DISINCLINATION OF ENFORCEMENT OF INTERNATIONAL ARREST WARRANTS

Introduction

The enforcement and policing of international arrest warrants present enduring challenges for legal practitioners, constituting a complex element of public international law. The intricacies involved arise from allegations of severe criminal conduct, including genocide and crimes against humanity, as delineated in international instruments such as the Rome Statute. The International Criminal Court (ICC) has issued numerous international warrants of arrest, and analyzing their enforcement is critical for understanding the efficacy of such warrants and the reasons member states often fail to execute them fully.

A comprehensive examination of the obstacles to the implementation of these warrants is essential for addressing the ICC's mandate to prosecute genocide and other grave offences. It is important to note that international warrants extend beyond the ICC, encompassing those issued by other international judicial bodies, including the European Union, as well as those arising from collaborative frameworks addressing narcotics, human rights violations, and other serious crimes.

Since its inception in July 2002, the ICC has encountered significant challenges regarding warrant enforcement. Efforts to address these challenges have often proven inadequate, hindered by political complexities and a lack of robust mechanisms enabling states to enforce such warrants within the international legal framework. This has resulted in a noticeable enforcement gap, undermining the ICC’s objective to eradicate international crimes. This analysis will focus on the ineffectiveness of warrant enforcement by states, specifically examining the reluctance or inability of states to act upon these warrants, which may stem from various political or contextual factors.

Treaty problem

International treaties are fundamentally based on the principle of state sovereignty. This principle, as enshrined in the United Nations Charter, prohibits any state from interfering with the sovereignty, political independence, or territorial integrity of another state through the use of force or threats. Consequently, it is solely within the purview of a sovereign state to consent to be bound by international treaties. Thus, a state that has not agreed to a treaty is not legally bound by its provisions. The Vienna Convention on the Law of Treaties delineates the complexities involved in treaty-making and the implications of treaty signature. In the context of the International Criminal Court (ICC), states that have not ratified the Rome Statute or any other relevant treaties are not subject to the obligations arising from those treaties. Accordingly, warrants issued by the ICC may be disregarded and remain unenforced by such non-ratifying states[1].

Jurisdiction presents a significant challenge concerning international arrest warrants. For example, with respect to crimes of aggression, Article 15 of the Rome Statute confers jurisdiction upon the court over such offences. However, jurisdictional issues can complicate the enforcement of warrants. Article 15(4) stipulates that the court may exercise jurisdiction over crimes of aggression under Article 12, provided that the aggression in question is perpetrated by a state party unless that state has previously filed a declaration with the Registrar indicating its non-acceptance of such jurisdiction. This provision poses a potential obstacle, as a state may decline to comply with any arrest warrants related to acts it has declared to the Registrar. Consequently, the treaty itself introduces barriers that may lead states to be unwilling to enforce warrants issued by the ICC, despite their legal capacity to do so. [2]

In such circumstances, a state party to the Rome Statute has the option to declare its non-acceptance of the court’s jurisdiction over the crime of aggression. This provision in the treaty may significantly limit the court's jurisdiction and pose challenges to the enforcement of warrants issued by the court. The difficulties arise primarily from the ambiguity surrounding the definition of aggression and the complexities inherent in interpreting such a term, particularly when the alleged crimes involve prominent political leaders indicated by the court. As a result, the likelihood of prosecution diminishes; should a warrant be issued, its enforceability may be compromised, creating a chilling effect that extends to other warrants within the court's jurisdiction. Specifically, jurisdiction will only be established in cases where crimes of aggression are committed between state parties. Furthermore, if one of the parties involved in a dispute submits a declaration regarding jurisdiction, the ICC may be precluded from exercising its jurisdiction, rendering any associated warrants unenforceable.[3] This situation contributes to a reluctance among states to execute arrest warrants, as there may be a perception of differential treatment, and no state wishes to have its leaders or citizens implicated in proceedings before the ICC[4].

Additionally, given that not all nations are parties to the Rome Statute, the enforcement of warrants is limited to a smaller number of states, thereby hindering the court's ability to effectively pursue serious suspects, such as Omar al-Bashir. ?It is conclusive that many states can effect international arrest but they chose a path where they will not be required to by either not ratifying the treaty or ratifying a treaty with declarations which make enforcement and hence warrants ineffective[5].

Lack of cooperation between state parties and courts

The enforcement of international warrants is impeded by a lack of cooperation arising from the disinclination of nation-states. This issue is exemplified by comments made by ICTY Judge McDonald, who noted that arrest warrants issued by the courts are frequently disregarded[6]. International courts, including the ICC, rely heavily on the cooperation of states; without such cooperation and the enforcement of arrest warrants, these warrants are rendered ineffective. In this context, the ICTY issued over seventy-seven indictments, yet only ten suspects were ultimately arrested[7].

