I. Functions and Authority

Functions

In order to be effective, the ICC police force must be equipped with weapons and authorized to enter foreign territories and arrest indicted criminals as necessary, including those that are sitting heads of state. Ideally, the ICC could make use of a permanent standing police force that is able to respond to needs as necessary. However, the ICC does not require such a force to work full-time for the ICC; to date, the Court has only issued twenty-five arrest warrants.4 Additionally, engaging the ICC police force would not be necessary each time the ICC issues an arrest warrant—rather, it would be a more effective use of time and funds if the police force only came into play for arrests after a certain point; this could be the point at which the OTP determined that the indictee/his state would not willingly surrender him, or a pre-determined number of days after the arrest warrant is issued.

Authority

General authority and compliance with international law

The issue of authority is the greatest hurdle for establishing an ICC arresting force. In fact, when a reporter asked if he wished to have a police force to bring criminals to trial, former ICC chief prosecutor Luis Moreno-Ocampo responded that it “would never work” because the ICC “cannot invade.”5 International police activity without either consent or a mandate from the UN Security Council infringes upon the sovereignty of the state where an arrest occurs, thus violating article 2(4) or 2(7) of the UN Charter. That article prohibits three types of conduct: (a) the use or threat of force against the territorial integrity, (b) the threat or use of force against the political independence of any state, or (c) the threat or use of force in any other manner inconsistent with the purposes of United Nations. Arguably, police activities, as opposed to military activities, do not constitute the “threat or use of force,” assuming that the police force is not armed. A police force without the ability to use and carry weapons, however, would likely be largely ineffective. Use of force can otherwise only be permitted under international law by the Security Council or as an exercise of self defense under customary international law. The Security Council could authorize the intervention upon a finding that execution of tribunal orders is necessary to protect international peace and security.6

Consent could also vitiate the sovereignty issue. ICC member states could sign onto a treaty providing blanketed consent to police force entry as necessary. The international police presence would thus be consistent with Article 2(4). The consent basis is potentially limited by the possibility that the host country would withdraw its invitation, either because it changes its mind or because the government changes. Such a change could be provoked by the actions of the international police force itself. Additionally, states are unlikely to forfeit sovereignty in this way.

Alternately, the ICC could rely on states to agree to allow the arresting force entry on an ad hoc basis. However, to have capacity to arrest sitting heads of state, the ICC police would likely need to be able to enter a state to arrest those indicted without the state’s consent in each specific instance. Requiring the ICC police force to gain permission on a case-by-case basis would greatly reduce its ability to be effective, since any indicted head of state would merely decline the arresting force’s entry. The optimal solution would be to gain blanketed pre-approval from ICC member states; however, as noted above, this is unlikely due to inadequate incentive for a state to forfeit its sovereignty.

Authority under the Rome Statute

The Rome Statute allows for partnerships between the ICC and other organizations. Article 15 and Rule 104 of the ICC Rules of Procedure and Evidence allow the Prosecutor to seek from intergovernmental organizations information that will assist him in determining whether there is sufficient information to initiate an investigation. When the Prosecutor decides to open an investigation, Article 54(3) lays down measures that he may use in his investigative activities, including obtaining assistance from intergovernmental organizations. According to some analysts, the insertion of the word “arrangement” in sub-paragraph (c) may also allow the Prosecutor to seek the cooperation of peacekeeping forces.

Article 87(6) states that intergovernmental organizations are not under any obligation to cooperate with the Court or the Prosecutor, but that the Court may request such assistance: “the Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.” Article 87(6) contemplates what is likely the preferred method within the international community for the ICC to secure cooperation from an intergovernmental organization—by way of agreement.

II. Assessment of potential partners

NATO

NATO (North Atlantic Treaty Organization) is an alliance of countries from North America and Europe that is committed to fulfilling the goals of the 1949 North Atlantic Treaty. NATO is composed of 28 member states, including the US, UK and France. Its stated purpose is to safeguard the freedom and security of its members through political and military means.7 NATO is the only organization in modern history that has had significant involvement in the arrest of people indicted by an international criminal tribunal; NATO was instrumental in assisting with arrests for the International Criminal Tribunal for the former Yugoslavia (ICTY). Before the organization became involved in assisting with the Tribunal’s arrests, it was already deployed on the ground. At the time, NATO was the only force able to execute the indictments.

