People Indicted by the ICC Since 2003

This section examines the number of people who have been indicted by the ICC, the proportion of indicted suspects arrested or surrendered, the duration taken to make these arrests, and sealed indictment arrests.

Arrest by the ICC and the Duration It Took Before the Arrests were Effected

As of March 2014, the ICC had indicted 36 individuals. Out of the 36 wanted persons, the ICC had issued 27 arrest warrants. The first person to be arrested was Thomas Lubanga Dyilo from Congo who was charged for recruiting children under the age of 15 years into the Patriotic Force for the Liberation of Congo (FPLC) and using them to participate in armed conflicts.5 He was indicted on February 10, 2006 and arrested on March 16, 2006.6 It took 37 days for the ICC to bring Lubanga to its custody,7 this made a good statement about the capacity the ICC has not only in arresting but also the influence the court has on the participation of that state party.

The second suspect to be arrested was Germain Katanga, who was found guilty on charges of crimes against humanity and war crimes.8 He was indicted by the ICC on July 2, 2007. By this time, authorities in Congo had already arrested him on March 1, 2005 following an attack that killed nine UN peacekeepers.9 He was eventually handed over to the ICC on October 17, 2007,10 approximately 107 days after the arrest warrant was issued. In my opinion, this delay in being transferred to the ICC was a negative aspect in this arrest, since it suggested that the state party did not participate adequately.

Mathieu Ngudjolo Chui from Congo was the next arrest made by the ICC, accused of committing war crimes and crimes against humanity, he was indicted on July 6, 2007.11 However, it was not until February 6, 2008 that Chui was arrested by Congolese authorities and transferred to The Hague.12 In total, it took 215 days before the arrest warrant was effected.

The next warrant of arrest was issued against Jean-Pierre Bemba in May 23, 2008, he was charged with crimes against humanity and war crimes.13 A day later on May 24, 2008, Bemba was arrested by Belgian authorities in Belgium and handed over to the ICC on July 3, 2008.14 This is a clear example of how, if states parties offer their complete support on the arrest, it can be effectuated as speedy as possible.

At the same time in Congo, the Hague based court indicted Callixte Mbarushimana, also accused of war crimes and crimes against humanity, on September 28, 2010 and on October 11, 2010 he was arrested in France and later transferred to The Hague on January 25, 2011.15 The period between the time the arrest warrant was issued and the time he was arrested is 13 days, an excellent record for the ICC.

With regards to the situation in Libya, Saif al-Islam Gaddafi, charged with murder and persecution, was indicted by the ICC on June 27, 2011 and arrested on November 19, 2011.16 Therefore, it took 145 days for the arrest to be effected. Similarly, the ICC issued an arrest warrant against Abdullah Senussi on June 27, 2011.17 He was arrested on March 17, 2012 in Mauritania, but has never been extradited to The Hague because the Libyan government sought to try him in Libya.18 It took 264 days before Senussi was arrested.

The ICC also issued a warrant of arrest against Laurent Gbagbo on November 23, 2011, accusing him of murder, rape, inhumane acts and persecution.19 However, he was transferred to the International Criminal Court on December 5, 2011.20 This was 12 days after the arrest warrant was issued. However, it is worth noting that by the time Gbagbo’s arrest warrant was issued, he was already in the custody of Ivorian authorities who had arrested him on April 11, 2011 following the violence that erupted after he rejected the outcome of the 2011 presidential elections.21

The last suspect to be arrested was Charles Blé Goudé, charged for committing crimes against humanity.22 He was indicted on December 21, 2011.23 He was arrested in Ghana on January 17, 2013 and handed over to the ICC on March 23, 2013.24 It took a total of 393 days for Blé Goudé to be arrested.25 Having it taken more than a year to procure the arrests, this suggests that the ICC definitely needs another option for arrest other than only depending on states parties to comply with it.

