ICTY History & Discussion of Factors That Contributed to Arrests

Reports of rape, torture in detention camps, and thousands of massacred civilians throughout the Balkans in the 1990s encouraged the United Nations to establish a Commission of Experts charged with investigating the commission of alleged war crimes and human rights violations.1 Documented evidence of such crimes motivated the UN Security Council to pass Resolution 827, which formally established the ICTY.

Without its own police force or military, the ICTY exhibited remarkable success in its arrest record. Since its formation in 1993, ICTY prosecutors indicted 161 individuals for genocide, crimes against humanity, violations of the laws and customs of war, and for grave breaches of the Geneva conventions.2 Most importantly, as of July 2011, not a single individual charged by the ICTY remains at large. The ICTY’s record invites a discussion of what circumstances or factors in particular enabled the ICTY to reach such enormous success in effectuating arrests.

Factors Relevant to ICTY Success

Analysis of ICTY effectuated arrests requires identification of the particular circumstances or factors that may have been integral in securing the ICTY’s capability in making such arrests. During the course of time that individuals were charged by ICTY prosecution, several factors were present and should therefore be considered in light of their ability to facilitate arrest capability. With respect to the ICTY, these factors included conditional membership to the European Union, military presence, intelligence from big powers, aid conditionality, trade sanctions, and lastly, time. This paper acknowledges that each factor mentioned might not in fact share the same relevance to the improvement of arrest capabilities, though it will seek to determine the relative influence each of these factors possessed. Such analysis may provide meaningful insight when applied to the current challenges that face the ICC’s arrest capacity.

1. Conditional Membership to the EU

Serbia’s accession to the European Union hinged, at least in part, on the requirement that it take definite steps to comply with ICTY jurisdiction and assist in arresting individuals wanted by the ICTY. Although taking responsibility for its grave actions in the Balkans was not the only condition required of Serbia as a candidate to join the European Union, it was certainly an important one that contributed to the successful arrests of individuals charged by the ICTY.3

Although numerous arrests warrants were issued by the ICTY soon after it was established, as of 1996, only 7 out of 74 indicted suspects were in custody.4 As of 2004, twelve fugitives were known to be living in Serbia, with Prime Minister Kostunica reluctant to make any arrests.5 The government’s reluctance to openly cooperate with the ICTY at first garnered substantial international criticism towards Serbia, especially because the arrest warrants for both Mladić and Karadžić had been outstanding for nearly a decade. Statements made by Serbian officials suggest that the subsequent arrest and transfer of fugitives to The Hague were predicated on criticism from the international community and refusal of admission to the EU. On May 26, 2011, Serbian authorities arrested Ratko Mladić, whose arrest was “a critical factor for Serbia’s coveted EU membership”.6 Serbian Interior minister Ivica Dačić’s statement regarding the arrest of Hadžić, the 46th indictee demanded of Serbia, also suggested that admission to the EU was, at least, a motivating factor in arresting individuals wanted by the ICTY. Referring to the arrest, Dačić stated “[Serbia]] has come out of the dungeon it had been in for 20 years. The EU should stop blackmailing Serbia; there is no more reason for conditioning Serbia on the road to European Integration”.7 The fact that conditional membership to the EU preceded Serbia’s willingness to cooperate with the ICTY in effectuating arrests demonstrates the integral role that economic incentives played in shifting policy towards a cooperative national government.

2. Boots on the Ground

In addition to incentives created by desired membership to the EU, another factor relevant to the ICTY’s successful arrest record was “boots on the ground”: actual military presence that would facilitate the arrest if individuals wanted by the ICTY. Although the ICTY lacked a formal arrest procedure, Article 29 of the ICTY Statute provides that UN member states “comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including but not limited to… “the arrest of individuals.”8 Under this statute, multinational forces under the authority of NATO possessed the power to arrest, and did so frequently. Ultimately, multinational military forces provided critical supplementary military support and without doubt facilitated the arrest of persons wanted by the ICTY.