The ICTY has been largely successful in its arrests: of the 126 individuals who have been indicted by the ICTY, only 10 still remain at large (as of July 1, 2005). This result, as characterized by Justice Louise Arbour, is largely attributable to NATO’s involvement in international criminal law enforcement.8

There are currently no formal ties between NATO and the ICC. However, there are many cases where NATO has cooperated with other international organizations at the working level or even at the policy level, using an ad hoc approach rather than establishing permanent formal ties. Of note, there is a consensus requirement for decision-making among the members of NATO. Members of NATO that are not parties to the ICC Statute could constructively abstain from interfering with this method. For example, the members of NATO that were not supportive of the Libya campaign abstained from interfering in regard to Operation Unified Protector.9

A partnership with NATO could potentially be negotiated through a cooperative agreement. However, if NATO were unwilling to risk its troops in arresting certain indicted people, it would have all the required latitude to frame a general commitment in a cooperative agreement that could be interpreted in such a way as to defend a subsequent weak implementation or enable outright refusal to assist the ICC in certain situations; based on Article 87(6) of the Rome Statute, the ICC cannot make a binding request for intergovernmental organization assistance.

Securing the cooperation of all parties involved in each respective conflict would be highly important. After their deployment in the former Yugoslavia in December 1995, NATO forces did not make a single arrest until July 1997. By some accounts, high-profile war criminals indicted by the ICTY lived freely in neighborhoods patrolled by NATO troops. The NATO troops deliberately modified their routes to avoid the criminals.

Difficulties in gaining cooperation of the NATO-led forces in Bosnia underscore the political nature of international criminal law enforcement. The Western powers that made the Dayton Accords possible did not commit to vigorous prosecution of the suspected war criminals. Neither the Security Council resolutions nor the Dayton Accords developed an operational framework for the ICTY’s cooperation with NATO. According to analysts, a combination of political and judicial pressure, change in political and military leadership, and decrease of casualty risk resulting partially from the ICTY’s sealed indictment procedure, led NATO to begin to selectively enforce the Tribunal’s arrest warrants.10

An additional issue for consideration is that arrest missions are generally perceived as contradictory to NATO’s main mission, which is establishment of peace. Thus, using NATO as a partner to effectuate arrests could lead the international community to criticize both the ICC and NATO.

Interpol

The ICC could partner with Interpol (International Criminal Police Organization) to arrest indicted criminals. Interpol is the world’s largest international police organization. It aims to “facilitate cross-border police cooperation and support and to assist all organizations, authorities, and services whose mission is to prevent or combat international crime.” Interpol has successfully utilized the cooperative efforts of 179 member states for over seventy-five years. It provides a structure that can be manipulated to assist countries in setting up an international police system.11 To ensure cooperation, each Interpol member country designates a national body, called the National Central Bureau (NCB), which ensures a liaison between the various departments in the country, NCBs in other countries, and Interpol’s General Secretariat.

Interpol is recognized as an independent international organization by the United Nations and through its headquarters agreements with France and other countries on whose territory it has premises.12 The Interpol Constitution specifies that international police cooperation should be conducted within the spirit of the Universal Declaration of Human Rights. Interpol’s commitment to human rights is, in part, expressed through its cooperation with international courts and tribunals.

Per Interpol’s Constitution, the organization’s aims are to ensure and promote the widest possible mutual assistance between international organizations dedicated to criminal justice within the limits of the laws existing in the different countries and in the spirit of the Universal Declaration of Human Rights. Interpol’s role in the area of serious international crimes has been clearly defined in agreements signed over the years with various international courts and tribunals, and has been further highlighted by resolutions adopted by the governing bodies of the United Nations and Interpol.13 Interpol General Assembly Resolutions AGN/63/RES/9 (1994), AGN/66/RES/10 (1997), AG-2003-RES-08 (2003) and AG-2004-RES-16 (2004), concern the cooperation of Interpol with the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone, and the International Criminal Court.