ICC Surrender

Other than arrests, there are a few cases where persons indicted by the International Criminal Court have surrendered themselves to the Court. The ICC indicted a Ugandan, Dominic Ongwen, on July 8, 2005 because of crimes committed by the Lord’s Resistance Army.26 He surrendered to U.S. military advisors that were helping Ugandan forces on January 6, 2014 in the Central African Republic.27 The International Criminal Court took custody of him on January 17, 2015.

Similarly Bosco Ntaganda, a Congolese national, had been on the ICC’s wanted list since August 12, 2006.28 In March 2013, he fled to the United States Embassy in Rwanda where he made a request to the U.S. to facilitate his surrender to the Hague-based court.29 In line with his request, the ICC took custody of him and took him to The Hague on March 22, 2013.30 Ahmad Al Faqi Al Mahdi, a Malian, also surrendered to the ICC following an arrest warrant issued against him on September 18, 2015.31

Therefore, out of the 36 individuals that the International Criminal Court has indicted since its inception, it has issued 27 arrest warrants. Out of the 27, it has successfully made 9 arrests or 33% of the people wanted by the court. Similarly, three individuals (11%) have surrendered to the court after a warrant of arrest was issued against them. Collectively, the total number of arrests and surrenders is 12 out of the 27 individuals wanted by the court. This indicates a 44% success rate.

Sealed Indictment

A sealed indictment is not disclosed to the public,32 and as a result, the likelihood of the accused being arrested is high. The accused cannot take actions to avoid being arrested because he/she is unaware that an arrest warrant has been issued against him/her. In all the arrests and surrenders, only Laurent Gbagbo’s arrest was a sealed indictment. Due that this arrest was effected in only 12 days, contrary to 177 which is the average number of days towards effecting an arrest of an non sealed indictment; it is clear how sealed indictments are more effective. This should be taken into account for the following indictments, since it is clear how the not knowing of an arrest warrant has a more positive effect.

Evidently, the number of wanted persons who have surrendered to the ICC is dismal. Although the ICC can hope that many of the indicted suspects who are still at large can surrender to the jurisdiction of the court, it cannot rely on voluntary surrender as strategy for bringing suspects to book. Instead, the global community must come up with effective strategies to address the problem of long outstanding arrest warrants. One of the strategies that I suggest is that of formulating a way the ICC could end up with a police force and this way would not depend on other state parties to formulate them for the court. Having this force would give the ICC a complete handling of their arrests.

Focus on African Countries

It is worth noting that all these arrests have been made in Africa. The ICC has never indicted or arrested any person outside the African continent. This implies that state parties from Africa, such as Congo, have been very cooperative with the ICC in terms of effecting arrests. However, it is also worth noting that many of the state parties are reluctant to effect arrests for seating head of states. For instance, despite the existence of a warrant of arrest for President Omar Al Bashir,33 he has travelled to many countries including Kenya, Uganda, South Africa, and Chad without being arrested,34 taking out credibility and power from the court. Being this the case, I remain with the same opinion that an enforcement power would help the court not only in gaining more credibility, but also in effecting those arrest warrants in a successful manner.

Because of its focus on Africa, many African leaders through the African Union have been critical of the court arguing that it is a tool used by western powers to fight leaders in Africa and bring about regime change in Africa.35 These concerns have in turn reduced the ICC’s enforcement mechanism and legitimacy. Unless these concerns are addressed, the ability of the ICC to effect arrests will further diminish. Already there is a move by countries such as South Africa to withdraw from the Rome Statute.36 If other state parties that have threatened to withdraw, such as Burundi, Kenya, Uganda, and Namibia make good their threat and withdraw from the ICC, then the capacity of the court to effect arrests will be severely compromised.

The thought of having a police force, I believe, would make the ICC look as if it had more control of the situation. This element could also help the fact that African Countries are trying to withdraw, since it will make the court more authoritative and more trust worthy. Although everything else stated, I do believe this police force needs to be taken inconsideration very wisely since it could also make African countries assume this enforcement force would be permissive to the court. In order to introduce this force correctly, the court first has to address the focus on African Countries problem in order for this force to be accepted ad not seen as a hoax.

