Argument

I. Securing State Cooperation

As the jurisdiction of the ICC has in a number of cases been triggered by a self-referral of the State on whose territory the crimes allegedly took place (Uganda, DRC, Central African Republic), one might expect cooperation with the ICC to run smoothly in such cases.7 However, even with regard to self-referrals, cooperation may sometimes not be forthcoming. First, the territorial State may have second thoughts after having triggered the ICC’s jurisdiction, for instance, because the enforcement of arrest warrants may be an obstacle to peace negotiations with rebel groups (e.g., a peace-deal between the Ugandan Government and the LRA). Second, the State may suspend its cooperation in case the OTP reneges on an implicit deal not to target the government side, but only the insurgents (e.g., in case the OTP were to target the Ugandan Government, and not only the LRA rebels). Or third, the indicted person may have fled to another State than the State that referred the situation to the OTP, and that State is not willing to cooperate (e.g., former President of the Central African Republic Ange-Felix Patassé fled to Togo, a State not Party to the ICC Statute).8

In case the jurisdiction of the ICC has not been triggered by a self-referral, the enforcement of ICC arrest warrants risks running into particular trouble. One should think of the ICC Prosecutor using his proprio motu powers (the Kenya scenario), or the Security Council referring a situation to the ICC (the Sudan scenario). Because in these cases, the State has not given its consent for an OTP investigation, and is quite probably unwilling to conduct genuine investigations itself,9 it is not very likely that its cooperation in enforced arrests will be smooth, even though the State may be under a legal obligation to cooperate.10 Still, in case of Security Council referral, the international community’s leverage may potentially be rather significant, as the increased authority and legitimacy with which such a referral is imbued may convince all States—irrespective of their being Parties to the ICC Statute or not—to put their weight behind coaxing the target State into compliance. Obviously, this is not to say that this will happen as a matter of course, as the situation in Sudan demonstrates.11

In all cases, in order to obtain the arrest of an indictee, the OTP will somehow have to secure cooperation from relevant international and local players. The faithful execution of cooperation frameworks always depends on the political reality of the day, however. Still, under specific circumstances, the OTP may sometimes strategically exploit any cracks in the framework. This strategy may have particular relevance when the OTP has sought warrants for the arrest of persons who are accused of crimes committed in different States, and those States are all part of the cooperation framework. The OTP may then make a deal with one State, promising not to seek the (immediate) enforcement of an arrest warrant relating to the situation in that State, in return for cooperation in executing arrest warrants relating to a situation in another, adjacent State. This is of course based on the assumption that the indictees of the latter situation are present in the former State and/or could be expelled to the latter State.12 Burke-White has given the example of the ICC OTP playing Sudan against Uganda: the OTP could commit itself not to urge cooperation of Sudan in the enforcement of the ICC arrest warrants issued against its officials, provided that Sudan no longer offers a relatively safe haven to the LRA on its territory.13 Similarly, the OTP could bring pressure to bear on the DRC to step up its efforts to arrest LRA leaders on its territory, in return for a ‘promise’ not to indict sitting DRC officials.14

This strategy will of course only work if the different States could be played against each other. This will be the case if they all have something to lose from not cooperating with the OTP, in particular when the odds are high that the OTP could target their own officials in case of non-cooperation, or when overwhelming international pressure is applied. While the signs for success of this strategy may be propitious in the Great Lakes region, in light of the fact that a number of ICC arrest warrants relate to different but interconnected situations, other controversial questions may in fact beg an answer. First, is it morally defensible not to seek the enforcement of arrest warrants, however temporarily? Second, can the indictee challenge, before the Court, the OTP’s decision to have arrest warrants enforced, or to seek indictments, in spite of OTP’s earlier promises to the contrary?

As to the first concern, it may be feared that the legitimacy of international justice will be undermined if the selectivity of enforcement efforts is not only attributable to States or the international community, but even to the very organ that has initially sought the arrest warrant: the OTP. How can the OTP exert credible pressure on States and the international community using moral arguments if its own decisions are seen as morally dubious?

Such a selective enforcement may deserve support if it is the only method of securing any arrest at all. Given the fact that ‘the big men’ in charge in the various States often provide each other political cover, such serious enforcement difficulties are not fanciful. It may be argued that in such cases, the effectiveness of international criminal justice, which is in itself a moral value, should be allowed to trump considerations of moral evenhandedness. Moreover, elective enforcement of arrest warrants should not be viewed as the abandonment of efforts to have certain warrants enforced. Rather, it should be seen as giving priority to the enforcement of some warrants over others, on grounds of political desirability, feasibility, or gravity of the crime. The enforcement of warrants that are deprioritized is only deferred to a later stage, when the political reality is possibly more favorable. In the Uganda situation, for instance, the OTP has confirmed that it does not equate the simultaneous pursuit of important obligations other than that of effectuating the arrest warrants with unwillingness to effectuate those warrants.15 Those other obligations or responsibilities include, according to the OTP, “to achieve peace and security and improve the humanitarian situation for the victims.”16 The OTP may thus—at least temporarily—relax pressure on States when those States pursue legitimate policy objectives that clash with the aim of arresting the indictees. In general, apart from the specific situation of multiple arrest warrants relating to different situations, (immediate) arrest is not an overriding aim; instead, the OTP may countenance a temporary scaling back of enforcement efforts for the benefit of a more pressing social need.

Secondly, if the OTP does not live up to the promises of non-enforcement or non-indictment which it has made toward certain States, and the individuals it is supposedly protecting, the question may be asked whether those individuals have a case in court challenging the OTP arrest strategy. It may appear that in such cases, the OTP failed to act in good faith, and that it has frustrated the legitimate expectations of the State and the individual. But whether, in so doing, the OTP has vitiated the legal proceedings against the individual is another question. It is doubtful whether the OTP’s promises would be legally binding at all. Even if they were, the challenging party, on whom the burden of proof lies, will probably face an uphill battle to adduce sufficient evidence to substantiate the claim that the deal between the OTP and the State (with the individual as a beneficiary) was really meant to produce legally enforceable obligations. Arguably, the challenge should not be dismissed a priori, however. The OTP is supposed to behave as a diligent and faithful actor. Any serious due diligence failures should therefore result in remedies being granted to the victim of those failures, the very annulment of the proceedings being the most extreme remedy.

Success in enforcing arrest warrants not only depends on cunning diplomatic strategies and high politics, but also on grassroots support for the enforcement of arrest warrants (although both will often be entwined).17 Without the involvement of civil society groups who translate the need for enforcement of international criminal law into a local, recognizable vernacular,18 serious enforcement difficulties might be encountered. States, even if authoritarian, often do not want to go against the wishes of their populations for fear of violent uprisings. Also, they might cite the demands of the ‘street’ as a useful excuse for not enforcing arrest warrants, even in the face of pressure by the international community. Therefore, the development of specific outreach strategies geared toward positively influencing local public opinion is appropriate.19 More specifically, the enforcement of arrest warrants of those deemed most responsible (and those bearing command or superior responsibility in particular) may have to be presented as a moment of moving beyond a shameful past toward a more hopeful future.

It is to be borne in mind that the grassroots level is not atomized: it does not consist of millions of separate individuals who share no bonds with each other. While the most readily identifiable bond which they share with each other is obviously their citizenship of (or residence in) the State where they live, they often have a stronger, more emotional bond with certain groups at the sub-State level, such as religious groups or tribal communities. The OTP may have to target the leaders of those groups, or other opinion-makers (such as influential editorialists). Convincing those leaders of the added value of arresting persons accused of international crimes, whatever their rank or political constituency, may be equated with actually convincing the population at large.

In some situations, the OTP may lobby for sanctions against non-cooperative States. A word of caution in relation to sanctions is appropriate, however. It is well-known that sanctions do not always work.20 At times, instead of encouraging cooperation, they precisely contribute to the radicalization of a beleaguered regime, and hence to even less cooperation with the tribunal. It is, for instance, not clear whether sanctions imposed on Sudan with a view to obtaining more cooperation with the ICC would be very effective. The effectiveness of sanctions also depends on the international support they can muster. If important international players do not implement a sanctions regime, its effectiveness will be limited. As a substantial number of major powers have not ratified the ICC Statute (e.g., the United States, Russia, China, India), securing sufficient support for sanctions aimed at ensuring compliance with ICC arrest warrants will always be an uphill struggle.

II. Sealed Arrest Warrants

Yet even if strategies aimed at enlisting State cooperation turn out to be successful, arrest may not be forthcoming for the simple reason that the indicted person has disappeared. To prevent this, the ICC OTP may want to, and does often apply for sealed arrest warrants. Such warrants are typically issued in case public knowledge of the proceedings might result in the suspect hiding, fleeing, and/or obstructing or endangering the investigations of the proceedings of the Court.21 The Court, at the request of the OTP, has indicated that the fact that the suspect is still fighting may in this connection also be one of the reasons to issue a sealed warrant.22 For the OTP, requesting a sealed indictment/arrest from the Court will be an attractive option in case public knowledge of the proceedings might result in the suspect hiding, fleeing, and/or obstructing or endangering the investigations or the proceedings of the Court. If the Court has honored the OTP’s request, the Prosecutor may choose the time and reasons of unsealing, and again apply the Court for a decision on unsealing the warrant. The OTP has applied for unsealing warrants in case one or more of a number of criteria are fulfilled.23 These criteria do not appear as cumulative conditions. Rather, they should be seen as indications that unsealing the arrest warrant may, at that moment, prove more effective in securing the arrest of the suspect.

Although the ICC Prosecutor has typically sought a sealed warrant, his application for the issuance of a warrant for the arrest of the Sudanese President Al-Bashir was not for a sealed warrant. This raises the question as to what factors acted in favor of applying for a public warrant in that case. The single most important factor contributing to the Prosecutor’s decision to apply for a public warrant was probably the position of the suspect: incumbent president. Al-Bashir was only the third sitting head of state ever against whom an arrest warrant was issued (after Slobodan Milošević of Yugoslavia in 1999, and Charles Taylor of Liberia in 2003). The prosecutor will ordinarily not pin much hope on the swift execution of such a warrant. The cooperation of the State which the indicted person heads will obviously not be forthcoming as long as they remain in power. Moreover, the cooperation of other States, even States Parties to the ICC Statute, where the head of state may be found (e.g., at an international conference), may not be forthcoming either: for political-strategic reasons, heads of state and government of those States will typically be loath to embarrass their counterparts by executing arrest warrants against them, and it is even open to doubt whether, in light of Article 98 of the ICC Statute, third States’ arrest and surrender of a head of state or government protected by international immunities is even lawful.24

Because the execution of an arrest warrant against a sitting head of state will normally prove elusive, even if the person is caught by surprise, applying for a sealed warrant will not prove advantageous, rather the contrary. The issuance of such a ‘secret’ warrant could be perceived in the target State as casting doubt on the State’s good faith, and lead to a hardly cooperative stance on its part.25 By issuing a public warrant, in contrast, the Court may be seen as playing by the rules, showing that it has nothing to hide, while at the same time marginalizing the regime headed by the indicted head of state.26 Marginalization is helped by the international publicity generated by a public arrest warrant against the head of state. As Gosnell has noted, such a warrant is nothing less than a demand for regime-change.27 Ideally, it may strengthen the hand of domestic reformers, backed up by pressure exerted by the international community. This will hopefully eventually result in the downfall of the regime, and the arrest of the regime’s leaders, including the (deposed) head of state, with a view to international, or as the case may be domestic, prosecution. For that to succeed, however, the regime’s crimes need to be proven as quickly as possible. Therefore, it is probably advisable that the OTP follows up on the issuance of an arrest warrant against a head of state by issuing arrest warrants against a number of ‘smaller fry,’ who may more readily be sacrificed by States. Securing their conviction and the concomitant establishment of the legal ‘truth’ could keep the momentum going for regime change and the eventual surrender of the head of state.28

III. Support of International Troops

Let me finally dwell on the enlisting of the support of international troops to enforce ICC arrest warrants. It is no secret that in the Great Lakes region, one of the focal areas of the ICC’s investigative activities, OTP requests for direct support of international troops in enforcing warrants has with a lukewarm response. Article 16 of the Memorandum of Understanding between the ICC and MONUC (the UN mission in the DRC)29 is rather clear on the support which the OTP can expect: the memorandum does not envisage the OTP directly requesting the aid of MONUC in supporting arrest efforts, but instead, views the territorial State to be the party with the obligation to request support in aid of execution of warrants of arrest.30 This is understandable in light of Article 89(1) of the ICC Statute, which only provides for the transmission of a request for the arrest and surrender of persons to States. The parties to the memorandum may possibly have wanted to prevent the awkward situation of MONUC (provisionally) arresting an individual at the request of the Court (the legal basis of which is Article 87(6) i.o. Article 92 of the ICC Statute), and the individual not being able to be transferred to the ICC because the State is not willing to cooperate. The initiative is therefore safely left to States, with which the OTP can obviously remain in close contact.

This system may work well in case the State is willing to cooperate. One could, however, easily imagine a Yugoslavia—or Sudan-like situation of international troops being deployed in a certain area, and the local authorities opposing the international presence as well as any arrest operation those troops may carry out. For such a situation, a direct transfer from international custody to ICC custody, without the State acting as an intermediary, appears desirable. It is not fully clear whether the ICC Statute provides a legal basis for such a direct transfer, however. A possible way out could be for the international forces to have the arrested person first transferred to a (third) State that is willing to cooperate. After all, persons could be surrendered to the ICC by any State on the territory of which that person may be found,31 arguably irrespective of how their presence on that territory was brought about. Alternatively, and more appropriately, a UN Security Council resolution authorizing the transfer by international forces may be sought.32

Even if legal obstacles could be overcome, it remains doubtful whether international troops are truly willing to enforce arrest warrants. Illustrative of this reluctance is UN Secretary-General Kofi Annan, responding to a request from the Security Council (Resolution 1663) to make proposals on the topic of how UN agencies and missions could more effectively address the problem of arresting LRA leaders, underscored “the difficulties that the UN missions in the Congo and Sudan would face in mounting operations to support arrest,” and endorsed the notion that the most promising means of addressing the LRA threat by force would be for the governments in the region [to] find a mutually agreeable way to strengthen cooperation on the ground among their security forces.33 Within the UN administration, there appears to be serious political resistance against endowing UN forces with a mandate of arresting war crimes suspects and surrendering them to the tribunals. It is noted that the ICC OTP has implicitly criticized this resistance when it urged that UN troops deployed in the eastern regions of the DRC be provided with special forces with a mandate to arrest fugitives.34 But as international arrest (law enforcement) operations against warlords, even by the best special forces in the world, have turned out very deadly, it is unlikely that the UN will change its position soon.35

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

1. 1.

   Author’s Note: this text is, in large part, drawn from Cedric Ryngaert, Arrest and Detention, in International Prosecutors 647–699 (Luc Reydams, Jan Wouters & Cedric Ryngaert eds., OUP 2012). An earlier working paper version is available online. ↩

2. 2.

   Gavin F. Ruxton, Present and Future Record of Arrest War Criminals; the View of the Public Prosecutor of the ICTY, in Arresting War Criminals 19 (W.A.M. van Dijk & J.L. Hovens eds., Wolf 2001). ↩

3. 3.

   E.g., 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 ICC Statute], Article 63(1): “The accused shall be present during the trial.” Compare Article 22.1 of the Statute of the Special Tribunal for Lebanon, available online. ↩

4. 4.

   See also Steven D. Roper & Lilian A. Barria, State Co-operation and International Criminal Court Bargaining Influence in the Arrest and the Surrender of Suspects, 21 Leiden J. Int’l L. 457, 458 (2008), available online. “The inability to apprehend suspects not only undermines the credibility of a justice system but, more fundamentally, thwarts the prosecution of cases and ultimately denies the possibility of justice to individuals as well as the establishment of a historical record which can serve as a basis for possible national reconciliation. Therefore we regard the apprehension of suspects as a more fundamental problem than just enforcement—the inability to apprehend suspects undermines the entire international human rights regime.” ↩

5. 5.

