April 22, 2008
McGill Faculty of Law
Professor Frédéric Mégret
CRIMINAL JUSTICE IN A HOSTILE ENVIRONMENT
CONSIDERATIONS FOR THE ENFORCEMENT OF ICC ARREST WARRANTS
“Mr. President, the international community is in the initial stages of establishing the
ICC. Make no mistake about it: if the international community does not ensure that
the orders of the Court are enforced, it is bound to go the way of the League of the
Nations.”
Judge Gabrielle Kirk McDonald, Address to the United Nations General
Assembly, Nov. 8, 1999
TABLE OF CONTENTS
1. Introduction ...................................................................................................................................................... 1
2. Context: ............................................................................................................................................................. 4
A. Potential: The ICTY Precedent ......................................................................................................................................4
B. The UNSC-ICC Trigger Mechanism .............................................................................................................................7
C. Sudan, UNAMID and the UNSC: The ICC was Made for This Kind of Situation.........................................................2
3. Scenario ............................................................................................................................................................. 5
Dropped at the feet of UNAMID Peacekeepers .................................................................................................................5
4. Legal Issues ...................................................................................................................................................... 6
A. The Search for a Mandate: Why Peacekeepers are Obligated to Enforce ICC Indictments...........................................6
i. UNSC referrals to the ICC could create an obligation for the UN to support the Court ................................................................... 7
ii. An implicit enforcement obligation could exist in the Rome Statute or the ICC-UN relationship ................................................ 10
iii. The ICC failed to learn from the creation of a binding relationship between the ICTY and NATO .......................................... 13
iv. UNAMID’s mandate could imply an obligation to cooperate with the ICC ..................................................................................... 14
v. Customary International Law and the Geneva Conventions support an obligation to arrest ......................................................... 15
B. The Legality of the Arrest: Adapting the Principle of “Male Captus, Bene Detentus” for International Arrests ......... 17
i. National case law is divided on the principle of “male captus, bene detentus”............................................................................................ 18
1) There is case law from Israel, the US, France and Germany that applies the Principle ..................................................................................... 18
2) Case law from the UK, New Zealand, Australia and South Africa supports a court’s ability to review the legality of the abduction ......... 21
ii. ICTY decisions suggest courts can review their jurisdiction but that some abductions do not violate indictee’s rights............ 22
1) Arguments against jurisdiction on the basis of an illegal abduction could be valid ............................................................................................ 24
a) The violation of State sovereignty is a week argument for dismissing jurisdiction ...................................................................................... 25
b) Due process and human rights present substantial obstacles for prosecutors seeking jurisdiction ........................................................... 26
2) Prosecutors have strong arguments in support of an international tribunals Jurisdiction ................................................................................. 28
a) National case law is often inapplicable because transfer is not extradition ................................................................................................... 29
b) The OTP or its agents were not involved in the arrest. Private actors cannot affect its legality ................................................................ 30
c) Serious offenses and international circumstances require different human rights and due process protections ...................................... 32
C. The ICC’s Vertical Relationships with UN Organs and States Could Facilitate the Enforcement of its Indictments . 35
5. Conclusion ...................................................................................................................................................... 38
6. Further Questions ........................................................................................................................................... 40
7. Works Cited ..................................................................................................................................................... 42
1. INTRODUCTION
Riding on a wave of outrage at the atrocities occurring in Darfur, the Security Council referred
that situation to the International Criminal Court (ICC). Yet the Council’s resolution offers no
explicit solution to the ICC’s absence of a means to enforce its arrest warrants. The Council,
arguably the only international organ with the power to enable the Court, instead set it up for a fall.
This paper is an attempt to supply the Prosecutor of the ICC with arguments in support of its
jurisdiction in the case of the transfer of an indictee in a hostile environment. Such arguments are
necessary as a result of the Court’s lack of enforcement powers.
In searching for a mandate for the Court and the UN peacekeeping mission operating in
Sudan, the paper frequently stumbles on this essential problem for the Court: with “the gigantic task
of exercising its jurisdiction over those persons accused of the most serious crimes known to
humankind…should come appropriate powers,” yet enforcement remains the ICC’s “longstanding
Achilles’ heel.”1 The International Criminal Tribunal for the former Yugoslavia’s (ICTY) public
prosecutor stated that, “the arrest process lies at the very heart of the criminal justice process: unless
the accused are taken into custody, we will have no trials; no development of the law by the courts;
and ultimately, no international justice.”2
The International Criminal Court not only lacks enforcement powers in practice but there is
also a gap in international law supporting such powers. This paper attempts to fill this void in part
by a) finding a mandate for the Court and for the UN peacekeeping mission in Sudan that includes a
power of arrest, whether implicit or explicit; b) analyzing the applicability of the principle of mala
Han-Ru Zhou, “The Enforcement of Arrest Warrants by International Forces: From the ICTY to the ICC”
Journal of International Criminal Justice 4 (2006), 202-218 Oxford University Press [Zhou] at 203.
2 Gavin F. Ruxton, “Present and future record of arresting war criminals; The view of the Public Prosecutor of
ICTY” in W.A.M. van Dijk and J.L. Hovens (eds), Arresting War Criminals (Nijmegen: Wolf Legal Productions,
2001) [Dijk] at 19. This book, the result of a Dutch conference, is a thorough analysis of the type of force
needed in a hostile arresting environment. The conference was attended by academics and law
enforcement officials with first-hand field experience of the process.
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captus bene detentus, that is, the affect of the legality of an arrest on the ensuing trial; and c) examining
the verticality, or binding nature, of the relationships between various UN organs, the ICC and
States.
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Each of the six Pakistani UNAMID peacekeepers have forgotten colour. Three weeks of nearly constant, grey
mud, washing one way, flooding back - a moveable, fungible landscape. The peacekeepers bounce on calloused cheeks
somewhere between el-Geneina and the converging chaos of Sudan’s border with Chad and Congo. They are driving
between two refugee camps: it has been five hours since the last children stopped running beside their vehicle and it will
be at least as many before they start again. Eight rings of smoke enclosed by rectangles of ashes - the remainder of a
group of huts forty miles back - were the last evidence of human activity, the last disturbance from the soporific back
and forth of grey on brown through which they drive.
Each day is made up of extremes that make the contrast between a bazaar in Lahore and the Thar desert seem
mundane: the density and deprivation in the Aro Sharow DP camp where more than 7,000 Darfuris live under UN
canvas and the vast, enforced absence of life beginning a mile from its edge. Nothing but the occasional group of
brownish green tufts and a tree that looks more like death than life.
The jeep slows to a glide, five minutes before o-five-hundred-hours. The driver ends his shift a little early,
wieghing alertness over punctuality. As the three mustached soldiers in the front seat are rearranging themselves, finding
or making slight depressions in the hard canvas, one quickly touches another’s knee: “listen” he says.
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2. CONTEXT:
A. Potential: The ICTY Precedent
As a historical and legal precursor to the ICC, the International Criminal Tribunal for the
former Yugoslavia is the most useful source of lessons and rules for the Court. While both ad hoc
Tribunals,3 and some other courts,4 have dealt with scenarios similar to the one described in this
paper, and both Tribunals have relevant treaties and rules, this paper emphasizes the ICTY’s
precedents as they contain the most substantial discussion of both the relationship between
international forces and the Tribunal as well as the affect of illegal arrests on trial proceedings.
At its outset, political and military obstacles prevented NATO cooperation with the ICTY’s
work. With no enforcement mechanisms, the ICTY was not only ineffective but had the potential to
spoil the entire international criminal project by ruining the prospects for it to be a useful deterrent
to crimes against humanity. As of April 2001, however, the relationship between the two
international organizations had changed dramatically: NATO had arrested 19 indictees, 13 had
surrendered voluntarily, 6 had been arrested by domestic law enforcement and 1 was arrested by the
United Nations Transitional Authority In Eastern Slavonia, Baranja And Western Sirmium
(UNTAES).5
While the ICTY continues to be criticized for not arresting some of its most notorious
indictees, these figures demonstrate the eventual effectiveness of its enforcement mechanisms and
of NATO’s cooperation with the Tribunal in particular. In short, NATO is the only international
organization directly involved on a significant scale in the arrest of persons indicted by an
see, for example Barayagwiza in which …
see Foday Sankoh
5 C.M. Supernor, “International Bounty Hunters for War Criminals: Privatizing the
Enforcement of Justice” AFL Rev., 2001 [Supernor] at 229.
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international tribunal.6 Further, while far from satisfactory, “ICTY-SFOR7 cooperation can be
regarded as representing the foundation of a rudimentary system of international criminal law
enforcement in which the international community relies on international peace missions” as a result
of “the unwillingness of states to comply with their obligations in the execution of arrest warrants.”8
As such, NATO’s relationship with the ICTY is a model for other international courts.
Zhou at 204.
NATO’s Stabilisation Force in Bosnia and Herzegovina.
8 Dijk at 71.
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Without the noise of the engine they hear the distant clack, clack, clack of regular gunshots. After listening for
another few seconds, the me - all six are alert now: epinephrine having awoken their senses - agree that the shooting is
too regular to be a gunfight. It is also too close to avoid.
Their mission is limited: patrol from camp to camp “keeping the peace.” No need to seek out trouble. A few
months earlier a UN convoy was riddled with bullets by GOS forces. The death of one of the convoy’s Sudanese truck
drivers has sapped the Pakistanis of what little motivation they had to stretch their mission’s limits. But they have also
been briefed on the political consequences of appearing powerless. Aerial photographs showing their UN vehicle so close
to and yet ignoring trouble could be damning. And with their attention drawn by the shots they can now see a line of
smoke in the distance. With no village or camp nearby, the thin but stark vertical ribbon is unmistakable.