Comparison between ICC and the ICTY

Even without its own military or police force, ICTY registered significant success in its arrest record. From its creation in 1993, ICTY managed to indict 161 persons for serious breaches of the Geneva Conventions.37 As at July 2011, all the individuals indicted by the ICTY were in the courts custody.38 Although various arrest warrants were issued by the ICTY soon after it was created, as early as 1996, 7 of the 74 indicted suspects were already in the court’s custody, and by 2004, 62 suspects were in custody.39

When compared to the ICC, its evident proportion of arrest for the ICTY was far better than the ICC. In the first three years, the ICTY had an arrest rate of 9.5%, eight years after its creation its arrest rate reached 83.8%, and by 2011 (15 years since its creation), it had 100% success rate having arrested all the indicted suspects.40 On the other hand, the ICC has existed since 2002, and 14 years later, it has issued arrest warrants for 27 people, out of which nine suspects are still at large.41 As noted earlier, ICC’s success rate in terms of arrests is only 33%. Consequently, the proportion of arrests for ICTY is more than that of ICC, and therefore the ICTY has been more successful.

There are several lessons on effecting arrests that the ICC can learn from the ICTY. Until the 1990s, the ICTY faced serious challenges in procuring arrests and surrenders from states.42 However, in the 2000s, the ICTY managed to increase its influence by involving the European Union and the United States.43 The EU and the U.S. were supportive in terms of providing incentives to ICTY and placing sanctions on Croatia and Serbia to enhance cooperation from these countries.44

The ICC too should increase its bargaining advantage with state parties in order in having more influence in this issue. Even though the ICC lacks effective enforcement power of its own, it has the legal and political tools at its disposal that it can use toward this end. The ICC prosecutor should engage with powerful international players including the African Union, the European Union, the UN, as well as with police and judicial investigation bodies such as Interpol and Europol to achieve the court’s desired outcomes. Such cooperation could be facilitated through relations or cooperation agreements between these institutions and would increase the likelihood of implementation of the decisions of the judges at The Hague.

With the support of all major players internationally, the prosecutor can achieve compliance from uncooperative countries. The prosecutor’s office can enhance its ability to effect arrests by enhancing its institutional capacity such that it can be able to examine the political situations and undertake constructive judicial diplomacy both globally and in countries.

NATO’s Ground Force for ICTY and Implications for ICC

Unlike the ICC, the ICTY had boots on the ground, and this significantly contributed to its impressive arrest record. The ICTY had an actual military presence, which facilitated the arrest of individuals it had indicted.45 Even though the ICTY did not have a formal arrest procedure, Article 29 of the ICTY Statute required UN member countries to comply with any requests made by the Trial Chamber, including requests for arrest individuals wanted by the tribunal. It is under this statute that multinational forces under NATO’s leadership were granted arresting powers, and made frequent arrests.46 Eventually, the multinational military forces offered the much-needed supplementary military support and facilitated the arrest of suspects wanted by the ICTY. NATO’s involvement offered personnel on the ground, which was critical in effecting the arrests of individuals that the ICTY prosecutors wanted. NATO’s arrest missions, were endorsed by both the United States and the European Union, and this significantly enhanced NATO’s arrest capability.47

Given that one of the most persistent challenges facing the ICC is the lack of a reliable mechanism to procure arrests of indicted individuals, ICTY’s success indicates that the ICC should have an international police force to enforce its warrants because it cannot continue to rely on the goodwill of state parties. Among the situation countries, only Congo has demonstrated its willingness to make arrests. Other situation countries such as Sudan have numerous wanted persons that are still at large despite existing arrest warrants.