   See also Rod Rastan, Testing Co-operation: the International Criminal Court and National Authorities, 21 Leiden J. Int’l L., 431, 455 (Jun. 2008). ↩

6. 6.

   Cf. Christopher Gosnell, The Request for an Arrest Warrant in Al Bashir: Idealistic Posturing or Calculated Plan, 6 J. Int’l Crim. Just. 841, 845 (2008) arguing that once a decision is made to go public with an arrest warrant, the Prosecutor “becomes a political actor, despite the putatively legal and objective foundations of his charging decision.” ↩

7. 7.

   See also Roper & Barria, supra note 4, at 464. “ICC bargaining influence will be greater in those cases involving state party self-referrals because of the need to follow through with their referral commitment.” ↩

8. 8.

   In such a case, the OTP could call for a UN Security Council resolution forcing a State not Party to enforce the arrest warrant against the person. Cf. Rastan, supra note 5, at 444. ↩

9. 9.

   Even States not Parties to the Statute may be obliged to cooperate with the Court, in case the Security Council has referred a situation on their territory to the Court under a Chapter VII Resolution (e.g., the situation in Sudan). ↩

10. 10.

    See also Roper & Barria, supra note 4, at 464. ↩

11. 11.

    See also Roper & Barria, supra note 4, at 464. Nonetheless, even before the Court had issued a warrant for the arrest of the Sudanese President Al-Bashir, States—even States Parties to the ICC Statute—indicated that they would not arrest the indictee. See Le Ghana ne compte pas arrêter Béchir, LE JDD, Sep. 24, 2008. ↩

12. 12.

    The OTP, with the help of the international community, may also want to make an ‘internal’ deal with a State, pursuant to which the OTP would not seek the enforcement of a warrant if the State commits itself to enforcing other warrants. E.g., one solution proposed for the situation in Sudan, of which the ICC is seized, would see the President shielded from arrest, while two other officials would be sacrificed. ↩

13. 13.

    William Burke-White, Bargaining for Arrests at the International Criminal Court: A Response to Roper and Barria, 21 Leiden J. Int’l L. 477, 480–482 (2008). ↩

14. 14.

    Id. ↩

15. 15.

    The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Case No. ICC-02/04-01/05, Submission of Additional Information on the Status of the Execution of the Warrants of Arrest in the Situation in Uganda, (Dec. 8, 2006), available online. ↩

16. 16.

    Id. ↩

17. 17.

    It was reported by the ICC that it met regularly with civil society representatives. Report of the International Criminal Court for 2009/10, 65th Sess., para. 105, UN Doc. A/65/313 (Aug. 19, 2010), available online. ↩

18. 18.

    Cf. the need for vernacularization for the universality to be fully realized, in particular Abdullahi A. An-Na‘im, “Area Expressions” and the Universality of Human Rights, in Human Rights and Diversity: Area Studies Revisited 1 (D.P. Forsythe & P.C. McMahon eds., University of Nebraska Press 2003), available online; Sally Engle Merry, Human Rights and Gender Violence 1 (University of Chicago Press 2006): “In order for human rights ideas to be effective … they need to be translated into local terms and situated within local contexts of power and meaning.” ↩

19. 19.

    In this sense see also Roper & Barria, supra note 4, at 466; Burke-White, supra note 13, favoring direct negotiation with domestic actors within the State. ↩

20. 20.

    Compare Roper & Barria, supra note 4, at 466–467, regarding political pressure as having only limited effectiveness, as opposed, however, to military and economic pressure. ↩

21. 21.

    E.g., The Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04-02/06, Decision to Unseal the Warrant of Arrest Against Bosco Ntaganda (Apr. 28, 2008), available online. ↩

22. 22.

    Id. Arguably, the OTP may fear that the issuance of the arrest warrant may embolden the suspect not to lay down arms. A continuation of the conflict runs afoul of one of the purposes of ICC proceedings: to pacify conflict zones. ↩

23. 23.

    (i) The suspect is no longer fighting; (ii) the suspect may have become aware of the existence of the warrant for his arrest; (iii) protective measures have been taken to ensure the adequate security of the witnesses; (iv) the suspect may flee or seek refuge in other (neighboring) countries, a risk which may be decreased when the international actors are officially informed of the existence of the warrant; (v) the State which has already been notified of the warrant has taken steps to apprehend the suspect, a process which may be facilitated by unsealing the arrest warrants, and (vi), obviously, the State has already executed the sealed arrest warrant. Cf. Prosecution’s Application for Unsealing the Arrest Warrant against Bosco Ntaganda, ICC-01/04-02-06-15-US-Exp, Feb. 29, 2008, with ICC Pre-Trial Chamber agreeing by Decision of April 28, 2008, supra note 22, at 4–5. See also The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision to Unseal the Warrant of Arrest Against Mr Thomas Lubanga Dyilo and Related Documents at 3 (Mar. 17, 2006), available online. ↩

24. 24.

    Von Michiel Blommestijn & Cedric Ryngaert, Exploring the Obligations for States to Act upon the ICC’s Arrest Warrant for Omar Al-Bashir. A Legal Conflict between the Duty to Arrest and the Customary Status of Head of State Immunity, 5 Zeitschrift für Internationale Strafrechtsdogmatik 428–444 (Jun. 2010), available online. ↩

25. 25.

    It has even been suggested that the conflict could, as a result of a sealed warrant, become more violent. Cf. Gosnell, supra note 6, at 844. ↩

26. 26.

    See also Richard Goldstone, Od-Ed., Catching a War Criminal in the Act, N.Y. Times, Jul. 15, 2008, available online, stating that “[t]he arrest warrants for President Bashir reveal to the world what type of regime holds power in Khartoum.” ↩

27. 27.

    Gosnell, supra note 25, at 845. ↩

28. 28.

    Id. at 847–848. ↩

29. 29.

    Memorandum of Understanding between the United Nations and the International Criminal Court Concerning Cooperation Between the United Nations Organization Mission in the Democratic Republic of Congo (MONUC) and the International Criminal Court, ICC-01/04-01/06-1267-Anx2 (Nov. 8, 2005) [hereinafter Memorandum of Understanding] available online. ↩

30. 30.

    The Prosecutor v. Joseph Kony et al., supra note 15, at ¶ 14. The Memorandum of Understanding, supra note 29, indeed provides that MONUC may agree to a request from the DRC government to carry out the arrest of persons sought by the Court in the areas where it is deployed and where this would be consistent with its mandate. ↩

31. 31.

    Article 98(1) ICC Statute. ↩

32. 32.

    Cf. S.C. Res 1638, U.N. Doc. S/RES/1638 (Nov. 11, 2005), available online, operational para. 1: “Decides that the mandate of the United Nations Mission in Liberia (UNMIL) shall include the following additional element: to apprehend and detain former President Charles Taylor in the event of a return to Liberia and to transfer him or facilitate his transfer to Sierra Leone for prosecution before the Special Court for Sierra Leone and to keep the Liberian Government, the Sierra Leonean Government and the Council fully informed.” ↩

33. 33.

    The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Case No. ICC-02/04-01/05, Submission of Information on the Status of the Execution of the Warrants of Arrest in the Situation in Uganda at ¶ 19 (Oct. 6, 2006), available online. This statement was informed by the death of eight Guatemalan soldiers in an arrest operation against Joseph Kony in the DRC. See also The Christmas Massacres: LRA attacks on Civilians in Northern Congo, HRW (Feb. 2009) at 17–18, available online. The unwillingness of the UN to authorize UN missions to arrest fugitives is also reflected in UN Security Council Resolution 1565, relating to the MONUC mission in the DRC. Admittedly, this resolution authorizes MONUC to “co-operate with efforts to ensure that those responsible for serious violations of human rights and international humanitarian law are brought to justice, while working closely with the relevant agencies of the United Nations,” but it does not authorize the use of force to that effect. S.C. Res 1565, para. 5(g), U.N. Doc. S/RES/1565 (Oct. 1, 2004), available online. As stated at supra note 30, however, the Memorandum of Understanding authorizes MONUC to arrest fugitives if the DRC, as opposed to the Court itself, requests it to do so. See also Rastan, supra note 5, at 445. ↩

34. 34.

    Peter Eichstaedt, ICC Chief Prosecutor Talks Tough, IWPR, May 7, 2008, available online. In the international media, it was reported that a joint UN and DRC forces had undertaken military operations against the LRA in the DRC, but the Vice President of the Government of Southern Sudan, who is also the Chief Mediator of the Uganda peace talks, denied the allegations. James Gatdet Dak, Sudan’s Machar dismisses allegations of war against Ugandan rebels, Sudan Tribune, Sep. 12, 2008, available online. ↩

35. 35.

    E.g., the hunt for Somali warlord Mohamed Farrah Aidid in Mogadishu by U.S. troops under UNOSOM II command in 1993, which cost over a thousand lives. For an overview of the UNOSOM II operation and the fatal events, which eventually led to the withdrawal of U.S. troops from Somalia, see United Nations Operation in Somalia II: UNOSOM II (March 1993 – March 1995), UN, available online, and Lester H. Brune, The United States and Post-Cold War Interventions: Bush and Clinton in Somalia, Haiti and Bosnia 1992–1998 31–34 (Regina Books 1998). ↩

36. Suggested Citation for this Comment:

    Cedric Ryngaert, Some Reflections on Securing the Arrest of ICC Fugitives, ICC Forum (Feb. 13, 2014), available at https://iccforum.com/arrest#Ryngaert.

    Suggested Citation for this Issue Generally:

    What More Can be Done to Secure Arrests?, ICC Forum (Feb. 13, 2014), available at https://iccforum.com/arrest.

Argument

II. Background

The ICC is not the first international tribunal to experience difficulty in gaining custody of indictees. Devotees to this field will remember the frustration of the International Criminal Tribunal for the Former Yugoslavia (ICTY)’s first prosecutors, whose indictments went unexecuted even after allegations that the NATO-led Implementation Force (IFOR)11 and then Stabilization Force (SFOR)12 allowed indictees to pass through checkpoints or otherwise go about their business unmolested. Indeed, the conventional wisdom is that ICTY prosecutors initiated the case against Duško Tadić—a relatively small fish who at the time was facing charges in Germany by way of its universal jurisdiction statute—out of desperation to have something to do.13 It took 18 years to finally obtain custody over all the ICTY defendants,14 including Ratko Mladić, Radovan Karadžić, and Goran Hadžić, all of whom had long eluded capture with the help of a network of nationalistic supporters. That this feat was finally accomplished is largely attributed to the fact that economic assistance as well as European Union accession and closer ties to NATO via the Partnership for Peace were made contingent upon cooperation by the states of the former Yugoslavia with the Tribunal.15

By contrast, the ICTY was able to start its work almost immediately given that—not without controversy16—all of its indictments targeted members and supporters of the former Hutu Power regime, whom the triumphant Rwandan Patriotic Front (RPF) was generally all too glad to see in the dock. Twenty seven states in the region (including Kenya, Zambia, the Central African Republic, and Cameroon) and beyond (Belgium, the United States,17 and Switzerland) also facilitated the arrest of Rwandan suspects on the run and transferred them to the Tribunal.18 Nonetheless, almost twenty years after the formation of that tribunal, nine fugitives (of 93 indictees) still remain at large.19 Tracking teams formed by the ICTY20 remain at work cultivating a network of informants within the Rwandan diaspora and elsewhere;21 the government of Rwanda has launched a similar team.22 It is anticipated that three high-value defendants23 will be prosecuted by the Arusha branch of the Mechanism for International Criminal Tribunals (MICT);24 the files of the other six have been forwarded to the Rwandan authorities for eventual prosecution in domestic courts. All nine remain subject to rewards for their capture25 pursuant to the U.S. State Department’s War Crime Rewards Program (WCRP),26 which allows for the payment of rewards leading to the arrest, transfer, or conviction of foreign nationals charged with war crimes, crimes against humanity, or genocide. The Special Court for Sierra Leone (SCSL)27 obtained custody over all indicted individuals except Johnny Paul Koroma, the leader of the Armed Forces Revolutionary Council (AFRC),28 who is rumored to be dead, although no definitive proof of this has emerged. Likewise, the Extraordinary Chambers in the Courts of Cambodia (ECCC)29 had no trouble launching proceedings against charged individuals, who were mostly septuagenarians already in government custody (such as Duch) or easily located. If the ECCC decides to pursue Cases 003 and 004,30 however, gaining custody of the accused may become an issue, since the Government of Cambodia opposes further cases.31

The challenges to obtaining custody of each current ICC fugitive are to a certain extent of a different order. There is no regional political organization such as the European Union to exert concerted pressure on actual or potential member states to execute arrest warrants. The ICC is an independent body, rather than a subsidiary organ of the Security Council or an institution created with a host state’s consent. The Court has received very little in the way of concrete support from the Security Council, even in those cases that owe their provenance to a Chapter VII resolution. Even states parties subject to treaty-based obligations to cooperate with the Court have not done enough in this regard. Furthermore, the Court does not at present stand to benefit from any tracking teams, transnational law enforcement efforts, or peacekeepers dedicated to the capture and transfer of these individuals. In short, the ICC is in a much weaker position than the prior ad hoc tribunals. As such, the international community needs to think creatively about new solutions to the problem of fugitives and do more to make the capture of these individuals a global priority.

III. Situations-by-Situation Challenges & Opportunities

A. Uganda

The first arrest warrants32 issued by the ICC Office of the Prosecutor in 2005 were against Joseph Kony and four of his Lord’s Resistance Army (LRA) henchmen. Of the four, Dominic Ongwen and Okot Odhiambo are still alive and at large. Vincent Otti and Raska Lukwiya are now dead—the former was apparently executed on Kony’s orders33 and the latter died in combat with the Ugandan People’s Defense Forces.34 The remaining LRA defendants have been on the run in one of the most inaccessible and insecure parts of the world, which sits at the juncture of a set of nations with only the most tenuous control over their hinterlands: the Republic of South Sudan (RSS), the Central African Republic (CAR), Southern Darfur State in Sudan, the disputed Kafia Kingi enclave between Sudan and RSS, and northeastern Democratic Republic of Congo (DRC). Dense foliage confounds aerial surveillance, and the LRA’s areas of activity are generally outside established communications networks.35 The remaining few hundred LRA fighters are reportedly living a nomadic lifestyle, traveling in small bands36 with their wretched abductees—including a number of children—in tow. They are rumored to be a fractured bunch,37 suffering from low morale and increasingly alienated from their messianic leader38 with whom they communicate by courier.39

These apparent schisms within the LRA offer an opportunity to divide and conquer by weakening Kony’s protective network and sources of support. Uganda, its Western partners, NGOs,40 and the Security Council41 have all endorsed a policy of encouraging defections.42 Regional forces and NGOs have been dropping “come home” leaflets43 and broadcasting related messages through the radio and from helicopter-mounted speakers in areas where there have been LRA sightings. Many of the 33 individuals who defected in 2012 indicated that these efforts influenced their decision to desert the LRA.44 Indeed, this defections strategy has motivated some high-profile desertions45 (including one of Kony’s abducted “wives”),46 which have undoubtedly generated valuable, if dated, information about Kony’s whereabouts and modus operandi. Moreover, some key LRA leaders have been captured (e.g., Caesar Achellam47 in May 2012) or killed (e.g., Vincent Binany Okumu48 in January 2013).

Uganda has enacted, let partially lapse,49 and re-activated50 an amnesty law that encourages the defection of individuals engaged in an armed rebellion in exchange for promises of impunity and reintegration. The Amnesty Act51 established an Amnesty Commission, which has to date issued over 12,000 certificates of amnesty to LRA fighters. While such amnesty opportunities may be acceptable for breaches of laws penalizing mere membership in the rebel group, or for forms of armed rebellion, they raise acute international law, human rights, and fairness concerns when they purport to extinguish liability for the commission of international crimes. The Ugandan authorities must work to find the right balance between encouraging LRA members and abductees to leave the group, while prosecuting those most responsible for serious human rights violations. The donor community must maintain its support for regional efforts toward the demobilization, disarmament, reintegration, and rehabilitation of current and former child soldiers as well as and LRA abductees so that these individuals have something to “come home” to.

