Some Reflections on Securing the Arrest of ICC Fugitives

Abstract

The importance of the arrest of the accused at the behest of an international criminal tribunal and its Prosecutor can hardly be overstated. As Gavin Ruxton, Legal Advisor at the icty Office of the Prosecutor (otp), has observed: “The arrest process lies at the very heart of the criminal justice process: unless the accused are taken into custody, we will have no trials; no development of the law by the courts; and ultimately, no international justice.” 2 Since the statutes of the tribunals prohibit trials in absentia (with the notable exception of the Special Tribunal for Lebanon), 3 without the presence of the accused, international tribunals cannot mete out justice, cannot establish a historical record, and thus cannot complete their mandate. 4 Compliance with requests for arrest and surrender is essentially tied to state political willingness and international political pressure. This renders arrest selective—and inevitably casts a shadow over the universal, blind justice which the tribunals are supposed to administer. 5 Adequate awareness of the political environment and access to reliable sources of information (for example, by the otp’s own tracking teams), are crucial to the success of the otp’s arrest mission. When it comes to arrest, in fact, the Prosecutor ought to be a clever political operator rather than a stellar lawyer. 6 In this brief note, I will reflect on three issues: (1) the challenge of securing state cooperation; (2) the wisdom of issuing sealed arrest warrants; and (3) the support of international troops. The focus lies on arrest warrants issued by the International Criminal Court.