The slow, sweeping turn that the jeep makes as its suspension squeezes: the vehicle rocking only slightly more
after leaving the rough road. The Pakistanis are tense. Now they feel the jolts through the canvas: rocks and tufts a
few feet beneath. Their eyes scan for the source of the smoke and as the pencil line becomes a brushed stroke, they see
the block of a vehicle with smudges on each side. These quickly become camels with men on them, a muddy-white pickup truck in their midst. Later, during the tense interaction that follows, the peacekeepers will eventually note the letters,
SLA, scrawled crudely on its door. Drawn as if with a crayon and in a hurry - its author confident in the clarity of
his message: Sudan Liberation Army.
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B. The UNSC-ICC Trigger Mechanism
The triggering by the Security Council of an ICC investigation under Article 13(b) of the ICC’s
founding Statute (the “Rome Statute” or “Statute”) was and is legally analogous to the Council’s
creation of the ad hoc Tribunals for Rwanda and the former Yugoslavia. Both scenarios involve a
Chapter VII UNSC resolution triggering a judicial process to try individuals for war crimes and
crimes against humanity. Both use a judicial organization as part of the UN’s enforcement mandate,
employing a tribunal to assist its efforts to bring about peace and security. More specifically, the
Council refers a “situation” to the Court which, under Chapter VII of the Charter, entails either a
threat to the peace, a breach of the peace or an act of aggression.
It now appears “beyond dispute” that the Security Council's use of Chapter VII to establish
the ad hoc Tribunals is legitimate.9 This lends substantial credence to the legal basis for Article 13
(b) investigations and arrests. The referral of “situations” to the ICC, and the Chapter VII nature of
the referring resolutions, in particular, have implications for the ICC’s mandate, its relationship with
other UN operations and with UN member States as will be seen below.
William A. Schabas, An Introduction to the International Criminal Court. 3rd ed. Cambridge : Cambridge
University Press [Schabas ICC] at 152 citing Kanyabashi and Tadic, ICTY, Ap. Ch., Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, IT-94-1-AR72 [Tadic].
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The camel’s guttural moaning covers the silence left by their engine. The nine dark skinned men stare at the
peacekeepers in an inquisitive, if tense, standoff. Only their eyes are visible beneath their white headscarves. Seven sit
cross legged on their camels, Kalashnikovs resting on their laps as if they hadn’t moved in days. Their nervous gazes
contrast with their relaxed position: each has the manner of a person who spends much of their lives in one position.
After looking from eye to eye at all of the peacekeepers, the man standing closest to the pick-up yells something
incomprehensible in Arabic. Slowly, each of the men lowers his weapon to the ground, unreachable from their high
seats. He then points at the peacekeepers’ weapons. Bewildered, the captain nevertheless orders his men to drop theirs,
his Urdu words shadowing the rebels’.
The rebel barks again, still looking at the peacekeepers, and two of his men walk quickly to the back of the
truck. One pulls off a thin green tarp, letting it fall slowly behind him in the still air. The slam of metal on metal as
the hatch drops, echoes and is then replaced by the scrape of cloth on dusty steal. The two men grunt as they swing their
load off the truck and then inhale as they drop it at the peacekeepers’ feet.
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C. Sudan, UNAMID and the UNSC: The ICC was Made for This Kind of Situation10
This discussion will hopefully be relevant to the commanders of the hybrid United Nations
African Union Mission in Darfur (UNAMID) that is slowly materializing in Sudan. The head of the
UN peacekeeping office recently explained that this mission could be at the greatest risk of any UN
mission “since the 1990s.” He was referencing the under-manned peacekeeping missions to Rwanda
and the former Yugoslavia that were unable to prevent massive crimes against humanity as well as
the disastrous intervention in Somalia. The official cited the convergence of three factors which
placed UNAMID at risk: “the ongoing war in Darfur, the lack of a clear signal from the parties that
they want a robust mission, and the mission’s own ‘tragic’ lack of essential resources.” 11 This
description highlights the importance of buttressing the mission, particularly with regard to its
obligations to prevent crimes against humanity. Just as the ICTY assisted NATO forces in loosening
a deadlocked crisis in the former Yugoslavia, so too, UNAMID could cooperate with the ICC,
adding meaning to the mission’s mandate in addition to concrete, visible outcomes (read arrests).
The Security Council's 2006 resolution referring the situation in Darfur to the ICC
represents an ideal case study and challenging test for the Court. The economic and
geopolitical tensions surrounding the referral are evident from the four abstentions to the
Security Council resolution, including particularly the United States and China’s. The
Sudanese government is not a party to the Rome Statute and many countries have been
reluctant to increase pressure on the government to enforce the ICC's arrest warrants for
fear it will hinder the smooth deployment of United Nations Peacekeepers in the region.
This increases the urgency of disseminating knowledge of the benefits of international
William A Schabas "Darfur and the ‘Odious Scourge’: The Commission of Inquiry’s Findings on Genocide"
Leiden Journal of International Law, 18 (2005), pp. 871–885 [Schabas Darfur] at 874.
11 Eric Reeves, “Khartoum’s Military Forces Deliberately Attack a UNAMID Convoy” Sudan Tribune 15 Jan
2008 <http://www.sudantribune.com/spip.php?article25579> accessed 7 May 2008
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criminal prosecutions.
The Darfur referral is the Court's most important specifically because of its politically
charged environment and the ongoing obstacles to enforcement. Faced with an intransigent
and even combative government in Sudan, the ICC has only UNAMID forces to rely on. As
NATO’s Stabilisation Force (SFOR) was in Bosnia and Herzegovina, in Darfur, the UN is
“the only game in town.”
3
The man’s hands and legs are tied and at first, his face is pressed against the ground. He is unconscious but, as
the sand blowing from his mouth indicates, still alive. He looks over sixty years old, but the desert accelerates aging.
The rebel turns the hostage over and pointing at his face begins a prolonged explanation. Catching some of the Arabic
words and interpreting his gesticulations, the peacekeepers begin to understand that he is an important criminal.
Remembering something, one runs back to the jeep. He returns with a document and compares the hostage to a
photograph and then offers it to another peacekeeper to do the same.
The man is Ali Kushayb, a janjaweed leader and International Criminal Court indictee. Recognition spreads
among the peacekeepers but their eyes are drawn away from the hostage as the rebels begin to back away. The
peacekeepers grab their M4s as the two rebels on foot hand the Kalashnikovs back to their camel-riding owners.
Within minutes they are trotting away, leaving a smoldering fire and the six peacekeepers with an international
war criminal at their feet.
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3. SCENARIO
Dropped at the feet of UNAMID Peacekeepers
It would not be unimaginable for a scenario to develop whereby the Security
Council, acting under Chapter VII of the UN Charter, determined that international
peace and security was threatened, and established a peacekeeping or enforcement
operation with a mandate to arrest suspects.12
This paper is structured around a fictitious scenario. The scenario was selected as a balance
between the most likely and the most effective way to arrest an individual indicted by the ICC in
Sudan, taking into consideration the domestic and international political situations including the
capacity of international forces in the region. While the scenario raises a number of legal issues, this
paper emphasizes two questions: do UN forces have an obligation to enforce ICC indictments, and
can the circumstances of an individual’s arrest by third party, non-State actors be used as a defense
against their being found guilty.
It is important to note that the abductors are not State actors. Because the peacekeepers are an
international force transferring the indictee to the Hague, there is no question of extradition
requests. This has substantial implications for comparisons to national cases on abduction and to the
ICTY precedents.
James Sloan, “Prosecutor v. Todorovic: Illegal Capture as an Obstacle to the Exercise of International
Criminal Jurisdiction,” Leiden Journal of International Law, 16 (2003), pp. 85–113 [Sloan] at 111 (noting
similarities to UNTEAS in the Dokmanovic case and SFOR in the Todorovic and Nikolic cases).
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4. LEGAL ISSUES
A. The Search for a Mandate: Why Peacekeepers are Obligated to Enforce ICC
Indictments
While the Court explicitly has jurisdiction through the Security Council’s referral under section
13(b) of the Rome Statute, an unlawful arrest could allow an indictee to raise insurmountable
defenses. One step in preventing such a defense is to establish a link, explicit or implicit, between
UNAMID’s mandate and its enforcement of ICC indictments. As Susan Lamb points out, “the
question whether, in effecting the arrest of a Tribunal indictee, a force remained within the proper
scope of this delegated competence is…a matter between that force and its parent body, the Security
Council.” To establish a strong precedent and ensure respect for due process, the arresting authority
must be acting within its mandate.13
The clearest source of a mandate is a UNSC resolution requiring UNAMID enforcement of
ICC indictments. As a result of Security Council politics, however, such a resolution has not – and
likely will not – be passed. This despite the Council’s independent resolutions referring crimes
committed in Darfur to the ICC and creating UNAMID as well as a UN review of peacekeeping
operations concluding that,
[w]here justice, reconciliation and the fight against impunity require it, the Security
Council should authorize…experts, as well as relevant criminal investigators and
forensic specialists, to further the work of apprehension and prosecution of persons
indicted for war crimes in support of United Nations international criminal
tribunals.14
Nevertheless there is substantial evidence of the UN’s intent to support the ICC, even if it politically
and logistically cannot, which contributes to arguments below for an implied mandate.
Barring the passage of a resolution specifically setting out an arrest mandate, an implied
See section 4.A.iv.
Comprehensive review of the whole question of peacekeeping operations in all their aspects A/55/305–
S/2000/809, 21 August 2000.