The United States has made significant contributions to the regional Kony manhunt52 and related efforts to suppress the LRA and rehabilitate LRA-affected regions. The Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009,53 signed into law by President Obama in 2010, states that it is the policy of the United States to “work vigorously” to:

eliminat[e] the threat posed by the Lord’s Resistance Army to civilians and regional stability through political, economic, military, and intelligence support for a comprehensive multilateral effort to protect civilians in affected areas, to apprehend or otherwise remove Joseph Kony and his top commanders from the battlefield, and to disarm and demobilize Lord’s Resistance Army fighters; and … further support comprehensive reconstruction, transitional justice, and reconciliation efforts.

The Legislation also authorized the President to “provide assistance to respond to the humanitarian needs of populations in northeastern Congo, Southern Sudan, and Central African Republic affected by the activity of the Lord’s Resistance Army.”

In 2011, President Obama with bipartisan support launched Operation Observant Compass54 and sent 100 combat-equipped military advisors drawn from U.S. Special Operations Forces55 to assist the Ugandan People’s Defense Forces (UPDF) and an African Union Regional Task Force (AU-RTF)56 in their efforts to track Kony and “remov[e him] from the battlefield.” This is on top of the provision of substantial matériel57 (including communications equipment; logistical support; tactical equipment e.g., night vision goggles; and vehicles) to this initiative. This operation has since been re-authorized and expanded58 and is estimated to cost in the range of $4.5 million per month.59 The advisors are meant to be just that—they are not mandated to engage LRA forces unless necessary for self-defense. However, they are now authorized to conduct joint patrols with their regional counterparts. Although Kony’s trackers have come very close to capturing him,60 their efforts have been hindered by a whole host of challenges, including: the continued need for training and capacity-building among local forces; variable permission to operate in DRC;61 the unrest in neighboring CAR following the Seleka alliance coup, which suspended the program for a spell;62 a lack of coordination between the troops of different sending states;63 the difficult terrain and triple canopy jungle; potential intelligence leaks; the area’s porous borders; and, at times, a lack of resolve among the regional troops. In addition, in the past, there were allegations that Sudan was providing safe haven to LRA bands64 in retaliation against Uganda for its support of the Sudan People’s Liberation Movement, although this support appears to have subsided.

A major challenge to effectuating Kony’s capture has been the dearth of real-time information about his whereabouts and movements. By the time word emerges of Kony’s appearance, he has moved on, leaving a trail of destruction, abduction, displacement, and poaching behind him.65 One solution to this obstacle is the development of better telecommunications capabilities in LRA-affected communities (building cell towers, distributing cell and Thuraya66 satellite phones with geo-location capacities, providing high-frequency radios, and creating hotlines and tip lines), so people have a quick, secure, and costless ways to contact Kony’s pursuers in the event that the LRA passes through an area. Such efforts will have the secondary effect of contributing infrastructure to the much needed development of these regions.

The United States has also added Kony, Ongwen, and Odhiambo to its WCRP.67 This program originally applied only to indictees of three ad hoc tribunals: the ICTY, ICTY, and SCSL. The U.S. Congress amended the law in January 201368 to allow rewards to be offered for information leading to the arrest or conviction of foreign nationals charged by any international tribunal, including hybrid and mixed tribunals (such as the Bosnian Special Chambers or the proposed mixed chambers for the DRC69 and Syria).70 In April 2013, Secretary of State John Kerry designated the ICC’s LRA defendants into the expanded program.71 The program does not authorize the payment of a “bounty” for delivering a fugitive “dead or alive”;72 rather, designees must be fully prosecuted before any rewards will be issued. Nor does the program apply to government agents (U.S. or foreign) who furnish information “while in the performance of his or her official duties.” Thus, members of the UPDF and U.S. special forces may be ineligible for rewards (although the former’s friends or relatives could conceivably benefit if they provide the actionable information). To further motivate the UPDF, other states or entities could enact complementary programs that would enable the payment of “bonuses” to UPDF or AU-RTF troops who successfully capture Kony or his co-defendants and facilitate their transfer to The Hague.

In parallel with this effort, the Department of Defense (DoD)’s African Command (AFRICOM) also manages its own rewards programs73 in areas in which it operates. The DoD program enables the payment of rewards for the provision of information with the primary goals of force protection and counter-terrorism, including the arrest of wanted persons and the capture of weapons caches.74 Rewards can be paid in connection with the Kony operation on either ground since the LRA has been on the United States’ Terrorist Exclusion List since 2001,75 and Kony has been on the list of Specially Designated Nationals and Blocked Persons76 created by Executive Order 1322477 since 2008. The DoD rewards, while not subject to the same restrictions as the WCRP, tend to be smaller78 than those of the WCRP and can also be paid collectively and in kind (with, e.g., food, vehicles, non-lethal equipment, infrastructure improvements, and local amenities). Moreover, they can be paid close to immediately upon the provision of information. An expansion of this program could amplify incentives to provide useful information to U.S. personnel in the region. Both programs have benefited from an aggressive marketing campaign involving posters, fliers, and other “bling.”

U.S. advisers have been in the region for months. Kony’s elusiveness is undoubtedly a source of great frustration to members of the world’s most capable military. Nonetheless, it is the UPDF and the AU-RTF who must ultimately effectuate Kony’s capture. Their endeavors quite simply must be more professional and robust. Uganda must be encouraged to ensure that the U.S. advisors are fully embedded with their host units and able to assist in coordinating the work of AU-RTF units. Other donor states could assist the United States with maintaining coordinated diplomatic support for the Operation, providing additional capacity building and matériel, detailing more advisors and other personnel to the operation, encouraging regional cooperation with the AU-RTF, or even pushing the relevant states to allow joint offensive operations. States in the region must allow these teams free passage, refrain from offering any assistance to the LRA, and provide Uganda, the United States, or the ICC with relevant information in a timely fashion as it emerges.

Since the ICC arrest warrants were issued, Uganda has created a specialized International Crimes Division (ICD),79 with jurisdiction over war crimes, crimes against humanity, and genocide. The Ugandan Supreme Court, which has had difficulty constituting itself for lack of a quorum,80 is set to hear an appeal of Thomas Kwoyelo, a mid-level LRA commander who is being prosecuted in the ICD,81 even though he is ostensibly entitled to amnesty under the Amnesty Act. There is, of course, some chance that Uganda would choose to prosecute the LRA defendants itself in the event that they are captured alive. President Museveni referred Uganda to the ICC in 2004,82 effectively outsourcing these prosecutions notwithstanding a relatively effective and fair judicial system.83 Given that the regional and domestic politics have evolved since the time of the referral, he may decide to invoke complementarity and assert Uganda’s prerogative to prosecute Kony et al. domestically. (Uganda’s Minister of Justice, however, has indicated Kony would be sent to the ICC for trial).84 Given that the ICC has its hands full with its current caseload, an admissibility challenge coupled with a robust domestic process may not be entirely unwelcome.

In sum, while there are areas where current efforts could be plussed up, the hunt for Joseph Kony obviously does not lack for high level attention or resources. Accordingly, capturing the LRA fugitives may just be a matter of time, persistence, and patience.

B. Darfur, Sudan

The Sudanese fugitives present a different set of challenges. Most importantly, they enjoy the support and protection of the government of Sudan, which strenuously objects to ICC jurisdiction. For the most part, and unlike the LRA defendants, the Darfur indictees’ whereabouts are often all too well known.85 Janjiweed leader Ali Muhammad Ali Abd al Rahman86 (a.k.a. Ali Kushayb) was injured in battle last year87 and until recently was receiving treatment in a Khartoum hospital.88 Abdel Raheem Muhammad Hussein89 is the Minister of National Defense and former Minister of the Interior and Special Representative in Darfur. Ahmad Muhammad Harun90 was Minister of Humanitarian Affairs until he was appointed Governor of South Kordofan state in May 2009. He was appointed in 2007 to lead the investigation into human rights violations in Sudan—no doubt presenting an excruciating irony to Darfuri victims. Harun has endeavored to rehabilitate himself by becoming essential to negotiations with the SPLM-N rebel group91 over the disputed South Kordofan area, one of the “Two Areas” currently wracked by violence in southern Sudan.92 Indeed, in January 2011, the UN was excoriated for allowing Harun to travel on a UN helicopter93 in connection with negotiations around ethnic clashes in the Abyei region of South Kordofan. It was also criticized for the fact that Karen Tchalian, later chief of staff of the U.N./African Union Mission in Darfur (UNAMID), met daily with Harun94 when the former worked for the U.N. Mission in Sudan (UNMIS) in Southern Kordofan. Harun remains an acting governor in the newly reconstituted Kordofan states.

The fourth and final ICC fugitive, Omar Hassan Ahmad Al Bashir is—of course—Sudan’s head of state, which presents its own set of challenges. Bashir appears regularly in the local media and has travelled extensively—including to ICC state parties—effectively flaunting the two outstanding arrest warrants against him. Indeed, since he was indicted in 2009, he has visited a whole range of countries95 (including Chad (who also hosted Defense Minister Hussein in 2013), China, Djibouti, Egypt, Eritrea, Ethiopia, Iran, Iraq, Kenya, Libya (pre—and post-Qaddafi), Qatar, and South Sudan), where he often enjoys a dignitary’s welcome.

Bashir’s radius has diminished considerably, however, in recent years. In 2013, for example, he fled an African Union Special Summit on HIV/AIDS, Tuberculosis, and Malaria in Nigeria after being in the country less than 24 hours96 following an effort by members of the local NGO community to serve a summons on him.97 This happened amidst expressions of concern about the visit from influential states98 and rumors that foreign powers might actually arrest him.99 It also followed upon the issuance of a request to Nigeria by ICC Pre-Trial Chamber II to immediately take him into custody100 and indications that Nigeria was “considering the necessary steps to be taken in respect of his visit in line with [its] international obligations.”101 Prior to that, and following a visit to Kenya, a court there issued a ruling indicating that Kenya was under an obligation to arrest Bashir if he returned to the country.102 Bashir subsequently did not attend the Kenyatta inauguration.103 Chad postponed its 2013 Greenbelt Conference of the Community of Sahel-Saharan States upon learning Bashir would attend on Sudan’s behalf.104 Even in advance of his 2011 trip to China—a non-party state that is ambivalent, at best, toward international justice efforts, Bashir reportedly felt the need to confirm that he would not be arrested.105

Other states that once allowed him to visit have since withdrawn their welcome, including Malawi, which hosted Bashir in October 2011 for a summit of the Common Market for Eastern and Southern Africa (COMESA).106 When confronted with a finding of non-cooperation by the Court, Malawi replied that it had “accorded him all the immunities and privileges guaranteed to every visiting Head of State and Government; these privileges and immunities include freedom from arrest and prosecution within the territories of Malawi.”107 The newly installed administration of Joyce Banda, however, relinquished the opportunity to host an AU summit in June 2012 —losing tens of thousands of dollars in income for its hotels and other benefits in the process—when Bashir indicated his intention to represent Sudan.108 In addition, Bashir has not pursued or has cancelled potential visits to CAR, Zambia, Botswana, Uganda, and South Africa (for the World Cup). Even Saudi Arabia and Turkmenistan, ICC non-parties, refused permission for Bashir’s plane to cross into their air space when Bashir sought to attend the Iranian inauguration and meetings with China, respectively.

Bashir remains welcome in Ethiopia, a non-ICC party and the headquarters of the African Union. Since Bashir was charged, tension has mounted between the AU and the ICC.109 Although African states were instrumental in the formation of the ICC Statute and its entry into force, the indictment of Bashir, as a sitting head of state, caused a volte-face, at least among some AU members. The AU has also rallied around President Kenyatta, who was indicted before he became Kenya’s head of state but is now facing trial in The Hague along with his Deputy President William Ruto. On their behalf, the AU has several times attempted to prompt the Security Council to invoke Article 16 of the ICC Statute,110 which allows the Council to defer ICC proceedings for a year in the exercise of its Chapter VII powers.111 Although Article 16 language has been floated in the Council for both the Sudan and Kenya cases, it has been continually blocked by the United Kingdom, France, the United States, and other Council members. When the Council did not act upon one such request other than to take note of it in Resolution 1828 and pledge to consider matters further,112 the AU adopted a decision in 2009113 calling on its members to withhold cooperation with the Court pursuant to Article 98114 of the Rome Statute with respect to the arrest or surrender of Bashir. Elements within the AU have tried to foment a broader anti-ICC campaign, as reflected in an Extraordinary Summit devoted to the ICC hosted recently in Addis Ababa;115 however, AU members that remain supportive of the Court have managed to temper these impulses.116 Although the Extraordinary Summit was poorly attended, the AU did decide to seek the postponement of the Kenya and Sudan cases until the two heads of state are no longer in office,117 although there has been no action yet at the Council and the Court has postponed the start of the Kenyatta case until 2014—the third such delay.118 Although it is doubtful that the Council would defer the Sudan cases in light of Sudan’s recalcitrance vis-à-vis the Court, the Kenya case may present a different set of considerations.119 The Council, however, recently rejected another deferral request for that situation.120

Bashir even had the temerity to signal an intention to attend the 68th session of the UN General Assembly (UNGA) meetings in September 2013 in New York, generating speculation as to whether the United States would issue him a visa.121 Granting him permission to travel was arguably mandated by two instruments: the 1947 Headquarters Agreement between the UN and the United States—which states at Section 11 that “the federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of … representatives of Members”122—and the 1946 Convention on the Privileges and Immunities of the United Nations (the so-called “General Convention”).123 A breach of the former Agreement might have subjected the United States to binding arbitration with the UN according to Section 21; a breach of the latter treaty, to claims before the International Court of Justice under Section 30. The UN, however, had the power to waive the United States’ obligations under these instruments (including under Article 20 of the General Convention if the immunity in question “would impede the course of justice”),124 which it did not do. Per the Headquarters Agreement, the UN can also “expel or exclude persons from the headquarters district for violation of its regulations adopted … or for other cause” (emphasis added) In addition, there may have had a basis to refuse Bashir entry pursuant to Section 9(b) of the Agreement, which states that the UN shall

prevent the headquarters district from becoming a refuge either for persons who are avoiding arrest under the federal, state, or local law of the United States or are required by the Government of the United States for extradition to another country, or for persons who are endeavouring to avoid service of legal process.

While acknowledging that the U.S. was under no formal obligation to arrest Bashir, PTC II “invited” the United States to arrest and surrender him to the Court, and the ICC Registry sent a note verbale to the U.S. embassy in The Hague requesting cooperation in this respect.125 The President of the Assembly of States Parties, Tiina Intelmann, reminded potential transit states that are also ICC States Parties “of their obligation to arrest and surrender Mr. Omar Al-Bashir to the ICC.”126 (Bashir had indicated his intention to stop in Morocco, which has signed but not ratified the Rome Statute, and may have been obliged to fly over European Union air space above the Canary Islands).127 The UN remained largely silent about his potential visit and scheduled him to address the Assembly on September 26.128 In the end, he did not attempt the trip, and UNGA proceeded without him.

The international community could be more assertive about preventing Bashir’s travel. Obviously, all states—and particularly ICC members—should refrain from inviting him to events or otherwise facilitating his travel through granting fly-over or refueling rights. At the same time, a strategy of containing Bashir presents a paradox. The more he is confined to Sudan, the less likely it is that he might be arrested extraterritorially. He remains relatively safe from capture within Sudan so long as he retains control over the reins of power and there are no insiders or members of the burgeoning opposition willing to act against him.129 At the same time, as his ability to travel internationally or visit with UN and other officials is further constrained, the less effective he becomes as a representative of Sudan’s interests on the world stage. This will decrease his base of support and signal to his inner circle that he has become a liability. Were the United States to issue a reward for his and his compatriots’ arrest or capture under the WCRP, it might further incentivize insiders to offer the ICC defendants up as a way to rehabilitate Sudan’s standing in the international community (and advance their own pecuniary interests).

