The International Criminal Court (ICC) has been in business for a decade and faces plenty of hurdles in delivering justice for the world's worst atrocities. However, getting its suspects arrested has proven to be the court's Achilles' heel. The need to arrest ICC suspects often pits compliance with international criminal law against the prerogatives of sovereignty-minded countries. Lacking its own police force, the ICC depends on determined action by governments to arrest its suspects. Those governments, under the influence of competing diplomatic or economic objectives, can be fickle or outright obstructive.
Six suspects have been surrendered to the court by the Democratic Republic of Congo, France, Belgium and Côte d'Ivoire. However, arrest warrants against 12 others remain outstanding, and these suspects are wreaking murder and mayhem. The failure to arrest Joseph Kony and other senior commanders of the Lord's Resistance Army (LRA) has left this brutal rebel group free to export atrocities across the borders of central Africa, creating new generations of victims in the Democratic Republic of Congo, South Sudan and the Central African Republic. Similarly, the failure in eastern Congo to arrest Bosco Ntaganda, who until recently was protected by Congolese authorities and promoted within the Congolese army, has left an unbroken record of new abuses there.
Lack of action on the court's arrest warrants has been particularly stark in Sudan, where the UN Security Council (UNSC) brought in the ICC because of the violence in Darfur. Despite ICC warrants for his arrest, Sudanese President Omar al-Bashir remains in office, and continues to preside over serious human rights violations not only in Darfur but in border regions with the newly independent South Sudan. The UNSC has done nothing to back up its initial commitment to justice.
Significantly, the movement to bring justice for the worst crimes through international courts has accumulated rich experience in arrests over two decades, particularly through the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Court for Sierra Leone (SCSL). The ICTY gained custody of all 161 people it indicted. The Sierra Leone Court went 9 for 9. The "lessons learned" through these arrests should be mined and applied.
As a permanent court with potentially worldwide jurisdiction, the ICC admittedly faces more complex challenges than the ad hoc tribunals did. These courts handled geographically limited areas where the international community had forged a consensus that the horrors done to civilians had to be addressed, in part, through criminal trials. This consensus, and the focus it generated, are more difficult to sustain across several different situations, each with its own particularities. Justice-supporting countries can aid in bringing about these arrests.
No apprehension for the ICC is simple, and the problems involved vary. Thomas Lubanga— the Congolese rebel leader who was the first person convicted by the court — was already in the custody of the country where the crimes occurred when he was turned over for trial. Jean-Pierre Bemba Gombo — another Congolese militia commander-politician who had gone into exile in Europe — was turned over by Belgium. The Kony case falls into another category — a situation of armed conflict where the territorial government is unable to apprehend a suspect through normal law enforcement. Although politics certainly has its role here, such arrests may require an operation involving complex military decisions and troops acting extraterritorially.
The al-Bashir case is one in which a recalcitrant government that is implicated in the alleged crimes is shielding one of its own and refuses to arrest a suspect whose whereabouts are well known. This is "the hard case" of ICC arrests. These "hard cases" risk the delivery of justice and serious collateral damage for the court. If suspects are not brought to trial, the opportunity for justice is lost for the victims, their families and their communities. The communities have no independently verified record of individual criminal responsibility as a reference point for societal healing. In fact, the absence of accountability and its deterrent effect opens the door for future abuses. Moreover, stalled court proceedings freeze in place witness protection programs and leave victims' rights before the court hanging in the balance as costs spiral upward.
Meanwhile, the ICC invariably takes the reputational hit, instead of the governments that fail to act. The paralysis generates an undercurrent of criticism that the court is inefficient, expensive and perhaps useless. The damage can be even more pernicious. A high-profile suspect like al-Bashir who continues to function in a senior position, ostentatiously conducting official visits to other capitals and hosting high-level visitors, flouts the warrant in a way that is corrosive to the credibility of the court.