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mandate could be derived from three sources: 1) the UNSC’s referral to the ICC and related
international criminal statutes and precedents, 2) the UNSC resolution establishing UNAMID or 3)
public international law more generally including customary law and the Geneva Conventions.
i. UNSC referrals to the ICC could create an obligation for the UN to support the Court
As outlined in section 2, the referral of a Chapter VII “situation” to the ICC implies that the
Security Council intended the Court to function as an ad hoc enforcement arm of the UN parallel to
its temporary Rwandan and former Yugoslavian predecessors. Thus, broadly speaking, the Court’s
“mission” is to remedy a breach of international peace and security. The referring resolution is
therefore the most obvious place to look for how the Council might have intended the Court to
contribute to the resolution of this breach. UNSC resolution 1593 states in part:
Determining that the situation in Sudan continues to constitute a threat to international
peace and security,
Acting under Chapter VII of the Charter of the United Nations,
1. Decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the
International Criminal Court;
2. Decides that the Government of Sudan and all other parties to the conflict in
Darfur, shall cooperate fully with and provide any necessary assistance to the Court
and the Prosecutor pursuant to this resolution and, while recognizing that States not
party to the Rome Statute have no obligation under the Statute, urges all States and
concerned regional and other international organizations to cooperate fully;15
A brief paraphrasing of this text adds clarity. The Council states that because the conflict in
Sudan is endangering international peace and security, Chapter VII of the UN Charter gives it the
power to violate Sudan’s sovereignty. It further gives the Council the power to allow the ICC to
infringe on Sudan’s sovereignty by triggering section 13(b) of its Statute. The ICC is therefore not
only allowed but required to investigate and prosecute crimes occurring in Sudan despite that
country not being a State party to the Rome Statute. In addition, the UNSC obligates Sudan to
cooperate with the ICC’s efforts. The Council also encourages all States and regional and
15
UNSC Resolution 1593 (2005), 31 March 2005.
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international organizations to assist the ICC in its efforts.
Yet there is a disparity between this mission and the powers of the organ assigned to carry it
out. This gap reveals a schizophrenia that often afflicts the Security Council: hesitant to offend and
eager to please, the Council drafts mandates without allowing for the means to carry them out. In
this case, the Court is to be a UN enforcement mechanism but it itself lacks such a mechanism.
Borrowing a simile from a past President of the ICTY, the ICC is like “a giant without arms and
legs” that “needs artificial limbs to walk and work.”16 The ICC’s mission in Darfur is handicapped by
a particularly weak resolution.
Whereas Resolution 827 creating the ICTY provided that:
all States shall cooperate fully with the [ICTY] and its organs […] consequently all
States shall take any measures necessary under their domestic law to implement the
provisions of the present resolution and the Statute, including the obligation of
States to comply with requests for assistance or orders issued by a Trial Chamber
Resolution 1593 is only binding on Sudan; it does not oblige the participation of other States to
implement its resolutions. Further, Article 29 of the ICTY’s statute provides that,
1. States shall co-operate with the International Tribunal in the investigation and
prosecution of persons accused of committing serious violations of international
humanitarian law.
2. States shall comply without undue delay with any request for assistance or an order
issued by a Trial Chamber, including, but not limited to:
…
(d) the arrest or detention of persons;
(e) the surrender or the transfer of the accused to the International Tribunal.
Yet similar provisions in the Rome Statute are all discretionary. The Council has ordered the giant to
undertake an odyssey but has neglected its “achilles heel.”17
This paradox may be the result of the Security Council’s impotence: with no permanent
enforcement mechanism, it is forced to rely on the contributions of member-States, which are in
turn, dependent on domestic political support. Professor Arangio-Ruiz explains that “by renouncing
A. Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of
International Humanitarian Law’ (1998) 9 EJIL 2 [Cassese] at 13.
17 Dijk at 74 (referring to enforcement as the ICTY’s achilles heel).
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the use of force under Article 2(4) and attributing to the Council the tasks envisaged in Chapter VII
and Article 24, notably in Article 42, States have 'delegated'” these tasks to the Council. In contrast,
he continues, “one fails to see how a function can be considered to have been acquired by the
Council while that organ is not provided with any means to perform it.”18 The Council’s dependence
on States to enforce its mandates raises questions about the verticality of its relations with States
because the fickle nature of international opinion often produces UNSC mandates without means.
In Darfur, however, all of the actors are in place. If the right circumstance were to coincide, as in the
scenario outlined above, only the mandate need change, or be interpreted appropriately.
Sudan’s obligation to cooperate is the only unequivocal order in resolution 1593, aside from
the ICC referral. This is in line with the Statute, which “envisages arrests being effected exclusively
by national authorities.”19 As indicated above, with regard to Sudan, resolution 1593 can be read as
overriding the Council’s recognition that only States party to the Rome Statute have an obligation to
cooperate.20 The Government of Sudan’s (GOS) actions over the past three years, and even since
the beginning of the conflict in Darfur, however, suggest little hope of securing any assistance: one
ICC indictee, Ahmad Muhammad Harun, was appointed as Minister of Humanitarian Affairs after
his indictment, and the ICC deemed the show trial of the other indictee, Ali Kushayb, inadequate
based on its rules for complimentarity.21
The Government of Sudan’s ongoing participation in the very crimes that the ICC was
investigating has demonstrated its defiance of international norms since well before the passage of
Resolution 1593. It was therefore evident to the Council and Court before the referral that they
would not receive substantive cooperation from the GOS. Cassese continues his simile about the
Gaetano Arangio-Ruiz, “The 'Federal Analogy' and UN Charter Interpretation: A Crucial Issue” 1 EJIL
(1997) 1-28 [Arangio-Ruiz] at 11.
19 Dijk at 71.
20 This statement was also likely a nod towards troop- or resource-contributing non-parties such the U.S.
21 Cassese at 13.
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giant capturing exactly the ICC’s current plight in Sudan: “artificial limbs are the State authorities. If
the co-operation of States is not forthcoming, these tribunals are paralysed.”
This contradiction, between the reality and the resolution, requires that the Court press
beyond the Council’s explicit obligations to search for the UNSC’s intention amongst its explicit
“urgings” and implicit requirements. For instance, the Council’s reference to unnamed “other parties
to the conflict in Darfur” could suggest an obligation on the part of the rebel factions fighting GOS
forces to cooperate with the ICC and could even justify their transfer of an indictee in their custody
to the Court. This begs the question how rebel forces would effect such a transfer, and to whom,
which brings us to the international forces on the ground.
The situation with regard to these forces is not encouraging. Since Rome Statute States parties
have a general obligation to “cooperate fully with the court in its investigation and prosecution of
crimes within the jurisdiction of the Court,”22 it is not a stretch to see an obligation on the forces of
all States parties contributing to UNAMID to assist in enforcing the ICC’s indictments.
Alternatively, under article 87(7) of the Statute, the Court could request that troop-contributing State
parties cooperate with the arrest of indictees. However, here again, the Court would be reliant on the
Security Council to enforce cooperation.23
ii. An implicit enforcement obligation could exist in the Rome Statute or the ICC-UN relationship
The fact that the UNSC has only “urged” international organizations to cooperate continues a
trend of non-binding ICC obligations that threatens to remove all hope for ICC enforcement. The
Rome statute states that the ICC’s relationship with other organizations is entirely consensual. This
need not be the case. Unlike with States, where consent is a requirement of international law (a
Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 [Rome Statute] Article 87(1)(a)
Rome Statute Article 87(7) (Where a State Party fails to comply with a request to cooperate by the Court
contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and
powers under this Statute, the Court may make a finding to that effect and refer the matter to the
Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security
Council.)
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requirement taken into consideration when creating the ICC by treaty), international organizations
can be bound by each other’s rules. For instance, the ICJ and the UN have a complex but in some
cases binding relationship that could sometimes be described as vertical.24
The same is true of the ICC’s relationship with the Security Council. While maintaining its
arms length status and objectivity through numerous checks on such referrals, the Security Council
can nevertheless obligate the ICC to investigate a situation. It also has the power to oblige any UN
organ, for instance the Department of Peacekeeping Operations (DPKO), to cooperate with
another, for instance the Court. Nevertheless it might be more logical for the Court itself to have the
power to bind other organizations such as DPKO or a hypothetical permanent UN police force,
under its UNSC mandate.
Professor William Schabas states in his book on the Court that, “the Relationship Agreement
between the United Nations and the Court makes specific provision for cooperation in the event of
a Security Council referral."25 Yet beyond the sharing of documents and information, there is no
reference to enforcement support. Nevertheless, the agreement is suggestive of a greater degree of
cooperation than exists.
In establishing the ICTY and the ICTR to deal with situations constituting threats to
international peace and security, the UNSC intended that individuals actually be arrested and
believed that these arrests would benefit both peace and security.26 The same is true of its referrals to
See section 4.C.
William A Schabas "Darfur and the ‘Odious Scourge’: The Commission of Inquiry’s Findings on Genocide"
Leiden Journal of International Law, 18 (2005), pp. 871–885 at 152 referring to the Negotiated Relationship
Agreement between the International Criminal Court and the United Nations at Art. 17.
26 See UNSC Res. 808 (1993) (on the desirability of establishing the ICTY) "this situation [within the territory of
the former Yugoslavia] constitutes a threat to international peace and security', [and the UNSC is
determined] to put an end to such crimes and to take effective measures to bring to justice the persons
who are responsible for them.') See also UNSC Res. 827 (1993) establishing the International Tribunal and
UNSC Res. 995 (1994) (establishing the ICTR which similarly finds a threat to international peace and security
and expresses a desire to "put an end to such crimes and to take effective measures to bring to justice the
persons who are responsible for them.')
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the ICC.27 Just as it established the ad hoc Tribunals using an implied mandate under Chapter VII, so
too a mandate can be read into the ICC’s trigger mechanism.
Before 1993, the Council’s “peace and security” enforcement powers had never been
interpreted to include the creation of a criminal court, and their extension into this realm had little
basis in the text of the Charter. The UNSC’s use of its implied powers relies on “the crucial link
between peace and justice.”28 This link implies not only the creation of the court but also its
effective operation.
It follows from the argument that the ICC has inherent powers of arrest based on the Rome
Statute, that in Sudan, necessity dictates that the Court cooperate with UNAMID, or even obligate
UNAMID’s cooperation, in the detention of individuals. As the ICJ established, “under
international law the [UN] organization must be deemed to have those powers which, though not
expressly provided…are conferred upon it by necessary implication as being essential for the
performance of its duties.”29
This argument is significantly weakened by the ICTY Appeals Chamber’s decision in Blaskic
that:
The International Tribunal does not possess any power to take enforcement
measures against States. Had the drafters of the Statute intended to vest the
International Tribunal with such a power, they would have expressly provided for it.