Potential Police Force in Service of the ICC

Bringing the indicted suspects into the ICC’s custody has proved to be a serious challenge for the fourteen years that the court has existed. Given that the ICC has no power to arrest and no police force to effectuate these arrests, the ICC has relied on determined action by state parties whose commitment is influenced by economic and political considerations. Arresting suspects is a substantial weak spot that has affected the ICC in a profound way.

One of the main problems the ICC faces now a day is the slowness of the Court to effectuate arrests; since the Court relies completely in state parties to bring the indicted to justice, the Court is in someway powerless in this sense to improve it. It is crucial for the Court to be seen as a successful one, a court that all countries would like for it to be involved, an “international” court universally accepted. In order for it to gain credibility with these issues, be recognized by even more states than the ones today and to become a powerful institution acknowledged worldwide, the court is in desperate need of an arresting force.

In comparison to the success rate the ICTY had with the intervention of NATO, it is clear how a police force of its own would be beneficial to the ICC. Even though NATO was not part of the ICTY, it served it as so. If the ICC would try to have a police force of its own and this was rejected, I believe a ground source such as NATO would also increase the ICC’s arresting percentage.

Differencing Police Force from Military Force

While suggesting the implementation of a police force of its own, I find it crucial to note that a very important distinction must be made between police/arresting force and military force. It is vital to make this distinction, because a military force serves only in times of war, emergency or natural disaster, while a police force is a civil force that is in service of the public. A police force is the most suitable for this type of operation since one of the goals of the ICC is peace, a military force would bring the exact opposite.

Another key aspect of differentiating these forces is the effect a military force would have in the minds of African countries, how invasive they would feel it on their territory. If these arrests are going to be enforced, it needs to be in the sharpest way possible, and that is by making it permissible from state parties. The only way of making it admissible is by respecting the region. If this operation were to take place, the state must not be involved in any way; it needs to be as discrete as possible, by not involving the military.

A police force would only be in charge of bringing the suspect into custody, while a military one would feel intrusive to African or other countries. Needless to say, even though this suggested force would be of great value to the court, it could also be bring the court a step back if it is not addressed correctly. This force needs to be established by taking every situation into account, and also by focusing on the main goal, which is the arrest.

Since now a day, the indictment success rate the ICC has is of 44%; the court needs to find a way to increase this percentage. The court must secure the arrests in any possible way, taking into account the concerns, needs and security of states parties. The ICC needs to improve in this arrest issue in order for its reputation to grow internationally and gain more states parties.

Conclusion

The ICC has made a big impact in the world of international law, given its circumstances it has done everything possible to obtain the desired arresting results. Even though its arrest records do not overcome those of the ICTY, the court is heading towards the right way in acquiring a more efficient way of arresting. With this comment you can come to realize that the ICC still needs work, but either if it is with a police force or issuing more sealed indictments, the ICC has every possible means of achieving greatness.

On the other hand I do believe that in order for the ICC to be more successful, it needs a multinational police force, which will make it possible and easier to arrest and bring to justice international criminals. Depending on states parties to comply with arrest has helped in the past, but not in the extent necessary. NATO’s involvement in the ICTY indicates that this is a viable proposal that the ICC should consider.

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

1. 1.

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2. 2.

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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], Arts. 1, 59 available online. ↩

4. 4.

   Cedric Ryngaert, Some Reflections on Securing the Arrest of ICC Fugitives, ICC Forum § 2 (Feb. 13, 2014), available online. ↩

5. 5.

   International Criminal Court, Case Information Sheet: The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06 (Oct. 2016) [hereinafter Dyilo Information], available online (last visited Nov. 9, 2016). ↩

6. 6.

   The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute of 3 October 2006 (Dec. 14, 2006), available online. ↩

7. 7.

   Dyilo Information, supra note 5. ↩

8. 8.

   International Criminal Court, Case Information Sheet: The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07 (Mar. 27, 2017), available online (last visited Jul. 15, 2017). ↩

9. 9.

   Id. ↩

10. 10.

    Id. ↩

11. 11.