In these hard cases, where arrests are unlikely in the short term, experience shows that justice-supporting countries nonetheless can and need to take steps that, over the long haul, may lead to arrest. Without these more immediate measures the prospect of future arrest dims. The court's member states and other justice-supporting countries must exert diplomatic, political and economic clout — in other words, political will — for arrests. Justice must take precedence amid other competing, and sometimes contradictory, objectives. These governments should take every opportunity to raise the importance of arrest in their one-on-one diplomatic contacts with the non-cooperating states, with third-party states that have influence on the non-cooperating states and in multilateral intergovernmental settings. The opening of the UN General Assembly, an EU summit or the African Union's Political Assembly provide a high-profile stage for private and public diplomacy on behalf of arrests. Using EU summit meetings to press for arrest of suspects was a successful tactic for the Yugoslavia tribunal. Diplomacy puts arrest on the agenda, creating expectations of follow-through.
Justice-supporting countries also need to identify and use effective leverage points for arrests, another lesson from the US and EU's approach to apprehension at the ICTY. In 2001, the US used the pressure of donor conferences and World Bank loans to press for the arrest and surrender of Slobodan Milosevic, Serbia's wartime leader. In the first four months of 2005, Serbia transferred 12 Serb and Bosnian Serb indictees to The Hague. This dramatic increase in cooperation with the tribunal was directly related to diplomatic pressure around Belgrade's prospective accession to the EU. In 2006, NATO states sweetened their advocacy with the offer to allow Belgrade into the alliance's Partnership for Peace. The European Commission, which held the keys to the kingdom of EU membership, continually recalibrated its mix of pressure and concessions as the politics of governments in Belgrade and Zagreb changed.
As valuable as these lessons are, it would be a mistake to view them through rose-tinted glasses. Linking economic and political pressure to the arrest of war crimes suspects in the Former Yugoslovia evolved through twists and turns over more than a decade. The EU moved forward, backward and sideways in its insistence on Serbia's full cooperation with the tribunal in the face of political instability, anti-Western governments in Belgrade and independence for Kosovo. In addition, ready-made effective points of leverage for justice may be hard to replicate in countries where the ICC investigates. Nonetheless, in countries far beyond the Western Balkans, where the means of leverage were less obvious, wielding pressure and concessions has succeeded. The former Liberian president Charles Taylor enjoyed safe haven in Nigeria between 2003 and 2006 despite his indictment for war crimes and crimes against humanity. At that time, Nigeria's then-president, Olusegun Obasanjo, was seeking international support for a third presidential term, forgiveness for Nigeria's debt and a White House meeting with President George W. Bush. Using these points to press President Obasanjo, the UK, the US and Liberia helped bring about Obasanjo's decision to surrender Taylor in March 2006. The three governments played their cards well.
In a demonstration of creative justice diplomacy, ICC-supporting diplomats have created an "early warning system" to head off visits by al-Bashir, effectively curtailing his travel schedule. While these measures do not have the impact of arrest, the resulting stigmatization and isolation take a toll. The Washington Post reported that before his trip to China in June 2011, al-Bashir specifically asked Beijing to guarantee that he would not be arrested there. Getting the message across to suspects, who are still presumed innocent, that there can be no more business as usual while they are on the run from the law is a smart intermediate tactic.
Finally, it's imperative that the UNSC becomes more actively engaged in seeing the court's warrants are executed, especially following the council "referring" a crisis situation to the ICC.
Justice-supporting states should recognize that they are playing a long-game and that it could take years to arrest suspects, as it did with Bosnian Serb suspects Radovan Karadzic and Ratko Mladic. There is a synergy between the immediate steps and arrests over time; the more vigorous and meaningful the former, the greater the likelihood of the latter. Lack of results in the short term should not become a rationale for inaction or indifference. The short-term measures maintain the integrity of the court's warrants and facilitate the long-term objective.
In the ICC's second decade, ICC nations need to up their game on the court's behalf. Political will is essential. That means increasing pressure for arrests relative to other security, diplomatic and economic objectives. These governments need to give the court's arrest warrants traction — no matter how uphill the road.
Richard Dicker has been director of International Justice at Human Rights Watch since it was founded in 2001, and has worked at Human Rights Watch since 1991. He led the Human Rights Watch multi-year campaign to establish the ICC.
Elizabeth Evenson is senior international justice counsel at Human Rights Watch. Her research and advocacy centers on the ICC, where she monitors the court's institutional development and conducts advocacy toward the court and its member countries.