In the case of an international judicial body, this is not a power that can be regarded
as inherent in its functions.30
Nevertheless, building on the holding in the Reparation Case, the ICJ WHO Agreement Case stands for
Pietro Gargiulo "The Controversial Relationship between the International Criminal Court and the Security
Council," Essays on the Rome Statute of the International Criminal Court vol. 1 (Ripa di Fagnano Alto : Il
Sirente, 1999)
28 Richard J. Goldstone, “The Role of the United Nations in the Prosecution of International War Criminals”
Journal of Law & Policy [Vol. 5:119] [Goldstone] at 120 (Benjamin B. Ferencz, former Nuremberg prosecutor
states, "there can be no peace without justice, no justice without law and no meaningful law without a
Court to decide what is just and lawful under any given circumstance."
29 Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports, 1949, p.174.
30 Prosecutor v. Blaskic, Case No. IT-95-14, International Criminal Tribunal for the Former Yugoslavia,
Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18
July 1997, Appeals Chamber, 29 October 1997 at para. 15-16 [Blaskic, 29 October 1997].
27
12
the propositions that:
(i) Organizations have those capacities and powers which arise by necessary implication
out of their constitutions as being essential to the performance of their duties
(necessary intendment);
(ii) Organizations have those capacities and powers which are necessitated by the
discharge of their functions; and
(iii) Organizations have those powers and capacities which are appropriate for the
fulfillment of their stated purposes.
This holding could be used to justify an ICC mandate despite the Blaskic decision.
A critic of the federal model for UN-State relations has argued that the doctrine of implied
powers does not apply to UN organs because of flaws in the federal model itself.31 But such
criticisms are on a theoretical level. In practice, the same critic suggests States frequently use implied
powers in co-opting UN organs for their own purposes. Such practice could imply a customary
norm (see below) and the same can be said with regard to interstate abductions of alleged criminals.
Further, a practice that is accepted despite defying international law could be the only solution
available in Darfur.
iii. The ICC failed to learn from the creation of a binding relationship between the ICTY and NATO
In 1997, the ICTY found the arrest of its indictee, Domanovic, by UNTAES to be within the
scope of the peacekeeping force’s mandate.32 Further, during the debate over UNSC Resolution
1037, authorizing UNTAES, two Security Council members envisaged the force’s obligations of cooperation with the Tribunal to include powers of arrest.33 Additionally, an UNTAES memorandum
states that it is to “provide the fullest support [including] the apprehension, detention, and transport
of individuals indicted of war crimes by the ICTY.”34
Arangio-Ruiz.
S. Lamb, ‘The Powers of Arrest of the International Criminal Tribunal for the Former Yugoslavia’, 70 British
Year Book of International Law (1999) [Lamb] at 182.
33 Lamb at 183
34 Lamb at 185 (citing UNTAES Memorandum for Record, 27 June 1997 which states that UNTAES “clearly
formed the view that the arrest of Dokmanovic was within the scope of its powers.” As of May 2001, an
UNTAES arrest in June 1997 was the only arrest by an international organization other than NATO.)
31
32
13
SFOR’s mandate, established in UNSC Resolution 1088, similarly included an obligation to
cooperate with the ICTY.35 Ambassador Albright stated that with Resolution 1088, the North
Atlantic Council explicitly authorized “IFOR to transfer indicted persons it comes across to the
Tribunal and to detain such persons for that purpose.”
Unfortunately, the drafters of the Rome Statute did not reinforce such an implicit obligation.
Instead of learning from the ICTY, which remedied its enforcement deficit by reading into its
Statute an obligation for NATO to cooperate and by eventually codifying these binding obligations
in its Rules of Procedure and Evidence, all references to such cooperation in the Rome Statute or
this resolution allude only to requests. A typical example is Article 87(1)(a) which states that “[t]he
Court shall have the authority to make requests to States Parties for cooperation.” Having lost its
teeth during the negotiations over its Statute, the Court has ensured its practical impotence by giving
UN organs and other international organizations the ability to opt out.
iv. UNAMID’s mandate could imply an obligation to cooperate with the ICC36
UNAMID’s Security Council mandate nevertheless offers significant support for an obligation
to cooperate with the ICC. It includes the determination
to contribute to the promotion of respect for and protection of human rights and fundamental
freedoms in Darfur;
…to assist in the implementation of the provisions of the Darfur Peace Agreement
and any subsequent agreements relating to human rights and the rule of law and to
contribute to the creation of an environment conducive to respect for human rights
and the rule of law, in which all are ensured effective protection;…To assist in
promoting the rule of law, including through…strengthening local capacities to
combat impunity.37
This excerpt includes numerous “hooks” on which to hang the requirement that UNAMID
peacekeepers uphold international criminal law and customary international law by enforcing ICC
Lamb at 187 citing operative paras 7 and 8 and Dijk at 61.
While I was unable to secure mission statements, MOUs or even UNAMID’s SOFA for the writing of this
paper, this absence of information is consistent with the circumstances of international courts, faced with
uncooperative States and even uncooperative international organizations.
37 UNSC Res. 1769 (2007).
35
36
14
arrest warrants.
A basic problem, however, is that arrests are often viewed as counter-productive to
peacekeeping or peace-enforcement missions, as they were early in the conflict in Yugoslavia. UN
peacekeeping missions require neutrality, it is argued, or at least the perception of it, and this is made
impossible when peacekeepers are actively pursuing war criminals.38 Yet if independent actors
abduct the indictee, the peacekeepers’ relative passivity could demonstrate their neutrality.
v. Customary International Law and the Geneva Conventions support an obligation to arrest
Recognizing its lack of law-making powers, the Security Council only conferred on the ad hoc
Tribunals the power to adjudicate “universally recognized criminal laws,” that is, violations of the
Genocide Convention, crimes against humanity, war crimes that had become customary norms and
grave breaches of the Geneva Conventions.39 These laws are widely accepted as constituting
customary international law, making them binding on all States and debatably, on international
organizations.40 In other words, because international crimes affect the interest of every member of
the international community, the obligation to prosecute or extradite such criminals can be
considered erga omnes. As it was created to enforce this obligation, the ICC has a claim to a more
vertical legal assistance model whereby it could compel States parties and other international actors
to enforce its indictments.
Resolutions from both the Security Council and the General Assembly have urged States to
cooperate in the prosecution of violations of international criminal law. For instance, the General
Assembly’s adoption of a resolution “with a view to halting and preventing war crimes and crimes
against humanity,” that provides that States shall “take the domestic and international measures
necessary for that purpose” by a vote of 94 in favour, 0 against and 29 abstentions, and the reliance
Supernor 229.
Goldstone at 121 (For the purposes of this paper the ICC has adopted similar subject-matter jurisdiction.)
40 Supernor at 220.
38
39
15
of domestic courts on that resolution,41 strengthen the customary obligation.42
One could further argue that, as a subsidiary organ of the United Nations, UNAMID is
obliged, consistent with its delegated grant from Resolution 1593, to comply with the purposes and
principles of the UN Charter, including support for international law.43
see Polyukhovich v. The Commonwealth of Australia and Another (1991), 172 Commonwealth Law
Reports 501 F.C. 91/026.
42 UNGA Res. 3074 (1973) at para 3.
43 Lamb at 180 (describing a similar obligation with reference to the ICTY.)
41
16
B. The Legality of the Arrest: Adapting the Principle of “Male Captus, Bene Detentus” for
International Arrests
Having described possible means of establishing ICC and UNAMID jurisdiction over the
indictee, the following pages discuss the claim that an indictee’s arrest or detention was illegal and
should therefore result in his immediate release. This is perhaps the most serious and likely defense
that could be raised in response to this paper’s scenario.
In seeking a precedent for such a claim, Courts have frequently resorted to analysis of
judgements on interstate abductions leading to an arrest. The defendants of such abductions –
usually the State authority making the arrest – have frequently relied on the principle of male captus,
bene detentus. Roughly translated, this principle states that a person improperly seized may
nevertheless be properly detained.44 This section begins with a comparison of (1) those domestic
cases that support the application of this principle, to (2) those decisions that instead suggest a court
should take into consideration the circumstances of the abduction.
Due to the significant differences between such domestic cases and the abduction and transfer
of an international war criminal to an international tribunal, the strongest precedents for and against
the principle of male captus, bene detentus are again from the ICTY. These cases are the subject of subsection ii. At the ICTY, defendants frequently relied two factors that could cast doubt on the legality
of their arrest: 1) the violation of the State sovereignty of the territory in which the arrest took place,
2) the violation of the indictee’s due process or other fundamental human rights.
Contrasting arguments in support of the type of arrest described in this paper include: 1) that
transfer to an international body should not be subject to the same rules as interstate extraditions or
abductions, 2) that the abduction was undertaken by a third party and not the international actor or
their agent, or 3) that the seriousness of these offenses and the distinct circumstances of an
44
Sloan at 99.
17
international arrest justify variations from the human rights and due process standards applied to
national arrests.
i. National case law is divided on the principle of “male captus, bene detentus”
1) There is case law from Israel, the US, France and Germany that applies the Principle
The Israeli trial of Nazi war criminal Adolf Eichmann is the most well-known precedent for
the Latin maxim male captus bene detentus.45 It is the only precedent for its application, by a national
court, to an individual accused of crimes against humanity or war crimes. Both the events leading up
to the trial and the proceedings were sensational. Israeli agents abducted Eichmann from Argentina.
While Argentina raised serious objections to the abduction, eventually resulting in Security Council
resolutions condemning Israel, the two countries settled their dispute before the trial and Eichmann
was eventually sentenced to death. The court used the settlement of the bilateral dispute to justify its
rejection of Eichmann’s argument that the invasion of Argentina’s sovereignty made his arrest
illegal. It further stated that Israel’s violation of Argentina’s domestic law was irrelevant to the
court’s jurisdiction or to the application of Israeli law to crimes committed elsewhere.46
Regarding the principle of male captus, bene detentus, and particularly American and British
precedents, the court pronounced: “It is an established rule of law that a person standing trial for an
offence against the laws of the land may not oppose his being tried by reason of the illegality of his
arrest or of the means whereby he was brought to the area of jurisdiction of the country.”47 This
statement has been cited countless times, including in almost every ensuing judgement below.