In 2003, the United Nations Security Council adopted Resolution S/RES/1503/2003 on the Completion Strategy for the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY). Among other things, the Resolution “calls on States to cooperate with Interpol in apprehending and transferring persons indicted by the ICTY and the ICTR.”

In 2004, the 73rd session of the Interpol General Assembly held in Cancun called for increased Interpol support “for the investigation and prosecution of genocide, war crimes and crimes against humanity” (see Resolution AG-2004-RES-17).

In 2007, the 19th Interpol African Regional Conference called for all Interpol National Central Bureaus to provide whatever assistance necessary to arrest any remaining fugitives wanted by the International Criminal Tribunal for Rwanda.

In 2008, the 37th Interpol European Regional Conference called for Interpol National Central Bureaus to provide the widest possible assistance to locate and arrest the four remaining fugitives wanted by the International Criminal Tribunal for the former Yugoslavia.

In 2009, the 4th International Expert Meeting on Genocide, War Crimes and Crimes Against Humanity, held in Oslo and attended by war crime units from many Interpol member countries, recommended that a central repository be created to facilitate sharing of information relative to serious international crimes investigations throughout the world.

In 2010, the 79th session of the Interpol General Assembly held in Doha, Qatar, passed a resolution which further developed the manner in which Interpol handles new requests for Red Notices related to Genocide, Crimes against Humanity and War Crimes (see resolution AG-2010_RES-10).

Under the existing cooperation agreement between the ICC and Interpol, cooperation is limited to “the exchange of police information and the conduct of criminal analysis, the search for fugitives and suspects, the publication and circulation of Interpol notices, the transmission of diffusions, and access to the Interpol telecommunications network and databases.” Under the preamble of the current agreement, the General Assembly has agreed that the Interpol General Secretariat and the NCBs should assist investigations involving serious violations of international humanitarian law. Under Article 54(3)(c) and (d) of the Rome Statute, the OTP may seek the cooperation of intergovernmental organizations, in accordance with its respective competence and mandate, and may enter into any agreements that are necessary to facilitate the cooperation of an intergovernmental organization. Pursuant to Article 15(2) of the Rome Statute and Rule 104 of the ICC Rules of Procedure and Evidence, the OTP may seek additional information from states and intergovernmental organizations.

The ICC could attempt to create a cooperation agreement with Interpol to procure the organization’s assistance with effectuating arrests. Of note, Interpol has existing cooperative agreements with a number of states that have submitted to allowing Interpol to arrest in their territories. This suggests that Interpol has procedures in place that would enable the organization to smoothly transition into an arresting partner for the ICC.

The establishment of a cooperation agreement with Interpol is done through mutual negotiations and the drafting of an agreement that is accepted by both parties. The final version is signed by each respective representative, which is typically the Secretary General of Interpol and his equivalent in the other organization.14 The agreements are living documents that can be modified or replaced by a new agreement if a need for additional forms of cooperation arises and both parties agree on the needed modification.

Under Article 41 of the Interpol Constitution, agreements concerning relations with other international organizations may be concluded by Interpol. Cooperative agreements must be approved by the General Assembly. Once approved, the President of the Organization (or the Secretary General by delegation) is authorized to sign the agreement. Under Article 22 of the Interpol Constitution, the General Assembly at its 67th session (Cairo, 1998) and 69th session (Rhodes, 2000) decided to delegate to the Executive Committee the power to approve cooperation agreements with other international organizations. The General Assembly considered it necessary to simplify the procedure and speed up the process of negotiating cooperation agreements.

Bounty hunters as purely private actors

The ICC could engage private actors, such as bounty hunters, to provide assistance in arrests. Private actors have proven effective in arresting capacity both on a domestic and an international level.