Assuming that he continues to travel, state supporters of the Court should focus their intelligence gathering on tracking his plans; share information on his whereabouts; establish an early warning system when he is on the move; and generally do more than issue nebulous démarches to potential host countries whenever Bashir reveals plans to travel beyond his borders. Hosting or enabling the travel of Bashir should lead to tangible adverse consequences, including potentially the loss of voting rights in international institutions such as the ASP.130 Likewise, states that respect their international obligations and demonstrate a commitment to international justice, the rule of law, and the promotion of international human rights should be rewarded. For example, due to “a pattern of actions … inconsistent with the democratic governance criteria,” including allowing the Bashir visit,131 the United States—at the urging of Republican Representative Frank Wolf, a long-time critic of the Sudanese government—suspended Malawi’s $350M compact with the Millennium Challenge Corporation (MCC), a foreign aid agency dedicated to alleviating global poverty.132 The compact was re-instated following President Banda’s courageous decision to forgo hosting the AU summit.133 Malawi subsequently received a number of favorable loans from the International Monetary Fund and the World Bank134 as well as a visit from Hillary Rodham Clinton and later her husband and daughter.135 France, for its part, refused to attend a Presidential ceremony in CAR if Bashir were present; the event proceeded without him.136

Members of civil society must also remain attuned to Bashir’s travel and pressure potential destination countries to either refrain from inviting him to events or to signal that he is an unwelcome distraction at international gatherings. To extent that their legal systems allow for private parties to initiate criminal proceedings pursuant to principle of universal jurisdiction or other forms of jurisdiction over extra-territorial crimes, NGOs should prepare complaints against Bashir and have them ready to be filed in the event he indicates an intention to visit.137 Public prosecutors and investigating judges should likewise pursue charges against him if they are empowered to act independently of their executive branch (which would presumably have extended any invitation). When Bashir does travel, these states should send extradition requests to his destination countries. According to Amnesty International, 75 % of states have the ability to exercise some form of universal jurisdiction over the three core international crimes.138

Indeed, if Bashir had come for UNGA, the US could conceivably have arrested and prosecuted Bashir under its genocide,139 torture,140 or use/recruitment141 of child soldiers142 statutes, all of which allow for the assertion of universal jurisdiction. (Denmark hinted that it might take this route when it hosted a 2009 UN Conference on Climate Change to which it felt obliged to invite all heads of state).143 Or, the U.S. could have issued Bashir a visa with exceedingly tight restrictions, an approach contemplated by Section 13(e) of the Headquarters Agreement, and then arrested him on immigration violations in the event that he breached the terms of his visa.144 Such an approach, however, may have implicated Section 13(a) of the Headquarters Agreement, which states “[l]aws and regulations in force in the United States regarding the entry of aliens shall not be applied in such manner as to interfere with the privileges referred to in Section 11.” But it would be for the UN to assert any breach, unless Bashir were considered a third party beneficiary to the Headquarters Agreement, which seems doubtful given that the immunities therein accorded are for the benefit of the organization and not the personal benefit of representatives of member states.145 The US could also have invoked its “security reservation”146 to the Headquarters Agreement (as it did with respect to Yasser Arafat in 1988),147 providing that:

[n]othing in this agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the [U.N.] headquarters district and its immediate vicinity…148

Had the United States taken Bashir into custody, there were potential impediments to the United States transferring Bashir to The Hague directly. Although the American Servicemembers’ Protection Act (ASPA) limits the United States’ ability to provide some forms of assistance to the Court,149 such a transfer would likely be permitted by the Dodd Amendment to ASPA, which allows case-by-case assistance to the ICC.150 And, there is no Article 98 agreement between the United States and Sudan that might have prevented the U.S. from transferring a Sudanese national to the Court.151 However, a transfer would have required a valid extradition treaty or executive agreement between the U.S. and the Court152—such as the 1994 and 1995 congressional-executive Agreements on Surrender of Persons153 between the United States and the ICTY and ICTY—or applicable legislation.154155 No such agreement is in place with the ICC. (Because Bosco Ntaganda voluntarily surrendered himself to the Court,156 the lack of such a legal framework was not an issue to his transfer to The Hague.) However, the U.S. could conceivably have transferred Bashir to an ICC member state, such as the Netherlands, for onward transit to the Court. Finally, the U.S. could have extradited Bashir to another state with a live arrest warrant for him. The existence of such a warrant in South Africa likely prevented Bashir’s travel to the inauguration of President Zuma in May 2009.157

At the behest of the ICC, and pursuant to a 2005 cooperative agreement between the two institutions, the International Criminal Police Organization (Interpol) has circulated red notices against almost all the individuals subject to ICC arrest warrants.158159 One notable exception is Bashir, apparently due to concerns about his entitlement to head-of-state immunity.160 If the OTP were to seek a red notice against Bashir, and if Interpol were willing to issue one, it might make it slightly more difficult for him to travel, particularly to non-ICC member states that have no treaty-based obligation to effectuate the ICC’s arrest warrants. Although a red notice does not obligate Interpol members to arrest a suspect, many Interpol members consider a red notice to be a valid request for a provisional arrest. Such a notice would provide a separate basis of authority to effectuate an arrest (particularly among non-ICC state parties) as well as signal international opprobrium and offer states an excuse to withhold an invitation for him to visit when it might otherwise be diplomatically awkward to do so.

Any Bashir arrest scenario requires the resolution of the issue of whether Bashir continues to enjoy any form of head of state immunity under customary international law or any applicable treaty.161 Arguably, Resolution 1593 removed any such immunity with respect to acts related to ICC charges, either on its own force (by waiving on Sudan’s behalf any immunity in order to effectuate Sudan’s UN Charter-based duty to cooperate with the Court) or by virtue of placing Sudan in the same situation as a state party. All state parties are subject to Article 27, which abrogates all such immunities before the Court.162 If he were indeed stripped of any immunity, all UN member states could thus arrest him on the strength of the Security Council-backed arrest warrant. Although, and as discussed below, the resolution makes clear that non-states parties are not obligated to cooperate with the Court when it comes to effectuating its arrest warrants, the resolution would permit states to do so by lifting Bashir’s immunities.

In conclusion, the situation involving the Sudanese defendants is categorically different than that of the LRA defendants. There is no international manhunt for these individuals. Most of them hold positions in government and are confined to Sudan, which gives them safe haven. Bashir is increasingly trapped within his own borders. To date, no state has had the courage, political will, or wherewithal to arrest him when he has traveled, in part because he has enjoyed the support of the AU. The other Sudanese defendants, by contrast, are perhaps more dispensable and vulnerable because they do not benefit from any claims to head-of-state immunity. Effectuating the arrest and surrender of the remaining Darfur defendants may require a change in the domestic political environment or an act of sovereign bravery coupled with an act of bravado by Bashir.

C. Democratic Republic of Congo (DRC)

All but one of the DRC defendants is in custody, in trial, or pursuing an appeal.163 Sylvestre Mudacumura, a commander in the Forces Démocratiques pour la Libération du Rwanda (FDLR) and the lone fugitive, is reportedly billeted somewhere in eastern DRC.164 The Hutu-dominated FDLR is composed of ex-génocidaires who fled Rwanda when the Rwandan Patriotic Front (RPF) assumed control of the country following the 1994 genocide. For many years, it has controlled territory and preyed on the civilian population in the DRC,165 particularly those of Tutsi ancestry.166 A rival armed group, the M23 Movement, which is supported by the current Rwandan Government in part as a proxy force against the FDLR,167 is also alleged to be responsible for abuses against the civilian population in DRC.168 It has recently been defeated by the Forces Armées de la Republique Démocratique de Congo (FARDC), with the crucial assistance of the UN Stabilization Mission in the DRC (MONUSCO).169 It is now expected that the FARDC and MONUSCO will turn their attention toward the FDLR.170 Additionally, there are rumors that Mudacumura may be injured or ill.171 So far, other allegations that he might be negotiating his surrender have not come to pass.172 Whatever his circumstances, it cannot be gainsaid that his presence in the region is a source of continued regional instability. The Security Council has called expressly for his arrest;173 such arrest would demonstrate that the DRC and MONUSCO are as committed to go after Rwanda’s enemies as they are to going after its allies.

The situation in the DRC benefits from a Security Council peacekeeping mandate that is the most robust yet when it comes to the capture of fugitives. When the Security Council renewed the mandate of the MONUSCO in 2013, it created an Intervention Brigade (IB) at the recommendation of the International Conference on the Great Lakes Region (ICGLR)174 and the Southern African Development Community (SADC)175 to address the continued instability and threat posed by numerous armed groups (including the FDLR, M23, LRA, and various local and loosely connected Mai Mai groups)176 in the region. Resolution 2098 of 2013 included language to the effect that MONUSCO may “take all necessary measures” to protect civilians, neutralize armed groups through the IB, and

support and work with the Government of the DRC to arrest and bring to justice those responsible for war crimes and crimes against humanity in the country, including through cooperation with States of the region and the ICC.

It also requests the Government of the DRC to arrest and hold accountable those responsible for international crimes, including Mudacumura, in cooperation with the ICC. Prior formulations of the mandate (e.g. UNSCR 2053 of 2012)177 had placed the primary responsibility for apprehending fugitives in the hands of the Government of the DRC, in cooperation with the ICC, but called upon MONUSCO to “support” the Congolese authorities in this regard. This new mandate is a far cry from the days when SFOR/IFOR insisted that capturing war criminals from the war in the former Yugoslavia—even though indicted by an international tribunal enjoying a Chapter VII provenance—fell outside of their mandate and institutional competency. Similar language now appears in the mandate of the peacekeeping force deployed in Mali—the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA)178—which since 2012 is also an ICC situation country, although no arrest warrants have been issued.179

In the event that Mudacumura has some freedom of movement, he may undertake the same calculus as his compatriot, Bosco Ntaganda,180 who turned himself in when his followers were routed by forces controlled by rival Sultani Makenga and were forced to flee across the border into neighboring Rwanda.181 Ntaganda thus found himself in a country that had placed him in charge of its proxy forces when they integrated with the FARDC in 2009, supported his M23 mutiny against the FARDC in 2012, but then dropped him in favor of Sultani Makenga in early 2013.182 Ntaganda obviously decided that facing charges before the ICC was a safer bet than the fate that might befall him were he to remain on the run, go undercover in Rwanda, or linger embedded within forces of dubious loyalty.183 The fact that the United States had recently authorized the payment of a reward under the WCRP, a development that had not yet been formally announced but had been made public in Jason Stearns’ well-read blog,184 may have played a role in his decision to turn himself in on his own terms, rather than on the terms of a reward-seeker.185

Because Mudacumura may have similar incentives to voluntarily surrender, members of MONUSCO should develop a contingency plan in the event that he arrives on their doorstep. This would include the establishment of temporary detention facilities meeting international standards and an advanced agreement with the ICC on how to smoothly effectuate a transfer of custody. MONUSCO should also use its communications channels with warring parties to encourage this outcome. In coordination with the Court, it could also convey assurances regarding travel, the fate of family members, legal aid, and sentence enforcement. For its part, the ICC should ensure it has ready access to a charter plane that can safely extricate Mudacumura from the region and transport him to The Hague to face trial.

D. Côte d’Ivoire (CDI)

The CDI defendants are technically no longer “at large.” Laurent Gbagbo was transferred to The Hague in November 2011 and is currently in pre-trial detention for crimes against humanity in connection with the 2010 post-election violence.186 The charges have yet to be confirmed, and the Prosecutor was invited in June 2013 to submit more evidence in support of her proposed charges.187 Although the other two of the Ivorian indictees—Simone Gbagbo188 and Blé Goudé189—remain outside of ICC custody, it is perhaps too early to consider them true fugitives. Both were subject to sealed arrest warrants that were eventually made public in 2012 and 2013, respectively. Both are now in CDI custody, and the country indicated that it is both willing and able to prosecute them itself,190 notwithstanding that Mme Gbagbo’s husband will—if the charges are confirmed—be tried by the ICC. CDI has begun a formal admissibility challenge pursuant to Article 19, which is ongoing.

The country has recently initiated prosecutions against several former Gbagbo associates,191 including his son, many of whom were extradited from neighboring Ghana192 after an initial period of reluctance by Ghana to surrender Gbagbo’s partisans.193 This one-sided focus has drawn criticism that President Alassane Ouattara is only interested in victor’s justice,194 since none of his supporters has faced charges even though violence was perpetrated by both sides. CDI’s commitment to launching a genuine transitional justice and national reconciliation process has also been erratic.195

When it comes to CDI, the international community and global civil society must maintain respectful but firm pressure on the government to either (1) move forward with credible trials of those ICC defendants in custody coupled with its formal admissibility challenge or (2) relinquish jurisdiction to the Court, so the two CDI defendants can joint their compatriot Laurent Gbagbo in The Hague.

E. Libya

Likewise, the Libyan defendants are not fully “at large.”196 Libya just recently won an admissibility challenge with respect to Abdullah Al-Senoussi, paving the way for his domestic prosecution (barring a successful appeal by the defense).197 The situation with respect to Saif Al-Islam Gaddafi remains more complicated. He is in the custody of the Zintan brigade in Western Libya, where he was captured in November 2011 trying to flee the country.198 Libya appears poised to prosecute the two along with three dozen other Qaddafi insiders.199 It is widely assumed that once sufficient concessions are extracted from the central government, the Zintanis will consent to Gaddafi’s transfer to Tripoli.

The fact that the central authorities do not currently have custody of Gaddafi fils was a major factor in the PTC ruling that his case is admissible before the Court.200 Specifically, PTC I focused on prong two of the complementarity analysis—which relates to the national court’s ability to stage the prosecution—as opposed to under prong one (willingness), primarily because Libya was not able to secure the transfer of Gaddafi “into state custody.” The inadmissibility ruling is currently on appeal. At the moment, the PTC has merely “remind[ed] Libya” of its obligation to surrender Gaddafi to the Court, an obligation that had been suspended during the consideration of the admissibility challenge. The Appeals Chamber rejected Libya’s motion for continued suspensive effect of this obligation, even during the appeal of the admissibility challenge. In July 2013, Gaddafi asked the Appeals Chamber to find Libya non-compliant and refer the matter to the Security Council. The Chamber determined it did not have proper jurisdiction over the request.201 So, the Court and Libya are poised on the verge of a confrontation that may eventually go before the Security Council. It should be noted that Libya and the Court have a memorandum of understanding in place with regard to the investigation of suspects.202

IV. Bilateral & Multilateral Strategies

Although the situation involving each fugitive is different, there is a range of ways that the international community and international institutions can better support the ability of the Court to carry out its mandate. In some cases, finding effective sources of pressure on the territorial/custodial state may be useful to effectuate the capture and transfer of fugitives to the Court. In other cases, it may be a neighboring or influential state(s), or a multilateral organization, that has the real power to bring about this outcome. Ideally, of course, members of the international community and the web of international institutions would be united in their commitment to supporting the work of the Court and ending this unacceptable state of impunity.

A. The Assembly of States Parties

The Assembly of States Parties (ASP) is the natural place for this work to be coordinated, especially given that states parties are obligated under the Statute to ensure that they devise domestic procedures to provide all forms of cooperation with the Court,203 including with respect to the arrest and surrender of charged persons.204 Indeed, the recent arrest by France, the DRC, the Netherlands, and Belgium of four individuals accused of offenses against the administration of justice in the Central African Republic case is an example of the kind of coordination that is possible when political will exists.205

The ASP has consistently called for states parties and non-party states alike to work toward this end through the provision of both operational/technical assistance as well as political support on a bilateral and multilateral level.206 Indeed, the ASP’s Bureau207—the body’s executive committee, which is made up of a President, two Vice Presidents, and 18 member representatives who serve three-year terms upon election—issued in 2007 a report dedicated to the issue of cooperation containing a set of 66 recommendations, of which several concern this issue.208 The ASP endorsed these recommendations by consensus that year at the ASP plenary.209

For example, Recommendation 17 states:

All States Parties should contribute where appropriate to generating political support and momentum for the timely arrest and surrender of wanted persons both in their bilateral contacts and activities in regional and international organisations.210

Thus, states parties should in their public statements and private consultations/démarches encourage cooperation around fugitives. In addition, states can provide technical support (such as specialized training to police and immigration officials) or second gratis personnel directly or through expert rosters such as Justice Rapid Response211 to territorial states, as per recommendation 48:

All States Parties should consider whether it would be possible, on request, to provide a State on whose territory suspects are located with technical assistance and support such as information-sharing and specialised training of law enforcement personnel.212

The ASP elevated the issue of cooperation during its 11th session in The Hague,213 with an emphasis on the tracing and freezing of assets and, less so, on effectuating arrests,214 and asked the Bureau to establish a foundation for cooperation among NGOs, states, relevant organizations, and the Court.215 With facilitation by Norway, the Bureau followed up with a more fulsome report on cooperation in 2013 containing an Arrests Strategy Roadmap.216 As a next step, the ASP should create a more permanent body or mechanism (e.g., a standing committee or working group) devoted to this issue to provide inter-sessional opportunities to engage in information sharing, exchange best practices and lessons learned to develop and hone an experience-based analysis, host expert-level discussions, and develop a network of committed states and individuals.