Despite the ICC's demonstrated successes and effectiveness over the past decades, its progress has often resembled a journey characterized by "two steps forward and three steps back." This phenomenon can largely be attributed to insufficient cooperation from states that are signatories to the Rome Statute[8]. While some states do cooperate with the ICC, this is not universally true across all cases. The lack of cooperation has proven to be a significant impediment to the ICC, particularly when warrants are issued but suspects have not been arrested. Although the treaty imposes an obligation for cooperation, many member states do not approach this obligation with the requisite seriousness[9]. The lack of cooperation frequently stems from various political interests rather than an inability or lack of capacity. While financial constraints are a concern, they often represent only a secondary issue that could be addressed through assistance from the United Nations in funding expensive investigations and prosecutions. This suggests that states requiring support in executing arrests and extraditing suspects can often receive help from international agencies, including the UN [10].

Under the Rome Statute, the obligation to cooperate is explicitly articulated in Article 86, which states that parties shall, in accordance with the provisions of the Statute, fully cooperate with the court in its investigation and prosecution of crimes within its jurisdiction. However, the mandatory nature of this obligation has proven to be less effective in practice when international warrants are issued. The court's dependence on the cooperation of both state parties and non-state parties often yields limited results due to various factors, including political considerations, diplomatic relations, and geopolitical dynamics. For instance, non-state parties may be requested by the Security Council to execute warrants or assist in investigations; however, such requests may go unfulfilled in cases where states maintain political connections with the country or political leader subject to the issued arrest warrants[11].

The lack of cooperation described above constitutes a deliberate effort by the state to avoid enforcing international warrants, rather than stemming from a lack of capacity. It can be argued that if a democratic state possesses a functioning judiciary, executive, legislature, and operational law enforcement agencies, then claims of the state’s inability to enforce international warrants are untenable. While inherent challenges exist in least developed and developing countries—such as corruption and insufficient funding for operations requiring cross-border cooperation and intelligence—these challenges do not excuse the inability to fulfil international obligations. ICC Prosecutor Mrs. Fatou Bensouda has acknowledged the necessity of establishing credible national judicial institutions, which significantly affect the effectiveness of warrants and the enforcement of ICC mandates. However, it is crucial to recognize that without the political will to enforce international obligations under the treaty, such efforts may ultimately prove futile[12].

Geopolitical factors

Geopolitical factors significantly influence the effectiveness of the enforcement of international warrants. Due to these factors, many states that are parties to the Rome Statute exhibit reluctance to enforce warrants issued by the ICC. The prosecution actions of the ICC have sparked contentious debates between the African Union (AU) and the United Nations (UN). Critics argue that the ICC functions as a tool of imperialism, alleging that it imposes its interpretation of justice at the expense of exacerbating conflict and neglecting the interests of victims. In response to these concerns, the AU has adopted a resolution prohibiting its member states from arresting Omar al-Bashir, thereby further complicating the enforcement of ICC warrants[13].

This situation has resulted in a significant lack of cooperation, as member states are both unwilling and dissuaded from collaborating with the ICC and the AU in prosecuting international crimes or executing warrants perceived as targeting African nations by the Global North. Consequently, even when countries possess the capacity to effectuate an arrest, they are often less inclined to enforce such warrants due to geopolitical factors that are unrelated to the merits of the warrants or the crimes in question. International political dynamics have fostered the perception that Sudan is a victim of Western hypocrisy and hegemony, leading numerous countries, particularly in Africa, to oppose the issuance of warrants. These sentiments are echoed in Arab nations, many of which reject the proceedings concerning the Darfur situation. The Arab League has issued a statement opposing the warrants against Omar al-Bashir, signalling that these nations will refrain from arresting him if he is within their jurisdiction. Notably, al-Bashir has been permitted to make several visits to Arab countries without facing arrest, further undermining the authority of the ICC’s mandates[14].

The African Union (AU) has publicly advised its member states to disregard and refuse cooperation with the ICC in matters concerning President Omar al-Bashir of Sudan. This stance has resulted in warrants remaining unenforced, thereby adversely affecting the operations of the ICC. Such sentiments are likely to extend to warrants issued for other offences in various jurisdictions, which may not necessarily pertain to international crimes against humanity. The consequence is a marked lack of cooperation between international agencies and member states regarding the arrest and extradition of suspects[15].

