This article will examine the problematical area of international criminals accused of serious crimes and avoiding arrest. In turn, it cast serious doubts about the effectiveness of the international criminal justice system. It proposes creating a UN Special Task Force that would operate globally to arrest international fugitives. The model would derive from UN Chapter VII powers and Article 29 (subsidiary organs).
Section 1 will discuss the basic structure of international criminal justice and problems that arise when suspects like Omar al-Bashir brazenly defy ICC arrest warrants. Section 2 will examine the legal basis for enforcing warrants against non-cooperative States, along with the legal basis for creating a Special Task Force to arrest international fugitives accused of serious crimes. Section 3 will lay out the structure and capability of a Special Task Force and also provide a hypothetical example of a mission to capture an international criminal. Section 4 addresses the issue of conflict classification when the Special Task Force is operating in a conflict region or outside of armed conflict. It also explores how Art. 25 of the UN Charter could provide the jurisdictional basis for an overlapping law enforcement function when a UN Member refuses to surrender an international criminal. Lastly, section 5 concludes with a discussion on the ramifications of not adopting a Special Task Force in an era of increasing global conflicts, violence and serious crimes.
I. Basic Structure of International Criminal Justice
A. UN tribunals and the International Criminal Court
International Criminal Law (ICL) concerns the most serious crimes under international law, such as war crimes, crimes against humanity, genocide and aggression.1 The two main enforcement mechanisms are through UN international criminal tribunals created under the Security Council’s Chapter VII powers, e.g., the ICTY and ICTR.2 Next is the International Criminal Court that came into force in 2002 under the Rome Statute.3
Because UN tribunals are the result of restoring international peace and security in conflict regions, those tribunals place coercive obligations on all UN members in accordance with Art. 25 of the UN Charter, in that, those members must “accept and comply” with UN decisions. When a State fails to comply with a UN resolution it can trigger a wide range of measures from complete or partial interruption of economic relations, to severance of diplomatic relations,4 or even the use of force to restore peace and security.5
By contrast, the International Criminal Court is contingent upon the cooperation of State Parties to the Rome Statute, which extends to surrendering those persons charged with serious crimes under the Rome Statute.6 States that have not entered into an agreement to be bound by the Rome Statute however fall outside the control of the Court, therefore, they cannot be coerced into surrendering their nationals, nor are they obligated to cooperate with the Court, unless, however, a non-party State has consented to the jurisdiction on an ad hoc basis.7
While treaty based institutions like the ICC have the advantage of attracting a wide variety State participants, its main disadvantage is its lack of adequate enforcement mechanisms against non-party States. In addition, many of the largest nations are not a party to the ICC.8
Apart from UN created tribunals and the ICC, there are also consensual hybrid tribunals such as the Special Tribunal for Sierra Leone (STSL), and the Extraordinary Chambers in the Courts of Cambodia (ECCC).
Nonetheless, the basic structure for international criminal justice is ad hoc tribunals created by the UN under Chapter VII – or treaty based systems like the ICC.
B. Inadequate Enforcement Mechanisms
There is an exception to treaty based tribunals like the ICC in that when a situation is referred by the UN to the ICC – known as a 13(b) referral9 – it places coercive obligations on non-party States to the extent that while a State may have not agreed to be a party to the Rome Treaty and not be bound by its Articles, almost every State is a member of the UN, therefore, such a State is bound to accept and comply with UN resolutions.10
Despite the nature of a UN 13(b) referral, without effective enforcement mechanisms, it is almost impossible to arrest a person accused of serious crimes when the State in which the accused is found refuses to cooperate and surrender them to the ICC. Other problem areas are when a State is not a party to the ICC, there can be no informal surrender of its nationals absent a valid extradition treaty.