B. The United Nations

Pursuant to Article 2 of the ICC Statute,217 the Court and the United Nations have entered into a Relationship Agreement that confirms the independence of both institutions and provides a basis for a range of cooperative endeavors.218 This Agreement implies a role for the entire United Nations when it comes to securing custody of the accused, but the Security Council deserves special consideration. Although the situation in Darfur is before the Court by virtue of Security Council Chapter VII Resolution 1593 issued in March 2005,219 the Council has done little to effectuate the Court’s Darfur cases.220 When the Council referred the situation to the Court, it echoed the language of Article 86221 and decided that the “Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully and provide any necessary assistance to the Court and the Prosecutor.” With this language, the Council arguably placed Sudan in the position of a State Party with respect to the situation in Darfur and its obligations toward the Court. Regrettably, however, these same obligations do not extend to other U.N. Member states. Rather, all other states are merely “urged” to render such cooperation.222 Thus, only ICC Member states are under any express obligation to execute the ICC’s Darfur arrest warrants by virtue of their ratification of the Rome Treaty.223 In addition, the Council also noted that states that are not parties to the Rome Statute “have no obligation under the Statute” to cooperate with the Court.

Since the Darfur referral, the Council has received eighteen briefings by the Office of the Prosecutor. The OTP’s interventions have conveyed mounting frustration at the lack of progress in gaining custody of Sudanese fugitives and the “inaction and paralysis” within the Council.224 The Council, for its part, has offered only vague rhetorical support for the Prosecutor’s efforts and the imperative of ensuring accountability for abuses in Darfur. For example, when it recently renewed the mandate of the United Nations‐African Union Mission in Darfur (UNAMID)225 in Resolution 2113,226 the Council made no mention of the ICC, although it did make more oblique reference to the importance of “ending impunity,” “ensuring justice for crimes committed in Darfur,” “bring[ing] perpetrators … to justice,” “ensur[ing] accountability,” and also called on all parties “to comply with their obligations under international human rights and humanitarian law.” Most importantly, the Council has reacted with silence to findings of non-cooperation227 by the Court with respect to Sudan,228 Malawi,229 Kenya,230 Djibouti,231 CAR,232 and Chad,233 although the United States for one has called for more follow up by the Council. By way of comparison, the Council was much more aggressive in addressing the need to capture fugitives from the ICTY. In Resolution 1207 (1998), for example, the Council:

Condemn[ed] the failure to date of the Federal Republic of Yugoslavia to execute the arrest warrants issued by the Tribunal [ICTY] against the three individuals […] and demand[ed] the immediate and unconditional execution of those arrest warrants, including the transfer to the custody of the Tribunal of those individuals.234

The Security Council must work internally to get to the point at which it can consider punitive measures, especially in the face of flagrant non-compliance in Council-referred cases. The Council could also issue an omnibus resolution in support of international justice generally, and its two referrals specifically, enhancing the obligations on all states to cooperate in the arrest and transfer of fugitives. At a minimum, members of the Security Council—either permanent or temporary—should introduce specific language in appropriate resolutions to bolster existing treaty-based or U.N. obligations around arrests.

Security Council Resolutions 1591235 and 1672236 (among others) established a UN Sanctions Committee that imposed a range of sanctions on other Sudanese actors (including travel bans237 and assets freezes).238 Remarkably, none of these applies to any of the ICC defendants. To be sure, the standards employed to impose sanctions are not co-extensive with the standards employed for issuing an arrest warrant. In particular, the former requires a host of bio-identifiers (national identity number, proper name, etc.) in order to be effective. That said, if the Sanctions Committee is able to create a dossier for the likes of Musa Hilal, a notorious janjiweed leader, it should be able to pull something together for indicted government officials.239 Indeed, the whole Bashir UNGA travel debacle might have been avoided if he had been the subject of a comprehensive Security Council travel ban.240 The Panel of Experts of the Sudan Sanctions Committee has recommended his inclusion several times, but members of the Council have blocked his addition to the sanctions list.241 Were the Council to freeze assets of these defendants, these funds could be used to pay reparations to victims and to cover legal fees of defendants who claim indigency, thus alleviating the financial strain on the Court posed by Council referrals.

The Security Council must do more to render its ICC referrals effective, including through the provision of more robust diplomatic support. Following the Prosecutor’s most recent report on the Darfur situation in December 2013, the Council could issue a new resolution heightening the duties of cooperation of all UN member states and encouraging them to do more to effectuate the arrest warrants, working alone or collectively. Such a resolution could contain an express ban on member states’ hosting ICC defendants, even for diplomatic gatherings. It could also explicitly abrogate any head-of-state immunity Bashir might enjoy, dispelling any lingering legal ambiguity in this regard.242 Working through the Sanctions Committee, the Council could also institute a travel ban and other sanctions on Bashir and the other ICC indictees, which it has done for other international outlaws.

Another option would be for the Council to strengthen UNAMID’s mandate to give peacekeepers the power to arrest ICC fugitives. Such an authority could be passive, authorizing an arrest in the event peacekeepers encounter an indictee in the course of their normal duties and if the tactical situation would allow it, which was the model first adopted in the former Yugoslavia.243 Or, it could be more robust, enabling peacekeepers to hunt indictees down—the policy eventually adopted in Bosnia.244 Although appealing, such a move would further jeopardize UNAMID’s ability to operate in the country. The Council has already criticized Sudan for placing “increased restrictions and bureaucratic impediments … upon UNAMID movement and operations, particularly to areas of recent conflict.”245 Furthermore, Bashir’s repeated acts of retaliation against humanitarian organizations reveal the depth of his willingness to sacrifice the well-being of his own people to retain power and avoid accountability.246 It has been argued that empowering UNAMID in this fashion would also threaten its credibility as a neutral steward of operative peace agreements, including the 2011 Doha Document for Peace in Darfur (DDPD).247

No doubt, these concerns prompted the prior Chief Prosecutor of the ICC, Luis Moreno-Ocampo, to recommend against any such arrest authority when he delivered his fifteenth, and last, report to the Council.248 Instead, he boldly suggested that the Council should consider asking UN members and regional organizations to launch targeted arrest operations in furtherance of the warrants. This could be done unilaterally or through an arrest working group composed of states with the capacity and will to participate. Such “snatch and grab” operations are not unprecedented. Indeed, a notable unilateral example is the United States’ recent capture of Abu Anas al-Libi from Libya249 pursuant to 18 U.S.C. § 3052,250 which has been interpreted to grant the Federal Bureau of Investigations broad apprehension authority in connection with crimes against the United States, including permission to undertake the extraterritorial capture of an individual without the cooperation or consent of the custodial state.251 In the past, the ad hoc tribunals have generally adhered to the principle of male captus, bene detentus,252 which states that a fugitive brought into a court’s jurisdiction by means of an illegal arrest or forcible abduction in violation of the defendant’s rights or the rights of the territorial state does not automatically divest the court of jurisdiction unless the individual is seriously mistreated by court personnel. The ICC has yet to confront this issue, but it would have ample precedent to accept custody following such an operation if it were so inclined.

Obviously, any of these options will require a significant amplification of political will among members of the Council. Among the current crop of Council members, a record eleven have ratified the Rome Statute (France, UK, Argentina, Australia, Chad, Chile, Jordan, Republic of Korea, Lithuania, Luxembourg, and Nigeria). Significantly, this number is up from seven in light of Jordan’s election to the surrendered Saudi seat. The P5 (only two of which are ICC members) would have to consent to any increased engagement on the fugitive issue. Although all five permanent members allowed the referral to go forward back in 2005, Russia and China may be reluctant to authorize more concrete support for the Court’s cases in the referred situations. Indeed, in connection with Ocampo’s final presentation to the Council, Russia indicated that invoking Chapter VII to carry out arrest warrants “is unlikely to solve problems arising for the ICC in the Sudan.”253 The U.S. for its part stated:

We agree with the Prosecutor that the lack of progress to date in executing the arrest warrants and bringing those most responsible to justice merits renewed attention by the Council. We think it is a serious cause for concern that the individuals subject to outstanding arrest warrants in the Darfur situation remain at large and continue to travel across borders. This is an area where cooperation is particularly crucial.

To that end, we continue to urge all States to refrain from providing political or financial support to the Sudanese suspects subject to ICC arrest warrants and to bring diplomatic pressure to bear on States that invite or host these individuals. We stand with the many States that refuse to welcome the ICC indictees to their countries, and we commend those that have spoken out against President Al-Bashir’s continued travel, including to next month’s African Union Summit. For our part, the United States has continued to oppose invitations, facilitation or support for travel by those subject to ICC arrest warrants in Darfur and to urge other States to do the same.

We would welcome additional efforts by, and better coordination with, other members of the international community on these issues. We encourage the Council to consider creative approaches and new tools. As members of the Security Council, we can and should review additional steps that could be taken to carry out the ICC’s work in Darfur, execute outstanding arrest warrants and ensure States’ compliance with relevant international obligations.254

The Council must recognize that the flagrant impunity of the at-large Darfur defendants, and Sudan’s recalcitrance in the face of its clear Charter obligations, present a serious challenge to the credibility and authority of the Council (not to mention the ICC) that only it can rectify. The Assembly of States Parties, working through the Bureau which has taken up this issue,255 should maintain pressure on state parties that might have occasion to host Bashir.

At the same time, the U.N. must limit its own interactions with ICC defendants. The incident discussed above in which ICC defendant Harun traveled on a UN helicopter was not the only controversial contact between a U.N. official and an ICC defendant. There were allegations in 2009 that the U.N. Mission in the DRC (MONUC,256 since renamed MONUSCO) had offered medical and transportation assistance to Sylvestre Mudacumura.257 More troubling, was a 2012 incident in which the joint UN-AU special representative to Darfur, Ibrahim Gambari, was photographed socializing with ICC-indictee President Al Bashir at a wedding.258

The UN has since issued a revised contacts policy,259 restricting UN engagement260 with individuals subject to ICC arrest warrants to those contacts that “are strictly required for carrying out essential UN mandate activities.” There are no restrictions on contacts with those who are the subject of summons to appear (vice arrest warrants), as with the Kenyan defendants, and who are cooperating with the Court. While this distinction ostensibly respects the principle of innocent until proven guilty, it should not be forgotten that the confirmation of charges indicates that an ICC Pre-Trial Chamber (PTC) has determined that there were “substantial grounds to believe that the person committed the crime charged” pursuant to Article 61(5), which might merit at least some restrictions on non-essential contacts, such as at honorary, ceremonial, or social events or courtesy calls. In addition, it is difficult, at times, to ensure that defendants subject to summons are genuinely cooperating with the Court. In this regard, the assessment of the Office of the Prosecutor as well as of states with particular insights gleaned from intelligence and other sources should be given great weight.


This new contacts policy is considerably softer than prior practice as reflected in the policy generated by the UN’s Office of the Legal Affairs. That longstanding policy governed the contacts between UN representatives and persons indicted by all international courts who also held positions of authority in their respective counties.261 It required that such contacts

should be limited to what is strictly required for carrying out UN mandated activities. The presence of UN representatives in any ceremonial or similar occasion with such individuals should be avoided. When contacts are absolutely necessary, an attempt should be made to interact with non-indicted individuals of the same group or party.262

Respecting the pronouncements of the Court confirming charges against individuals is an essential element of the U.N.-ICC Relationship Agreement, which states at Article 3 that

The United Nations and the Court agree that, with a view to facilitating the effective discharge of their respective responsibilities, they shall cooperate closely, whenever appropriate, with each other and consult each other on matters of mutual interest pursuant to the provisions of the present Agreement and in conformity with the respective provisions of the Charter and the Statute.

To be sure, it is necessary to leave an opening for principals of the UN to maintain some contact with ICC indictees (such as UN Under-Secretary-General for Peacekeeping Hervé Ladsous’s multiple meetings with Bashir,263 the most recent being in July 2013)264 under exigent circumstances. This is particularly true when there are peace talks underway that require a head of state or state official to participate; however, the elements of “strictly required” and “essential … activities” should be interpreted narrowly by those concerned to prevent all but the most pressing engagements at which no other individual could represent the state in question. Isolating ICC fugitives is crucial to respecting the authority of the Court and the principles of justice it embodies as well as to signaling that an alleged involvement in international crimes has tangible consequences. It also shows respect to victims and pays tribute to their suffering. If the UN maintains the distinction between individuals subject to arrest warrants versus those voluntarily appearing before the ICC, it should ensure that such individuals, and the government agencies they control, are genuinely cooperating with the Court, in their public and their private actions.265 Moreover, the UN should continually and critically assess whether its contacts with ICC defendants have actually contributed to the effectuation of the UN mandate and related UN efforts. As Prosecutor Fatou Bensouda argued to the Council in June 2013,

We must be careful not to embolden fugitives from justice into thinking that they will be rewarded for manipulating their way into positions of indispensability even as they continue to commit crimes.266

Although this guidance has already been issued, it is not necessarily etched in stone. There should be no “business as usual” when it comes individuals who are being prosecuted for the worst crimes known to humankind.267

This contacts policy governs only U.N. personnel. States parties, who are bound by the Rome Statute’s cooperation regime, will need to devise a more rigorous contacts policy, especially for individuals subject to arrest warrants. No matter how “essential” some contact may appear to be, states parties are under a pre-existing duty to arrest and transfer such individuals. Coming up with consensus language, however, has so far eluded the ASP some of whose members have raised concerns about the creation of new legal obligations that might impinge on their ability to manage their foreign relations.268

C. Regional & Bilateral Pressure

Besides the ASP, there is no regional political body that is likely to be as effective as the European Union and Commission were in pressuring the Balkan states to cooperate with the ICTY. The most obvious candidate—the AU—has soured on the ICC, primarily surrounding the Sudan and Kenya cases, although its membership is not monolithic in this regard. The World Bank, International Monetary Fund, and African Development Bank, with their ability to condition their support on good governance and adherence to the rule of law, could be more effective sources of influence.269

Without an obvious multilateral lever, like-minded states will have to be willing to commit to utilizing unilateral and coordinated forms of pressure and incentives (such as appropriations for bilateral assistance, programming including capacity building, or participation in intergovernmental organizations) for states that are either the unwilling host of fugitives or that are providing them safe haven. For example, the United States’ refusal to attend a donor conference for Serbia in Brussels in 2001 was instrumental in the ICTY’s gaining custody of Slobodan Milošević.270 The United States also made certain types of aid (excluding humanitarian and democratization aid) to Serbia dependent on a presidential certification that, inter alia, the country had met certain conditions, including ICTY cooperation.271 Typically, Serbia would arrest272 or facilitate the surrender of indictees to the Tribunal273 in the vicinity of the certification deadline.274 Some aid was suspended over the years until all the indictees were finally in custody.

Although the World Bank or other IFIs might not take an institutional stand in favor of justice, individual donor countries can always vote their shares275 in multilateral development banks276 and other such fora in a way that encourages accountability and otherwise make cooperation with the Court a condition for assistance. They could also encourage other members to do the same. For example, in the United States, legislation also gave congressional authorization to vote for the provision of loans and aid from international financial institutions (IFIs) to the states of the former Yugoslavia if the conditions were met. Similar voting guidance has been provided for Sudan by way of the 2002 Sudan Peace Act,277 but is has not been linked to ICC cooperation or the surrender of fugitives. The U.S. Department of Treasury is unlikely to withhold its IFI vote in favor of a harboring state without some form of Congressional direction in this regard. Given the high degree of congressional interest in capturing the LRA defendants and in the human rights situation in the Sudan, this authorization might be obtainable even in today’s political climate. More indirectly, donor states must continue to support justice and accountability measures and to strengthen local capacity in areas victimized by the depredations of ICC fugitives.

