The Arrest Lecture Question — Comments

David Scheffer’s Arrest Lecture

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Comment on the Arrest Lecture Question: “What steps can and should the ICC take to secure the arrest and surrender of indictees?”

Although I believe more should be done to round up indictees of the ICC, I would be opposed to an international police force. Call it what you will-paranoia, frugality, or whatever, but police should be left up to the state. Where will the funding for an extensive (and it will need to be extensive) police force come from? Who will pay? If you were to be funded by all member states, how would we know all states were contributing their share? And if the police force is say, heavily European, might that create a lot of discontent? Any imbalance could foreseeably cause discontent within the states involved. Also, and international police force would be hard to keep in check. A corrupt leader and a lot of things can go wrong. I think it is naive to think we have moved past the point in history where people are evil and there is no route for those evil people left to commit crimes. An international police force has no one to keep them in check, so why risk it? Why does the ICC not personally send delegations task forces to oversee the arrest of their indictees? I think with a physical presence, leaders will be much more inclined to respond.

I completely understand and see the value in your opposition to an international police force, however I believe that many of your misgivings could also be applied to the United Nations, and the UN has still managed to remain mostly a positive force for over 50 years now. The egalitarian funding and the issue of discontent regarding the nationality of the soldiers are both things that are already addressed by the UN, in terms of their funding and committee membership considerations. In addition, an international police force would have the individual militaries of the UN member states to keep them in check, similar to how a coalitional force like NATO operates right now. However, I do agree with you in the sense that I believe the member states' militaries should remain the primary force for apprehending criminals, but in cases where a nation's military is fragmented or non-existent an international force would be a great asset.

I would like to second the previous commenter regarding the establishment of a new police force, which in my view would be exceedingly difficult from a political and diplomatic point of view. Given that three of the five UNSC permanent members are not party to the Rome Statute, why would these same members permit the establishment of a police force which, to have any bite, would need to be allowed to enter countries without their permission in order to arrest suspects (think: Omar al-Bashir). Besides sealed warrants, could the ICC partner with Interpol or other agencies to assist in the arrest of suspects? These transnational crime-fighting networks already have much of the established protocol, expertise and man-power to play a role. Further efforts should be made to freeze financial assets of the indicted as well as dynamic ways to enforce travel bans.

More efforts should be made to receive legal commitments from all member states that they will arrest suspects on their behalf - this would require a serious public relations campaign to improve the image of the ICC among African states, some of whom view this mechanism as a neo-imperialist one. Unfortunately, given the current state of the international justice system and a lack of consensus regarding issues of justice vs. sovereignty, this will continue to be an issue that curtails the work of the ICC for years to come.

Like the above poster, and the original post referenced, I find too many ideological issues with an international police force for it to seem like a realistic solution. At my current level of understanding, the anarchic nature of sovereign states still seems to be the best structure (although I am not disparaging the efficacy of international organizations such as the UN, WTO, etc.). This is because I assume there is an inherent belief shared by nation states that their sovereignty is, in most cases, off the table of negotiation.

Additionally, I agree that legal commitments would help increase the efficiency of the ICC. However, perhaps a first step to clarifying the legal relationship and responsibilities of signatories is, as the speaker mentioned, creating a diplomatic arm of the ICC separate from the prosecutor. If done appropriately, this would not be a politicization of the ICC, rather it could serve to clarify, build trust, and understanding of the ICC to states. This could strengthen the ICC's relationship with current members (and thus its efficiency in arrests etc.) and allow non-members to understand the benefit of membership.

I fully agree with Ambassador Scheffer in that the ICC must be given some sort of teeth, some way to enforce its indictments and rulings, if it is to ever fulfill its mission of ending international mass atrocities and crimes against humanity. The Obama Administration’s recent initiative to provide monetary compensation for individuals who aid in the arrest of an indicted person is definitely a step in the right direction, but is no where near sufficient to rectify the issue of enforcement for the ICC. The US’s “carrot” approach must be paired with a “stick.” The current approach, which places enforcement efforts in the hands of each individual party state, is entirely ineffective given that those who are indicted are the leaders of these states, who retain total control of local police and law enforcement organizations. When other countries (especially the US) intervene, they meet much resistance. The only real solution, as I see it, is the creation and establishment of an international police force that combines forces from all party states, thereby deflecting responsibility, burden, and criticism from one nation alone.

