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State Co-operation and International Criminal Court Bargaining Influence in the Arrest and the Surrender of Suspects

Published online by Cambridge University Press:  01 June 2008


While much has been written about the formation of the International Criminal Court (ICC), less attention has been focused on the enforcement capability of the Court. As demonstrated by the history of the ad hoc international tribunals, one of the most pressing problems for international criminal courts is the arrest and the surrender of suspects, which often requires substantial bargaining between the court and the state in which the suspect resides. We develop a classification of the issues which have the greatest impact on the bargaining influence of the ICC to secure the arrest of indictees, and apply this classification scheme to a study of the four ongoing situations at the ICC in order to explore the bargaining environment in which the ICC operates. While many of the cases have features which should assist the ICC in bargaining with the state, the situation in Sudan represents the greatest challenge for the Court.

Copyright © Foundation of the Leiden Journal of International Law 2008

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1. One of the arrest warrants was withdrawn following the death of a Ugandan, Raska Lukwiya.

2. Of course, the history of the ICTY demonstrates that even Chapter VII authority requires the goodwill and co-operation of UN member states, which was not always forthcoming.

3. Interview with Legal Advisor, Registry, ICC, The Hague, 11 July 2006.

4. See V. Oosterveld, M. Perry, and J. McManus, ‘How the World Will Relate to the Court: The Cooperation of States with the International Criminal Court’, (2002) 25 Fordham International Law Journal 767.

5. See H.-P. Kaul, ‘Construction Site for More Justice: The International Criminal Court after Two Years’, (2005) 99 AJIL 370; and E. Leonard, The Onset of Global Governance: International Relations Theory and the International Criminal Court (2005).

6. S. Sewall and C. Kaysen (eds.), The United States and the International Criminal Court (2000).

7. See M. Marler, ‘The International Criminal Court: Assessing the Jurisdictional Loopholes in the Rome Statute’, (1999) 49 Duke Law Journal 825; and D. Sarooshi, ‘The Statute of the International Criminal Court’, (1999) 48 ICLQ 387.

8. J. Fearon, ‘Bargaining, Enforcement, and International Cooperation’, (1998) 52 International Organization 269.

9. D. Snidal, ‘Relative Gains and the Pattern of International Cooperation’, (1991) 85 American Political Science Review 701; and J. Ruggie, ‘Multilateralism: The Autonomy of an Institution’, (1992) 46 International Organization 561.

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note 6

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note 6

20. Interview with Carla Del Ponte, Chief Prosecutor, and David Tolbert, Deputy Prosecutor, ICTY, The Hague, 12 July 2006.

21. The refusal to transfer suspects is not specific to African countries. France and the United States have refused to surrender individuals to the ICTR. Moreover, there has been at least one case in which a country surrendered a suspect to the Rwandan national court rather than the ICTR. See Morris, M., ‘The Trials of Concurrent Jurisdiction: The Case of Rwanda’, (1997) 7 Duke Journal of Comparative & International Law 349Google Scholar.

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23. Both forms of conflict have been incorporated into the Rome Statute's definition of war crimes.

24. See inter alia W. Schabas, An Introduction to the International Criminal Court (2007), 62.

25. At the time of writing the ICC has 105 state parties.

26. Technically, states do not ‘extradite’ suspects to the ICC but rather surrender them to the Court. This language, which is found in Art. 91 of the Rome Statute, was specifically included because extradition refers to a state-to-state process. The statutes of the ICTY and the ICTR previously incorporated this approach. See Oosterveld et al., supra note 4.

note 4

27. The Statute allows the state party to challenge a decision of the OTP not to prosecute a referred case.

28. Chief Prosecutor Moreno-Ocampo recognizes his statutory obligation to defer to state judiciaries whenever possible. Interview with Rod Rastan, Legal Advisor, Office of the Prosecutor, ICC, The Hague, 11 July 2006.

29. While the crime of aggression is included in the Court's subject jurisdiction in Art. 5(1) of the Rome Statute, Art. 5(2) provides that the Court may only exercise its jurisdiction in this respect once the crime and the conditions of its prosecution have been defined.

30. See Schabas, supra note 24.

note 24

31. J. Kelly, ‘Who Keeps International Commitments and Why? The International Criminal Court and Bilateral Nonsurrender Agreements’, (2007) 101 American Political Science Review 573, at 573.

32. D. Sarooshi, ‘Prosecutorial Policy and the ICC: Prosecutor's Proprio Motu Action or Self-Denial?’, (2004) 2 Journal of International Criminal Justice 940, at 943.

