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CHAPTER SIX The Promotion of International Criminal Law Evaluating the International Criminal Court and the Apprehension of Indictees LILIAN A. BARRIA AND STEVEN D. ROPER Although much has been written about the formation of the International Criminal Court (ICC),1 the court’s relationship with the United States,2 and the Rome Statute,3 less attention has been focused on issues of state cooperation and the apprehension of indictees. In order to understand the legal basis and the actual power of the ICC to secure the arrest of indictees, this chapter considers some of the legal and the political issues associated with apprehension in international criminal cases. We examine some of the issues related to the arrest of indictees in the ad hoc tribunals to draw general lessons regarding when international criminal tribunals are more effective in arresting suspects. In addition, we examine the Rome Statute and the ICC’s Rules of Procedure and Evidence to identify the different types of referrals, the role and the powers of the Office of the Prosecutor (OTP), and the different categories of crime. From these, we develop a classification of the issues with the greatest influence on the ability of the ICC to arrest indictees, and we apply this inventory to a study of the four ongoing African cases at the ICC exploring the political environment in which these legal principles operate. We conclude by comparing the four cases to determine patterns of state cooperation and ICC behavior. 101 102 GLOBALIZING JUSTICE DRAWING LESSONS FROM THE AD HOC TRIBUNALS The history and the development of the ICC and the ad hoc tribunals are intertwined. Between 1994 and 1998, the historical lessons and practical issues associated with the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) provided a backdrop for the various discussions about the creation of the ICC. During the diplomatic conference in Rome in 1998, one of the key concerns was the relationship of the ICC to states and the obligations that states would have to the court vis-à-vis their own citizens and citizens of other states.4 For many, one of the lessons learned from the experiences of the ICTY and the ICTR was that the noncompliance of states, particularly in the failure to surrender indictees, greatly undermines the effectiveness of tribunals. Indeed, there were two distinct periods involving the ability of the ad hoc tribunals to apprehend suspects.5 During the first period, from the mid- to late 1990s, both tribunals, especially the ICTY, were ineffective in apprehending suspects.6 Most of those who were tried at the ICTY prior to 2000 were lower-rank indictees who were politically easier for states to surrender. In the second period, since the early 2000s, the tribunals have been much more successful in apprehending suspects. There are two reasons for this change. First, the use of military assets gave the tribunal coercive power to detain suspects. In Bosnia and Herzegovina (BiH), those who did not voluntarily surrender were subject to capture by the North Atlantic Treaty Organization-led Stabilization Force (SFOR). One of the lessons for the ICC from these early years of the ICTY is that the assistance from a military force with quasi-police power can greatly assist in the apprehension of suspects. The success in arresting suspects in BiH compares favorably against the experience in apprehending suspects in Croatia and Serbia. In the case of these countries, state cooperation was more fundamental because of a lack of a military presence. For years, the ICTY was hampered in its efforts to obtain suspects from these two states. During the last few years, both states, however, have cooperated much more with the ICTY, leading to the important arrest of former Croatian general Ante Gotovina in December 2005. The reason for this change has been attributed to the insistence of European Union (EU) officials that accession talks with both states would move forward only after fugitives like Ratko Mladić and Radovan Karadžić were arrested. By July 2006, Serbian officials announced an “action plan” designed to actively assist in the arrest of Mladić. During the last two years, EU pressure and the promise of eventual membership have been instrumental in assisting the ICTY in the arrest and the surrender of high-ranking indictees.7 However, Gallarotti and Preis note that arresting so-called “big fish” in the mid- to late 1990s would have undermined the peace process in the...

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