This House believes the ICC should have its own enforcement arm

The remit of the ICC is unlike the remit of any national court. It deals exclusively in crimes so unacceptable there is an international consensus behind their illegality and the need for prosecutions. The parties that signed up to the Rome Statute’s reason for the creation of the ICC was “that such grave crimes threaten the peace, security and well-being of the world” the perpetrators of such crimes clearly need to be brought to book, and to do that they need to be apprehended. The same agreement said the signatories were “Resolved to guarantee lasting respect for and the enforcement of international justice” if this is the case then there should be agreement on enabling that enforcement by creating an ICC enforcement arm. Again the Rome statute makes clear that the agreement “shall not be taken as authorizing” intervention by another state. This is why the enforcement needs to be done by a separate international force who could not be considered a threat to any state.[1]  Quite simply there is little point in international criminal justice if there is no force to bring the criminals to the court.

[1] ‘Preamble’ Rome Statute of the International Criminal Court, 1 July 2002, http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf

While the ICC is a multinational body, it is designed to have a respect for individual nations court systems. It is mainly a “backstop” court, it is happy to see nations prosecute those offences – the Rome Statute mandates that they be added to the domestic criminal law. This is the principle of complementarity. As such there is no need for an international force as the enforcement of international criminal law is provided by the member state’s police forces who will catch the criminals that the ICC wishes to prosecute and send them to the court.

If international criminals are to be caught it needs to be clear that there is an organisation with the responsibility and authority to catch them. This is especially important when the criminal in question is able to slip across borders to avoid the national authorities in one state as Joseph Kony has done as the ICC would be able to cross borders itself and coordinate the response from multiple countries. The importance of an organisation that is able to catch international criminals can be highlighted by the experience of the International Criminal Tribunal for the Former Yugoslavia where despite a Memorandum of Understanding relating to the detention of war criminals in Bosnia NATO denied it had the power to make arrests so leading to patrols actively avoiding wanted men to avoid a situation in which they might have to engage in arrests.[1]A lack of clarity over whether an organisation can enforce its warrants for arrest results in arrests not being made. Ultimately the ICTY was successful because this situation was resolved with the creation of multinational police forces backed up with traditional NATO military power if necessary leading to the arrest of 126 individuals.[2]

[1] Zhou, Han-Ru, ‘The Enforcement of Arrest Warrants by International Forces From the ICTY to the ICC’, Journal of International Criminal Justice, Vol.4, 2006, pp.202-18, http://droit.umontreal.ca/professeurs_personnel/corps_professoral/Documents/han_ru/Article%20-%20JICJ.pdf  pp214-6

[2] Ibid, p.203

States are capable of their own enforcement, even in the difficult cases – for example, Radovan Karadzic was arrested by the Serbian authorities for his trial by the ICTY, and would not necessarily have been arrested faster by an outside force rather than the Serbian police. A large number of states have been pouring resources in to capturing the Lord’s Resistance Army fugitives such as Joseph Kony – if they cannot do capture him, there is no reason to believe that an ICC Police would be able to. Recently the Ugandan Army has been willing to cross borders to chase Kony, so far with little to show for it.[1]

[1] Van Woudenberg, Anneke, ‘How to Catch Joseph Kony’, Human Rights Watch, 9 March 2012, http://www.hrw.org/news/2012/03/09/how-catch-joseph-kony

Eight out of the thirty people indicted by the ICC (four in the Darfur situation, including Omar al-Bashir, three Lord’s Resistance Army leaders in Uganda and one in the DR Congo investigation) are still alive and avoiding justice. An in-house enforcement arm would be more effective at capturing indictees than many of the forces of the state parties, as it is likely to be more competent than many of the under-resourced or under-trained national forces. An in house force would be solely focused on capturing the wanted war criminals so would both be focusing resources and much less likely to be sidetracked by other priorities (many of which may be influenced by politics) than national forces. One of the suggested solutions to the failure to capture Joseph Kony and leaders of the LRA is to have greater involvement of peacekeepers; an ICC force would provide the same kind of help.[1]

[1] Van Woudenberg, Anneke, ‘How to Catch Joseph Kony’, Human Rights Watch, 9 March 2012, http://www.hrw.org/news/2012/03/09/how-catch-joseph-kony

An enforcement arm would still have finite resources. There is no guarantee that an ICC in-house enforcement system would arrest more suspects than the existing system of state bilateral co-operation. This is particularly the case in relation to the most thorny problems the ICC faces – how to catch those who have the backing of their state. An independent force would not enable the ICC to snatch Omar al-Bashir out of Sudan unless the proposal was to create a special forces style force and any such action would have large diplomatic repercussions.

