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, 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. ↩