A state such as Sudan is largely impervious to many forms of pressure that would work on weaker states, and it has the means to retaliate against states or organizations that might take action against it.278 Members of the international community must thus actively seek new levers against Sudan, including potential forms of financial pressure, as well as constructively engage with states such as China and Russia that can exercise unique forms of influence.

D. Civil Society

NGOs and other civil society actors need to raise awareness of all fugitives, not just high profile ones. The success of the Kony2012279 movement in galvanizing political support for the hunt for Joseph Kony, especially among young people, can be replicated for all fugitives, including those who are less telegenic, such as Mudacumura. Civil society actors should also use all available fora, including the Human Rights Council in Geneva and other treaty bodies, to pressure states to adhere to their ICC obligations.

E. The Court

For its part, there are some steps that the Court, and specifically the Office of the Prosecutor, should consider in order to effectuate its arrest warrants. The Court as a whole has already begun working on arrest strategies and has pledged to issue focused and specific requests for assistance.280 Continuing to issue sealed indictments,281 like those for two of the three CDI defendants, and confidentially sharing information with trusted partners, is one aspect of this strategy. The Court has also identified the need for:

a systematic results-orientated discussion among States Parties on concrete steps or measures that can be taken to facilitate arrests, in particular with regards to explicit situations and obstacles faced by the Court…282

Several meetings of representatives of the Court, States Parties, INTERPOL, the U.N. Office of Legal Affairs, civil society, and experts from the ad hoc tribunals have taken place to share experiences in this regard.

The OTP also should move forward with its consideration of a dedicated tracking team like those of the ad hoc tribunals to seek out those individuals whose whereabouts are unknown or even to remain aware of the movements of those individuals who are not at large. Such a team could foster cooperation with local law enforcement agencies, develop contacts within the local population, recruit and cultivate sources and informants, manage and contain security risks, and coordinate with personnel engaged in substantive investigations. Such a team would have to operate with the consent of the territorial state, although it would no doubt benefit from the Security Council giving it a boost in an overarching international justice resolution. ICC members and other concerned states should enter into confidentiality agreements with the OTP to enable information sharing about the whereabouts of fugitives. The OTP should also consider making more concrete requests of the Council for forms of assistance it might render in furtherance of its referrals.

Finally, the OTP also must ensure that its cases are strong and compelling. If the cases prove to be weak, it might discourage members of the international community from taking bold but politically-difficult steps to effectuate the Court’s arrest warrants.

Conclusion

The situation of each fugitive is unique, and the entire international community—ICC member states, other “friends of the Court”, Security Council members, and civil society—must work together to harmonize a range of coercive measures, appeals to self-interest, and forms of normative persuasion to maximum effect. The project of international criminal law and the imperative of justice demand such concerted efforts to ensure that fugitives are not allowed to enjoy impunity or safe haven. To be sure, this is a long game, but one that can be accelerated and won if the political will is there. The victims of horrific international crimes deserve nothing less.

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

1. 1.

   Author’s Note: I offer these suggestions solely within my personal, academic capacity. The ideas expressed herein do not necessarily reflect the views of the U.S. State Department or Government. ↩

2. 2.

   Eric Leonard, ICC Effectiveness Depends on Member State Cooperation, Jurist (Jan. 3, 1012), available online. ↩

3. 3.

   Article 63 states: “The accused shall be present during the trial.” ↩

4. 4.

   Assembly of States Parties, Cooperation, ICC-ASP/12/Res.3 (Nov. 27, 2013) available online. ↩

5. 5.

   Assembly of States Parties, Report of the Bureau on Cooperation, ICC-ASP/12/36 (Nov. 21, 2013), available online. ↩

6. 6.

   Press Release, Coalition for the International Criminal Court, ICC Must be Defended from Political Interference (Nov. 28, 2013) available online. ↩

7. 7.

   Article 86 of the Rome Statute states: “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.” ↩

8. 8.

   Richard Dicker & Elizabeth Evenson, ICC Suspects can Hide—and That is the Problem, Jurist (Jan. 24, 2013), available online. ↩

9. 9.

   Assembly of States Parties, Report of the Court on Cooperation, ICC-ASP/12/35 (Oct. 9, 2013), at ¶ 14, available online, [hereinafter Cooperation]. ↩

10. 10.

    Id. at ¶ 64. ↩

11. 11.

    S.C. Res. 1031, U.N. Doc. S/RES/1031 (Dec. 15, 1995), available online ↩

12. 12.

    S.C. Res. 1088, U.N. Doc. S/RES/1088 (Dec. 12, 1996), available online. ↩

13. 13.

    William Schabas, Genocide in International Law: The Crime of Crimes 379 (2000), available online. ↩

14. 14.

    Julian Borger, The Hunt for the Former Yugoslavia’s War Criminals: Mission Accomplished, The Guardian, Aug. 3, 2011, available online. ↩

15. 15.

    Julie Kim, Cong. Research Serv., RS22097, Balkan Cooperation on War Crimes Issues (Jan. 14, 2008), available online. ↩

16. 16.

    Rory Carroll, Genocide Tribunal “Ignoring Tutsi Crimes,” The Guardian, Jan. 12, 2005, available online. ↩

17. 17.

    Paul Magnarrella, Is US Cooperation with the UN Criminal Tribunal for Rwanda Unconstitutional?, African Studies Quarterly, available online. ↩

18. 18.

    Prosecuting Genocide in Rwanda: a Lawyers Committee Report on the ICTR and National Trials, UN Watch (Jul. 1997), available online. ↩

19. 19.

    Prosecutor of UN Rwanda Genocide Tribunal Urges Cooperation to Catch Roaming Fugitives, UN News Centre (Jun. 11, 2013), available online. ↩

20. 20.

    U.N. SCOR, Statement by Justice Hassan B. Jallow, Prosecutor of the ICTR, to the UNSC, UNICTR.com (Jun. 6, 2011), available online. ↩

21. 21.

    ICTR/Kenya—Presumed Doctor of Kabuga Questioned by ICTR Tracking Team, Hirondelle News Agency, Jul. 7, 2007, available online. ↩

22. 22.

    Rwanda/Genocide—Rwanda Sets Up Tracking Team for Persons Accused of Genocide, Hirondelle News Agency, Nov. 11, 2007, available online. ↩

23. 23.

    Searching for the Fugitives, UN Mechanism for Int’l Crim. Trib., available online (last visited Dec. 11, 2013). ↩

24. 24.

    Id. ↩

25. 25.

    Fugitives from Justice: Seeking Information—Wanted for Serious Violations of International Humanitarian Law, U.S. Dept. of State, available online (last visited Dec. 11, 2013). ↩

26. 26.

    War Crimes Rewards Program, U.S. Dept. of State, available online (last visited Dec. 11, 2013). ↩

27. 27.

    The Special Court for Sierra Leone, available online (last visited Dec. 11, 2013). ↩

28. 28.

    Koroma, Johnny Paul, HJJ, available online (last visited Dec. 11, 2013). ↩

29. 29.

    Extraordinary Chambers in the Courts of Cambodia, available online (last visited Dec. 11, 2013). ↩

30. 30.

    The Future of Cases 003/004 at the Extraordinary Chambers in the Courts of Cambodia, Open Society Foundation (Oct. 2012), available online. ↩

31. 31.

    Khmer Rouge tribunal: UN rebuffs Cambodia criticism, BBC News, Jun. 15, 2011, available online. ↩

32. 32.

    Situation in Uganda, Int’l Crim. Ct., available online (last visited Dec. 11, 2013). ↩

33. 33.

    Vincent Otti, LRA Crisis Tracker, available online (last visited Dec. 11, 2013). ↩

34. 34.

    Letter from L. Tibaruha, Solicitor General of Uganda, to Honourable Bruno Cathala, Registrar of the International Criminal Court (Oct. 30, 2006), available online. ↩

35. 35.

    Adan Salazar, Clinton Wants More Powerful Drone Surveillance Technology to Find Kony, Infowars, Aug. 3, 2012, available online. ↩

36. 36.

    Gabe Joselow, US Uses Advanced Intelligence to Hunt LRA in Central Africa, Voice of America, Apr. 18, 2012, available online. ↩

37. 37.

    Michael Poffenberger, Loosening Kony’s Grip: Effective Defection Strategies for Today’s LRA, Relief Web, Jul. 31, 2013, available online. ↩

38. 38.

    Kasper Agger, Completing the Mission: US Special Forces Are Essential for Ending the LRA, Enough Project (Oct. 2013), available online. ↩

39. 39.

    Joe Wacha, Kony Drops Communication Gadgets, Resorts to Human Couriers, The Observer, Mar. 20, 2012, available online. ↩

40. 40.

    Defection Fliers, Invisible Children, available online (last visited Dec. 11, 2013). ↩

41. 41.

    Press Release, Security Council, Security Council Issues Presidential Statement Demanding Immediate End to Atrocities by Lord’s Resistance Army in Central Africa; Members Hear Briefing by Special Representative of Secretary General, African Union Chair’s Special Envoy on LRA Issues, U.N. Press Release SC/6796 (Jun. 29 2012). ↩

42. 42.

    John Vandiver, US Special Ops, Activists Working Together Against LRA, Stars and Stripes, Feb. 28, 2013, available online. ↩

43. 43.

    See generally, LRA Crisis Tracker, available online (last visited Dec. 6, 2013). ↩

44. 44.

    Danny Porter, One Million Opportunities to Escape the Lord’s Resistance Army, Invisible Children, Sep. 27, 2013, available online. ↩

45. 45.

    Deputy of Uganda’s rebel LRA executed—deserters, Sudan Tribune, Nov. 30, 2007, available online. ↩

46. 46.

    Escape of Kony’s Former Wife, Invisible Children, Sep. 27, 2012, available online. ↩

47. 47.

    Bazi Kanami, Joseph Kony Top Commander Captured in Central Africa, ABC News, May 13, 2012, available online. ↩

48. 48.

    Top LRA Commander Killed // New Details, Invisible Children, Jan. 21, 2013, available online. ↩

49. 49.

    Kasper Agger, End of Amnesty in Uganda: Implications for LRA Defections, Enough Project (Aug. 2012), available online. ↩

50. 50.

    Rebel Amnesty Reinstated in Uganda, IRIN, May 30, 2013, available online ↩

51. 51.

    The Amnesty Act, Uganda Legal Info. Inst., available online (last visited Dec. 11, 2013). ↩

52. 52.

    Alexis Arieff & Lauren Ploch, Cong. Research Serv., R42094, The Lord’s Resistance Army: The U.S. Response (Apr. 11, 2012), available online. ↩

53. 53.

    Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009, H.R. 2478, 111th Cong. (May 19, 2009), available online. ↩

54. 54.

    See Operation Observant Compass, Global Security, available online (last visited Dec. 6, 2013). ↩

55. 55.

    See Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate Regarding the Lord’s Resistance Army (Oct. 14, 2011), available online. ↩

56. 56.

    Fight Against the LRA: UN welcomes handover of troops to the African Union Regional Task Force, UN Regional Office for Central Africa, available online (last visited Dec. 6, 2013). ↩

57. 57.

    Agger, supra note 38. ↩

58. 58.

    Rajiv Chandrasekaran, Kony 2013: U.S. Quietly Intensifies Effort to Help African Troops Capture Infamous Warlord, Wash. Post, Oct. 28, 2013, available online. ↩

59. 59.

    Arieff & Ploch, supra note 52. ↩

60. 60.

    Olivier Knox, Warlord Kony ‘in a Box,’ U.S. War Crimes Chief Says, Yahoo News, Sep. 20, 2013, available online. ↩

61. 61.

    Elias Biryabarema, In Spotlight, Uganda Says Congo Slows Hunt for Kony, Reuters, Mar. 12, 2012, available online. ↩

62. 62.

    William Lloyd George, Joseph Kony Gets a Break as U.S. and African Forces Stop Their Search, Daily Beast, Apr. 6, 2013, available online. ↩

63. 63.

    Jonathan Dowdall, U.S. Special Forces Make Headway Against Kony’s Lord’s Resistance Army, Defence Report, May 29, 2013, available online. ↩

64. 64.

    Mareike Schomerus, The Lord’s Resistance Army in Sudan: A History and Overview (Small Arms Survey, Graduate Institute of International Studies, Working Paper No. 8, Sep. 2007), available online. ↩

65. 65.

    See generally, LRA Crisis Tracker, supra note 43. ↩

66. 66.

    Thuraya, available online (last visited Dec. 6, 2013). ↩

67. 67.

    Department of State Rewards Program, 22 U.S.C. § 2708 (2008), available online. ↩

68. 68.

    S. 2318, 112th Cong. § 2 (Apr. 2012), available online. ↩

69. 69.

    See, e.g., Richard Lee, Plans for a Hybrid Court in Congo-Pascale Kambale, Open Society Init. for S. Africa, Mar. 6, 2012, available online; The Chautauqua Blueprint for a Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes, PILPG (2014), available online. ↩

70. 70.

    Chautauqua Blueprint, supra note 69. ↩

71. 71.

    Media Note, Office of the Spokesperson, Secretary Kerry on Bringing War Criminals to Justice Through Expansion of the War Crimes Rewards Program, U.S. Dept. of State (Apr. 3, 2013), available online. ↩

72. 72.

    Knox, supra note 60. ↩

73. 73.

    Department of Defense Rewards Program, Center for Army Lessons Learned, Handbook 09–27 Chap. 6 (United States Army Combined Arms Center, Apr. 2009), available online (last visited May 18, 2012). ↩

74. 74.

    Charles Thompson, Department of Defense Rewards Program Making a Difference in Cyclone’s AO, DVIDS, Feb. 11, 2010, available online. ↩

75. 75.

    Press Release, Philip T. Reeker, U.S. Dept. of State, Designation of 39 Organizations on the USA PATRIOT Act’s “Terrorist Exclusion List” (Dec. 6, 2011), available online. ↩

76. 76.

    U.S. Dept. of State, Individuals and Entities Designated by the State Department Under E.O. 13224, Sep. 26, 2013, available online; see also, U.S. Dept. of the Treasury, Office of Foreign Assets Control, What You Need to Know About U.S. Sanctions, Nov. 13, 2013, available online. ↩

77. 77.

    Id. ↩

78. 78.

    Office of the Secretary of Defense, Global War on Terror, Operations and Maintenance, Defense Wide Budget Activity 04, Administrative and Service-Wide Activities, available online. ↩

79. 79.

    Justice for Serious Crimes Before National Courts: Uganda’s International Crimes Division, HRW (Jan. 2012), available online. ↩

80. 80.

    Alex Masereka, Justice Ogoola: Supreme Court Can’t Execute Its Mandate, Red Pepper, Aug. 20, 2013, available online. ↩

81. 81.

    Tristan McConnell, Uganda Starts First War Crimes Trial, Global Post, Jul. 12, 2011, available online. ↩

82. 82.

    Press Release, ICC, President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC (2004), available online. ↩

83. 83.

    Mark Kersten, Outsourcing Justice to the ICC—What Should be Done?, Justice in Conflict, Oct. 31, 2012, available online. ↩

84. 84.

    Id. ↩

85. 85.

    The Darfur defendants on the rebel side appeared voluntarily before the ICC in 2009 and 2010. The case against Abdallah Banda Abakaer Nourain is underway, with trial set for May 2014. See The Prosecutor v. Abdallah Banda Abakauer Nourain, Case No. ICC-02/05-03/09, Situations and Cases, available online (last visited Dec. 6, 2013). The proceedings against co-defendant Saleh Mohammed Jerbo Jamus, who was not in custody pending trial, were terminated following his battlefield death on or about April 19, 2013. See Darfur War Crimes Suspect Rebel Jerbo ‘Killed in Sudan’, BBC News, Apr. 24, 2013, available online. The charges against Bahar Idriss Abu Garda were not confirmed for lack of evidence. See The Prosecutor v. Bahar Idriss Abu Garda, Case No. ICC-02/05-02/09, Situations and Cases, available online (last visited Dec. 6, 2013). ↩

86. 86.

