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Comment on the Arrest Question: “What more can be done to secure the arrest and surrender of persons subject to arrest warrants issued by the International Criminal Court?”
Hi Benshea; I really enjoyed reading your piece; it's quite well researched and written!
It then came to my mind few points of thought:
- The ICC is not a national court as in the case of the examples that you cited above which means that some of the reasonings at the national level would doubtfully prove useful.
- I also really liked your argument on the Nikolic's case, especially your comment made on footnote 18. That is, the vertical v. horizontal nature of the international tribunals vis-à-vis States (requested States). I then thought you were going to push the reasoning further and evaluate the relevancy of the Nikolic's decision on a situation in front of the ICC where not only not all States where the fugitives hide are members of the ICC and / or the UNSC resolution referring cases to the ICC are drafted in a way not oblige any other State to cooperate with the Court apart from the "situation State".
Here comes my concerns; the ICC on the basis of Art 21 has a source of applicable law well defined and will only resort to general principles of law when the sources of the first and second orders have proven not useful. Do we really think this application of the "abduction type" of arrest will be in line with the Statute?
My second concern: Based on Article 89 (1) - Surrender of persons to the Court - ".... States
Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender." Are we really sure that such an arrest will not conflict with both "the national law" of the requested States and the "Statute" at the same time and further produce the unexpected effect of leading to a lack of respect of the ICC own legal regime?
Finally based on the "abduction" theory, is it the State (State's agent) or some kind of "bounty hunter" that will be going around to arrest and surrender to the ICC? In fact in the current situation, it seems that the Court does not yet have any special police force (as you also mentioned before) to do such a task.