Although Ambassador Scheffer did note that state parties need to regard arrest warrants not as a political option to be debated but rather as an obligation to be fulfilled, the creation of an international police force might threaten not only the political sovereignty and territorial integrity of a state party, but also the legitimacy of the International Criminal Court itself. Because the process of apprehending suspects is largely political, given the existing institutional and political constraints in gaining authority and actual capability to arrest, an international police force would have to be a political actor in order to enforce effectively. Since cooperation between the ICC and such a force would be essential, outsiders might consider the ICC, the court, which has to this point maintained its stance as legally objective, might be seen as a cohorting with a political force and therefore migh exacerbate arguments that the court is illegitamite as an worldwide authority.

I would like to second an initiative expressed during the Q&A session with Ambassador Scheiffer that I think could have the potential to help secure the arrest of indictees. The idea was that if the International Criminal Court wants to make participant governments comply with the Rome statute by helping them to secure arrests, the Court should use all its leverage. This includes using not just political methods like diplomatic notes, or as some people propose favoring the formation of an international police force, but using economic methods. Indictees need money to continue operating and participant governments around the world can help the ICC not just by surrender the convicts themselves, but by making their lives difficult and limiting their field of action. For example, governments can help the ICC by freezing the accounts of convicts or the accounts of their partners wherever they may be. The main idea that I want to expose here is that the international community can do a lot to support the decisions of the ICC because it is not a one country duty.

Creating a New International Police Force is not the right path. The ICC could use Interpol and Europol having, in both, a special task force dedicated to aid in this issue. Both agencies have the logistic and personnel to work the subject.

Though very briefly, Ambassador Scheiffer showed moderate support for a military organization that work for ICC, in order to resolve the chronic arrest issues of ICC. He suggested this establishment with careful conditions on them; for example, the military group has to be permitted by individual countries to apprehend the indictee in each specific region. Of course, this is a commonsensical condition. For this army to operate, it needs more than rules of conduct to legitimize its goal for justice and peace. Let’s assume that state parties set up a sufficient budget for this army; then, now what we strive to form is the most politically non-threatening, yet extremely efficient and threatening enough for indictee and latent criminals. How do we achieve these two birds? The foremost foundation of the army should be “diversity.” The army should not be formed only by European and/or African personnel, but also by a certain number from each state party. Second, it is an army, but its purpose is not destructive; it should only work to achieve the purpose of apprehension through intelligence means. These two principles will be useful for the starting points of ICC’s task force.

Securing the arrest and surrender of indictees, and the enforcement of its warrants seem to be a recurrent obstacle in the workings of the ICC. Different ideas have been advanced to remedy this situation, however, most require some major changes in the structure of the institution, and therefore are met with criticism or opposition. An international police force is often thought of as unlikely, inadvisable, or simply impractical. Specialized task forces in existing international police forces may be a possible alternative once the questions of funding, provenance, and structure are resolved. Questions of jurisdiction and sovereignty may remain issues however.
Short of establishing a diplomatic and police branch to the ICC, the court and the international community can use a combination of pressures, incentives, and possibly sanctions to remind state parties of their responsibilities and jurisdiction in the arrest of wanted war criminals. The State Parties, the Security Council, the United Nations and other multilateral organizations could all play a part in making it in a government’s best interest to comply and enforce ICC arrest warrants and surrender indictees.

From my understanding of the issue, it seems that the problem lies with the Security Council. The Security Council is lacking in arrest authority, which is what has allowed governments to continue to be uncooperative. The security council should say and that non-party states are obligated to arrest indictees and bring them to the Hague. Measures by the Security council need to be viewed as obligations by governments, as opposed to measures that can be negotiated through political dialogue. Peace keeping forces should have arrest authority; therefore, even uncooperative governments won't get away with letting indictees remain free on their territories. The changes need to be on the ground with these forces, as well as in the language of security council resolutions.

As it stands, the ICC still has 12 outstanding arrest warrants because they have no method to retrieve and arrest indictees except for relying on the state to turn over their leader. It is necessary that the ICC step create a mechanism to secure the arrest and surrender of indictees. There has been much discussion in response to this question about an International Police Force. I, too, am of the opinion that this would neither be well received, nor very feasible. However, as has been highlighted, the likelihood of getting a nation to turn over their own leader who still has control, both political and military, over the nation will be next to impossible. As a result, a force akin to the UN Peacekeeping forces should be created to find and bring indictees to the Hague. This force would not be a military or police force, but a multinational, force under the ICC with the sole duty of arresting indictees and delivering them to the Hague. Until the ICC takes action and plans a more effective method to arrest indictees, likely best through an arresting force, arrest warrants will continue to go unserved and crimes against humanity by these individuals will continue to be committed.