    See The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-02/05-01/07, Warrant of Arrest for Ali Kushayb, (Apr. 27, 2007), available online. ↩

87. 87.

    Update on ICC-Suspect Ali Kushayb and Nyala Violence, Operation Broken Silence, available online (last visited Dec. 10, 2013). ↩

88. 88.

    Darfur Attack Wounds Sudan War Crimes Suspect, Arab News, Jul. 9, 2013, available online. ↩

89. 89.

    The Prosecutor v. Abdel Raheem Muhammad Hussein, Case No. ICC-02/05-01/12, Situations and Cases, available online (last visited Dec. 10, 2013). ↩

90. 90.

    The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Al Abd-Al-Rahman, Case No. ICC-02/05-01/07, (Apr. 27, 2007), available online. ↩

91. 91.

    Harum may lead Sudan’s talks with SPLM-N, Radio Tamazuj, available online (last visited Dec. 10, 2013). ↩

92. 92.

    Angelia Sanders, Sudan’s Southern Rebellion: The “Two Areas”, Relief Web, available online (last visited Dec. 10, 2013). ↩

93. 93.

    Wanted Sudan war criminal given UN transport: spokesman, AFP, Jan. 22, 2011, available online. ↩

94. 94.

    Matthew Russell Lee, In Sudan, UN’s Tchalian “Met Daily” With Harun, Now UNAMID Chief of Staff: War Criminals Not Banned, Inner City Press, Apr. 11, 2012, available online. ↩

95. 95.

    Bashir Travel Map, Bashir Watch, available online (last visited Dec. 12, 2013). ↩

96. 96.

    Bashir Adigun & Michelle Faul, Omar Al-Bashir, Sudan President, Has Fled Nigeria, Diplomat Claims, Huff. Post, Jul. 16, 2013, available online. ↩

97. 97.

    Summons to Federal Republic of Nigeria, Coalition for the Int’l Crim. Court, available online (last visited Dec. 12, 2013). ↩

98. 98.

    Press Release, Foreign and Commonwealth Office, Minister for Africa Expresses Disappointment that Nigeria Has Chosen to Host President Al Bashir of Sudan Despite ICC Arrest Warrants (Jul. 15, 2013), available online. ↩

99. 99.

    Political Cartoon, Ghana Must Go, Leadership (Jul. 16, 2013), available online. ↩

100. 100.

     The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision Regarding Omar Al-Bashir’s Visit to the Federal Republic of Nigeria (Jul. 15, 2013). ↩

101. 101.

     Al-Bashir Fled just Before Arrest—FG, Vanguard (Aug. 23, 2013), available online. ↩

102. 102.

     High Court of Kenya, Misc. Criminal Application No. 685 of 2010 (2010), available online. ↩

103. 103.

     Omondi Oloo & Maria Macharia, Bashir Skips Kenyatta’s Inauguration, News 24 Kenya, Sep. 4, 2013, available online. ↩

104. 104.

     Postponement of Greenbelt Conference Means No Trip to Chad for Bashir, Int’l Justice Project (Mar. 18, 2013), available online. ↩

105. 105.

     Andrew Higgins, Oil Interests Tie China to Sudan Leader Bashir, Even as He Faces Genocide Charges, Wash. Post, Jun. 22, 2011, available online. ↩

106. 106.

     Malawi Ignores Outcry at Bashir Visit for Trade Summit, AFP, Oct. 14, 2011, available online. ↩

107. 107.

     Malawi Tells Off ICC on Omar Al-Bashir, ZBS, available online (last visited Dec. 12, 2013). ↩

108. 108.

     Malawi Cancels AU Summit Over Sudan’s Bashir, Al Jazeera, Jun. 9, 2012, available online. ↩

109. 109.

     Beth Van Schaack, Kenya, With African Union Backing, to Seek Again Deferral of the Cases Before the ICC? Just Security (Oct. 14, 2013, 9:02 AM), available online. ↩

110. 110.

     African Union, Communique of the 151st Meeting of the Peace and Security Council, PSC/MIN/Comm.1(CLI) (Sep. 22, 2008), available online. ↩

111. 111.

     Article 16 of the Rome Statute reads: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.” ↩

112. 112.

     S.C. Res. 1828, U.N. Doc. S/RES/1828 (Jul. 2008), available online. ↩

113. 113.

     Assembly of the AU, Decisions and Declarations of 13th Ordinary Session (Jul. 2009), available online. ↩

114. 114.

     Article 98(1) of the Rome Statute states: “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.” ↩

115. 115.

     AU Extraordinary Summit on ICC, AU (Oct. 12, 2013), available online. ↩

116. 116.

     African Union Agrees on ICC Community for Heads of State, The Telegraph, Oct. 12, 2013, available online. ↩

117. 117.

     Press Release, AU, Africa to Request Deferment of Indictments Against Kenyan President and Vice President (Oct. 12, 2013), available online. ↩

118. 118.

     Judges Postpone Kenyatta Trial for a Third Time, ICC Kenya Monitor, Oct. 31, 2013, available online. ↩

119. 119.

     Mark Kersten, Putting the ICC’s Kenya Cases on Ice, Justice in Conflict, Oct. 22, 2013, available online. ↩

120. 120.

     Security Council: Bid to Defer International Criminal Court Cases of Kenyan Leaders Fails, UN News Centre (Nov. 15, 2013), available online. ↩

121. 121.

     Sudan Calls to Condemn American “Denial” of Visa to President Bashir, All Africa, Sep. 27, 2013, available online. ↩

122. 122.

     Headquarters of the United Nations: Agreement Between the United Nations and the United States signed June 26, 1947, Avalon Project, available online (last visited Dec. 12, 2013). ↩

123. 123.

     United Nations Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1 U.N.T.S. 15. ↩

124. 124.

     IJP Urges UN Secretary General to Clear Way for Bashir Arrest, Int’l Justice Project (Sep. 20, 2013), available online. ↩

125. 125.

     The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision Regarding Omar Al-Bashir’s Potential Travel to the United States of America (Sep. 18, 2013), available online. ↩

126. 126.

     Letter from Tiina Intelmann, President of the Assembly of States Parties, to States (2013) available online, (last visited Feb. 24, 2014). ↩

127. 127.

     Sudanese President Confirms US Travel Plan, Al Jazeera, Sep. 23 2013, available online. ↩

128. 128.

     Matthew Russell Lee, UN Journal Today Lists Sudan’s Bashir As Speaker for Tomorrow in UNGA, Of Karti, Ladsous and ICC, Inner City Press, Sep. 25, 2013, available online. ↩

129. 129.

     Sudan: Crackdown on Political Opposition, HRW (Feb. 26, 2013), available online. ↩

130. 130.

     Human Rights Watch Memorandum for the Twelfth Session of the International Criminal Court Assembly of States Parties, HRW (Nov. 2013), available online. ↩

131. 131.

     MCC Approves Zambia Compact, Suspends Compact with Malawi, Millennium Challenge Corp. (Mar. 23, 2012), available online. ↩

132. 132.

     USA is not a member of ICC: Why Punish Malawi Over Bashir? Double standards?, Malawi Voice, Mar. 27, 2012, available online. ↩

133. 133.

     Malawi Compact, Millennium Challenge Corp., available online (last visited Dec. 13, 2013). ↩

134. 134.

     Nicolas Cook, Cong. Research Serv., R42856, Malawi: Recent Developments and U.S. Relations (Mar. 21, 2013), available online. ↩

135. 135.

     Hillary Clinton visits Malawi on Africa trip, N.Y. Post, Aug. 5, 2012, available online. ↩

136. 136.

     Linawati Sidarto, Bashir’s absence from CAR a “victory,” RNW, Dec. 1, 2010, available online. ↩

137. 137.

     Case Study 1: Kenya—The Bashir Arrest Warrant: Cooperation in the Courtroom, SALC, available online (last visited Dec. 13, 2013). ↩

138. 138.

     Universal Jurisdiction: A Preliminary Survey of Legislation Around the World, Amnesty Int’l (Oct. 2011), available online. ↩

139. 139.

     18 U.S.C. § 1091, available online (last visited Dec. 13, 2013). This statute was amended in 2009 to allow for the exercise of jurisdiction over individuals accused of genocide who are “present within the United States.” Although the law did not allow for “present in” jurisdiction until 2009, the crime of genocide has been punishable in the United States on other jurisdictional bases since 1988, obviating any potential ex post facto concerns. Cook v. United States, 138 U.S. 157, 183 (1891) (noting that “an ex post facto law…does not involve, in any of its definitions, a change of the place of trial of an alleged offence after its commission”) (internal quotations and citations omitted) ↩

140. 140.

     18 U.S.C. § 2340, available online (last visited Dec. 13, 2013). Human rights groups have documented the widespread use of torture, including of protesters during the recent demonstrations against the government. See Sudan: Torture, Abuse of Demonstrators, HRW (Jul. 11, 2012), available online, and of human rights activists working in the Two Areas, Sudanese activist held incommunicado at risk of torture, Amnesty Int’l (May 10, 2013), available online. ↩

141. 141.

     Shelley Clark, A Call to Hold Bashir Accountable for the Use of Child Soldiers in Sudan, Int’l Justice Project (Jul. 24, 2013), available online. ↩

142. 142.

     18 U.S.C. § 2442, available online (last visited Dec. 13, 2013). ↩

143. 143.

     PM invites world leaders to COP15, Jyllands-Posten, Nov. 13, 2009, available online. ↩

144. 144.

     See, e.g., 18 U.S.C. §1546. ↩

145. 145.

     Third Party Beneficiary, The Free Dictionary, available online, (last visited on Feb. 23, 2014). ↩

146. 146.

     United States Headquarters Agreement, Public Law 80-357 (Aug. 4, 1947), available online. ↩

147. 147.

     Arafat Denied Visa to Visit UN PLO Protests, Says Assembly Will Have to Meet Outside US, Deseret News, Nov. 27, 1988, available online. ↩

148. 148.

     Public Law 357, 61 U.S. Statutes at Large 756 (1947). ↩

149. 149.

     American Service-Members’ Protection Act, HR 4775, Public Law 107-206 (AMICC, Oct. 17, 2006), available online. ↩

150. 150.

     The Dodd Amendment, 22 U.S.C. §7433, states:

     Nothing in this title shall prohibit the United states from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic and other foreign nationals accused of genocide, war crimes or crimes against humanity. ↩

151. 151.

     International Criminal Court—Article 98 Agreements Research Guide, Georgetown Law Library, available online (last visited Dec. 13, 2013). ↩

152. 152.

     18 U.S.C. § 3181, available online (last visited Dec. 13, 2013). ↩

153. 153.

     Agreement on Surrender of Persons between the Government of the United States and the Tribunal, ICTY, available online. ↩

154. 154.

     National Defense Authorization Act for Fiscal Year 1996, 104th Congress, Public Law 104-106, available online (last visited Dec. 13, 2013). ↩

155. 155.

     See Ntakirutimana v. Reno, 184 F.3d 419 (5th 1999) (so holding even when the request came from a Chapter VII tribunal). ↩

156. 156.

     John Kerry, Bosco Ntaganda’s Expected Surrender to the International Criminal Court, U.S. Dept. of State (Mar. 22, 2013), available online. ↩

157. 157.

     Sudanese president to skip Zuma’s inauguration, Sudan Tribune, May 9, 2009, available online. ↩

158. 158.

     INTERPOL—Cooperation agreement between the Office of the prosecutor of the ICC and the Int’l Criminal Police Organization, CEDIM, available online, (last visited on Feb. 23, 2014). ↩

159. 159.

     Red Notices exist with respect to Abdullah al-Senussi (now the subject of domestic prosecution following Libya’s successful challenge to admissibility. Beth Van Schaack, ICC Case Against Spy Chief Senussi Deemed Inadmissible, Just Security (Oct. 14, 2013, 2:48 PM), available online), Jean Bosco Ntaganda (now at the Court), Vincent Otti (dead), Ali Muhammad Ali Abd al Rahman (at large), Joseph Kony (at large), Dominic Ongwen (at large), Okot Odhiambo (at large), Ahmad Muhammad Harun (at large), and Saif al-Islam Gaddafi (in the custody of the Zintan Brigade in Western Libya and the subject of an admissibility challenge by Libya that is pending in the ICC Appeals Chamber). ↩

160. 160.

     Sudan doubts reports on Interpol requesting arrest of Bashir at Baghdad summit, Sudan Tribune, Mar. 14, 2012, available online. ↩

161. 161.

     There are at least four sources of any potential immunity: Article 105(2) of the UN Charter (“Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.”), Charter of the United Nations, UN, available online; the UN-US Headquarters Agreement; the General Convention; and customary international law. ↩

162. 162.

     Article 27 states:

     1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
     
     2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. ↩

163. 163.

     Thomas Lubanga Dyilo, who was already in DRC custody when the ICC turned its attention to him, was found guilty in March 2012 and is now appealing the verdict and sentence. Germain Katanga’s trial concluded in May 2012, but the parties continue to litigate a potential change in the charged mode of liability in the case (from indirect co-perpetration to common purpose). See The Trial of Germain Katanga & Mathieu Ngudjolo Chui, Katanga Trial (Feb. 16, 2014), available online. Trial Chamber II acquitted his co-accused, Mathieu Ngudjolo Chui, and the Prosecutor has appealed. Jennifer Easterday, Ngudjolo Acquitted by ICC, Katanga Trial, Dec. 18, 2012, available online. The charges against Callixte Mbarushimana, an FDLR principal who was arrested by French authorities in France in October 2010, were not confirmed. The Prosecutor v. Callixte Mbarushimana, Case No. ICC—01/04-01/10, Situation in the Democratic Republic of the Congo (Dec. 16, 2011), available online. Bosco Ntaganda voluntarily surrendered to the U.S. embassy in Kigali, Rwanda, in April 2013, and was transported to The Hague in an ICC-chartered plane. The hearing on the confirmation of charges against him began on February 10, 2014. See Bosco Ntaganda, HRW, available online, (last visited Feb. 15, 2014). ↩

164. 164.

     Sylvestre Mudacumura, TRIAL, available online (last visited Dec. 10, 2013). ↩

165. 165.

     Rebecca Freeley & Colin Thomas-Jensen, Past Due: Remove the FDLR from Eastern Congo, Enough Project (Jun. 3, 2008), available online. ↩

166. 166.

     DRC—Key players, Stand, available online, (last visited on Feb. 23, 2014). ↩

167. 167.

     Scott Stearns, Rwandan Support for Rebels Frustrates Attempts to End Fighting in Eastern Congo, Voice of America, Sep. 26, 2013, available online. ↩

168. 168.

     DR Congo: M23 Rebels Kill, Rape Civilians, HRW (Jul. 22, 2013), available online. ↩

169. 169.

     Habibou Bangre, After Crushing M23, Kinshasa Sets Sights on Hutu Rebels, Yahoo News, Nov. 6, 2013, available online. ↩

170. 170.

     MONUSCO’s Martin Kobler Marks 100 Days in Office, Discusses Achievements with Internet Users, MONUSCO (Nov. 21, 2013), available online. ↩

171. 171.

     James Karuhanga, Rwanda: Monuc Comes to the Aid of FDLR Commander, All Africa, Nov. 6, 2009, available online. ↩

172. 172.

     FDLR Commander General Mudacumura Allegedly Negotiating His Surrender to Rwandan Defense Forces, AfroAmerica Network, Aug. 2, 2011, available online. ↩

173. 173.

     S.C. Res. 2098, U.N. Doc. S/RES/2098 (Mar. 28, 2013), available online. ↩

174. 174.

     International Conference on the Great Lakes Region, available online (last visited Nov. 23, 2013). ↩

175. 175.

     Southern African Development Community, available online (last visited Nov. 23, 2013). ↩

176. 176.