    International Criminal Court, Case Information Sheet: The Prosecutor v. Mathieu Ngudjolo Chui, Case No. ICC-01/04-02/12 (Feb. 27, 2015), available online (last visited Jul. 15, 2017). ↩

12. 12.

    Id. ↩

13. 13.

    International Criminal Court, Case Information Sheet: The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08 (Mar. 21, 2016), available online (last visited Jul. 15, 2017). ↩

14. 14.

    Situations Under Investigation, ICC, available online (last visited Jul. 15, 2017). ↩

15. 15.

    International Criminal Court, Case Information Sheet: The Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10 (Jun. 15, 2012), available online (last visited Jul. 15, 2017). ↩

16. 16.

    International Criminal Court, Case Information Sheet: The Prosecutor v. Saif Al-Islam Gaddafi, Case No. ICC-01/11-01/11 (Mar. 26, 2015), available online (last visited Jul. 15, 2017). ↩

17. 17.

    International Criminal Court, Case Information Sheet: The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11, 2 (Aug. 1, 2014), available online. ↩

18. 18.

    Situations Under Investigation, supra note 14. ↩

19. 19.

    International Criminal Court, Case Information Sheet: The Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/11 (Nov. 18, 2014), available online (last visited Jul. 15, 2017). ↩

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21. 21.

    Open Society Justice Initiative, The Trial of Laurent Gbagbo and Charles Blé Goudé at the ICC, 4 (Jan. 2016), available online. ↩

22. 22.

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23. 23.

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24. 24.

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25. 25.

    Situations Under Investigation, supra note 14. ↩

26. 26.

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27. 27.

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28. 28.

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29. 29.

    Women’s Initiatives for Gender Justice, First Ugandan Suspect, LRA Commander Dominic Ongwen, Transferred to the ICC in the Hague (Jan. 21, 2015), available online. ↩

30. 30.

    Bosco Ntaganda, A Surprising Surrender, The Economist, Mar. 19, 2013, available online. ↩

31. 31.

    Jennifer Easterday, Mali Suspect Surrendered to the ICC, Int’l Just. Monitor, Sep. 28, 2015, available online. ↩

32. 32.

    André Klip & Göran Sluiter, Annotated Leading Cases of International Criminal Tribunals 154 (2001). ↩

33. 33.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09-1, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Mar. 4, 2009), available online. ↩

34. 34.

    Somini Sengupta & Marlise Simons, Omar al-Bashir Case Shows International Criminal Court’s Limitations, N.Y. Times, Jun. 15, 2015, available online. ↩

35. 35.

    Mary Kimani, Pursuit of Justice or Western Plot? International Indictments Stir Angry Debate in Africa, Africa Renewal, 12 Oct. 3, 2009, available online. ↩

36. 36.

    Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online. ↩

37. 37.

    Jessica Lincoln, Transitional Justice, Peace and Accountability 42 (2011). ↩

38. 38.

    The Fugitives, ICTY, available online (last visited Jul. 15, 2017). ↩

39. 39.

    Achievements, ICTY, available online (last visited Jul. 15, 2017). ↩

40. 40.

    Benjamin Ward, Ratko Mladic’s Arrest and International Justice, openDemocracy (May 31, 2011), available online. ↩

41. 41.

    History, ICTY, available online (last visited Jul. 15, 2017). ↩

42. 42.

    Id. ↩

43. 43.

    Id. ↩

44. 44.

    The Conflicts, ICTY, available online (last visited Jul. 15, 2017). ↩

45. 45.

    Christopher K. Lamont, International Criminal Justice and the Politics of Compliance, 181–182 (2010). ↩

46. 46.

    Han-Ru Zhou, The Enforcement of Arrest Warrants by International Forces: From the ICTY to the ICC, 4 J. Int’l Crim. Just. 202, 207 (May 1, 2006), Oxford Academic Paywall, archived. ↩

47. 47.

    Id. 208 ↩