Proposal for an International Criminal Court Arrest Procedures Protocol

¶1 The International Criminal Court continues to face the challenge of apprehending or facilitating the surrender of indicted fugitives. At the end of April 2014, ten indicted individuals remained at large and two indicted individuals were in domestic custody in Libya.1 While Part 9 of the Rome Statute of the International Criminal Court requires all States Parties to cooperate in the investigation of suspects and the capture and arrest of indicted fugitives on their respective territories,2 there have arisen circumstances where indicted individuals have remained at large for relatively long periods of time even when their presence on a State Party's territory is generally known or suspected.3 Some of the indicted fugitives are men of great power, such as President Omar Hassan Ahmad Al Bashir of Sudan,4 who have the means to shield themselves behind their country's non- party status under the Rome Statute and by the absence of effective Security Council enforcement action to compel the surrender of such high-level officials.5 Other indicted fugitives have the advantage of stealth and escape into the forested environs of central Africa, as well as associates who facilitate their avoidance of arrest.6 Joseph Kony and his indicted colleagues in the Lord's Resistance Army7 have evaded arrest despite the active pursuit of the Ugandan military accompanied by U.S. military advisers.8¶2 Northwestern University School of Law, with the generous support of the Open Society Justice Initiative, convened a set of closed-door meetings in the Office of the Prosecutor of the International Criminal Court in November 2011 to discuss a wide range of issues pertaining to government cooperation on surrenders and arrest capabilities and tactics. One of the prospects for further consideration raised at the meetings was the creation of some kind of special operations unit that could be deployed relatively quickly into the territory of consenting Parties to the Protocol ("Protocol Parties") for the purpose of professionally tracking and apprehending, or facilitating the surrender of, any indicted fugitive on the territory of that Protocol Party.¶3 Having previously written general thoughts on this issue,9 I have drafted the "International Criminal Court Arrest Procedures Protocol" set forth below, with commentary following each article of the Protocol, in an effort to present at least one detailed approach to the challenge for relevant parties and scholars to consider in the near future.10INTERNATIONAL CRIMINAL COURT ARREST PROCEDURES PROTOCOLPreamble¶4 The Parties to this Protocol,¶5¶6 Affirming the obligation of States Parties to the Rome Statute of the International Criminal Court to comply with requests for arrest and surrender of indicted fugitives in accordance with Part 9 of the Rome Statute and with the procedures under their respective national laws,¶7¶8 Emphasizing the importance of achieving the arrest or surrender of indicted fugitives of the International Criminal Court as quickly as possible so as to advance the cause of international justice and to defeat impunity for the commission of atrocity crimes within the jurisdiction of the International Criminal Court,¶9¶10 Recognizing that a State may not possess or find opportunity to exercise the requisite capabilities in particular circumstances to successfully undertake the arrest or surrender of indicted fugitives of the International Criminal Court believed to be on the territory of such State,¶11¶12 Determined to ensure that custody of indicted fugitives is accomplished forthrightly so that their right to be tried without undue delay before the International Criminal Court can be enforced or, in the alternative, the procedures for national prosecution and trial can be followed in a timely manner pursuant to principles of admissibility under the Rome Statute,¶13¶14 Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the Purposes of the United Nations,¶15¶16 Emphasizing in this connection that nothing in this Protocol shall be taken as authorizing any Party to this Protocol to intervene in an armed conflict or in the internal affairs of any State,¶17¶18 Determined to provide the means, with the consent of the State in question, to track and arrest or arrange the surrender of indicted fugitives and their transport to the International Criminal Court to stand trial or, in the event it is determined under the Rome Statute that national prosecution shall proceed, to the appropriate national authorities,¶19¶20 Resolved to respect fully the sovereign authority of any State upon which territory the personnel provided pursuant to this Protocol are invited by such State to operate in order to track and achieve the custody of indicted fugitives of the International Criminal Court,¶21¶22 Have agreed as follows:Commentary:¶23 The Preamble sets forth the parameters of the dilemma, the aspirations of the States Parties of the International Criminal Court, and the determination to provide the means to track and arrest or arrange the surrender of the indicted fugitives. …