     Jeffrey Gettleman, Mai Mai Fighters Third Piece in Congo’s Violent Puzzle, N.Y. Times, Nov. 20, 2008, available online. ↩

177. 177.

     S.C. Res. 2053, U.N. Doc. S/RES/2053 (Jun. 27, 2012), available online. ↩

178. 178.

     S.C. Res. 2100, U.N. Doc. S/Res/2100 (Apr. 25, 2013) available online. (Specifically, UN Security Council Resolution 2100 empowers MINUSMA to:

     To support, as feasible and appropriate, the efforts of the transitional authorities of Mali, without prejudice to their responsibilities, to bring to justice those responsible for war crimes and crimes against humanity in Mali, taking into account the referral by the transitional authorities of Mali of the situation in their country since January 2012 to the International Criminal Court…. ↩

179. 179.

     Letter from Le Ministre de la Justice, Gardedes Sceaux to Madame La Procureure Pres La Cour Penale Internationale (Jul. 13, 2012), available online. ↩

180. 180.

     Max Fisher, Why did infamous war criminal Bosco Ntaganda just surrender at a U.S. embassy?, Wash. Post, Mar. 18, 2013, available online. ↩

181. 181.

     Michelle Nichols & Louis Charbonneau, Exclusive: Fearing death, Congo’s ‘Terminator’ fled with help of family, Reuters, Jun. 28, 2013, available online. ↩

182. 182.

     DRC: Understanding Armed Group M23, IRIN, Jun. 22, 2012, available online. ↩

183. 183.

     Mark Kersten, When an Alleged War Criminal Walks into a US Embassy and says: ‘Take me to the ICC’, Justice in Conflict, Mar. 19, 2013, available online. ↩

184. 184.

     Jason Stearns, US Bounty Could Foment M23 Splits, Congo Siasa (Feb. 9, 2013), available online. ↩

185. 185.

     Daily Press Briefing of Victoria Nuland, Spokesperson, U.S. Dept. of State (Mar. 18, 2013), available online. ↩

186. 186.

     Gbagbo must stay in pre-trial detention—ICC, News 24 Kenya, Oct. 29, 2013, available online. ↩

187. 187.

     See The Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/11, Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute, (Jun. 3, 2013), available online. ↩

188. 188.

     See The Prosecutor v. Simone Gbagbo, Case No. ICC-02/11-01/12, Warrant of Arrest for Simone Gbagbo, (Feb. 29, 2012), available online. ↩

189. 189.

     See The Prosecutor v. Charles Blé Goudé, Case No. ICC-02/11-02/11, Warrant of Arrest for Charles Blé Goudé (Dec. 21, 2011), available online. ↩

190. 190.

     Adam Nossiter, Ivory Coast: Former First Lady’s Warrant Is Rejected, N.Y. Times, Sep. 20, 2013, available online. ↩

191. 191.

     Olivier Monnier, UN Backs Release of Gbagbo Allies Ahead of Trial in Ivory Coast, Bloomberg News, Aug. 6, 2013, available online. ↩

192. 192.

     Robbie Corey-Boulet, New scrutiny of Ivorian judiciary as Gbagbo allies extradited, RNW, Feb. 8, 2013, available online. ↩

193. 193.

     Ghana will not extradite top Gbagbo ally to Cote d’Ivoire, AFP, Aug. 30, 2013, available online. ↩

194. 194.

     Côte d’Ivoire: The Victor’s Law, Amnesty Int’l (Feb. 26, 2013), available online. ↩

195. 195.

     Ivory Coast: Hopes and Challenges in Addressing the Legacy of the 2010 Violence, ICTJ (Jun. 8, 2012), available online. ↩

196. 196.

     Situation in Libya, Int’l Crim. Ct., available online. ↩

197. 197.

     Van Schaack, supra note 159. ↩

198. 198.

     Colin Freeman, Saif Gaddafi asks for trial to be heard in Zintan rather than Tripoli, The Telegraph, Sep. 19, 2013, available online. ↩

199. 199.

     Chris Stephen, Gaddafi’s son, intelligence chief and PM among defendants in crucial trial, The Guardian, Sep. 19, 2013, available online. ↩

200. 200.

     The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11, Decision on the admissibility of the case against Saif Al-Islam Gaddafi (May 31, 2013), available online. ↩

201. 201.

     The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11 OA 4, Decision on the “Request for an immediate finding of non-compliance and referral to United Nations Security Council” (Sep. 17, 2013), available online. ↩

202. 202.

     Press Release, Security Council, Security Council’s Support Critical in Untangling Networks Responsible for Ongoing Instability, Says International Criminal Court Prosecutor, U.N. Press Release SC/11175 (Nov. 14, 2013), available online. ↩

203. 203.

     Rome Statute Article 88 states: “Availability of procedures under national law. States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.” ↩

204. 204.

     See in particular Rome Statute Articles 89, 90, 91, and 92 (concerning the arrest and surrender of persons of interest). ↩

205. 205.

     Press Release, International Criminal Court, Bemba Case: Four Suspects Arrested for Corruptly Influencing Witnesses; Same Charges Served on Jean-Pierre Bemba Gombo (Nov. 24, 2013), available online. ↩

206. 206.

     Assembly of States Parties, Report of the Bureau on Cooperation, ICC-ASP/6/21 (Oct. 19, 2007), available online. ↩

207. 207.

     International Criminal Court, ASP Officials, available online, (last visited Feb. 23, 2014). ↩

208. 208.

     Bureau on Cooperation supra note 206. ↩

209. 209.

     Assembly of States Parties, Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/6/Res.2 (Dec. 14, 2007), available online. ↩

210. 210.

     Recommendation 21 urges that “States Parties and the Assembly of States Parties should consider ways in which experiences can be shared on issues relating to arrest and transfer, possibly through a general focal point for cooperation appointed by the Assembly of States Parties.” Recommendation 48, which addresses forms of cooperation in the United Nations context, continues: “States Parties should remind States of their duty to cooperate and request in their statements that States fulfil their obligations to cooperate, in particular when it concerns arrest and surrender.” ↩

211. 211.

     Justice Rapid Response, available online, (last visited Feb. 23, 2014). ↩

212. 212.

     See also Recommendation 59, which states: “Workshops on practical issues related to cooperation such as arrest and surrender, freezing of assets and financial investigations could be organized, with the participation of relevant United Nations actors.” ↩

213. 213.

     Assembly of States Parties, Concept Note by the Facilitator for Cooperation Ambassador Anniken Krutnes (Norway) (Nov. 2, 2012), available online. ↩

214. 214.

     Assembly of States Parties, Cooperation, ICC-ASP/11/Res.5 (Nov. 21, 2012), available online. ↩

215. 215.

     Id. ↩

216. 216.

     Bureau on Cooperation, supra note 5. ↩

217. 217.

     Article 2 reads: “The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.” ↩

218. 218.

     ICC, Negotiated Relationship Agreement Between the International Criminal Court and the United Nations, available online. ↩

219. 219.

     Press Release, Security Council, Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court; Resolution 1593 (2005) Adopted by Vote of 11 in Favour to None Against, with 4 Abstentions (Algeria, Brazil, China, United States), U.N. Press Release SC/8351 (Mar. 31, 2005), available online. ↩

220. 220.

     The Relationship Between the ICC and the Security Council: Challenges and Opportunities, IPI (Mar. 2013), available online. ↩

221. 221.

     See supra note 3. ↩

222. 222.

     UN Security Council Resolution 1593, operative paragraph 2, states “while recognizing that States not party to the Rome Statute have no obligation under the Statute, [the Council] urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.” S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005), available online. Similar language appears in UN Security Council Resolution 1970, referring the situation in Libya to the Court. S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 26, 2011), available online. ↩

223. 223.

     Rome Statute Article 89(1) states: “The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. 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.” That said, non-party states may enter into special agreements or arrangements with the Court pursuant to Article 87(5) of the Rome Statute which reads:

     (a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.
     
     (b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council. ↩

224. 224.

     Fatou Bensouda, Prosecutor of the ICC, Statement to the United Nations Security Council on the situation in Darfur, the Sudan, pursuant to UNSCR 1593 (2005), (Jun. 5, 2013), available online. ↩

225. 225.

     Doha Document for Peace in Darfur, UNAMID, available online (last visited Dec. 10, 2013). ↩

226. 226.

     S.C. Res. 2113, U.N. Doc. S/RES/2113 (2013), available online (last visited Dec. 10, 2013). ↩

227. 227.

     The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Siutation in Darfur, Sudan, available online (last visited Dec. 10, 2013). ↩

228. 228.

     See The Prosecutor v. Ahmad Muhammad Harun, Case No. ICC-02/05-01/07, Decision informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan (May 25, 2011), available online. ↩

229. 229.

     The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (Dec. 12, 2011) available online. ↩

230. 230.

     The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya (Aug. 27, 2010), available online. ↩

231. 231.

     The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti (May 12, 2011), available online. ↩

232. 232.

     The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Demande de coopération et d’informations adressée à la République Centrafricaine (Dec. 1, 2010), available online. ↩

233. 233.

     The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad (Aug. 27 2010), available online; The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir (Dec. 13, 2011), available online. ↩

234. 234.

     S.C. Res. 1207, U.N. Doc. S/RES/1207 (Nov. 17, 1998), available online. ↩

235. 235.

     S.C. Res. 1591, U.N. Doc. S/RES/1591 (Mar. 29, 2005), available online. ↩

236. 236.

     S.C. Res. 1672, U.N. Doc. S/RES/1672 (Apr. 25, 2006), available online. ↩

237. 237.

     List of Individuals Subject to the Measures Imposed By Paragraph 3 of Resolution 1591 (2005), UN, available online (last visited Dec. 10, 2013). ↩

238. 238.

     Id. ↩

239. 239.

     Musa Hilal: Janjaweed Leader, Enough Silence, available online (last visited Dec. 10, 2013). ↩

240. 240.

     Kristen Boon, Use the Sanctions Power Against Bashir, Opinio Juris (Sep. 20, 2013), available online. ↩

241. 241.

     Kristen Boon, How to Prevent Bashir From Attending the UN General Assembly, Global Observatory (Sep. 23, 2013), available online. ↩

242. 242.

     Can the United States Deny Sudanese President Bashir a Visa to Attend the UN General Assembly or Arrest Him?, EJIL Talk, available online (last visited Dec. 10, 2013). ↩

243. 243.

     Philip Shenon, Hunt for Bosnia War Criminals Stepped Up, N.Y. Times, Feb. 14, 1996, available online. ↩

244. 244.

     Jim Hooper, Dayton’s Mandate for Apprehending War Criminals, Frontline, available online (last visited Dec. 10, 2013). ↩

245. 245.

     Security Council, Adopting Resolution 2113 (2013), Renews Mandate of African Union-United Nations Hybrid Operation in Darfur until 31 August 2014, UNSC (Jul. 30, 2013), available online. ↩

246. 246.

     Sudan Action Campaign, AJWS, available online (last visited Dec. 10, 2013). ↩

247. 247.

     Doha Document for Peace in Darfur, supra note 225. ↩

248. 248.

     Luis Moreno-Ocampo, ICC, Fifteenth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant To UNSCR 1593 (2005), (Jun. 5, 2012) available online. ↩

249. 249.

     Evan Perez & Susan Candiotti, Alleged al Qaeda operative Al Libi taken to New York week after capture in Libya, CNN, Oct. 15, 2013, available online. ↩

250. 250.

     18 U.S.C. § 3052, available online (last visited Dec. 10, 2013). ↩

251. 251.

     William P. Barr, Assistant Attorney General, Office of Legal Counsel, Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities (Jun. 21, 1989), available online ↩

252. 252.

     Beth Van Schaack, Al-Liby: Male Captus, Bene Detentus?, Just Security (Oct. 7, 2013 6:39 PM), available online. ↩

253. 253.

     United Nations Security Council 6778th Meeting, UN (Jun. 5, 2012), available online. ↩

254. 254.

     Id. ↩

255. 255.

     ASP, Report of the Bureau on non-cooperation, ICC-ASP/11/29 (Nov. 1, 2012), available online. ↩

256. 256.

     MONUC, UN, available online (last visited Dec. 10, 2013). ↩

257. 257.

     Karuhanga, supra note 171. ↩

258. 258.

     Colum Lynch, The Schmooze seen ‘round the world, Passport (Mar. 1, 2012), available online. ↩

259. 259.

     Letter from Ban Ki-moon, Secretary-General, UN, to President, UN Security Council, on ICC Guidelines (Apr. 3, 2013), available online. ↩

260. 260.

     Colum Lynch, The U.N. idiot’s guide to hanging with war criminals, Passport (Apr. 19, 2013), available online. ↩

261. 261.

     Yash Ghai, Implications of a Kenyatta and Ruto Presidency, The Star, Mar. 2, 2013, available online. ↩

262. 262.

     Legal Opinions of the OLA of the UN, Peace and Justice in Post-Conflict Societies—The UN Position, 3(2) Int’l Org. L. Rev. 395, 397 (2006). ↩

263. 263.

     Sudan’s Bashir Discusses UNAMID Mandate with UN Official, Sudan Tribune, Jul. 5, 2013, available online. ↩

264. 264.

     United Nations Secretariat, Farhan Haq, Highlights of the Noon Briefing; U.N. Rights Chief Urges All Parties to Restore Calm, Concerned by Reports of Widespread Detentions in Egypt (Jul. 5, 2013), available online. ↩

265. 265.

     Kenya: Cooperate Fully with International Court Trials, Amnesty Int’l (Sep. 9, 2013), available online. ↩

266. 266.

     U.N. Doc. S/PV.6974 (Jun. 5, 2013), Records of the 6974th meeting, available online. ↩

267. 267.

     Coalition for the International Criminal Court, Comments and Recommendations to the Twelfth Session of the Assembly of States Parties (Nov. 6, 2013), available online. ↩

268. 268.

     Human Rights Watch Memorandum, supra note 130. ↩

269. 269.

     African Development Bank Group, available online. ↩

270. 270.

     Rory Carroll, Belgrade to Give Up Milosevic ‘in Days’, The Guardian (Jun. 27, 2002), available online. ↩

271. 271.

     See Daniel Braaten, Human Rights and U.S. Foreign Policy in the Multilateral Development Banks (Feb. 1, 2012) (unpublished Ph.D. dissertation, University of Nebraska-Lincoln) available online. ↩

272. 272.

     Daniel Graeber, Vlastimir Djordjevic, Serbian War Criminal, Arrested, Foreign Pol. Assoc. (Jun. 17, 2007), available online. ↩

273. 273.

     Serb War Crime Suspect Surrenders, BBC News, Apr. 21, 2003, available online. ↩

274. 274.

     See generally, Steven Woehrel, Cong. Research Serv., RS21686, Conditions on U.S. Aid to Serbia (Jan. 7, 2008). ↩

275. 275.

     IMF Members’ Quotas and Voting Power, and IMF Board of Governors, International Monetary Fund, IMF (Feb. 24, 2014), available online. ↩

276. 276.

     Rebecca M. Nelson, Cong. Research Serv.., R41170, Multilateral Development Banks: Overview and Issues for Congress (2013), available online. ↩

277. 277.

     Sudan Peace Act, Pub. L. No. 107-245, 116 Stat. 1504. ↩

278. 278.

     DPKO List Of Sudanese Impediments to UNAMID Deployment, Wikileaks, available online (last visited Nov. 23, 2013). ↩

279. 279.

     Year in Review: Results, Invisible Children, available online (last visited Nov. 23, 2013). ↩

280. 280.

     Cooperation, supra note 9. ↩

281. 281.

     Adam Nossiter, Ally of Ivory Coast Strongman Sought by International Court, N.Y. Times, Oct. 1, 2013, available online. ↩

282. 282.

     Cooperation, supra note 9 ↩

283. Suggested Citation for this Comment:

     Beth Van Schaack, ICC Fugitives: The Need for Bespoke Solutions, ICC Forum (Feb. 13, 2014), available at https://iccforum.com/arrest#Van-Schaack.

     Suggested Citation for this Issue Generally:

     What More Can be Done to Secure Arrests?, ICC Forum (Feb. 13, 2014), available at https://iccforum.com/arrest.