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Building the Rule of International Criminal Law: The Role of Judges and Prosecutors in the Apprehension of War Criminals

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Abstract

International criminal tribunals are weak institutions, especially since they do not have their own police forces to execute arrest warrants. Understandably then, much of the existing literature has focused exclusively on pressure from major powers and on changing domestic politics to explain the apprehension of suspected war criminals. In contrast, this article turns attention back to the tribunals themselves. I propose three ways in which the activities of international criminal tribunals impact compliance with arrest warrants: through the selection of individuals to indict, demonstrated leniency on some suspects and outreach to domestic legal professionals. Using a duration model that accounts for sample selection and data collected on the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, I test these theories alongside other existing explanations. I find that court activities can have an independent effect on the successful implementation of international criminal law.

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Notes

  1. Philippe Kirsch in a talk at the Yale Law School, “From Rome to The Hague: The Creation and Development of the International Criminal Court.” Judge Jon O. Newman Lecture, 3 March 2008.

  2. Several parties to the war in the former Yugoslavia, for instance, vehemently objected to the establishment of the ICTY, and the Rwandan government did not consent to the final design of the ICTR. (See discussion in Akhavan 1996.) States not party to the ICC are also likely to receive arrest warrants.

  3. See discussion of Serbia in Bass (2000).

  4. Specifically, studies that ignore the prosecutor’s behavior will overestimate the effect of individual and state characteristics on the speed of state cooperation with arrest warrants.

  5. For instance in July 2008, the prosecutor for the ICC presented an indictment for President Omar Bashir of Sudan for crimes of genocide, crimes against humanity and violations of the laws of war. Given that Sudan has yet to arrest the government minister or commander of the Janjaweed (against whom indictments were already issued), it seems unlikely that the indictment against Bashir will quickly lead to an arrest. Yet some have speculated that Prosecutor Ocampo initiated this indictment in order to demonstrate the relevance of the Court.

  6. I do not look at the length of sentences, even though in the wake of Karadzic’s arrest, some speculated that recent sentences of 27 Bosnian Serbs to terms of 38 and 42 years would lower the likelihood of future arrests (Bilevsky 2008).

  7. See the conclusion of Gilligan (2006) for this suggestion as well.

  8. One might argue that plea bargains and acquittals should exert different effects on the execution of arrest warrants and should be treated as separate independent variables. Acquittals substantially lower the expected costs for indicted suspects but may disappoint some governments wanting to see particular criminals convicted. Plea bargains, on the other hand, do not lower the expected costs for indicted suspects quite as much since jail time is still involved, but they may better satisfy governments that want to see criminals convicted. I do not, however, find dramatically different results when plea bargains and acquittals are implemented as two separate independent variables.

  9. For examples, see the ICTY’s Outreach Program since 2001, available at: un.org/icty/bhs/outreach/visits.htm.

  10. In the qualitative section, I discuss and assess these two causal mechanisms that might connect outreach with speedier arrests and find more evidence in support of the link with domestic legal professionals.

  11. Conversation with former ICTY prosecutor, Michael Johnson, 12 July 2004. Again, see ICTY Outreach Program, supra note 8, for some specific examples of meetings and their purposes.

  12. Consider, for example, the hunt for Ante Gotovina, a Croat general, who had escaped to Spain. The arrest was made possible by information released by Croatian judges to the ICTY and to the Spanish government (Wood 2005).

  13. We cannot observe the actual point at which these individuals will be or would have been turned over to the tribunals because our observation of the duration of the arrest warrant is cut off or “censored” by death or by the conduct of this study. The duration model used below incorporates the fact that the duration of these arrest warrants should be longer than observed.

  14. This is Ratko Mladic’s arrest warrant, calculated in August 2008.

  15. Figure 1 suggests that the distribution of arrest warrant durations is bimodal (one mode at less than 6 months and one mode at 2 through 5 years). Unfortunately the Boehmke et al. model used here, which is the best model for estimating both the selection and the duration processes, does not also account for this bimodal distribution. As emphasized in the conclusion, this type of analysis should be repeated as better models are developed.

  16. Not all types of perpetrators are indicted. If they were, we could ignore the indictment process and accurately estimate the factors that lead to speedy and to slow arrests of perpetrators. Instead, studies that ignore the indictment process may misestimate the effect of various independent variables on the duration of arrest warrants because perpetrators are selected in part based on those variables.

  17. Correspondence with Cherif Bassiouni, one of the authors of the database, on 17 June 2008.

  18. See Human Rights Watch and Amnesty International reports on Bosnia, Croatia, Serbia and Rwanda in 1992, 1993, and 1994. All reports are available from their websites. Specific titles omitted for space but available upon request. I look at reports issued prior to the tribunals’ indictments in order to control for the possibility that the names in the reports came from the tribunals’ investigations and not the other way around. Not all individuals who were ultimately indicted by the tribunals appear in these reports. In compiling the sample of individuals, I include indicted and non-indicted individuals who participated in the same episodes of violence during the time period covered by the reports, to ensure comparability.