This lack of cooperation also impacts warrants issued for serious offenders who may seek refuge in countries that have extradition treaties with the requesting nations. Arrests are primarily contingent upon diplomatic relations, as the requesting state must submit a formal diplomatic request to the country harbouring the suspect. The success of such requests often depends on the strength of diplomatic ties and longstanding international cooperation between the involved states. Consequently, allied nations such as the United States and the United Kingdom are more likely to execute arrest and extradition requests, whereas requests involving nations with strained relations, such as China or Russia, may be met with reluctance. As a result, such warrants may prove ineffective. These geopolitical considerations are indicative of a broader unwillingness among states to enforce international warrants, rather than a lack of capacity. This phenomenon has been extensively documented by various civil rights organizations, non-governmental organizations (NGOs), and media outlets[16].

President Al Bashir

The challenges associated with the enforcement of international warrants by the ICC are exemplified in the case of President Omar al-Bashir. This case illustrates that the difficulties in enforcing international warrants arise not from an inability to do so, but rather from internal factors within member states, including political and geopolitical considerations. These factors contribute to a disinclination to cooperate, creating a significant barrier to effective enforcement[17].

In 2009 and 2012, the ICC issued warrants of arrest against President Bashir. Notwithstanding South Africa's status as a party to the Rome Statute, the country refused to execute the arrest warrant and permitted President Bashir to depart the country, in defiance of a High Court ruling which stated that:

the [South African authorities] are forthwith compelled to take all reasonable steps to prepare to arrest President Bashir … and detain him, pending a formal request for his surrender from the International Criminal Court[18].

The failure to arrest President Bashir is viewed as an action facilitated by the executive branch and authorities who were complicit and aware of the explicit order issued by the South African Court[19]. This situation reveals a clear disconnect between judicial bodies that issue arrest warrants for individuals accused of crimes against humanity and war crimes, and the lack of political will among South African authorities to fulfil these obligations. The authorities possessed the capacity and capability to arrest and detain Bashir but consciously chose not to do so[20].

A similar situation occurred in Kenya, further illustrating that the ineffective enforcement of ICC warrants stems more from political will than from a lack of capability. In the case of Bashir, he was invited to attend the promulgation of the Kenyan Constitution on 27 August 2010, as well as to participate in a meeting of the Intergovernmental Authority on Development (IGAD) in October 2010. In response to outcry from Western nations, the meeting was subsequently relocated to Addis Ababa[21].

Furthermore, Malawi hosted Bashir in October 2011 at the invitation of President Bingu wa Mutharika. However, upon assuming office, President Joyce Banda opted to disinvite Bashir to avoid potential conflicts with Western donors due to the outstanding ICC warrant. The decision drew criticism from the AU, resulting in the relocation of the meeting to Addis Ababa[22].

Similarly, to South Africa, the Kenyan High Court issued a ruling regarding President Bashir, affirming the warrants for his arrest and stipulating that he should be apprehended should he visit the country. The court directed the Attorney General to ensure that the Internal Security Minister was responsible for enforcing this order and for surrendering Bashir if he were to be arrested[23]. In response, the Sudanese government threatened to expel the Kenyan ambassador to Sudan, prompting the Kenyan government to dispatch an envoy to assure the Sudanese authorities that the ruling would be appealed. Additionally, the Kenyan Foreign Minister expressed concerns that the High Court's ruling could jeopardize the amicable and fraternal relations between the two nations[24]. President Bashir has also travelled to other countries, including Palestine and Jakarta, Indonesia, to attend meetings of the Organisation of Islamic Cooperation, where he was not arrested. Notably, these countries, while not parties to the Rome Statute, are members of the United Nations.

The aforementioned case exemplifies a scenario in which a country possesses the necessary institutional framework to enforce an international warrant, yet elects not to do so for various reasons. In the instances of South Africa, Malawi, and Kenya, these nations had the opportunity to enforce ICC warrants but failed to do so due to a lack of political will. Even in situations where the judiciary has mandated the enforcement of such warrants, enforcement may be impeded by a lack of inclination stemming from policy considerations, geopolitical factors, and foreign relations[25].

Kenya, as a significant player in Eastern Africa, wields considerable influence in the region. The country has established deep political and economic ties with Sudan, evidenced by the presence of many Sudanese individuals, including politicians, residing in Kenya. Furthermore, Kenyan businesses, including banks and corporations, have made substantial investments in Sudan. The potential for strained relations following the arrest of a sitting president could explain Kenya's conscious decision to disregard the international warrants. This context elucidates the interplay between domestic interests and international obligations, ultimately resulting in the violation of the warrants issued by the ICC.