In the United States, domestic bounty hunters have proven more effective at ensuring an alleged criminal’s presence at trial than state law enforcement has. Every year in the United States, approximately seven thousand bounty hunters arrest between 25,000 to 30,000 fugitives.15

Bounty hunters have also been used on an international level. On April 21, 2000, in Smederevo, Serbia, bounty hunters delivered Dragan Nikolić, an indicted war criminal, to American Stabilization Force soldiers. The bounty hunters smuggled Nikolić out of Serbia and delivered him to NATO troops in Bosnia, who transferred him to the ICTY in the Netherlands. During an April 28, 2000 court appearance, Mr. Nikolić pleaded not guilty to eighty separate war crimes charges and requested that the ICTY dismiss his case on the grounds that his arrest was illegal. The motion was ultimately denied. The Chamber concluded that, in the particular circumstances of this case, the relevant SFOR forces had no other option than to arrest and detain Nikolić. The Chamber observed that the conduct by the unknown individuals in the FRY cannot be attributed to SFOR or to the Prosecution.16 The Chamber also examined whether the way in which Nikolić was brought to the Tribunal amounted to a violation of the FRY’s territorial sovereignty, a violation of the human rights of the accused, or a violation of due process of law. The Chamber concluded: “that no violation of the territorial sovereignty of the FRY, attributable to SFOR or the Prosecution took place; that the accused was not subjected to treatment that was of such very serious nature that it could amount to a legal obstacle to the exercise of jurisdiction by this Tribunal, and; that no violation of the fundamental principle of due process of law has taken place.” Thus, the motion seeking the release of the accused and the dismissal of the indictment was rejected.17

However, despite the Chamber’s ruling, the irregular rendition had negative ramifications for the individual bounty hunters involved. On May 17, 2000, Serbian police arrested eight persons in Serbia who were allegedly involved in kidnapping Nikolić. Serbian police claim that unspecified “foreign services” paid £31,000 (British pounds) for the kidnapping. The Serbian bounty hunters who kidnapped Nikolić were convicted by a Serbian court and sentenced to serve two-to-six years of imprisonment, emphasizing the need for legal immunity if bounty hunters were to become arresting partners for the ICC.

In a separate case, Stevan Todorović, another indicted war criminal who was captured by bounty hunters, asked the court to dismiss his case because of the illegality of his arrest. On October 20, 2000, judges at the ICTY ordered NATO to reveal details of Todorović’s apprehension. On November 20, 2000, Canada, Denmark, Germany, Italy, Netherlands, NATO, Norway, United Kingdom, and the United States appealed the trial chamber’s decision. However, before the appeal was decided, Todorović negotiated a plea agreement under which he would plead guilty to count one of his 27 count indictment, which accuses him of committing a crime against humanity by persecuting individuals on political, racial, and religious grounds. Todorović also agreed to withdraw all pending motions related to the circumstances of his arrest. In return, the prosecution withdrew the remaining 26 counts and recommended to the court that Todorović be sentenced to between five and twelve years of imprisonment. NATO and its member states may have pressured the prosecution to obtain a plea agreement with Todorović to avoid having to disclose the details of Todorović’s capture by bounty hunters.