Moreover, treaties (along with extradition treaties) are a function between States and not international organizations.11 In that regard, the only existing treaty convention between states and international organizations has not yet come into force, since it has not been ratified by the requisite thirty-five number of States.12
The ICC case against Omar al-Bashir is an example of a UN referral under Art. 13(b) of the Rome Statute, demonstrating the ineffective means of enforcing an ICC arrest warrant, even when it stems from a UN resolution.13
The Bashir case is further complicated by South Africa being a State Party to the ICC, yet failing
to arrest and surrender Bashir to the ICC.14 Furthermore, South Africa claims there is an existing agreement with the African Union to grant immunity to African officials. That immunity arises under South Africa’s Diplomatic Immunities and Privileges Act, wherein a head of state is considered immune from the criminal and civil jurisdiction in accordance with the rules of customary international law.15
But under South Africa’s Constitution, “[c]ustomary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.”16 Here, the granting of immunity to Omar al-Bashir is inconsistent with South Africa’s Constitution because: 1), an international agreement is binding on the Republic (s. 231 Const.) with the Rome Treaty constituting such an agreement; and 2) in 2002, South Africa’s Parliament enacted into legislation the Rome Treaty making genocide, crimes against humanity and war crimes punishable under South African law.17
For those reasons, immunity under customary international law is entirely inconsistent with South Africa’s Constitution and an Act of Parliament, thus immunity cannot be valid on its face, since both the Constitution and Parliament place a greater interest in bringing Bashir to justice, over that of granting him immunity for serious crimes.
It is further reflected in the Preamble to the Implementation of the Rome Statute, declaring “the Republic of South Africa is committed to – bringing persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible, pursuant to its international obligations.”
Accordingly, despite the nature of the UN referral to the ICC culminating in an arrest warrant being issued for Bashir, neither the ICC nor UN tribunals have in place effective enforcement mechanisms. In the next section, we will look at legal methods on enforcing a warrant against an international criminal target.
II. Legal Basis For Enforcing Arrest Warrants Against Non-Cooperative States
A. UN Security Council Resolutions Are Controlling
When the UN refers a situation to the ICC it provides the impetus to enforce an arrest warrant
against all UN members. That basis is found under Article 25 of the UN Charter in which all members must accept and comply with UN resolutions. The obligation arises by virtue of the implied consent each State has given to be bound by the conditions of the UN Charter.
And, under Article 103 of the UN Charter, when a State’s obligations under an international agreement conflicts with a member’s obligations under the UN Charter, the Charter prevails.18 For example, in the Lockerbie case, two Libyan suspects were wanted in connection with an aircraft that exploded in Scotland, which involved the deaths of Americans.
Libya refused to grant extradition claiming it was an interference with its internal affairs. It relied on Art. 7 of The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (rule of aut dedere judicare) as the controlling authority in which to prosecute its own nationals in the absence of an extradition treaty, despite the U.S. and UK demands for the surrender of the two Libyan suspects.
The matter was then presented before the UN Security Council and General Assembly resulting in two resolutions: Res. 731, urging Libya to comply with the requests of the U.S. and UK; and Res. 748, imposing sanctions. The matter also progressed before the International Court of Justice seeking provisional measures to stop the U.S. and UK from taking any action to coerce Libya to handing over the two suspects.
The Court held that under Article 25 of the UN Charter members must comply with resolutions; and that under Article 103, a UN resolution takes precedence over any other international agreement.19
Although international courts do not generally follow the common law doctrine of stare decisis, in which decisions are binding on other courts, nevertheless, if we were to apply the Lockerbie holding to South Africa’s claim of a binding international agreement with the African Union, as regards granting immunity to African officials, such an agreement would be invalid under Article 103, and UN resolution 1593 (culminating in an arrest warrant being issued by the ICC for Omar al-Bashir) would prevail, because UN members must comply with resolutions.
Accordingly, Article 103 is controlling authority that binds all UN members, irrespective of any international agreement a State may have entered into.
B. UN Subsidiary Organs and the Creation of a Special Task Force.
Under Article 29 of the UN Charter, the UN Security Council has been given wide latitude to establish such subsidiary organs as it deems necessary for the performance of its functions.20 Inter alia, some of those subsidiary organs are expressed in the form of international criminal tribunals like ICTR and ICTY.
In the context of international enforcement of arrest warrants, the UN Security Council has the power to create a Special Task Force under Article 29 that would be tasked with arresting those accused of serious crimes, presumably, in States refusing to cooperate with a UN resolution extending to arrest. Because arrest falls outside the sphere of armed conflict, the types of operations conducted by the Special Task Force would fit into what the author describes as “Global Operations Other Than War” (GOOTW).
Ideally, GOOTW would entail placing the Special Task Force under the UN Code of Conduct for Law Enforcement Officials, where its official mandate would be limited to arrest and to only use lethal force when strictly necessary.21 However, because international criminal targets are often located in conflict regions where members of the military are involved in protecting them, the Special Task Force would draw from candidates with specialized combat arms training, primarily among the infantry ranks.