To its critics, the ICC is an organization that can be mocked with Stalin’s dismissal of the influence of the Pope: “how many divisions does he have?”

An ICC capable of arresting its own fugitives would become a more credible organization, not only due to the show of competence through the arrests – it would lead to more trials, and more convictions, that would help contribute to the acceptance of the ICC as a serious court that is effective at bringing international criminals to justice. A legal institution needs to be effective to remain credible.[1] This would make countries much more likely to cooperate because the ICC would be doing more to help them by providing some of the necessary resources.

Henry Kissinger apparently said “Who do I call if I want to speak to Europe?” (he is not sure he said it) because there is no single European leader, and if the US wants political or military cooperation it calls the UK or France. In much the same way if countries need help apprehending and convicting someone they are much more likely to call in the ICC if it can actually help them catch the wanted person.[2]

[1] Perritt, Henry H., ‘Policing International Peace and Security: International Police Forces’, Chicago-Kent College of Law, March 1999, https://works.bepress.com/cgi/viewcontent.cgi?article=1023&context=henry_perritt p.293

[2] Sobczyk, Marcin, ‘Kissinger Still Lacks a Number to Call Europe’, The Wall Street Journal, 27 June 2012, http://blogs.wsj.com/emergingeurope/2012/06/27/kissinger-still-lacks-a-number-to-call-europe/

Just creating a force to bring suspects to trial would not necessarily be enough to make the ICC a more credible organization. That would have to come through more measures and building multilateral support in areas where situations have been referred to the council. This increase in credibility of the ICC also comes at the expense of the sovereignty of the states that call the ICC force in. Many nations would much prefer the current system where it is clearly solely within their purview to arrest criminals on their soil, creating a competitor with its own police force will be considered by many to be undermining their sovereignty so damaging not improving the chances of a state being willing to involve the ICC. 

The remit of the ICC is unlike the remit of any national court. It deals exclusively in crimes so unacceptable there is an international consensus behind their illegality and the need for prosecutions. The parties that signed up to the Rome Statute’s reason for the creation of the ICC was “that such grave crimes threaten the peace, security and well-being of the world” the perpetrators of such crimes clearly need to be brought to book, and to do that they need to be apprehended. The same agreement said the signatories were “Resolved to guarantee lasting respect for and the enforcement of international justice” if this is the case then there should be agreement on enabling that enforcement by creating an ICC enforcement arm. Again the Rome statute makes clear that the agreement “shall not be taken as authorizing” intervention by another state. This is why the enforcement needs to be done by a separate international force who could not be considered a threat to any state.[1]  Quite simply there is little point in international criminal justice if there is no force to bring the criminals to the court.

[1] ‘Preamble’ Rome Statute of the International Criminal Court, 1 July 2002, http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf

While the ICC is a multinational body, it is designed to have a respect for individual nations court systems. It is mainly a “backstop” court, it is happy to see nations prosecute those offences – the Rome Statute mandates that they be added to the domestic criminal law. This is the principle of complementarity. As such there is no need for an international force as the enforcement of international criminal law is provided by the member state’s police forces who will catch the criminals that the ICC wishes to prosecute and send them to the court.

If international criminals are to be caught it needs to be clear that there is an organisation with the responsibility and authority to catch them. This is especially important when the criminal in question is able to slip across borders to avoid the national authorities in one state as Joseph Kony has done as the ICC would be able to cross borders itself and coordinate the response from multiple countries. The importance of an organisation that is able to catch international criminals can be highlighted by the experience of the International Criminal Tribunal for the Former Yugoslavia where despite a Memorandum of Understanding relating to the detention of war criminals in Bosnia NATO denied it had the power to make arrests so leading to patrols actively avoiding wanted men to avoid a situation in which they might have to engage in arrests.[1]A lack of clarity over whether an organisation can enforce its warrants for arrest results in arrests not being made. Ultimately the ICTY was successful because this situation was resolved with the creation of multinational police forces backed up with traditional NATO military power if necessary leading to the arrest of 126 individuals.[2]