There are several issues that arise specific to the use of private bounty hunters to assist in arrests for the ICC. First, there is the question of whether this would be restricted under international law norms. Article 2(4) of the UN Charter prohibits a State from using force or threatening to use force against another State’s territory or political independence. Included in this prohibition is a State’s unilateral decision to kidnap an individual from a foreign State. However, the abduction of an individual from a foreign State by an international bounty hunter would not violate Article 2(4) because the international bounty hunter is a private party. Article 2(4) regulates the conduct of States, not individuals. In any event, even if bounty hunters were considered to be acting as State agents, the forceful acts committed by international bounty hunters would still not violate Article 2(4) if international bounty hunters were acting pursuant to a Security Council resolution. The UNSC has the authority to authorize uses of force that would otherwise violate Article 2(4). Articles 41 and 42 of the UN Charter permit the UNSC to trump the prohibitions of Article 2(4) in the interests of maintaining international peace. Accordingly, a UNSC resolution that establishes a legal immunity for international bounty hunters from domestic laws for the forceful acts necessary to arrest a war criminal would not violate the UN Charter. Under the UN Charter, the UNSC has substantial powers to maintain international peace and security. If the UNSC determines that a threat to international peace exists then it may use its enforcement authority to eliminate that threat, even going so far as to displace domestic law. Article 42 of the UN Charter authorizes the UNSC to call upon multinational military forces to restore international peace. Article 41 of the UN Charter permits the UNSC to impose measures not involving the use of armed force to maintain international peace. Article 41 further permits the UNSC to enact arms, air travel, oil embargoes, economic, and financial sanctions. The UNSC has also used its Article 41 enforcement authority to attempt to coerce a non-cooperative State to turn over custody of an international fugitive. In November 1999, the UNSC imposed economic sanctions against Afghanistan for harboring Bin Laden who was charged with complicity in the United States 1998 embassy bombings in Kenya and Tanzania. In this instance, the UNSC determined that a sole criminal fugitive remaining at large constituted a threat to international peace. Furthermore, the UNSC has also used its broad enforcement authority under Article 41 to create the ICTY and ICTR. If the UNSC determined that arresting indicted war criminals would promote or maintain international peace then the UNSC could implement enforcement measures to compel their arrest. Prosecuting war criminals promotes international peace by deterring future war crimes. Punishing the perpetrators of war crimes also helps eliminate the need for victims to commit war crimes in revenge. By creating the ICTY and the ICTR, the UNSC recognized the importance of the prosecution of war criminals for restoring international peace. The UNSC could just as easily determine that the apprehension of indicted war criminals is also necessary to promote peace since an international criminal tribunal cannot fulfill its intended role in restoring international peace if it is unable to obtain custody of its indicted war criminals. Accordingly, the UNSC could use its broad enforcement authority to pass a resolution that provides international bounty hunters with legal immunity from State domestic law for the forceful acts necessary to arrest indicted war criminals. It is unlikely, however, that the UNSC would be willing to summarily grant such an immunity.

Alternately, a group of States could ratify a treaty that provides international bounty hunters with immunity from domestic criminal prosecutions. However, while using a treaty to create immunity for international bounty hunters is theoretically possible, it is practically nonviable. First, it would be extremely difficult to achieve a consensus among States on such a novel idea. Second, even if a consensus could be obtained, any treaty would only bind the signatories to the treaty. Nonparty States would create safe havens for fugitives and completely frustrate the efforts of international bounty hunters. Third, the treaty process takes too long.

State Actors

State actors could be utilized by the ICC on an ad hoc basis. A state with the capacity to assist in an arrest may be willing to provide aid for a number of reasons, such as political pressure, humanitarian goals, or self-interest. Assistance from a third-party state actor in capturing an internationally wanted criminal is not unprecedented. In December 2008, the United States provided assistance in the capture of Joseph Kony, a fugitive rebel commander indicted by the ICC for crimes against humanity committed in Uganda. The American military command for Africa, Africom, dispatched a team of military advisers to Uganda to help plan an attack on Kony’s camp in the Congo, a ploy which ultimately failed. The American government then helped the Ugandan army extend its reach to pursue Kony across the region. Due to heavy constituent pressure, in 2010 Congress passed the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act which, among other things, enabled President Obama to send special forces to pursue Kony the following year.18 Though the rebel leader is still at large, some analysts have speculated that, largely due to the “unprecedented pressure” of being pursued by the American special forces and the Ugandan troops, Kony may soon be willing to negotiate his surrender.19 According to US military officials, the Kony mission exemplifies the growing role of special forces in remote or politically sensitive parts of the world where conventional combat units are impractical.20

This option is limited in several ways. First, this would only be possible where a third-party state has sufficient interest and capacity to assist in an arrest. Second, this type of arrangement would likely only work in situations where, as in the Kony mission, the affected state agrees to a partnership with the state actor(s) willing to provide assistance. Otherwise, in addition to being restricted by international law norms, a third-party state actor’s participation in a manhunt could lead to hostility and conflict from the affected state and/or its allies. Thus, assistance by state actors with the capacity and willingness to aid in an arrest would be ineffective in cases involving sitting heads of state, since an indicted head of state would not consent to entry by a third-party state.