There have, however, been many criticisms of the judgement and philosophical and political
Sloan at 99.
Attorney-General of the Government of Israel v. Eichmann (Israel, District Court 1961, Supreme Court
1962), (1961) [Eichmann]
47 Eichmann at 57–76, (the court continued at para 44 , “…American judgments expressly establish that it
makes no difference whether or not the measures whereby the accused was brought into the area of
jurisdiction were unlawful in the sense of municipal law or of international law…” and later at 304–308 “the
courts in England, the United States and Israel have ruled continuously that the circumstances of the arrest
and the mode of bringing of the accused into the area of the state have no relevance to his trial, and they
consistently refused in all cases to enter into an examination of these circumstances.”)
45
46
18
attacks on the dramatic circumstances surrounding the trial. Furthermore, the case is considered so
exceptional, in terms of the seriousness of Eichmann’s crimes, that the force of its support for the
application of the principle of male captus, bene detentus to other scenarios is weakened.48 Nevertheless,
the clarity of the Court’s finding with regard to the principle and its near universal impact on judicial
reasoning make it a powerful precedent.
US domestic precedent is if anything even more controversial. The application of male captus,
bene detentus has been debated for over a century with widely diverging results. The current rule has
its roots in the 1886 abduction of a US citizen from Peru by a private agent of the US government
that disobeyed his instructions and the rules of his warrant under the two countries’ bilateral
extradition arrangement. In that case the US Supreme Court found no deprivation of the abductee
Ker’s right to due process:
such forcible abduction is no sufficient reason why the party should not answer
when brought within the jurisdiction of the court which has the right to try him for
such an offence, and presents no valid objection to his trial in such court.49
This decision was upheld in Frisbie v. Collins, a case about an abduction across US state boundaries,50
and the two cases were combined to form the longstanding Ker-Frisbie Rule.
In the 1974 case of United States v. Toscanino, an Italian citizen was convicted in the US of drug
related crimes after being kidnapped from Uruguay by Uruguayan authorities and tortured for three
weeks in Brazil. Here the Supreme Court held that due process was more important than the KerFrisbie rule and found that it had no jurisdiction where: “it has been acquired as the result of the
Government’s deliberate, unnecessary and unreasonable invasion of the accused’s constitutional
rights.” The Court stated that holding otherwise would reward “police brutality and lawlessness.”
F.A. Mann, Reflections on the Prosecution of Persons Abducted in Breach of International Law, in: Y.
Dinstein (editor), International Law at a Time of Perplexity, Kluwer 1989, 407-421, at 414. See also: Michel, ft
85 above, at 423-424.
49 Ker v. Illinois, 119 U.S. 436 (1886)
50 Frisbie v Collins, 342 U.S. 519 (1952)
48
19
Yet the Court’s summary of the new rule for refusal of jurisdiction when
the abduction itself amounts to “grossly cruel and unusual barbarities” or “shock the
conscience ”,
the abduction was the work of State agents, and
there was a protest by the injured State51
suggests a modification of the male captus rule rather an outright rejection of it.
Toscanino thus left the door open for the most important recent precedent in support of the
principle, United States v. Alvarez-Machain. In this case US drug enforcement agents offered former
Mexican police officers $50 000 to abduct Alvarez-Machain, who was wanted for helping drug lords
torture a US agent. The government of Mexico protested the violation of its extradition treaty with
the US and of its sovereignty. Nevertheless, to the dismay of many critics, the majority could not
establish jurisdiction based on the Ker-Frisbie rule, claiming there was no explicit prohibition of
abduction in the bilateral treaty. Specifically the court stated that it, "has never departed from the
rule announced in [Ker] that the power of a court to try a person for crime is not impaired by the
fact that he had been brought within the court's jurisdiction by reason of a ‘forcible abduction.’”52
The minority were only the first to consider this decision “monstrous,” holding that due
process should include protection from abuse by the executive, and respect for international rule of
law and human rights.53 Many were particularly upset with the majority’s alleged oversight of the
distinction within the Ker-Frisbie rule based whether the abduction involved State actors. This
distinction is generally considered essential for findings of international wrongfulness or State
responsibility54 and French55 and German56 courts applying the male captus principle specified that it
applied because the abductions were the work of private individuals and not State authorities. While
United States v. Toscanino, 500 F 2d 267 (1974) [Toscanino], at 275.
United States v. Alvarez-Machain (91-712), 504 U.S. 655 (1992)
53 Toscanino at 82.
54 Toscanino at 76.
55 Re Argoud, Cour de Cassation 4 June 1964, 45 ILR 90 (Cass Crim 1964), Clunet, JDI 92 (1965), p. 98.
56 Bundesverfassungsgericht, Decision of 17 July 1985 – 2 BvR 1190/84
51
52
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Alvarez-Machain provoked widespread outrage in the international community,57 it is nevertheless
“the leading U.S. case on forcible abduction by government agents”58 having been followed recently
and famously in US v. Noriega.59
2) Case law from the UK, New Zealand, Australia and South Africa supports a court’s ability to review the legality
of the abduction
The United Kingdom’s precedents are among the cases most cited in support of a court’s right
to review whether it has jurisdiction over a suspect based on the circumstances of their
extraterritorial arrest. While in ex p. Scott60 and ex p. Elliot,61 UK courts did not look into the details of
two suspects’ forced transport into their jurisdiction, the state of UK law is more accurately
represented by Re Bennett. In this case, the House of Lords found instead that the importance of the
rule of law outweighs the need to prosecute a crime where an abduction violates international law or
human rights. The court also found that the rule of law takes precedent where the laws of the State
from which the individual was abducted are violated or where the abduction disregards regular
procedures for extradition.62 Thus, in accordance with the French and German precedents, the
English rule is that a court may review its jurisdiction where State representatives are involved in the
violation of international or domestic law.
In the South African case, State v. Ebrahim, that country’s Supreme Court set out the equally
important “clean hands” rule:
Sloan at 100
Paul Michell, “English-Speaking Justice: Evolving Responses to Transnational Forcible Abduction After
Alvarez-Machain,” in: 29 Cornell International Law Journal (1996), 383-500 [Michell] at 403.
59 United States v. Noriega, 11th Circuit Court, Nos 92-4687 and 96-4471 (1997) (It is pertinent to note that
cases referring to Alvarez-Machain continue to highlight the importance the majority placed on the
extradition treaty. See United States v. Matta-Ballesteros, 71 F.3d 754 (1995).
60 Re Scott, 9 B. & C. at 448, 109 Eng. Rep. at 167
61 Regina v. O./C. Depot Batallion, R.A.S.C. Colchester (Ex parte Elliott), 1 All E.R. 373 (K.B.) (1949)., at 376-77.
62
Bennett, ex parte Bennett (England, House of Lords) [1994] 1 AC 42, 95 ILR 380. at 62 (AC) [Bennett] at 156
(Specifically, the House of Lords stated, “When it is shown that the law enforcement agency responsible for
bringing a prosecution has only been enabled to do so by participating in violations of international law
and of the laws of another State in order to secure the presence of the accused within the territorial
jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of
that circumstance.”)
57
58
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[t]he individual must be protected against illegal detention and abduction, the bounds
of jurisdiction must not be exceeded, sovereignty must be respected, the legal
process must be fair to those affected and abuse of law must be avoided in order to
protect and promote the integrity of the administration of justice. This applies
equally to a state. When the state is a party to a dispute, as for example in criminal
cases, it must come to court with “clean hands”. When the state itself is involved in
an abduction across international borders, as in the present case, its hands are not
clean.63
Ebrahim has been widely cited including in the Zimbabwean case, State v. Beahan,64 and parallels the
New Zealand case of Regina v. Hartley. In this case, which was later followed in Australia as well,65 the
Court stated with regard to abductions that, “this must never become an area where it will be
sufficient to consider that the end has justified the means. The issues raised by this affair are basic to
the whole concept of freedom in society.” All of these decisions confirm the overriding importance
of the role of State actors, in stark contrast to Alvarez-Machain.
ii. ICTY decisions suggest courts can review their jurisdiction but that some abductions do not
violate indictee’s rights
The ICTY has seen a number of cases that relate to this paper’s scenario but three stand out.
The arrests of Todorovic and Nikolic each involved the abduction of the accused from a territory
controlled by an uncooperative government to a territory within the jurisdiction of international
forces, whereas Dokmanovic’s arrest took place after he was lured onto an UNTAES base.
While the ICTY’s finding in this last case that Dokmanovic’s arrest was “justified and legal” 66 is
questionable, it is importantly the Tribunal’s only decision that explicitly finds an abduction-like
arrest acceptable. It is hard to see how the fraudulent luring of Dokmanovic into Croatia was not
inconsistent with international law, but based on this finding the court was able to dismiss
arguments against its having jurisdiction.
State v. Ebrahim, 2 S.A.L.R. 553, Judgement of 26 February 1991.
State v. Beahan, 1992, (1) SACR 307 (A), at 317.
65 Levinge v Director of Custodial Services, 9 N.S.W.L.R. 546.
66 Nikolic at 79.
63
64
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The Todorovic decision is similarly unsatisfying. While the facts in this case are nearly identical
to this paper’s scenario, the Prosecutor’s plea bargain leaves us wanting more from the Tribunal.