Essentially, the Special Task Force would be an all voluntary force drawn from NATO militaries around the world. Furthermore, NATO forces have been involved in arresting war criminals in the former Yugoslavia; therefore, it brings extensive operational experience from a variety of regions.
In short, the UN Security Council acting under Chapter VII and Article 29 would create a viable enforcement unit in connection with all UN referrals to the ICC pursuant to the Rome Statute. In instances of non-UN referrals, the ICC could contract with the Special Task Force.22 Further, as a subsidiary organ of the UN, the Special Task Force would not be in conflict with Art. 2(4) of the UN Charter, since it applies only to States and not organizations, hence, STF enforcement actions would not be deemed a use of force against the territorial integrity of any State.
III. Structure and Capability of the Special Task Force
A. Selected Candidates Would Have Specialized Training
The Special Task Force would comprise candidates selected from branches within NATO who are already trained in advanced infantry tactics. Ideally, it would draw volunteers from counterterrorist units who are also trained in close protection and evacuating diplomats in a foreign territory during a crisis, as they would be ideally suited for the task.
STF operations would focus on stealth and would be best categorized as clandestine missions, when States have refused to surrender an international criminal suspect. It would require an independent tactical air wing to insert and extract the STF unit in any region of the world. The STF would initially comprise 12 to 24 personnel operating on a rotational basis for six month periods. This rotational model would ensure the unit is infused with new personnel, in which departing operators would return to their home military units.
Intelligence gathering and aerial reconnaissance would be supported by Unmanned Aerial Vehicles also known as drones. The use of UAVs in UN Peacekeeping is not new, as the UN announced it would utilize them for surveillance in the Democratic Republic of Congo.23
The unique nature of Special Task Force’s role would likely draw in many top notch military candidates from around the globe with the aim of maintaining peace and security in war torn regions where international criminals have long since evaded justice. It would also go a long way in restoring the tainted image of the International Criminal Court, since trials in absentia are not permitted and require the presence of the accused.24
Therefore, for every person accused of a serious crime that avoids arrest is justice delayed and denied for the victims of those crimes along with surviving family members.
B. Hypothetical Mission Illustrating the Effectiveness of Special Task Force.
Using the ICC al-Bashir case as a hypothetical example, this section will illustrate the effectiveness of the Special Task Force.
Intelligence has ascertained Omar al-Bashir will be traveling to an event where members of his protective detail will be providing close protection. Pre-mission plans involve members of STF infiltrating a remote area in close proximity to the Bashir event. This area will be used as a staging base to the target area, so STF can position itself as close to the event as possible, in order to intercept Bashir.
After an area assessment is performed of the remote staging base, the STF will run through some practice drills to rehearse the time it takes to depart from the staging base and arrive at the target area, so the interception of Bashir is perfectly timed. These practice drills will be performed in a friendly area using helicopters.
On executing the actual mission, Special Task Force will be inserting by helicopter to the remote staging base undetected using electronic countermeasures to jam the non-cooperative’s State’s security and detection systems. Drones have been tracking Bashir’s movements at the event to determine accessibility, so when Bashir exits the event, the information will be immediately relayed to the Special Task Force, who will intercept Bashir before he reaches the convoy.
Two components of Special Task Force will handle the convoy and Bashir protective detail. The third component will provide a security perimeter for the mission, and the fourth component will place a helicopter in the air with an STF sniper.
As Bashir approaches the convoy, Special Task Force inserts by helicopter, while two members of the Bashir protective detail immediately engage STF personnel, who quickly return fire and neutralize the two targets. Bashir is then handcuffed, injected with a sedative and placed on a helicopter for extraction. The STF then moves out of the target area to a friendly region, where Bashir is dropped off and bound for The Hague.
The post mission debriefing determined the Special Task Force only used lethal force when they were fired upon by the Bashir protective detail. The unit’s actions were in accordance with Art. 3 of the Code of Conduct for Law Enforcement Officials, stating, “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.
Accordingly, an effective international enforcement mechanism would go a long way in diminishing the negative perception of international criminal justice.
