Apprehending War Criminals:Does International Cooperation Work?

INTRODUCTIONCorralling high level accused war criminals into the dock has turned out to be a persistent problem for international criminal courts. Unlike the Nuremberg defendants in 1945, secured in Allied hands, this generation of accused perpetrators are typically not in custody at the time they are indicted and indeed may be still performing important official duties for their countries, including acting as Heads of State or engaged in leading opposition forces seeking to unseat the country's government. Even when out of power, former civilian and military leaders accused of war crimes may be in hiding, protected by powerful political or military forces within the State. In such situations, the task of producing the accused for trial in an international court can pose insurmountable problems for the international court, which has no police force of its own to execute its orders and must depend on the cooperation of independent sovereign states to gain custody. The record of the United Nations-sponsored ad hoc and hybrid courts and of the treaty-based International Criminal Court ("ICC") in securing expeditious custody of their most notorious defendants has been uneven, threatening in some cases to overshadow and taint generally favorable scorecards as to total numbers of accused successfully processed., This article seeks to assess the success of international cooperation in apprehending international war crime defendants, the causes of any deficit, and some suggestions for progress.A. THE RECORD OF INTERNATIONAL AND HYBRID COURTS IN APPREHENDING DEFENDANTSThe enabling statutes of some international courts1 specifically instruct the courts to prosecute on a priority basis those "most responsible" for the most serious war crimes, crimes against humanity, and genocide.2 In virtually all cases, the Chief Prosecutors have publicly adopted the "most responsible" criteria as their prosecutorial priority.3 Certainly, the success of the tribunals is commonly judged by the media and by expert commentators in terms of their ability to bring the highest- ranking perpetrators, Heads of State, army chiefs, and ministers into custody.4 Yet, this top echelon of war criminals is invariably the hardest to secure, and even successful efforts often come many years after indictment or issuance of an arrest warrant. Despite a commendable record of eventually accounting, in some official manner, for all 161 of its indictees, the International Criminal Tribunal for the former Yugoslavia ("ICTY") took an excruciatingly long time after indictment to obtain custody of its three most prominent defendants: Slobodan Milosevic, former President of Yugoslavia and Serbia (five years); Radovan Karadzic, Bosnian Serb President (thirteen years); and Radko Mladic, head of the Bosnian Serb Army (sixteen years).5 In Northern Sudan (Darfur), arrest warrants issued by the ICC against President Al Bashir, for genocide and crimes against humanity, and his minister Ahmad Harun, for crimes against humanity, have been outstanding since 2009 and 2007, respectively.6 This is despite the fact that the Darfur referral to the ICC came from the United Nations Security Council and was followed by a report from the ICC to the Council of noncooperation by Sudan, as well as numerous entreaties from ICC Chief Prosecutor Luis Moreno-Ocampo to the Council to bring pressure on the Government of Sudan to hand the over the subjects of the warrants.7 The more recent unanimous referral of the Libya situation to the ICC by the same Security Council, and the ICC's issuance of warrants for Muammar Qaddafi, his son, and the head of Libyan intelligence8 discussed later in this article, raised similar questions of how their apprehension was to be achieved.Supporters of international courts argue that indictments and warrants, even if incapable of execution in the accused's home country, still carry significant deterrent value because the accused may be inhibited from travelling far from home, lest he be arrested by another country's police pursuant to treaty, United Nations obligation, or universal jurisdiction. …