[1] Zhou, Han-Ru, ‘The Enforcement of Arrest Warrants by International Forces From the ICTY to the ICC’, Journal of International Criminal Justice, Vol.4, 2006, pp.202-18, http://droit.umontreal.ca/professeurs_personnel/corps_professoral/Documents/han_ru/Article%20-%20JICJ.pdf  pp214-6

[2] Ibid, p.203

States are capable of their own enforcement, even in the difficult cases – for example, Radovan Karadzic was arrested by the Serbian authorities for his trial by the ICTY, and would not necessarily have been arrested faster by an outside force rather than the Serbian police. A large number of states have been pouring resources in to capturing the Lord’s Resistance Army fugitives such as Joseph Kony – if they cannot do capture him, there is no reason to believe that an ICC Police would be able to. Recently the Ugandan Army has been willing to cross borders to chase Kony, so far with little to show for it.[1]

[1] Van Woudenberg, Anneke, ‘How to Catch Joseph Kony’, Human Rights Watch, 9 March 2012, http://www.hrw.org/news/2012/03/09/how-catch-joseph-kony

Eight out of the thirty people indicted by the ICC (four in the Darfur situation, including Omar al-Bashir, three Lord’s Resistance Army leaders in Uganda and one in the DR Congo investigation) are still alive and avoiding justice. An in-house enforcement arm would be more effective at capturing indictees than many of the forces of the state parties, as it is likely to be more competent than many of the under-resourced or under-trained national forces. An in house force would be solely focused on capturing the wanted war criminals so would both be focusing resources and much less likely to be sidetracked by other priorities (many of which may be influenced by politics) than national forces. One of the suggested solutions to the failure to capture Joseph Kony and leaders of the LRA is to have greater involvement of peacekeepers; an ICC force would provide the same kind of help.[1]

[1] Van Woudenberg, Anneke, ‘How to Catch Joseph Kony’, Human Rights Watch, 9 March 2012, http://www.hrw.org/news/2012/03/09/how-catch-joseph-kony

An enforcement arm would still have finite resources. There is no guarantee that an ICC in-house enforcement system would arrest more suspects than the existing system of state bilateral co-operation. This is particularly the case in relation to the most thorny problems the ICC faces – how to catch those who have the backing of their state. An independent force would not enable the ICC to snatch Omar al-Bashir out of Sudan unless the proposal was to create a special forces style force and any such action would have large diplomatic repercussions.

To its critics, the ICC is an organization that can be mocked with Stalin’s dismissal of the influence of the Pope: “how many divisions does he have?”

An ICC capable of arresting its own fugitives would become a more credible organization, not only due to the show of competence through the arrests – it would lead to more trials, and more convictions, that would help contribute to the acceptance of the ICC as a serious court that is effective at bringing international criminals to justice. A legal institution needs to be effective to remain credible.[1] This would make countries much more likely to cooperate because the ICC would be doing more to help them by providing some of the necessary resources.

Henry Kissinger apparently said “Who do I call if I want to speak to Europe?” (he is not sure he said it) because there is no single European leader, and if the US wants political or military cooperation it calls the UK or France. In much the same way if countries need help apprehending and convicting someone they are much more likely to call in the ICC if it can actually help them catch the wanted person.[2]

[1] Perritt, Henry H., ‘Policing International Peace and Security: International Police Forces’, Chicago-Kent College of Law, March 1999, https://works.bepress.com/cgi/viewcontent.cgi?article=1023&context=henry_perritt p.293

[2] Sobczyk, Marcin, ‘Kissinger Still Lacks a Number to Call Europe’, The Wall Street Journal, 27 June 2012, http://blogs.wsj.com/emergingeurope/2012/06/27/kissinger-still-lacks-a-number-to-call-europe/

Just creating a force to bring suspects to trial would not necessarily be enough to make the ICC a more credible organization. That would have to come through more measures and building multilateral support in areas where situations have been referred to the council. This increase in credibility of the ICC also comes at the expense of the sovereignty of the states that call the ICC force in. Many nations would much prefer the current system where it is clearly solely within their purview to arrest criminals on their soil, creating a competitor with its own police force will be considered by many to be undermining their sovereignty so damaging not improving the chances of a state being willing to involve the ICC. 

To create an enforcement arm for the ICC would be to accept that state parties are incapable of enforcing decisions themselves, that is not necessarily the case. State parties have supplied the ICC with many of the defendants that it desires to face trial, including Bemba and the Gbagbos. Some, such as Uhuru Kenyatta have appeared voluntarily. The current system is working in many cases. While it does not in all, there are some that will be extremely difficult to capture by anyone.