On July 10th, 1997, Special Forces in Bosnia launched a NATO—sanctioned operation against suspected war criminals. During “Operation Tango,” two special—forces teams carried indictments issued by the ICTY entered Bosnian towns via helicopters and extracted the suspects.9 Although the teams were British Special Air Force, the US provided logistical support, with President Clinton’s approval 3 months earlier.10 NATO involvement provided tangible manpower critical in effectuating the arrest of individuals wanted ICTY prosecutors. Arrest capability during that period would certainly be limited without the Joint European and American approval for the NATO arrest missions.

3. Intelligence Assistance & Monetary Rewards from Big Powers

National authorities did not act alone in arresting individuals wanted by the ICTY; intelligence agencies from around the world provided additional assistance that provided important information relevant to the arrest and capture of wanted suspects.

At Interpol, the Fugitive Investigative Support Sub-directorate provided operational support, training, and development with regard to suspects wanted by the ICTY.11 Interpol assisted through issuing Red Notices (which led to 35 arrests of individuals wanted for war crimes), and also provided assistance by cooperating with national authorities and international institutions to “locate, arrest, and develop information concerning individuals suspected of these crimes”.12 Additionally, Interpol provided specialist investigative training to national authorities, which furthered ability to gather data and apprehend suspected war criminals.

Although the extent to which western intelligence agencies also assisted in intelligence gathering is not clear, Serbia’s Foreign Minister stated that, at least with regard to the hunt for Mladić, US and British intelligence agencies dispatched officials to Belgrade to assist their Serbian counterparts, with “active assistance on the ground”.13 Thus, even though reports remain silent on the extent to which intelligence agencies were involved, at best there is an acknowledgement that western intelligence agencies did provide assistance in the arrest and capture of wanted individuals.

In addition to intelligence assistance, the United States provided an important contribution to the arrest of individuals wanted by the ICTY by issuing monetary rewards for their capture. Under the War Crimes Rewards Program, the US Department of State offered up to $5 Million in rewards for persons wanted by international criminal tribunals. US press releases state that this rewards program “has led to the arrest and capture of fugitives wanted by the ICTY.”14 Thus, hindsight demonstrates that multinational intelligence gathering and American support through the issuance of monetary reward contributed to the arrest indictment of persons wanted by the ICTY.

4. Aid Conditionality & Economic Leverage

Aid conditions and trade sanctions also played an important role in increasing the arrest frequency for ICTY indicted persons. In 2002, US Congress authorized a multiple year financial assistance package to Serbia-Montenegro worth $100 million, though the funds were made conditional on US Secretary of State evaluations. These evaluations required an assessment of adequate Serbian support of and cooperation with the ICTY. In both 2004 and 2005, Belgrade failed to meet the conditions stipulated by the US, which resulted in Colin Powell’s decision to withhold over $10 million dollars in aid.15 Additionally, enacting pressure to arrest Milosevic, the US threatened to withhold payments to the IMF and World Bank as leverage against Serbia.16 American exertion of aid conditions and economic leverage against Serbia constituted important motivating factors in the arrests of the most wanted persons by the ICTY. Similar to conditional membership to join the EU, aid conditionality provided additional economic incentive for Serbia to shift its attitude towards a more cooperative player with the ICTY.

5. Time

Although the successful arrest of 161 individuals wanted by the ICTY remains an impressive statistic, the fact that those arrests took 18 years to complete must be considered. Arrests were not completed until 2011, nearly two decades after the ICTY was formed. This is an important consideration because it demonstrates the evolving nature of policy as regimes and circumstances change, and how those changes in policy over time would certainly affect a regime’s capacity or willingness to cooperate with the ICTY.

In light of the lack of any formal ICTY arrest apparatus, Theodor Meron, President of the ICTY and the International Residual Mechanism for Criminal Tribunals stated that modern international criminal justice is “totally dependent on cooperation of states”.17 Consideration of how the political atmosphere in the Balkans evolved during the course of time that ICTY arrest warrants were issued will therefore offer important insight into the role that policy and time played in facilitating arrest power. Although perhaps initially the Serbian government did not consider cooperation with the ICTY valuable or necessary, subsequent international pressure to cooperate with the ICTY and economic incentives without doubt contributed to the change in attitude regarding cooperation. This shift becomes evident when one observes the evolution in cooperation from the era of Kostunica to more contemporary and cooperative Tadic regime.