The circumstances of Todorovic’s capture were not revealed during the proceedings and, “coupled
with an overriding desire on the part of the ICTY’s Office of the Prosecutor (OTP) to keep them
secret…ultimately led to 26 of the 27 counts against Todorovic being dropped.” Nevertheless,
Todorovic’s unconfirmed version, which is corroborated by media reports, is shocking:
on the night of 27 September 1998, four armed, masked men burst into Todorovic’s
home in Zlatibor in western Serbia, gagged, blindfolded, and beat him with a baseball
bat, then proceeded to smuggle him out of the country and into Bosnia and
Herzegovina. Within a few minutes of Todorovic’s arrival…a helicopter arrived to
take him to the [SFOR base] at Tusla. Depending on which newspaper accounts (if
any) are believed, those involved in his capture were either ‘bounty hunters’ paid
from a ‘CIA slush fund’, or members of the British SAS and/or elite Delta units
from the United States.
Under pressure from several NATO member-States and the North Atlantic Council, the Prosecutor
eventually agreed to a plea bargain in order to keep NATO’s operational secrets and maintain its
crucial ties with this de-facto enforcement arm.
Here a conflict arose due to the possibility of collusion between the abductors and
international forces taking control of the suspect. Many have argued the Prosecutor’s plea bargain
was in part the result of pressure from SFOR, particularly considering SFOR’s continued assistance
was of great important to the Office of the Prosecutor.67 Judge Robinson’s separate decision in
Todorovic compares the role of SFOR “to that of a police force in some domestic legal systems,” and
notes that ‘it virtually operates as an enforcement arm of the Tribunal . . .”68 He concludes: “it would
be odd if the Tribunal had no competence in relation to the exercise of certain aspects of this quasipolice function.” One could foresee similar issues arising with regard to information that UNAMID
might rather not disclose regarding its operations even if no previous relationship existed between
Sloan at 93.
Prosecutor v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic, and Simo Zaric, Separate
Opinion of Judge Robinson, Case No. IT-95-9-PT, T. Ch. III, 18 Oct. 2000 [Todorovic] at 104.
67
68
23
the abductors and the peacekeepers.
Finally, the decision establishing the ICTY’s jurisdiction over Nikolic is the most complete
analysis of the principle of male captus, bene detentus by an international court to date, and the following
section is loosely structured around it. Nikolic’s alleged abduction follows a familiar pattern:
sometime shortly before 21 April he was abducted in Serbia by men who falsely
claimed to be police officers, forced into the boot of a car, driven to the border with
Bosnia, smuggled across the Drina river by boat, and then handed over to US SFOR
soldiers. His captors were subsequently convicted by a Serbian court for offences
relating to the capture and, according to some reports, found to have been acting in
return for payment of £31,000.
While in all three cases, the defendants raised their illegal abduction as a challenge to the Tribunal’s
jurisdiction rather than a defense against their guilt, the Tribunal was only able to fully assess the
applicability of the principle of male captus in Nikolic.
With no international criminal precedent, the Tribunal began its assessment with a review of
domestic case law from which it derived a list of core questions to be posed in the evaluation of a
male captus claim:
-
was a member of the executive of the forum State involved in the illegal transfer
(agency)?
what was the accused’s nationality?
did the injured state protest the abduction?
did an extradition treaty exist? was there an attempt to comply?
how was the accused’s treated between when his liberty was deprived and the
official arrest?
what were the accused’s alleged crimes?69
These elements should form the basis for the second part of the two-part test for international
criminal jurisdiction.
1) Arguments against jurisdiction on the basis of an illegal abduction could be valid
These arguments fit a straightforward format: take male captus and reverse it. Fundamental
principles of public international, criminal and human rights law all appear to support the
The Prosecutor v. Dragan Nikolic IT-94-2-PT "Decision on Defense Motion Challenging the Exercise of
Jurisdiction by the Tribunal.” [Nikolic] at 95.
69
24
propositions that an individual should not be detained unlawfully and that, if they are, they should
be released. Yet if the analysis ended there, there would be no hope of arresting war criminals in
hostile environments where they are most likely to reside. Nikolic’s defense nevertheless begins with
the simple contention that “since the abduction was unlawful, the exercise of jurisdiction over the
individual becomes irregular as well.”70 The following two sub-sections outline explore this
argument.
a) The violation of State sovereignty is a week argument for dismissing jurisdiction
As the basis for international affairs, State sovereignty has defined the current structure of
international law and relations. Yet the cracks in this structure have been widening for nearly two
decades. These gaps are particularly evident with regard to the treatment and role of individuals in
the international system. From migration patterns to failed States and the responsibility to protect,
the emphasis of international law is shifting towards the individual. Human rights developments in
particular shifted the focus “from the State as the injured party to the individual whose rights had
been violated.”71 This is not to say that State sovereignty has disappeared. Far from it: sovereignty
remains the pillar on which all interstate relations rest. Yet with regard to interactions between other
bodies, international or transnational organizations, and individuals, the cracks have resulted in the
formation of new norms. As is evident from much of the discussion above, however, these norms
often lack force. As such, “the ability of the ICC to obtain custody of accused persons is directly
related to the scope of legitimate State objections to surrender.”72 Without State cooperation, there is
no enforcement of the ICC’s indictments. Yet this paper focuses on the exceptional occasions when
a State’s sovereignty is overwhelmed by the coincidence of international forces, international
Nikolic at 108 citing Jean-Bosco Barayagwiza v. Prosecutor, Decision of the ICTR Appeals Chamber, 3
November 1999 [Barayagwiza] at para. 74 (The defense further clarifies that, “as such, it is not suggesting
that the Accused will not receive a fair trial but that proceeding with the trial, in light of how he was
brought within the jurisdiction of this Tribunal, will undermine the integrity of the judicial process.”)
71 Dijk at 76.
72 S.N. Young, “Surrendering the Accused to the International Criminal Court” British Yearbook of
International Law, 2000 at 317.
70
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criminal indictments and vigilante justice.
Interestingly, the defense in Nikolic argued that the lessening importance of State sovereignty
implied a higher degree of responsibility on the part of the Tribunal. It claimed that the usual
requirement that a State-actor be complicit in an abduction for it to violate international law was
irrelevant in this non-state-centric context.73 This is because the normal factors regarding State
sovereignty apply differently to forces with a Chapter VII mandate. These factors include the role of
the executive of the forum State, the nationality of the accused, the role of the injured State, and the
various treaty obligations involved. In essence, the last factor overwhelms the previous three as a
Chapter VII mandate specifically allows for a violation of sovereignty.
Nevertheless, even at the ICTY, arguments in favour of the defense of State sovereignty were
accepted in specific circumstances. Thus, while national case law on the importance of sovereignty
considerations is not overly helpful, the Tribunal’s finding in Tadic that individuals can invoke the
defense in addition to States indicates that the Nicolic’s arguments had some precedent.74
Nevertheless, the reasons for rejecting a sovereignty defense are more compelling: there is no
need to ensure the equality of States with regard to their Chapter VII vertical relationship with the
ICC or UNAMID. Further, forum State authorities were involved in the abduction in all national
cases where male captus was not found to apply and where, as a result, the court did not find it had
jurisdiction. As in Eichmann, the ICTY found in Nikolic that if there was a violation of sovereignty
during Nikolic’s arrest, it was a violation of the State’s rights and not Nikolic’s.75
b) Due process and human rights present substantial obstacles for prosecutors seeking jurisdiction
Among the most straightforward and common problems with the arrest of international war
criminals is the protection of their rights. In short, the defense often claims that an illegal abduction
Nikolic at 71.
Tadic at paras. 55, 99-100.
75 Sloan at 106.
73
74
26
and subsequent exercise of jurisdiction entails the curtailment of basic inalienable rights. The
resulting irregular exercise of jurisdiction over an individual constitutes an abuse of process and a
breach of the rule of law. The ICTY has not, as yet, fully considered the conflict between human
rights and due process, on the one hand, and international legal obligations to prosecute the
perpetrators of humanity’s worst crimes, on the other.76 This task will likely, perhaps hopefully, fall
to the ICC.
International tribunals clearly must respect some rights to due process. As Zappala argues, "it
would have been totally illogical to maintain that tribunals, created to restore justice, could operate
without respecting the fundamental guarantees of a fair trial...”77 Though some may question
whether international criminals need have any rights protected, the arguments in response to this
position are overwhelming. First and foremost, the right to be presumed innocent is so fundamental
that a tribunal that neglected it would face immediate and universal condemnation. Further, the
heinousness of crimes against humanity and war crimes only increases the necessity that a trial be
perceived as fair and just for posterity. Human rights also need to be protected to enhance the
deterrent force and sustainability of international criminal law.
In Nikolic, the Tribunal also cited the Ebrahim “clean hands” rule,78 noting that due process
includes more than just fair trial. In sum, while following the “abuse of process doctrine” set out in
the ICTR case of Barayagwiza, the ICTY supported the Rwandan finding that: “it needs to be clear
that the rights of the Accused have been egregiously violated.”79
Due process claims are inextricably linked to broader human rights arguments80 and in fact,
the right to a fair trial and due process is established as a fundamental human right. As such, the
Djik at 81.
Zappala in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal
Court: A Commentary, Vol. 2 (Oxford: Oxford University Press, 2002) [Zappala] at 1328.
78 Nikolic at 111.
79 Barayagwiza at 73.
80 Nikolic at 106
76
77
27
defense in Nikolic invokes article 5 of the European Convention on Human Rights and article 9 of
the ICCPR. The defense further cites case law claiming “abduction is manifestly arbitrary,
constitutes a violation of the principle of legality and is not in accordance with procedures
prescribed by law.”81 One of the strongest arguments for a violation of the indictee’s rights relies on
the ICCPR Human Rights Committee, which “considers kidnapping manifestly arbitrary.” If there is
proof of an abduction and it is attributable to a State, the Committee orders the individual’s release.82
The prosecution in Nikolic, by contrast, argued that the violations are not serious enough in
this case for a stay of proceedings.83 In the end, the Tribunal concurred. It concluded, if the accused
is “very seriously mistreated, maybe even subjected to inhuman, cruel or degrading treatment, or
torture, before being handed over to the Tribunal,” these abuses may impede the Tribunal’s exercise
of jurisdiction even if SFOR or the prosecutor were not involved.84 Based on the assumed facts, the
“treatment of the accused was not “of such an egregious nature” so the allegations that Nikolic’s
human rights were violated were rejected.
