

Thus, the ICC can only fulfill its mandate if suspects are present in court. Voluntary surrender is one strategy, perhaps an overlooked one, to ensure that the suspects are present in court and court proceedings are not impeded. “In the absence of effective international means to arrest and surrender suspects, voluntary surrender is legally (and morally) important.”8 By increasing the number of indictees who voluntary surrender to the Court, voluntary cooperation to the ICC will be strengthened. So far, we have seen examples of successful voluntary surrenders to the ICC in Sudan, Kenya and the Congo. We will look more closely at those situation countries in this comment.

The purpose of this comment is to come up with a set of factors indictees tend to consider when deciding whether or not to appear voluntarily. Based on these factors, the ICC can pursue new policies that take into account the factors that are at play in an indictee’s decision.

First, in section 2, I provide some background on the concept of voluntary surrender. Then, in section 3, I describe the methodology and data analysis that I used to investigate the factors that induce an indictee to voluntarily surrender. Next, in section 4, I posit my hypothesis. In section 5, I present the factors that induce surrender, providing a discussion and analysis of my findings. Finally, in section 6, to test the factors, I apply them to current ICC cases.

II. Background

Voluntary surrender, also referred to as voluntary appearance, is defined as the “voluntary arriv[al] at court following the notification of a summons to appear.”9 In comparison, a surrender is defined as a “state’s transfer of a person to another criminal jurisdiction.”10 This comment will focus solely on voluntary surrender.

Based on the limited instances of voluntary surrender at the ICC, the ICC seems to follow the following procedure: (1) summons to appear issued under seal, then (2) unsealed, and finally, (3) indictee voluntarily appears shortly thereafter. In the cases where the indictee is still at large, there is an arrest warrant out.

Summons to appear, defined in Article 58(7) of the Rome Statue is authorized “when a summons is sufficient to ensure the person’s appearance.”11 When it is unlikely that a person would appear voluntarily, the ICC then issues an arrest warrant.12 An arrest warrant is an order that authorizes the arrest and detention of an individual. “National authorities must arrest the person before they surrender the person for the purpose of prosecution.”13

III. Methodology

This comment will examine the factors an indictee considers before making the decision to voluntary surrender. It is my hope that an understanding of these factors will lead to improved voluntary cooperation with the ICC. In order to understand why some indictees voluntarily turn themselves in, while others do not, I had structured informal conversations with experienced international lawyers. All the interviewees have significant international experience qualifying as Defense Counsel before international tribunals including the International Criminal Court, the International Criminal Tribunal of Yugoslavia, and the Special Court for Sierra Leone.

I began the process by speaking to one individual. In my conversation with this individual, I was then referred to other individuals who also had a similar background and knowledge. The main medium by which these conversations were had was by telephone. During the conversation, a pre-defined list of questions was presented. The types of questions asked included a mixture of fixed and open-ended questions. Most questions were intended to elicit their opinion on important factors that indictees consider. Only a few that I contacted offered me their time and/or referred me to other individuals to contact. What began from this simple framework snowballed into conversations with three interviewees.

I used conversations with international criminal defense lawyers as my main data source because as representatives of indictees in front of international courts, they would probably have an insider’s perspective on the issue, grounded in their personal experience and interactions with their clients. All the interviewees were guaranteed anonymity and will be referred to throughout this comment as “Interviewee One”, “Interviewee Two” and “Interviewee Three”.

My comment is limited in many respects. First, a majority of all the lawyers I contacted were from the United States. Second, it is difficult to ascertain whether the interviewees were being strategic or sincere. However, none of the interviewees said or said exclusively that their clients were innocent, suggesting that they weren’t being strategic. Third, the sample size is quite limited and not completely random. Although the sample size is not large enough to conclude anything with statistical certainty, my findings can still provide a qualitative understanding of an indictee’s decision-making process, which will provide insight for future studies and policy decisions.

Although my comment is limited in many ways, the focus of my research is to provide an understanding of voluntary surrender. Such an understanding can benefit the ICC. Future policy decisions should incorporate rules and procedure that strengthen the “voluntary surrender factors.” Additionally, although my study is limited in scope and size, in the course of my investigation, I aimed to ensure that my data was representative by applying the “voluntary surrender factors” to specific ICC cases to see the extent my findings accurately resonated with what is occurring on the ground.

IV. Hypothesis

In this section, I present factors that I assumed would be important. Prior to my research and conversations with the interviewees, I hypothesized that the main factors leading to voluntary surrender were (1) one’s political position/power in home country, (2) the crimes indicted for, (3) mitigation factors, and (4) innocence. At first look, it seemed that those with more political power and those indicted for more serious and heinous crimes were least likely to surrender. I also thought that an indictee would consider voluntary surrender if it could benefit his or her case in the long run.