IV. Conflict Classification and the Role of Special Task Force
A. Dual IHR and HRL Applications
When the Special Task Force is acting outside of armed conflict, it would be operating within the sphere of human rights law. But what happens when it targets a criminal for arrest in a conflict region?25
In order to determine if international humanitarian law (IHL)26 is triggered is whether the rules governing international or non-international conflicts apply. In the Tadic decision, the Court concluded:
[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.27
Using a dual international humanitarian law and human rights law model (IHL/HRL), if, for example, the Special Task Force was operating outside of armed conflict, human rights law would apply. However, when an international suspect is residing in an armed conflict area or otherwise is protected by members of the military, including other variants, IHL would apply.
However, in situations deemed non-international armed conflicts (NIAC), that is, situations not triggering IHL, such as domestic riots and random acts of violence, depending on the situation it could trigger Common Article 328 protections – or the heightened requirements of Protocol II.29.
While theoretically, the UN is not a high contracting party in the traditional sense of armed conflict, nevertheless, a UN organ consisting of a Special Task Force would be bound by ROE when arresting an international criminal located in a conflict area. But when operating outside of armed conflict, the STF would be bound by HR norms. In those circumstances, a use of force continuum used by domestic law enforcement agencies could be adopted.
B. Implied Consent as an Overlapping Jurisdictional Basis for Law Enforcement Functions
When a State is a member of the UN and fails to surrender an international criminal suspect stemming from a UN resolution a situation arises wherein by virtue of its membership it must comply with UN Security Council decisions under Art. 25. In effect, a State’s implied consent to be bound by those decisions would logically extend to arresting an international criminal located within its borders, where absent that State’s cooperation to arrest, would create an overlapping jurisdictional basis for STF law enforcement functions, at which point it would intervene.
The basis for this overlapping jurisdictional basis can be traced to joint police and cross border operations, where police officers from State A might participate in domestic police operations in State B with its consent. Generally, those types of operations involve placing the foreign State’s police officers under the control of the home State, where the operation is carried out.
If we apply this situation in the context of a non-cooperative State refusing to arrest an international suspect stemming from a UN resolution, the implied consent to be bound by Security Council decisions under Art. 25 would nevertheless operate as an overlapping jurisdictional basis – absent the participation of the non-cooperative State’s domestic law enforcement – because of its refusal to arrest the suspect. Therefore, the Special Task Force would be acting unilaterally to execute the arrest of the fugitive.
In those limited situations, the intervention into a non-cooperative UN member State could be viewed as a temporary suspension of the sovereign territory continuum, which would collapse during the actual STF intervention, and contract to its principle sovereign state on execution of the arrest; thus, minimizing the intrusion into that State’s domestic affairs pertaining to law enforcement functions.
As such, an overlapping jurisdictional basis for STF law enforcement functions would be in conformity with Articles 1, 25 and 103 of the UN Charter.
To date, the International Criminal Court has issued 28 warrants for persons accused of committing serious crimes. Many of them however remain fugitives.30
If domestic criminal justice systems operated without any law enforcement mechanism to arrest suspects, there would be few criminal trials, much less any sentences. In the case of al- Bashir, he has brazenly made a mockery of international justice while attending public events in defiance of the serious crimes he has been charged with.
Investigating crimes committed in a non-cooperative State’s jurisdiction is plagued with problems. Without a means to enforce a warrant, the likelihood of bringing those accused of serious crimes to justice borders on wishful thinking. Yet it does not have to be this way, since the UN Security Council has the power to create a responsive and tactical Special Task Force to enforce international criminal law.
The ICC’s present method of enforcement is built on soft power dependent on a State’s cooperation. But for those States that are not parties to the ICC, they have no obligation to surrender an accused.
In 1993, the UN Security Council authorized arresting and detaining Somali militiamen for attacks directed against UN personnel. Therefore, a mandate for international enforcement is certainly within the reach of the UN Security Council and would ensure criminals like al-Bashir are brought to justice.
It is time for all UN members to step up to the responsibility of international law enforcement, because it goes to the very heart of restoring and maintaining international peace and security, which absent such enforcement leaves the door wide open for criminals like al-Bashir to move about freely, while making a mockery of the notion of international criminal justice.
Every UN member owes it to their citizens to endorse such an enforcement model, as to continue to ignore the issue is a travesty for all victims of serious crimes.
The Special Task Force represents a cutting edge unit capable of inserting into any conflict region of the world. It is exactly what is needed in an era where war crimes, genocide and crimes against humanity are rapidly taking root across the globe.