The ICTY came to a similar conclusion in Todorovic where the Trial Chamber found that “the
assumed facts provide no indicia” either “that there was a violation of the human rights of the
Accused [or] of the fundamental principle of due process of law.”85
2) Prosecutors have strong arguments in support of an international tribunals Jurisdiction
While often in direct response to the above claims, the prosecutions arguments with regard to
the principle of male captus bene detentus are dealt with separately because they sometimes encompass a
different scope. The prosecution intentionally did not argue explicitly for male captus. As Sloan
explains, “despite [its] ostensible confidence in the male captus bene detentus principle in international
Nikolic at 107
Nikolic at 76 (citing Celiberti de Cariego, UN GAOR, 36th Supp. No. 40, 68. ILR 41 (1981); Lopez Burgos, UN
GAOR, 36th Session, Supp. No. 40, at 76 68 ILR 29 (1981), Almeida de Quineteros, Comm. No. 107/1981, 79
ILR 168; Canon Garcia, Comm. No. 319/1988 UN Doc. A/47/40 (1994) at 290.)
83 Nikolic at 109.
84 Nikolic at 114.
85 Nikolic at 112.
81
82
28
law, the OTP carefully avoided going down a path that would have required it to champion the
principle.”86 This, in itself, suggests the principle is unsupportable under international law.87 The
following arguments thus support the Tribunal’s jurisdiction but can be argued independent of the
principle of male captus.
a) National case law is often inapplicable because transfer is not extradition
There is an essential difference between the transfer of an indictee to an international
organization or force, on the one hand, and interstate abduction contravening an extradition treaty,
on the other. The first action involves a vertical relationship between the international and the
national body whereas the latter State-State relationship is horizontal. As a result, the transfer of an
indictee to SFOR, the ICTY, UNAMID or the ICC is inherently different from national extradition
cases and a different set of norms need apply. “It is uncontroversial that the transfer of an accused
to the Tribunal by a State authority is not a matter of extradition.”88 For instance, in almost all of the
national cases much emphasis was placed on the existence of an extradition treaty and whether there
was an attempt to comply with it. The closest equivalent in the international context is the
requirement that the international actor be acting within its mandate (see section 4.A).
Sloan carries this analysis further explaining that because the ICTY is a Chapter VII creation,
it “is subject to a specific exception to the Charter’s prohibition on interference in domestic affairs.”
Art. 2(7) of the Charter states:
Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any
State…but this principle shall not prejudice the application of enforcement measures
under Chapter VII.89
Sloan at 101.
Sloan at 111.
88 Sloan at 102 citing Prosecutor’s Response to the ‘Notice of Motion for Evidentiary Hearing on Arrest,
Detention and Removal of Defendant Stevan Todorovic and for Extension of Time to Move to Dismiss
Indictment’ filed by Stevan Todorovic on 10 Feb. 1999, filed on 22 Feb. 1999.
89 Sloan at 107.
86
87
29
Further, if the international actor has a bilateral agreement or a UN Chapter VII mandate and is
acting within this mandate the question of sovereignty is mute. Yet the existence of an extradition
treaty was never held to be “a sine qua non of the determination to refuse jurisdiction.”90 Instead, this
argument is only relevant as a response to the claim that an abduction constitutes a violation of
sovereignty. It is less relevant to arguments about its human rights or due process implications.
If this scenario is so different from an extradition process why discuss it at all? International
criminal law is so young that it must draw on the loosest of analogies. In this case, interstate
abductions present the closest parallel to the transfer of an indictee to an international organization
despite their being little doubt of the illegality of the vast majority of abductions. This is problematic
in that the discussions regarding transfers become colored by the illegal activity of national
abduction cases even when they are undertaken following the highest standards of due process.
Nevertheless, the likelihood that the accused will claim their arrest was illegal necessitates the search
for precedents.
Because the transfer in this case is from one jurisdiction to another within the same State
instead of from one State to another, the more legally consequential event is when the peacekeepers
remove the indictee from Sudan or transfer him to ICC agents who do so. Neither of these events is
envisaged by the Rome Statute, which instead only discusses the procedure to be undertaken by
national authorities. This practically irrelevant procedure is another unrealistic compromise on the
part of the Statute’s drafters. A different set of rules could have been drafted for 13(b) referrals,
taking into consideration the ICC’s UNSC mandate and hostile operating environment.
b) The OTP or its agents were not involved in the arrest. Private actors cannot affect its legality
The weakest of the prosecutor’s arguments suggests that because the international tribunal was
not directly involved with the arrest, their jurisdiction should not be affected by its illegality. As
90
Nikolic at 103.
30
Michell notes, “the distinction between abduction by State agents and private citizens is important
because international wrongfulness and State responsibility depend upon an agency relationship.” 91
In essence, the OTP is arguing by analogy to domestic cases that it is the executive and that SFOR is
a third party rather than an enforcement arm of the executive.
The US Supreme Court’s test for government involvement in Alvarez-Machain is useful in this
context. Paraphrased as, 1. whether the government knew of, or acquiesced in, the intrusive
conduct; and 2. whether the party performing the search intended to assist law enforcement efforts
or further their own ends; it is evident that the ICTY was “involved” in the arrest. Most of the
national abduction cases cited above applied similar tests.
While NATO was more independent from the ICTY than most domestic forces, they cooperated
closely in this instance and there is usually a intentional disconnect between the judiciary and its
enforcement arm. Further, the ICTY, or for the purposes of this paper, the ICC’s, lack of
enforcement is what necessitates the use of third party forces. They cannot, in other words, have
their cake and eat it to: the ICTY lobbied successfully for a NATO commitment to assist in the
arrest of indictees and the ICC should be doing the same vis-a-vis UNAMID. The tribunals should
not later be allowed to distance themselves from the international forces at the legal level.92
The European Commission and Court of Human Rights has stated that with regard to
kidnapping, in some circumstances, “a Party to the Convention incurs responsibility for the acts of
private individuals who de facto act on its behalf.”93 Though the need for State agency has been
questioned elsewhere as well,94 in the context of an ICC prosecution, establishing a link to the Court
should an essential requirement of any claim. If not, illegality defenses could be raised whenever the
Michell at 483.
Sloan at 104 (confirming more specifically: “SFOR was acting as an agent of the Tribunal, because it
ratified SFOR’s conduct in obtaining custody of Todorovic by proceeding with the case.”
93 Slaon at 77 citing Stocké v. Germany, 13 European Human Rights Reports, 126.
94 Dijk at 77 citing Velazquez Rodriquez 95 ILR 296.
91
92
31
rights of an indictee are violated by any actor, international or domestic, even if these abuses are
unrelated to the indictee arrest or the tribunal.
c) Serious offenses and international circumstances require different human rights and due process protections
Human rights and due process obligations, “as laid down in international agreements between
States, and interpreted by national, regional or international courts,” do not necessarily apply equally
to the ICTY as a supra-national Chapter VII enforcement mechanism.95 In other words, while
human rights were originally established in domestic proceedings and are now widely held to be
universal, there are persuasive arguments suggesting due process obligations should be adapted for
the international criminal context. The same can be said of the ICC when acting under Chapter VII
authority. Yet the “essence of both sets of norms is of equal significance…and full effect should
therefore be given to it.”
The strongest rational for an alteration of the human rights regime applied to international
tribunals is their lack of an enforcement mechanism. Without a military or police force such
organizations must rely on national or international forces and while every effort should be made to
ensure that such forces uphold the highest standards of human rights, some circumstances will
necessitate compromises. As a Dutch gendarme notes, “peace-time-oriented due process should not
be allowed to frustrate or to block the arrest and conviction of major war criminals.” 96 Domestic
criminal law was developed for a very different setting than that in which international arrests take
place. The criminals and crimes are different, and the circumstances of their arrest will inherently be
different. For example, an enemy soldier who continues fighting and refuses to surrender or is trying
to escape is a legal military target according to the laws of war.97
This brings up an important question with regard to an individual indicted for crimes against
Nikolic at 81.
Dijk at 50.
97 Dijk at 50.
95
96
32
humanity. Should they be treated by international forces as a prisoner of war or as a civilian war
criminal? This question has implications for the standards of care that the arresting force need
uphold. While Dijk argues “the obligations owed to suspects of crimes against humanity likely lie
somewhere between human rights obligations and the duties established by the humanitarian laws of
war,”98 a better rule might involve taking the highest protections offered by human rights and
humanitarian law and making them flexible enough to conform to the varied and extreme
circumstances of an international arrest.
In this context a rule similar to the Canadian test for evidence may be appropriate. That is, the
arrest should be upheld unless custody was obtained under conditions that bring the administration
of justice into disrepute.99 This is can be contrasted with the test proposed by the OTP, which
argued that one should release a defendant only if there is evidence of “unambiguous, advertent
violations of international law which can be attributed to the Office of the Prosecutor" or "where
the violations in question are of such egregiousness or outrageousness that, irrespective of any lack
of involvement on the part of the Prosecution, the Trial Chamber could not, in good conscience,
continue to exercise its jurisdiction over the accused.”100
While this test allows too much room for rights violations, Lattanzi makes an eminently
realistic point in tying sovereignty claims to human rights claims: while it would be better to rely on
State co-operation in enforcing crimes against humanity, "this hope seems to be utopian. As a matter
of fact, international relations belong to a different reality and the power of the Security Council is
part of this reality." States relinquished to the UNSC the power to restore and maintain international
peace. Crimes against humanity clearly occur in this context as the Statute's preamble indicates:
"such grave crimes threaten the peace, security and wellbeing of the world." Limitations on the
Dijk at 50.