III. Plausible and Implausible Partners

Of the options discussed above, private actors are the least plausible arresting partner for the ICC. In addition to the sovereignty issues that any ICC arresting force would pose, the use of bounty hunters would also be problematic in that each individual involved would require legal immunity from states in which any arrests are made. Private actors would likely be difficult for the ICC to control as well; a complex set of procedures would need to be developed to ensure that, while private actors would have some sort of legal immunity for assistance provided to the ICC, they would also be required to adhere to some standards set forth by the ICC. Without such restrictions in place, an independent arresting force composed of private actors may make arrests by any means, including excessive use of force, without fear of reprisal.

The strongest potential partners for the ICC are NATO and Interpol, due to the precedents each organization has set—NATO with its partnership with the ICTY and Interpol with the existing cooperative agreements it has that enable the organization to arrest in certain states, and its existing agreement with the ICC. These partnerships suggest that NATO and Interpol may have the capacity to assist the ICC in making arrests and that each organization has procedures in place that would enable a strong partnership with the ICC.

Conclusion

Apart from the limitations particular to each potential partner analyzed, the biggest hurdle that the ICC faces in establishing an arresting force is the issue of authority. Absent consent or a UNSC resolution permitting the use of force, a police force with the capacity to enter a state and make arrests is restricted by international law. Such a UNSC resolution is unlikely due to political reasons, among others. States are unlikely to forfeit sovereignty to the ICC by providing blanketed approval permitting an international arresting force to effectuate arrests on their territory as necessary. The most feasible solution for the ICC would be to allow states to permit the arresting force entry on an ad hoc basis, the limitation being that a state may merely decline; it is unclear whether the ICC would be able to make use of an arresting force, even after being established, under such parameters.

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

1. 1.

   G.A. Knoops, Surrendering to International Criminal Courts: Contemporary Practice and Procedures (Ardsley, NY: Transnational Publishers, 2002). ↩

2. 2.

   Chad: Hosting once again President al-Bashir would be a further insult to the victims of Darfur, NPWJ (Apr. 8, 2013), available online. ↩

3. 3.

   The Court Today, ICC, available online. ↩

4. 4.

   Id. ↩

5. 5.

   Marlow Stern, ‘Prosecutor’ Star Makes His Case, Daily Beast, Oct. 5, 2011, available online. ↩

6. 6.

   Henry H. Perritt Jr., Policing International Peace and Security: International Police Forces, Wis. Int’l L.J. (Mar. 1999). ↩

7. 7.

   What is NATO?, NATO, available online (last visited Jan. 5, 2014). ↩

8. 8.

   Han-Ru Zhou, The Enforcement of Arrest Warrants by International Forces, J. Int’l Crim. Just. (2006), available online. ↩

9. 9.

   Ulf Haeussler, NATO and the ICC: Time for Cooperation?, Transatlantic Current (Mar. 2012), available online. ↩

10. 10.

    Mikas Kalinauskas, The Use of International Military Force in Arresting War Criminals: The Lessons of the International Criminal Tribunal for the Former Yugoslavia, 50 U. Kan. L. Rev. (2002). ↩

11. 11.

    Mary Margaret Penrose, No Badges, No Bars: A Conspicuous Oversight in the Development of an International Criminal Court, 38 Tex. Int’l L.J. 621 (2003). ↩

12. 12.

    Legal Materials, Interpol, available online (last visited Jan. 5, 2014). ↩

13. 13.

    Legal Framework, Interpol, available online (last visited Jan. 5, 2014). ↩

14. 14.

    Legal Materials, supra note 12. ↩

15. 15.

    Christopher M. Supernor, International Bounty Hunters for War Criminals: Privatizing the Enforcement of Justice, 50 A.F. L. Rev. 215 (2001). ↩

16. 16.

    Press Release, ICTY, Dragan Nikolic’s Motion for Unlawful Arrest Denied (Oct. 9, 2002), available online. ↩

17. 17.

    Id. ↩

18. 18.

    Jeffrey Gettleman, In Vast Jungle, U.S. Troops Aid in Search for Kony, N.Y. Times, Apr. 29, 2012, available online. ↩

19. 19.

    Nicholas Kulish, African Rebel Leader Said to Be Considering Surrender, N.Y. Times, Nov. 21, 2013, available online. ↩

20. 20.

    Barbara Starr, U.S. Weighs How to Expand Role in Kony Hunt, CNN, Oct. 29, 2013, available online. ↩