  19. In the sample, I include perpetrators who meet the criteria to be indicted by the tribunals particularly since the Statute of the ICTR limits the tribunal’s jurisdiction to persons responsible for “serious” violations of international law (Art. 1). See Goertz (2006) on the possibility principle.

  20. See Boehmke et al. (2006, 195) for the full equations.

  21. I also ran the model using only the value in the year of indictment and obtained similar results.

  22. The exact coding is as follows: one denotes an ordinary solider; two a prison guard; three a camp commander; four a mid-level military leader (captain, major); five a commander or general in the military; six mid-level civilian and seven top-level civilian.

  23. The variable was constructed by searching for the suspect’s name in Human Rights Watch and Amnesty International reports and in news reports in LexisNexis before those dates and reading reports of the suspect’s whereabouts. Where reports conflicted, I used the more frequent observation.

  24. One might be concerned that some of these variables would be highly correlated. For instance, it might be that high-ranking officials find it easier to escape to another country because they have the means to do so or that lower-ranking individuals are more likely to flee because they are less recognizable. The correlation between FLED and RANK, however, is only 0.004. Likewise, the correlation between CRIME and FLED is 0.212.

  25. Where figures were given for a 2-year period, each year was recorded as receiving half the money.

  26. Such parties for states in the former Yugoslavia and Rwanda were taken to be: Serbian Radical Party (SRS), Socialist Party of Serbia (SPS) and Democratic Party of Serbia (DSS) in Serbia; Croatian Democratic Union (HDZ) in Croatia; SDP and Croatian Democratic Union of Bosnia-Herzegovina (HDZ-BiH) in the Federation of BiH; Serbian Democratic Party (SDS), Alliance of Independent Social Democrats (SNSD) and Serbian Radical Party (SRS) in the Republika Srpska; Rwandan Patriotic Front (FPR) and Democratic Republican Party (MDR) in Rwanda.

  27. The results came from an analysis of a LexisNexus news search for “pressure international tribunal (insert target country name or suspects name, insert US or EU),” “sanctions tribunal (insert target country name or suspect’s name),” “EU membership tribunal,” checked against annual tribunal reports. These word searches captured reports of actual sanctions, threats to prevent EU accession and diplomatic pressure while also ensuring that the pressure came from the US or the EU and was directly relevant to the indicted individual or her home country.

  28. Recall that for the Weibull duration selection model, these variables that should be time-varying covariates are measured for the year before the arrest is made or censored.

  29. Perhaps this is because escaping individuals are ending up in countries more sympathetic to the international criminal regime (e.g., Belgium and Germany). This possibility is not explored in this article but could be an interesting issue for other scholars to explore.

  30. Meernik (2008) finds that acquittals and plea bargains do not significantly decrease the time it takes for suspects to surrender or to be captured. The difference in results may be attributed to the fact that he looks at acquittals and plea bargains in the aggregate rather than disaggregated by crime. If indicted suspects care about the costs they themselves are likely to bear, they should be influenced most by the punishment given to other individuals charged with similar crimes. They will not necessarily be swayed by plea bargains and acquittals granted in other types of cases.

  31. The DURSEL technique assumes that the correlation between the error terms is between −0.25 and 0.25. The estimate of the unbounded value is still significant within a ninety percent confidence interval.

  32. See reports and judgments of the ICTR and its press releases.

  33. Less than ten suspects, however, have voluntarily surrendered to the ICTR.

  34. It is not entirely clear, however, that the ability of tribunals to affect these outcomes depends on compliance with arrest warrants. Tribunals may, for instance, be effective simply by articulating legal norms, even if suspects are never apprehended (e.g., Minow 1998).

  35. This finding seconds a suggestion made by Burke-White (2008).

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Acknowledgments

For helpful comments and suggestions on previous versions of this article, I thank Gary Bass, Sarah Blodgett Bermeo, Scott Hartman, Lucrecia Garcia Iommi, Jessica Green, Hyeran Jo, and Robert Keohane, as well as the editors, Steven D. Roper and Lillian A. Barria. Earlier versions of this article were presented at Princeton University and at the 2008 Annual Meeting of the American Political Science Association in Boston, Massachusetts. All mistakes and shortcomings are mine.

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    Gwyneth C. McClendon

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McClendon, G.C. Building the Rule of International Criminal Law: The Role of Judges and Prosecutors in the Apprehension of War Criminals. Hum Rights Rev 10, 349–372 (2009). https://doi.org/10.1007/s12142-009-0123-5

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