I think that the solution to make the arrest and surrender of indictees to the the ICC effective remains within the ICC Statute and in the Court capabilities. Since the ICC deals with independent and sovereign States and populations, any solution which will be seen as imposed by external actors - whether the so called special task force or international police forces - will prove inadequate and inefficient because of many reasons already pointed out by other commenters. The arrest and surrender to be successful has to be explained and understood within the concerned population as something that serve their interest (economic, political, diplomatic...).
For instance, recent past history testifies that Malawi decided not to host an African Union Summit because Omar Al Bashir visit was contrary to Malawi population economic interest. A range of solutions can be used to achieve such a result including: bargaining international aid against the arrest and surrender of indictees, working to change the population negative perception on the activities of the Court (both in concerned States and other States in the - African - region). The change of perception for example in Sudan could lead to Bashir's failure at the next presidential elections and his subsequent arrest and surrender.
In fact, lessons learned from the ICTY arrest and surrender practice show that not only indictees were surrendered to the Tribunal because of the political and diplomatic pressure but also, some leaders voluntarily surrender either to rescue their population from economic sanctions or to help their States fulfill the entrance into the European Union criteria.

In the face of such weak international arrest authority, is it logical to ask states to impose greater sanctions on themselves? The Ambassador's idea to have recalcitrant states to justify their non-cooperation actions is not quite logical in terms of how states operate. There is not a proper incentive other than moral imperatives to force states to ask. I am not sure that moral imperatives are very powerful in the face of geopolitical interests and issues of profit and gain; rather, there may need to be an institutional opportunity cost if states do not cooperates, rather than simply moral suasion.

Although the ICC is a non-military organization that doesn’t incite the use of force in it’s proceedings, and I believe it should remain this way, I do agree with Ambassador Scheffer in so far that the ICC needs some sort of condition which will render it’s threats a realistic force in the arrests of convicted individuals. This said, I’d like to echo the initial posts of this forum; I agree the ICC should remain a non-military body for a number of important reasons. Already to date, peacekeeping by military force has proved a complex and often times failure prone concept (the U.N. Peacekeeping Force is a critical example)- I hardly believe that introducing an intention of military force to the ICC’s agenda would end in positive affect. Moreover, the concept of funding seems an ambiguous problem, who would fund this special police force? Lastly, I too would be nervous that perhaps the ICC police force would serve as only another military body that cannot be controlled. Depending on who the body is made up of, how could the ICC ensure control and compliance of this new power dynamic? If the Court proved unable to control even its own military force, the ensuing embarrassment would only further tarnish the ICC’s credibility. A potential solution, from my point of view, would be some sort of coordination between the ICC and host governments in order to secure the arrests and surrender of indictees. If host governments were more willing to place economic and social pressures on ICC indictees (pressures that the Court is less able to incite), then perhaps arrests would be much easier for the body at large. In many cases, it seems as if host countries purposefully operate separately from the ICC, a reality that almost ensures that the Court struggles to arrest those who they indict, and moreover, convince nationals of that country that the convicted individual in fact should be brought to justice.

Difficulty of arrest is one of the great issues facing the ICC, so it is clear that the ICC should take steps to improve the arrest and surrender of indictees. With the current number of indictees still at large, it is hard to grant court rulings any legitimacy. Before discussions about the prospects for peace and conflict resolution, the ICC must engage in efforts to resolve its inability to arrest those it indicts—not only to retain some level of authority but to secure the safety of those whose lives are threatened by the continued rule of indictees like Omar Al Bashir. Of course, this is hardly disputed. Neither is the idea that party countries should assert increased political will towards the arrest of those criminals in their country. How to make this happen is an extremely difficult question. It seems, with its current budgetary issues, the ICC hardly can extend itself more through the use of an ICC-specific task force, so this is something that must be established with a specific mandate (and a source of funding). The idea of an international police force, though extremely contentious, seems to be the most effective way to secure the arrest of indictees. However, the perceived infringement on national sovereignty and associated political issues could undermine other aims of the ICC in the international justice arena. Perhaps the most practical approach is to intensify the current efforts of selective cooperation and conditionality in relationships between countries. Yet, once again, much of this burden lies on individual states, and with its current operational capacities the ICC has little leverage in pressuring states to set international law as a national priority. Ultimately, until the ICC has the authority, the money, and the mandate to influence states to comply with international rulings, it must rely on what Ambassador Scheffer posed as an almost cultural battle; until member parties perceive ICC rulings as urgent imperatives, there will be no improved action on behalf of member states. It seems that we are still on the road to creating this ideal international norm, and the only way to speed this process is to put some kind of authoritative “teeth” upon the court rulings.