Russia President Putin

The ICC has issued warrants for the arrest of Vladimir Putin, President of Russia, alleging war crimes, unlawful deportation, and violations of human rights in the context of the Russo-Ukrainian War. According to Article 124 of the Rome Statute, member states are obligated to arrest, detain, and transfer individuals who enter their territory under such warrants. Notwithstanding this obligation, President Putin was able to visit Mongolia after the issuance of the warrants against him. In 2023, Putin’s planned visit to South Africa was cancelled following a ruling from the South African High Court. This cancellation suggested that the warrants had, in some capacity, constrained his ability to travel internationally. However, this assumption was called into question when he successfully travelled to Mongolia, an ICC signatory, after the warrants had been issued. The failure to arrest Putin can be attributed to Mongolia's historically close ties with Russia, as well as its reliance on Russia for affordable electricity and fossil fuels[26].

Countries within the BRICS alliance, such as Brazil, are also unlikely to execute an arrest warrant against President Putin. This reluctance arises from the close diplomatic and economic relationships among BRICS members and the complexities of overlapping interests for those signatories of the Rome Statute. Similar to Mongolia, it is improbable that any BRICS nation would take action against the Russian President, as such a move could be unprecedented and risk straining relations with Russia. Furthermore, geopolitical considerations and economic interests shape the perspectives of various countries, with many viewing the conflict in Ukraine as a by-product of NATO's expansionist agenda and provocation of Russia. It has been argued by many scholars that the Ukraine conflict was largely engineered by NATO which sought to expand its read to Russian borders, making NATO missiles within striking distance from Moscow[27].

Conclusion

The enforcement of any international warrant, whether issued by the ICC or another body, is significantly contingent upon the political will of the state that receives the request or is bound by the relevant statute. This observation underscores the conclusion that the effectiveness of such enforcement is predominantly influenced by the policies of the governing administration and the identities of the individuals indicted.

In this context, the inability to enforce warrants is not a primary obstacle; rather, the disinclination stems from political considerations, geopolitical factors, and foreign policy dynamics within the state expected to effectuate the arrest and extradition. Frequently, legal frameworks play a less significant role in the enforcement process; instead, the willingness of the executive branch to apprehend, for instance, a sitting president or a high-ranking politician accused of violating international statutes is paramount.

In some instances, the reluctance to enforce warrants may not be politically motivated but rather result from hostility between nations and a lack of alignment in their interests. This disconnect often leads to disparate treatment of international arrest warrants. For example, countries that maintain aligned foreign policies on critical issues such as terrorism, drug trafficking, and human rights are more likely to collaborate effectively in the enforcement of international warrants.

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[1] Gwen P Barnes, ‘The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir’ (2011) 34 Fordham International Law Review 1584

[2] Keven J. Heller, ‘Opinio Juris, The Sadly Neutered Crime of Aggression’ (Opinio Juris 13 June 2010) <https://www.opiniojuris.org/2010/06/13/the-sadly-neutered-crime-of-aggression/> accessed 23 September 2024

[3] Kre? Claus and Leonie Von Holtzendorff, ‘The Kampala compromise on the crime of aggression’ (2015) 8(5)?Journal of International Criminal Justice 1179

[4] Rome Statute – Part 9. International Cooperation and Judicial Assistance Act (Art. 86),

[5] Ssenyonjo Manisuli, ‘II. The International Criminal Court arrest warrant decision for President Al Bashir of Sudan’ (2010) 59(1) International & Comparative Law Quarterly?205, 215.

[6] Young Sok Kim, ‘The Cooperation of State to Establish an Effective Permanent International Criminal Court’ (1997) 6 J. INT’L. L. & PRAC. 157, 160.

[7] Id, at 158

[8] Judge Sang-Hyun Song (The 2nd President of the ICC), Past Achievements and Future Challenges of the ICC: keynote speech for the 20th Anniversary of the Rome Statute’ (International Criminal Court - The Hague, 17 July 2018) <https://www.icc-cpi.int/sites/default/files/itemsDocuments/20a-ceremony/20180717-sang-speech.pdf> accessed 23 September 2024

[9] Phooko Moses Retselisitsoe, ‘How effective the International Criminal Court has been: evaluating the work and progress of the International Criminal Court’ (2011) 1 Notre Dame J. Int'l Comp. & Hum. Rts. L. 182.

[10] Judge Sang-Hyun Song, supra note 7

[11] Dapo Akande, ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC’ (2012) 10 Journal of International Criminal Justice 299, 301.