V. Factors that induce Surrender

We see that factors that serve to decrease benefits and those that raise the probability of detection are among the most important in explaining both captures and surrenders of indicted war criminals.14

Below are factors that indictees are actually likely to consider in making their decision to voluntary surrender. These factors may not always be at play in each individual’s decision-making process, as choosing to voluntary surrender is a highly individualized decision.

Factor #1—Situation in Home Country

The “situation in home country” factor considers the quality of life in the home country, looking at whether or not it is still viable. Indictees are likely to compare the quality of life in the home country with what they are expected to encounter in The Hague. The economy of the home country can also be looked at. At the ICTY, “reductions in economic assistance by the OECD also help[ed] to induce surrenders.”15 The Court may seem to be a good alternative, if the suspects “don’t have another place to go.”16 Some say that “life at The Hague detention facility is probably ideal compared to living out in the jungle forest of many place,”17 while other say “it is not safer at the ICC than at home” as the indictee may not be comfortable with the different culture in the Hague.18 For example, the climate and food at The Hague differ greatly from many ICC situation countries.

In my hypothesis, I assumed that one’s political power would be a leading factor that drives a suspect’s consideration. However, this can be explained by the relationship of one’s political power with their quality of life in the home country. According to Interviewee Two, those with higher political power will likely have a more viable place to go, thus explaining the correlation between why those of higher political power are less likely to voluntary surrender.

Factor #2—Personal Safety

Another factor that indictees consider is their personal safety. An indictee is more likely to voluntary surrender if his or her life is threatened.19 If the indictee’s life is physically threatened in his or her home country, the security and protection the ICC can provide and the distance away from home can become appealing.

Factor #3—Justice and Confidence in the ICC

The underlying idea behind the “justice and confidence in the ICC” factor is that one “would want to submit to a jurisdiction where a local alternative would be much worse.”20 Thus, if a suspect sees a chance of winning or receiving an acceptable outcome at the ICC then he or she is more likely to voluntary surrender. This was proven to be true at the ICTY, where those who previously surrendered were more likely to make a subsequent surrender. Those who have previously surrendered to the Court have some familiarity with the Court and its system, and thus can have more confidence in the Court. “In the model of surrenders in particular, we see that those who exercised the most responsibility for violations of international law tend to turn themselves in relatively quickly and that the number of previous surrenders increases the likelihood of subsequent surrenders.”21 Thus, familiarity with the Court and confidence in the outcomes the Court can provide can influence one’s decision-making process.

However, others argue that this is a suspect’s last consideration, “because [the indictees] know they are not going to get a fair trial.” Interviewee One qualifies his critique of the ICC by saying that “more [suspects] would turn themselves in if they knew they could get a fair trial.”22

In my hypothesis, I assumed that one’s political power would be a leading factor that drives a suspect’s consideration. However, one interviewee specifically stated that “it doesn’t matter if you’re a head of state, or a person on the street,” it is the “belief that there’s due process, a process of justice that is to work and not impede.”23

Factor #4—Innocence

In my hypothesis, I feared that all the interviewees would state innocence as the primary factor in a suspect’s consideration to voluntary surrender. However, the reality is, none of the interviewees emphasized innocence as the sole or leading factor. However, Interviewee Three highlighted a correlation between innocence and voluntary surrender. “The innocent surrender voluntarily, [while] those that are in defiant (those that in the end are proven to be responsible) are reluctant to submit to justice.”24 There are two reasons that help explain this correlation. For one, those that are innocent would have more confidence in facing the Court. If the rule of law works, and no extraneous circumstances are at play, they would be able to prove or at least have confidence in proving that they were not legally responsible in Court. And two, those that are innocent would often want to clear their name. If you knew you had a good case, there is no point in waiting.

On the other hand, if you don’t believe you have a good chance (because you are not factually innocent and/or you have no confidence in the Court), you are less likely to voluntary surrender. Thus, innocence is a factor that would be considered by a suspect in combination with the other factors.

Factor #5—Ability to Make Bail

Odds of voluntary surrender increase if a suspect is reasonably assured that he or she can make bail. Odds decrease if a suspect has no assurance of a shorter time being held. A former Prosecutor for the International Criminal Tribunals for Former Yugoslavia and Rwanda said that their efforts to improve voluntary surrender were crippled, “because of the prospects of very lengthy pre-trial custody for the accused.”25

Factor #6—Time

Time is another factor that a suspect considers. Two of the interviewees I talked to mentioned that their clients just wanted to get it over with. Unless the indictee surrenders to the Court, he or she remains in a position of opposition, labeled as a fugitive. According to Interviewee Three, “no one likes being an outcast.” Thus, indictees will consider their ability to tolerate pain of waiting out criminal proceedings. Court proceedings can take a long time, and suspects, unless are able to make bail, can be held for many years before they are tried.

