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

Abstract

International Criminal Courts and Tribunals (“ICCTs”) have been established on a belying enforcement paradox between their significant mandate and their inherent lack of enforcement powers due to the 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 it. I argue that by fully comprehending its enforcement tools and making use of its political role, the International Criminal Court (“ICC”) may increase its rates in the apprehension of suspects and 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 unwillingness to arrest states through inducements, reputational sanctions, and support for enforcement agencies. I propose that external pressure in the form of positive inducements (i.e., membership and development aid) or negative inducements (i.e., travel bans and 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. I unpack the question of what this engagement may look like by examining such a potential relationship between the United States and the ICC. Finally, in Part III, I focus on the instances where civil society