Most Significant Factors in Securing Arrests

Although each of the aforementioned factors contributed to the impressive ICTY arrest record, some were arguably more instrumental than others. Those that yielded the most dramatic results were conditioned membership to the EU, boots on the ground, and time. Conditional membership to the EU and NATO-sanctioned Special Forces were unequivocally important in incentivizing national governments to cooperate with the ICTY in effectuating arrests. Furthermore, supplemental military oversight and resources provided by NATO proved essential in the capture of high-level targets. Additionally, employing the ICTY arrest history as a case study for the ICC Situation Countries’ arrest capability requires analysis that includes the element of time, as the ICC is a much younger international institution than the ICTY.

Prediction for Effectuating Arrests in ICC Situation Countries

Examination of factors integral in facilitating arrests for persons wanted by the ICTY may provide important insight into why certain ICC situation countries are unable to effectuate the arrest of individuals wanted by the ICC. However, important contextual differences should be highlighted prior to comparing the ICTY to the ICC. The ICTY was formed as an arm of the United Nations Security Council nearly two decades ago, included strict statutes that demanded national cooperation with arrest warrants, and enjoyed bolstered enforcement and cooperation trough the presence of NATO military forces and strong economic incentives. Conversely, the ICC was formed in a different context; its Office of the Prosecutor faces a markedly different environment with respect to state cooperation.

The most notable difference between the two institutions is that ICC is a much younger institution than the ICTY. The ICC was formed nearly a decade after the ICTY and should therefore be afforded more leniencies when one assesses arrest capability, especially when one considers that the bulk of ICTY arrests were effectuated in the later years. A decade from now, regimes might have evolved or shifted that would steer ICC situation countries towards or away from cooperation incentives with the ICC. Nevertheless, and in spite of the differences between the ICTY and ICC, military presence and access to resources, whether economic or military in nature, may still be important predictive elements in assessing the arrest capabilities of ICC situation countries.

Situation Countries Most Likely to Succeed

Access to military resources and economic incentives played an important role throughout the years in which ICTY arrest warrants were enforced. Both of those factors are present in Uganda, an ICC situation country that may prove to improve its arrest capacity over time. In light of the fact that Congo has already demonstrated a strong arrest record, this paper will also seek to assess which factors in particular may have provided important contribution to Congo’s arrest capacity, and whether those factors were shared with arrests made for persons wanted by the ICTY.

Uganda

Although 4 LRA suspects wanted by the ICC are still at large in Uganda, the country’s access to military resources and financial assistance suggest that the country might soon exhibit progress in effectuating arrests of its fugitives.

1. Boots on the Ground

Joseph Kony is arguably the most wanted Ugandan fugitive, and is considered “Africa’s Bin Laden”.18 Subsequently, the US very recently provided Uganda with substantial military resources, including actual United States military personnel on the ground. Since 2012, 5.000 African Union peacekeeping troops in addition to a 100—member deployed US Special Forces team are on the ground hunting for Kony.19 The US Pentagon’s recent request to the White House for permission to base sophisticated aircraft in Uganda that can fly like planes yet land like helicopters reflects continued willingness of the US to provide critical military resources to locate and arrest Joseph Kony.20 Just as NATO military forces played a crucial role in the capture of persons wanted by the ICTY, US military special forces and state of the art military-grade equipment might, very soon prove valuable in improving arrests made for Ugandan war criminals wanted by ICC prosecutors.

2. Financial Assistance from Western States

Since 2008, the US State Department has sent approximately $50 Million in funds to support Ugandan Army Logistics and non-lethal operations against the LRA.21 Additionally, the US government remains the largest donor of financial aid to Uganda. Aid to Uganda derives from an additional source: private American Philanthropists also actively contribute to Uganda’s search for Joseph Kony. The Buffet family and Bridgeway Capital Management Foundation pay hundreds of thousands of dollars each month to subsidize specialized tracking dogs, bankroll helicopters and private planes to transport military equipment, and pay an American private security team to train Ugandan soldiers.22 Just as access to finance and military resources were integral to arresting persons wanted by the ICTY, Western aid to Uganda, especially aid that generates access to military resources, may prove very fruitful for Ugandan arrest capability in time.