Other Factors

The interviewees also mentioned a few other factors that may be considered by a suspect prior to his or her voluntary surrender. This includes family and courage. According to Interviewee Two, a suspect would make riskier decisions if he or she has no family to be accountable for. In weighing the voluntary surrender factors, not only would a suspect consider his or her own acceptable outcome, but he or she would also consider the outcome his or her family would face as a result of his decision to voluntary surrender. By voluntarily appearing, a suspect is subjecting him or herself to a foreign court in a foreign place. Almost all the interviewees agreed that this would require a lot of courage.

VI. Application

Now that I have outlined the factors the interviewees have described as the most important, I will apply the factors to ICC cases where a suspect has voluntarily surrendered to evaluate whether the certain factor was actually significant.

Factor #1—Situation in Home Country

The dire situation in Darfur, Sudan affected the three rebel leaders’ decisions to voluntary surrender to the ICC. They surrendered at a time of ongoing conflict.26 According to reports by the Prosecutor of the ICC, the lives of civilians in Darfur were significantly affected, as there were fights between Government forces and armed opposition groups.27 The Prosecutor noted that the conflict was “marked by tensions arising from clashes between the Sudanese Government and rebel movements, inter-communal clashes and conflict resulting from control over access to a gold mine.”28

Additionally, the Sudanese justice system was unable and unwilling to address the situation in Darfur, in fact “many victims informed the [UN] Commission that they had little confidence in the impartiality of the Sudanese justice system and its ability to bring to justice the perpetrators of the serious crimes committed in Darfur. In any event, many have feared reprisals in the event that they resort to the national justice system.”29 Under these circumstances, to the three rebel leaders who voluntarily surrendered to the ICC, living under a regime in which the Security Council has held a threat to peace and security does not seem like a viable option. Thus, this factor leaned in favor of voluntary surrender.

On the other hand, the Deputy Head of State of Kenya, William Samoei Ruto (“Ruto”) also voluntarily surrendered, making it the first time in history of international courts that a Head of State voluntarily surrendered.30 As a Deputy Head of State, the quality of life in his home country should be much more viable in comparison to that of the three rebel leaders in Darfur. Despite Ruto’s political power, he still chose to voluntarily surrender, showing that this factor did not affect his decision to surrender voluntarily.

Factor #2—Personal Safety

I could not identify any evidence of an indictee who voluntary surrendered because he or she believed that his life was being threatened.

In Darfur, the three rebel leaders who voluntarily surrendered (Bahar Idriss Abu Garda, Abdallah Banda Abakaer Nourain, and Saleh Mohammed Jerbo Jamus) all returned to Darfur after surrendering to the ICC to continue fighting against the Sudanese government.31 In particular, Jerbo’s life was obviously personally threatened back at home, as evident by his subsequent death when he returned to Darfur after his confirmation of charges hearing.32 Thus, it does not seem like personal safety was a factor the three considered in choosing to voluntary surrender.

Factor #3—Justice/Confidence in Court

The factor of justice came up frequently in the discussion of voluntary surrender. For instance, when Abu Garda voluntarily appeared before the ICC, he claimed that “every leader should co-operate with justice and observe the law…and that he was innocent, so was confident that he would not be charged.”33 Additionally, he urged the President of Sudan, Omar Al-Bashir to also surrender. Abu Garda would not urge his opposition to surrender if he was not confident that the Court could guarantee a fair trial, or at least a favorable outcome. In fact, he emphasized that “it is very important for any honest leader to come and to face the justice.”34 His confidence in the ICC’s ability was further supported by Tadjadine Niam’s statement, “we believe the court is independent and impartial. Let the others also come to the court.”35

Similarly, Abdallah Banda also voluntarily appeared at the ICC because he believed in justice and wanted to set an example for Al-Bashir.36

Further, Deputy Head of Kenya, Ruto “bow[ed] to justice” and claimed that he cooperated with the ICC before summons for his arrest was even issued, because “[he] believed in the rule of law.”37

Bosco Ntaganda of the Democratic Republic of the Congo also voluntarily surrendered to the ICC, because “the ICC is the best possible option to ensure that fair and impartial proceedings take place against those who have committed international crimes in the DRC.”38