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. ↩