3. Time

US military involvement in Uganda is only very recent. Access to such sophisticated operational and logistic support may likely rapidly increase Uganda’s ability to see that its 4 outstanding LRA indictees are arrested. Although Kony and other LRA members have at this point in time eluded capture for nearly seven years, the significant increase in western-sponsored military assistance with state of the art technology shows promise for capture. Just as access to military resources were integral to secure ICTY arrests, “donated” military support without doubt secures a more positive outlook for Uganda’s capability to secure arrests of those LRA members wanted by the ICC, in a matter of time.

In addition to military and financial aid that may prove valuable over time, current Ugandan policy may shift in coming years such that its arrest capability is further improved. Uganda’s Amnesty Act, established in 2000, as well as its ICC Act, adopted in 2010, may alter Uganda’s ability to effectuate arrests over time. The Amnesty Act currently hinders authority to arrest LRA members by immediately providing amnesty from prosecution to any LRA member who renounces himself.23 However, time and regime change might see the repeal of this law, removing obvious obstacles to effectuating arrest.

Uganda’s ICC Act makes serious crimes as defined by the ICC’s Rome Statute offenses under Ugandan law. However, the provision is relatively new and will likely require some time to determine whether the act can be retroactively applied to the mass atrocities committed in northern Uganda.24 Nevertheless, Uganda referred itself to the ICC. This action alone demonstrates the regime’s willingness to cooperate with the ICC.

Thus, substantial western military and financial support, coupled with potentially favorable policy and a cooperative regime may provide a cohesive improvement in Uganda’s arrest capabilities over time.

Congo

Similar to Uganda, Congo referred itself to the ICC. However, Congo has demonstrated substantially more success than Uganda regarding its ability to execute arrests, with successful arrests of Ntaganda, Lubanga, Katanga, Chui, and Mbarushimana, and only 1 outstanding fugitive. Just as military presence and economic incentives were important for securing persons wanted by the ICTY, both of those factors are included in present circumstances in the Congo. Additionally, as time was a critical factor for the ICTY, policy shifts in Congolese regime also played an important role in the arrest of persons wanted by the ICC.

1. Boots on the Ground

The Intervention Brigade, an African forces unit within MONUSCO, as well as UN peacekeeper squads, provide current military assistance in the Congo. Although the United States does provide assistance for security through the US AFRICOM initiative, it does not do so to the extent that it currently contributes to the hunt for Joseph Kony. Lack of strong military presence suggests that government diplomatic and economic motivations may have played a more significant role in effectuating arrests. The fact that two individuals turned themselves in and that French authorities were responsible for the arrest and capture of Mbarushimana supports this contention that military resources may not have been as integral to Congo’s ability to effectuate arrests.

2. Financial Assistance & Economic Incentives

Secretary of State Clinton travelled to the Congo in 2009, and US financial backing towards UN Peacekeeping forces in the Congo expanded dramatically shortly thereafter. Congo now receives “7th floor attention,” which has resulted in substantial hikes in aid packages to Congo.25 Furthermore, the US and other countries assisted Congo in securing arrests though implementing travel watch lists, issuing monetary rewards, and freezing assets. The United Nations Security Council placed Ntaganda on a watch list travel ban anywhere outside of Congo. The extent to which this motivated Ntaganda to turn himself is unclear, when Ntaganda “unexpectedly walked off the street into the Rwandan Embassy and demanded to be turned into the ICC”.26 The UNSC also declared asset freezes for any known members of M23, which may have contributed to successful arrests. Additionally, the US Department of State issued up to $5 million in reward money for Mudacumura as part of the War Crimes Reward Program.27 Perhaps collectively, these supportive actions assisted Congo in effectuating arrests.

3. Kabila Regime Change Over Time

Although ultimately Congolese President Kabila became adamant about prosecution of war criminals, he did not initially embrace that attitude. In spite of an outstanding arrest warrant for Ntaganda, President Kabila persisted to promote him within the armed forces; it was not until Ntaganda effectuated a mutiny in subsequent years that the Kabila regime changed its approach towards war criminals.