1 See generally, Preamble of Rome Statute affirming “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.” And Article 5 of the Rome Statute covers crimes within the jurisdiction of the International Criminal Court, such as, (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; and (d) the crime of aggression (not yet in force).
2 International Criminal Tribunal for Yugoslavia and International Criminal Tribunal for Rwanda.
3 The ICC is a treaty based international criminal court contingent upon a State’s consent. However, non-party States have no obligation to surrender nationals accused of crimes, as treaties generally only purport to bind a State when it has ratified the treaty.
4 Art. 41 of the UN Charter stating, “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”
5 Art. 42.
6 See Rome Statute Art 86 (General Obligation to Cooperate) and Art. 89 (Surrender of persons to the Court).
7 Art. 12(3) stating, “If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.”
8 United States, China, India, Russia, Saudi Arabia, Turkey have not ratified the Rome Treaty and are therefore not bound by its Articles.
9 Art. 13(b) of the Rome Statute.
10 Art. 25 of the UN Charter stating, “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
11 Art. 2(1) Vienna Convention on the Law of Treaties 1969 stating, “For the purposes of the present Convention:
(a) ‘treaty’ means an international agreement concluded between States in written form and governed by international law.”
12 The Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations (Art. 85 – “The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession by States or by Namibia, represented by the United Nations Council for Namibia.”).
13 See UN Resolution 1593 referring the atrocities committed in Dafur to the ICC, in which an arrest warrant was issued against Sudanese leader Omar al-Bashir in 2009.
14 Art. 89(1) Rome Statute stating, “States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.”
15 Section 4(1).
16 Section 232, Constitution of the Republic of South Africa.
17 See South Africa’s Implementation of the Rome Statute of the International Criminal Court Act, Schedule 1, Parts 1, 2 & 3.
18 The term “international agreements” has been construed broadly by courts. For example, in Nicaragua the ICJ concluded that “all regional, bilateral, and even multilateral, arrangements” that parties may have made “must be made always subject to the provisions of Article 103.” See Nicaragua v. USA (Jurisdiction and Admissibility)  ICJ Rep 392, para. 107. [hereinafter Nicaragua]
19 Libya v. United States 1992 I.C.J. Rep. 114 (April 14) at para. 42.
20 Art. 29 states, “The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.”
21 See Art. 3 stating, “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.”
22 There is nothing under the Rome Statute preventing the ICC or OTP to contract with other organizations, including major police agencies specializing in complex investigations, such as, the FBI, Scotland Yard, RCMP, Interpol, among others.
23 See Herve Ladsous, Under-Secretary-General, Department of Peacekeeping Operations, Press Conference dated February 6, 2013 (stating “I would mention the deployment of Unmanned Aerial Vehicles for surveillance purpose in the Kivus, which was given an okay by the Security Council and that certainly will improve our situational awareness and I am sure will exert some deterrent over all those people who move around with bad intentions in that particular area.”), available at https://www.un.org/en/peacekeeping/articles/USG%20Ladsous.PC.transcript.060213.final.rtf.pdf>.
24 Art. 63(1) of the Rome Statute stating, “The accused shall be present during the trial.” The word “shall” makes this condition mandatory. Cf. to the Special Tribunal for Lebanon where trials in absentia are permitted under the Lebanese judicial system.
25. Raymond De Goijer is an international human rights lawyer based in the Netherlands. This section draws from his suggestion of a dual IHR and HRL model, so when the Special Task Force is operating in a conflict region, Rules of Engagement would be observed by separating combatants from non-combatants. But when STF is operating outside of armed conflict, human rights norms would be observed.
26. International humanitarian law is a set of rules that regulates armed conflict while separating combatants from non-combatants.
27. Prosecutor v. Tadic, Case No. IT-94-1 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 70 (October 2, 1995).
28. Covers conflicts between those groups competing for power within a State when the government is not a party or has ceased to exist, or in civil wars where rebel forces do not exercise territorial control or do not have a formal command structure.
29. Applies to a conflict between a State’s armed forces and rebels or dissident factions with the borders of that State.
30. Omar al-Bashir; Joseph Kony; Vincette Otti; Ahmed Haroun; Ali Kushayb; Abdel Rahim Hussein; Sylvestre Mudacumura; Walter Borasa; Okot Odhiambo (believed to have died); and Raska Lukwiya (died in 2006).
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