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