R. v. Rothman, [1981] 1 SCR 640.
100 Sloan at 110.
98
99
33
rights of the indictee that were accepted in light of the heinousness of the crimes can be likened to
the limitations on State sovereignty resulting from the necessity of ensuring international peace and
stability.101 Thus, the need to balance human rights with the need for international criminal justice is
paramount. Some human rights will have to be compromised but the justification for such sacrifices
must be proportional and watertight in order to set a lasting precedent. 102
Laws concerning extradition, transfer and human rights overlap in another way as well. Goran
Sluiter notes how States may incur responsibility for exposing individuals by means of extradition to
human rights violations and that a State could withhold surrendering an indictee to the Court
claiming such a transfer would expose its citizens to human rights violations.103 Such arguments are
unconvincing, however, in light of the many human rights protections built into the Rome Statute.
As Zappala states, “the organs of...the Court are bound to fully respect the rights of the accused."104
In the end, the greatest challenge to the ICC’s detention of an indictee would likely be based on the
protections built into its own Statute.
101
Flavia Lattanzi "The Rome Statute and State Sovereignty, ICC Competence, Jurisdictional Links, Trigger
Mechanism" Essays on the Rome Statute of the International Criminal Court vol. 1 (Ripa di Fagnano Alto : Il
Sirente, 1999).
Sloan at 106.
Göran Sluiter, book review of Geert-Jan Alexander Knoops, Surrendering to International Criminal Courts:
Contemporary Practice and Procedures in Journal of Conflict & Security Law(2003), Vol. 8 No. 2, 411–423,
citing Human Rights Committee, Ng v Canada, (UN Doc. CCPR/C/49/D/469/1991 (1993)), 98 ILR 479, and
Soering v United Kingdom, Eur. Ct. of HR, Judgement of 7 July 1989, Series A, Vol 161.
104 Zappala at 1328. See also Schabas ICC (confirming the general right to a 'fair hearing' established in the
chapeau of Article 67 of the Statute provides defendants with a powerful tool to go beyond the text of the
Statute, and to require that the Court's respect for the rights of an accused keep pace with the progressive
development of human rights law.)
102
103
34
C. The ICC’s Vertical Relationships with UN Organs and States Could Facilitate the
Enforcement of its Indictments
In the Reparation Case and the WHO Agreement Case, the International Court of Justice held
that the UN possesses “a large measure of international personality.” Based in part on this finding,
jurists developed the concept of verticality to describe the UN and its organs’ relationship with
States. Reinforced by a Chapter VII mandate, the concept was later applied to international
tribunals:
the perception of international criminal tribunals by the international community as
important human rights supervisory mechanisms and instruments to restore and
maintain international peace and security…justifies a vertical cooperation
relationship
In Blaskic, the Trial Chamber discussed whether the ICTY’s relationship with States was
vertical. Croatia conceded a customary law duty for States to comply with the Tribunal’s requests,
but argued that the ICTY’s Statute was a multilateral convention that limited the power of the
Tribunal to issue and enforce orders to the extent that the targeted State(s) had already consented.
Rejecting this argument, the Trial Chamber described vertical or binding relations:
the relationship between States and the International Tribunal is not one between
equals since the International Tribunal is a Chapter VII entity complete with the
associated rights and obligations. Moreover, there are no specified grounds on
which a State may refuse to comply with an order or request from the International
Tribunal, as there are in treaties or bi- or multilateral agreements.
The Appeals Chamber confirmed that the ICTY has authority over sovereign States to the extent
that it can issue orders for cooperation directly to a State. However, the enforcement capacities of
the Tribunal were restricted, like the ICC’s, by a holding that only the UNSC, upon a finding of noncompliance by the Tribunal, could enforce the order.
The enforcement of ICC indictments can involve a number of forms of verticality. For
instance, as described above, the transfer of an indictee from a national authority to an international
35
authority exhibits vertical characteristics in contrast with State-to-State extradition. The UN Security
Council’s relations with its organs – particularly those with Chapter VII mandates such as referrals
to the ICC and the UNAMID peacekeeping mission – can also be described as vertical. Even
opponents of a federal model for UN-State relations admit that the model applies to States with
special agreements with the UN. The agreements that Sudan has signed with regard to UNAMID
could fall into this category.105
Verticality flows through the organizations: not only are the Council’s resolutions binding on
the ICC and UNAMID but their resulting mandate is binding on States and, in some cases, other
international organizations. In some cases, verticality is bi-directional as well. For instance, the ICJ
and the UNSC debatably have binding authority over each other in different circumstances. The
ICC may have a similar vertical relationship with organizations that have an explicit or implied
mandate to cooperate with it.
The verticality of the ICC’s relations has an impact on human rights considerations such as the
application of the doctrine of male captus bene detentus as well. The State agency and extradition treaty
requirements of the tests that have been used to determine the applicability of the principle, for
instance, do not apply in a vertical context. This supports the finding, by the Court, of a binding
obligation on States (and consequently, international organizations) to comply with its enforcement
requests. As well, the lack of a State agency check on enforcement places a greater onus on the ICC
to ensure that its agents protects its indictee’s rights.
There is an interesting balance between the judiciary and executive at play here: in ex p. Bennett,
Lord Griffiths stressed that while the courts
have no power to apply direct discipline to the police or the prosecuting authorities, .
. . they can refuse to allow them to take advantage of abuse of power by regarding
their behaviour as an abuse of process and thus preventing a prosecution.106
105
106
Arangio-Ruiz at 1.
Bennett at 62.
36
The question of how this relationship applies to an international organization with no police force
remains unanswered. By analogy, the executive here are peacekeepers. While there may be an
obligation that they are trained to prevent human rights violations, the problem is more frequently
that they are too passive rather than overactive. In such circumstances, could a force be guilty of an
omission? That is, could the vertical relationship imply an obligation to cooperate or arrest?
37
5. CONCLUSION
The International Criminal Court was created to ensure international criminal justice yet its
lack of enforcement has weakened this new area of law’s effectiveness as a deterrent.
The lessons of the ICTY should be remembered in order to remedy this weakness: worried about
mission creep and “Somalia syndrome”, among other things,107 NATO originally believed
cooperation with the Tribunal would hinder its activities.108 Only after a military deadlock and
ongoing atrocities did the West, frustrated with the lack of progress by its multi-national force,
create the ICTY. Once the world realized that the arrests and surrenders had a positive effect, it
fostered the ICTY’s relationship with NATO forces and eventually codified an obligation on the
military forces to enforce the Tribunal’s indictments. We need not wait for further evidence of
UNAMID’s failures before we press it to enforce ICC indictments in similar fashion.
If the Council continues to insist that Sudan is the key actor preventing the arrest of indictees,
it should impose sanctions substantial enough to secure actual cooperation from the Government of
Sudan. Alternatively the UNSC could either buttress UNAMID’s mandate, allowing it to carry out
the arrests, or it could pass a more general resolution mandating the cooperation of all member
States’ and, in particular, international, forces in Sudan.
The ICC’s human rights guarantees are almost as important is its mandate. The integrity of the
Court and the Statute should take precedence over any given situation if they are to withstand the
fickle nature of international politics. A two-part test could be applied in the case of a transfer to the
court to ensure its legitimacy. First, is the transfer within the mandate of the arresting or transferring
organization and therefore is the arrest within the jurisdiction of the ICC? Second, do the
circumstances of the transfer bring the administration of justice into disrepute? In interpreting this
second test, the rule from Toscanino (see section 4.B.i.1) could be modified to fit the international
107
108
Dijk at 63.
Dijk at 45.
38
criminal context. This rule would allow the ICC to review its jurisdiction when an abduction (i) was
carried out in a manner that “shocks the conscience” (ii) was the work of its agents, and (iii) was
protested by the injured State or individual.109
Goldstone notes poignantly that “the most serious threat to the credibility, and indeed the
very essence, of the Tribunals has come from politically inspired delays in the arrest of indicted war
criminals.”110 These delays can only be stopped with a strong binding mandate. Second only to this
threat is the prospect that the ICC will lose its place of respect in the international system. Ensuring
human rights and due process is essential to this respect as “the ultimate aim of arrests of suspects
of serious war crimes should be to uphold the laws of war and of human rights law in armed
conflict.”111
The final word, however, lies with the Security Council. As Geoffrey Robertson declares,
“…no criminal court can function without a police force to arrest its suspects: the ICC’s future will
hinge upon whether the Security Council is prepared to undertake its law enforcement missions.” 112
Toscanino at 275.
Goldstone at 124.
111 Dijk at 49.
112 Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (London: Penguin, 2006) at
466.
109
110
39
6. FURTHER QUESTIONS
In researching this paper, a number of questions arose with regard to the enforcement of ICC
indictments. Several issues that could form the subject of future research follow:
A) What kind of force is needed: What is the most effective and just type of force for arresting
international criminals? Are police or military forces best? What should their training be? Should an
international organization be responsible? Are peacekeepers, or NATO or mercenaries the best
option? What if UN sanctioned or licensed, private international bounty hunters could make the
arrest most easily? Could this be enabled under the Charter? Should the UN have a standing force?
The EU? What should the force’s mandate be?
B) What changes to the Rome Statute, the ICC Rules of Procedure and Evidence or other
agreements are required in order to facilitate the enforcement of arrest warrants? How should the
Statute be amended? Should rules of procedure or evidence be adopted? Should the ICC-UN
cooperation agreement be modified? Are other agreements with other organizations necessary and
what would they look like?
C) What are the alternative means of securing an arrest? Could the Court effect an arrest by
issuing warrants directly to co-operative municipal authorities? What if a local police chief or
enforcement officer is more amenable to the ICC’s cause? What if a rebel organization is the closest
equivalent to State authorities in a given region?
D) Are there alternative ways to prevent human rights violations? For instance, could the lack
of a legal basis for an arrest be remedied, for example by consent, and whose consent would be
relevant for that purpose?
E) With regard to specific violations, could a balance between the ICC’s Trial Chamber and its
OTP result in a more fair treatment of indictees? If, for instance, as in Todorovic, the prosecutor
40
wants to settle for reasons unrelated to the justice of the case at hand can the Trial Chamber
intervene? Where is the line between human rights and humanitarian obligations? Are the
obligations owed to war criminals and criminals against humanity distinct? How is habeus corpus to
be upheld?
41
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43
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