[12] Mrs. Fatou Bensouda Prosecutor of the International Criminal, ‘Lecture: The International Criminal Court – Current Challenges and Future Prospects’ (International Criminal Court 16 December 2013) <https://www.dfa.ie/media/dfa/alldfawebsitemedia/ourrolesandpolicies/ourwork/iccprosecutorvisitsireland/Lecture-delivered-by-Prosecutor-of-ICC-at-RIA-in-Dublin-on-16-December-2013.pdf> accessed 23 September 2024

[13] Petrovic Jadranka, Dale Stephens and Vasko Nastevski. ‘To arrest or not to arrest the incumbent head of state: the Bashir case and the interplay between law and politics’ (2016) 42?Monash UL Rev.?740.

[14] BBC News, ‘Arab leaders back 'wanted' Bashir’ (BBC 30 march 2009) <https://news.bbc.co.uk/2/hi/middle_east/7971624.stm> accessed 1 December 2023; see also France 24 News, ‘Omar al-Bashir disregards arrest warrant to attend Arab summit’ (France24 25 March 2012) <https://www.france24.com/en/20120325-omar-al-bashir-disregards-arrest-warrant-attend-arab-summit-iraq-icc> accessed 23 September 2024

[15] Decision on the Progress Report of The Commission on The Implementation of Decision Assembly/AU/DEC.270(XIV) On the Second Ministerial Meeting on The Rome Statute of The International Criminal Court (ICC) Doc. Assembly/AU/10(XV)

[16] Maryam Jamshidi, ‘The enforcement gap: How the International Criminal Court failed in Darfur’ (Aljazeera 25 March 2013) <https://www.aljazeera.com/opinions/2013/3/25/the-enforcement-gap-how-the-international-criminal-court-failed-in-darfur>? accessed 1 December 2023; see also The Guardian, ‘Kenya defends failure to arrest Sudan's president Omar al-Bashir in Nairobi’ (The Guardian 29 August 2010) <https://www.theguardian.com/world/2010/aug/29/kenya-omar-al-bashir-arrest-failure> accessed 1 December 2023; see also Amnesty International, ‘Kenya refuses to arrest Sudanese President Omar Al-Bashir’ (Amnesty International August 27 2010) <https://www.amnesty.org/en/latest/news/2010/08/kenia-se-niega-detener-presidente-sudanes/> accessed 1 December 2023

[17] Maryam Jamshidi, supra note 18

[18] Southern Africa Litigation Centre v Minister of Justice and Constitutional Development [2015] 5 SA 1, 3 [2] (High Court) (‘Southern Africa Litigation Centre’).

[19] The Minister of Justice and Constitutional Development v The Southern African Litigation Centre (867/15) [2016] ZASCA 17 (15 March 2016)

[20] David E Kiwuwa, ‘Al-Bashir: South Africa’s Moment of Glory and Shame’ (The Conversation 19 June 2015 <https://theconversation.com/al-bashir-south-africas-moment-of-glory-and-shame-43283> accessed 23 September 2024

[21] Bower Adam, ‘Contesting the International Criminal Court: Bashir, Kenyatta, and the status of the nonimpunity norm in world politics’ (2019) 4(1)?Journal of Global Security Studies, 88.

[22] Aljazeera 'Malawi cancels AU summit over Sudan's Bashir' (Aljazeera 9 June 2012) <https://www.aljazeera.com/news/africa/2012/06/20126974132905285.html> accessed 23 September 2024

[23] Republic of Kenya, In the High Court at Nairobi, Misc Criminal Application 685 (2010), 28 November 2011 (unreported)

[24] Keppler Elise, ‘Managing setbacks for the international criminal court in Africa’ (2012) 56(1)?Journal of African Law?1, 8.

[25] Dyani-Mhango Ntombizozuko, ‘South Africa's dilemma: immunity laws, international obligations, and the visit by Sudan's president Omar Al Bashir’ (2017) 26?Wash. Int'l LJ?535.

[26] Wanigasuriya B. A., ‘Putin Travels to Mongolia: What Prevents His Arrest?’ (2024) <https://opiniojuris.org/2024/09/04/putin-travels-to-mongolia-what-prevents-his-arrest/> ?accessed 23 September 2024

[27] Walker Edward, ‘Between east and west: NATO enlargement and the geopolitics of the Ukraine crisis’ (2015)?Ukraine and Russia: People, politics, propaganda and perspectives?134, 142; see also Donaldson Robert, ‘The Role of NATO enlargement in the Ukraine crisis’ (2017) 44(1)?The soviet and post-soviet review?32..