Sources state that the “US has critical leverage that it can employ in Congo, and President Kabila has renewed interest in deepening the partnership with the Obama Administration”.28 Thus, diplomatic and perhaps economic motivations may have incentivized the Kabila Regime to exhibit an increased level of cooperation with the ICC.

Overall, Congo’s successful arrests are likely a blend of diplomatic and economic considerations, although reasons as to why Ntaganda turned himself in are left to speculation without a formal statement. Congo’s arrest record of individuals wanted by the ICC demonstrates the importance in considering how regime changes over time can dramatically shift cooperative efforts with the ICC. Both Uganda and Congo demonstrate that criticism of the ICC and its situation countries’ ability to effectuate arrests might still be premature.

Situation Country Least Likely to Succeed

Sudan

While certain shared circumstances exist between the ICTY, Uganda and Congo, lack of those factors in Sudan denotes minimal probability for effectuating arrests.

Unlike Uganda and Congo, Sudan did not refer itself to the ICC; it was referred through a UN Security Council Resolution. Sudan is not a signatory if the Rome Statute and therefore remains completely uncooperative with securing the arrests of five wanted individuals (although 3 other suspects have in fact voluntarily responded to Court summons).29 Omar Al-Bashir currently sits as Sudan’s head of state, and the government has seen that other suspects of war crimes were promoted up the ranks.30

1. Boots on the Ground

While military assistance may prove successful in Uganda and Congo, peacekeepers deployed to Sudan in 2007 by the UNSC and brief NATO presence in the region from 2005-2007 (no combat troops) have not demonstrated fruitful with respect to effectuating arrests in the country. Ultimately, any military presence is essentially moot, at least for the purposes of effecting arrests of persons wanted by the ICC, due to the Sudanese government’s refusal to accept ICC jurisdiction. So long as Al-Bashir travels to other nations that refuse ICC jurisdiction, he can effectively insulate himself from being arrested.

2. Economic Incentives

While economic conditions may have largely contributed to the success of arrests, they don’t appear to carry the same weight in Sudan. For example, the US did enact sanctions in 2007, and froze the assets of Sudanese citizens implicated in the Darfur conflict, although those measures have so far not proved effective in motivating the arrest of those Sudanese individuals wanted by the ICC.

3. Time

Time might prove to be the only factor relevant in improving the arrest of ICC—indicted persons in Sudan. However, that would require a substantial shift in the Sudanese Regime; were Sudan to accept ICC jurisdiction, then other factors, namely military presence and economic sanctions, might have more clout in bolstering arrest capability. Ultimately, Sudan’s disregard for ICC jurisdiction and uncooperative behavior would have to be entirely overhauled to secure the arrest of these suspected war criminals.

Conclusion

With respect to current criticism of ICC arrest capacity, important lessons may be drawn from the ICTY’s successful indictment of all 161 persons. Circumstances and factors present during the ICTY years, namely substantial economic incentives, sophisticated military presence, and a timespan of 18 years to complete all arrests lend insight into how or why some ICC situation countries have struggled to secure arrests, and why others are more successful.

However, the ICTY provides at best a limited case study of arrest capability. Although circumstances facing the ICTY and ICC situation countries do share certain similarities, they are in other instances markedly different. Nevertheless, an assessment of the ICTY does suggest that the aforementioned factors may in fact be relevant to arrest capacity in Africa. While limited predictions can be made with respect to which ICC situation countries may be more successful than others in securing arrests, it may well be too soon to tell. Ultimately, time will dictate whether these factors prove crucial, incidental, or irrelevant in enforcing arrests.

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

1. 1.

   Daphna Shraga & Ralph Zacklin, International Criminal Tribunal for the Former Yugoslavia, EJIL (1994), available online (last visited Jan. 3, 2014). ↩

2. 2.

   Facts and Figures, ICTY, available online (last visited Jan. 3, 2014). ↩

3. 3.

   Stephen Castle, Serbia, Once Outcast, is Candidate to Join EU, N.Y. Times, Mar. 1, 2012, available online (last visited Jan. 3, 2014). ↩

4. 4.