33. G. Prunier, ‘The Politics of Death in Darfur’, (2006) 105 Current History 195.

34. See Fearon, supra note 8.

note 8

35. See Balch-Lindsay, D. and Enterline, A., ‘Killing Time: The World Politics of Civil War Duration, 1820–1992’, (2000) 44 International Studies Quarterly 615CrossRefGoogle Scholar; P. Regan, Civil Wars and Foreign Powers: Outside Interventions and Intrastate Conflict (2000); and Regan, P. and Aydin, A., ‘Diplomacy and Other Forms of Intervention in Civil Wars’, (2006) 50 Journal of Conflict Resolution 736CrossRefGoogle Scholar.

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38. The decision in 2005 of the Argentine Supreme Court to throw out the amnesty laws following the country's so-called ‘Dirty War’ between 1976 and 1983 demonstrates that amnesty provisions are not necessarily permanent.

39. See Kelly, supra note 31.

note 31

40. D. Akande, ‘International Law Immunities and the International Criminal Court’, (2004) 98 AJIL 407.

41. See Danner, supra note 37.

note 37

42. L. Vinjamuri and J. Snyder, ‘Advocacy and Scholarship in the Study of International War Crime Tribunals and Transitional Justice’, (2004) 7 A nnual Review of Political Science 345, at 355.

43. The effectiveness of sanctions as well as the importance of human rights policy on the allocation of foreign assistance are highly contested issues. A review of this literature is beyond the scope of this research.

44. Amnesty International, ‘Central African Republic: Five Months of War against Women’ (2004).

45. US Department of State, ‘Central African Republic: Country Reports on Human Rights Practices – 2003’ (2004).

46. Amnesty International, ‘Central African Republic: Referral to the International Criminal Court Should Be Accompanied by Judicial Reforms to Address Impunity’ (2005).

47. BBC News, ‘Hague Referral for African Pair’, 14 April 2006.

48. Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, UN Doc S/2003/1027, 23 October 2003.

49. Amnesty International, ‘Democratic Republic of the Congo: International Criminal Court's First Arrest Must be Followed by Others Throughout the Country’ (2006).

50. Interview with Legal Advisor, Registry, ICC, 11 July 2006.

51. See Prunier, supra note 33, at 195.

note 33

52. The Sudanese government has been supporting Arab Darfuri against non-Arabs in the region for many years. See Abdelmoula, A., ‘The “Fundamentalist” Agenda for Human Rights: The Sudan and Algeria’, (1996) 18 Arab Studies Quarterly 1Google Scholar.

53. Udombana, N., ‘When Neutrality Is a Sin: The Darfur Crisis and the Crisis of Humanitarian Intervention in Sudan’, (2005) 27 Human Rights Quarterly 1149, at 1183CrossRefGoogle Scholar.

54. Human Rights Watch, ‘Entrenching Impunity: Government Responsibility for International Crimes in Darfur’ (2005).

55. International Commission of Inquiry on Darfur, ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General’ (2005).

56. Sudan has signed but not ratified the Rome Statute.

57. L. Moreno-Ocampo, ‘Statement of the Prosecutor of the International Criminal Court, Mr. Luis Moreno Ocampo to the UN Security Council Pursuant to UNSCR 1593’ (June 2006), 1.

58. Interview with Rastan, supra note 28.

note 28

59. There is a parallel that can be drawn between the Sudanese Special Court and the Indonesian Human Rights Court (IHRC). Both courts were established to pre-empt an international process, and both have been criticized for failing to indict high-ranking perpetrators and to pursue significant charges. For more information concerning the IHRC, see Roper and Barria, supra note 18.

note 18

60. Doom, R. and Vlassenroot, K., ‘Kony's Message: A New Koine? The Lord's Resistance Army in Northern Uganda’, (1999) 98 African Affairs 5CrossRefGoogle Scholar.

61. Zeidy, M. El, ‘The Ugandan Government Triggers the First Test of the Complementarity Principle: An Assessment of the First State Party Referral to the ICC’, (2005) 5 International Criminal Law Review 83CrossRefGoogle Scholar.

62. L. Moreno-Ocampo, ‘The Investigation in Northern Uganda’ (2005), accessed at

63. BBC News, ‘Rebels Trek from the Ugandan Bush’, 11 September 2006.

64. We wish to thank one of the reviewers for making this point.

65. Kaul, supra note 5, at 383.

note 5

66. Danner, supra note 37, at 535.

note 37

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