Mind the Gap: A Systematic Approach to the International Criminal Court's Arrest Warrants Enforcement Problem [post]

Nadia Banteka
2018 unpublished
ICCTs have been established on a belying enforcement paradox between their significant mandate and their inherent lack of enforcement powers due to absence of systemic law enforcement. This article is premised on the idea that ICCTs fail to procure substantial results due to their delusive persistence in rejecting the factoring of politics in their operation. Thus, I suggest a perspective for arrest warrant enforcement that not only recognizes the relevance of politics but also capitalizes on
more » ... . Accordingly, I argue that by fully comprehending its enforcement tools and making use of its political role, the ICC may increase its rates in the apprehension of suspects, and therefore secure higher levels of judicial enforcement. Based on different compliance theories, I argue that the Office of The Prosecutor of the ICC (OTP) can improve compliance with ICC arrest warrants by making use of third states and non-state actors. In Part I, I address the way states and international actors may assist the OTP towards unwilling to arrest states through inducements, reputational sanctions, and support for enforcement agencies. I propose that external pressure in the form of positive inducements (membership, development aid) or negative inducements (travel bans, asset freezes) as well as condemnation and reputational damage towards non-compliant states, are likely to increase compliance with arrest warrants. In Part II, I examine a strategy for the OTP towards states that are willing to arrest but are unable to do so. In these cases, the OTP would benefit from improving its institutional capacity to identify and use overlapping interests with activist states in the field of human rights and international justice through the establishment of a diplomatic arm within its Jurisdiction, Complementarity and Cooperation Division (JCCD). I unpack the question of what this engagement may look like by examining such a potential relationship between the US and the ICC. Finally, in Part III, I focus on the instances, where civil society has the ability to influence third states or situation states to assist in the execution of arrest warrants. I argue that the OTP ought to include more actively different actors within the global civil society, such as NGOs, transnational networks, and individuals, during its bargaining efforts.
doi:10.31228/osf.io/7u2ea fatcat:45xqtqcivfeyfi6y3qtwchls3m