   Brian Tittemore, News from the International War Tribunals, Am. U. Center Hum. Rts. Humanitarian L., , available online (last visited Jan. 3, 2014). ↩

5. 5.

   Gabriel Partos, Serbia Squeezed Over War Crimes, BBC News, Nov. 25, 2004, available online (last visited Jan. 3, 2014). ↩

6. 6.

   Iqbal Ahmed, Serbia’s Prospect for EU Membership, Foreign Pol. J. (Oct. 6, 2011), available online (last visited Jan. 3, 2014). ↩

7. 7.

   Igor Jovanovic, Despite Hadzic Arrest, Serbia Could Still Face EU Hurdles, Southeast Eur. Times, Jul. 21, 2011, available online (last visited Jan. 3, 2014). ↩

8. 8.

   Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on May 25, 1993, U.N. Doc. S/RES/827 (1993), Article 29(2)(d), available online (last visited Jan. 3, 2014). ↩

9. 9.

   Operation Tango: SAS Arrest War Criminals, Elite UK Forces, available online (last visited Jan. 3, 2014). ↩

10. 10.

    Richard Curtiss, As US Shifts in Bosnia, NATO Gets Serious About War Criminals, Wash. Rep. on Mid. East Aff. (Nov. 1997), available online (last visited Jan. 3, 2014). ↩

11. 11.

    War Crimes, Interpol, available online (last visited Jan. 3, 2014). ↩

12. 12.

    Id. ↩

13. 13.

    Julian Borger, Hunt Intensifies for Serbian War Criminal Mladic, The Guardian, Feb. 16, 2009, available online (last visited Jan. 3, 2014). ↩

14. 14.

    War Crimes Rewards Program, U.S. Dept. of State, available online (last visited Jan. 3, 2014). ↩

15. 15.

    Citing Lack of Cooperation with ICTY, US Withholds Aid to Serbia-Montenegro, Southeast Eur. Times, Dec. 1, 2005, available online (last visited Jan. 3, 2014). ↩

16. 16.

    See US House of Representatives, Bill HR 1064, Section 302, Sep. 2000, available online (last visited Jan. 3, 2014). ↩

17. 17.

    Chris Jenks, Twenty Years of International Criminal Law: From ICTY to ICC and Beyond, ASIL (Apr. 7, 2013), available online (last visited Jan. 3, 2014). ↩

18. 18.

    Ted Thornhill, Joseph Kony is Africa’s Osama Bin Laden, Says Defense Boss Ivor Ichikowitz, Huff. Post, May 2012, available online (last visited Jan. 3, 2014). ↩

19. 19.

    Id. ↩

20. 20.

    Rajiv Chanrasekaran, Kony 2013: US Quietly Intensifies Effort to Help African Troops Capture Infamous Warlord, Wash. Post, Oct. 28, 2013, available online (last visited Jan. 3, 2014). ↩

21. 21.

    Ted Dagne, Africa: U.S Foreign Assistance Issues, Cong. Research Serv. (Sep. 15, 2011), available online (last visited Jan. 3, 2014). ↩

22. 22.

    Id. ↩

23. 23.

    Justice for Serious Crimes before National Courts, HRW (Jan. 16, 2012), available online (last visited Jan. 3, 2014). ↩

24. 24.

    Id. ↩

25. 25.

    Aaron Hall & Sasha Lezhnev, US Congo Policy, Enough Project, available online (last visited Jan. 3, 2014). ↩

26. 26.

    Thomas Escritt, Congolese Warlord to Make First Appearance Before Hague Court, Reuters, Mar. 25, 2014, available online (last visited Jan. 3, 2014). ↩

27. 27.

    Wanted: Slyvestre Mudacumura, Office Of Global Criminal Justice, U.S. Dept. of State, available online (last visited Jan. 3, 2014). ↩

28. 28.

    Aaron Hall & Sasha Lezhnev, supra note 25. ↩

29. 29.

    Cases and Situations, Coalition for the Int’l Crim. Ct., available online (last visited Jan. 3, 2014). ↩

30. 30.

    Justice for Darfur Campaign Launched, Amnesty Int’l (Apr. 25, 2008), available online (last visited Jan. 3, 2014). ↩