An ICC police would be able to provide independent assistance to these states to aid those that do not have enough resources. The ICC has a poor track record of capturing suspects. This is not due to a lack of trying by the ICC – in some cases, it is due to the lack of trying of states such as those that have played host to Omar Al-Bashir. While individual states do, and should, have a role to play in enforcement, in some cases they are unwilling or unable to arrest suspects. Just as the ICC is there if a state is unable or unwilling to try an individual, they can have a role if they are unable or unwilling to arrest them.

In a climate where the ICC’s budget is determined exclusively by contentious negotiation between states (at a time where the ICC itself has threatened to close down investigations due to a lack of funds[1]), many of whom are undergoing austerity, an enforcement arm is not the best use of scarce funds when its role can be taken by the state parties. The ICC is already expensive enough – it cost over €100M in 2009.

[1] Nzau Musau, “Kenya: ICC Threatens to Drop cases for Lack of Funds”, The Star (Kenya), 2013, http://allafrica.com/stories/201307311473.html

What price justice? The ICC has been supported by a large number of states who accept that, while it does cost money, the ICC is the only effective way to bring war criminals and those who commit crimes against humanity to trial, provide them with a fair trial and sentence them appropriately. If that is the goal, states should be willing to finance means towards it. While the ICC’s existing budget of over €100M is substantial, it is dwarfed by, for example, the £4bn budget of London’s Metropolitan Police. In such context €100M is not a large amount to pay to bring international criminals to justice. The people the ICC pursue often engage in widespread destruction, apprehending them quickly may actually save rather than cost money by preventing such damage.

Currently the ICC functions based on a relationship of trust and understanding with the state parties to the ICC – a bottom-up rather than a top-down approach. This is backed up by the court’s respect for the for the principle of complementarity – it is hoped that national courts are capable of prosecuting the crimes, and the ICC only takes a role if the state is unwilling or unable to do so. Being willing to use an international force to catch criminals would make a mockery of this determination to leave power and responsibilities at the national level wherever possible.

Having ICC forces on a country’s territory would be humiliating, showing that the international community does not trust that nation to catch war criminals itself. While this model did not provide for attempting to snatch government officials who have been indicted it does leave open the possibility of an international force intruding on states sovereignty without consent. This would diplomatically backfire and could even lead to an ICC force being involved in fighting with government forces protecting their national sovereignty.

Those arguments are similar ones to those used against the ICC. An ICC police force, comprised of officers from individual state and supervised by an independent authority appointed by a similar mechanism to the judges, would use the existing frameworks in place for the use of the ICC. If states are happy to have their nationals indicted for international crimes then it stands to reason that these nations should welcome a force that can enforce such indictments and bring these war criminals to trial. 

There are good reasons for why an ICC enforcement arm would be ineffective on its own. It may have all the necessary equipment and training but it would be a foreign force, that may or may not be seen as legitimate, attempting to arrest a native of that country. The result would be resentment in the community at the intrusion. This regularly occurs to national police forces when policing in minority areas. In London the Brixton race riots were seen by one inquiry as “essentially an outburst of anger and resentment by young black people against the police” as the police did not represent them.[1] The result with the ICC as elsewhere would likely to at the least be a lack of cooperation, and with most of the force unable to speak the native language altering perceptions would be difficult. Such a force may bring even fewer results than using local forces and would provide a scapegoat for local politicians.[2]

[1] Bowling, Ben, and Phillips, Coretta, ‘Policing ethnic minority communities’, LSE Research Online, 2003, http://eprints.lse.ac.uk/9576/1/Policing_ethnic_minority_communities_%28LSERO%29.pdf p.4

[2] Perritt, Henry H., ‘Policing International Peace and Security: International Police Forces’, Chicago-Kent College of Law, March 1999, https://works.bepress.com/cgi/viewcontent.cgi?article=1023&context=henry_perritt p.294

Apart from the visibility due to the diversity of the force the ICC force may well be very similar to national forces in this regard. Often a problem with arresting wanted international criminals is their support in the community – that they have often been claiming to be fighting for. The national government’s enforcement arm may be as unwelcome as the ICC. In such circumstances the ICC at least has the advantage of being a new quantity with a blank slate rather than being known for any excesses, human rights violations or bribery. The ICC force will be able to treat the local populace fairly and win their trust.