International bounty hunters for war criminals: privatizing the enforcement of justice

Air Force Law Review, Wntr, 2001 by Christopher M. Supernor

CHRISTOPHER M. SUPERNOR [*]

I. INTRODUCTION

International law is often criticized for lacking any formal means of enforcement. [1] International criminal tribunals are not supported by an international police force. Many of the individuals indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) remain at large, [2] and the Yugoslavian government has systematically refused to arrest indicted war criminals. [3] Even the October 2000 popular uprising that ousted Slobodan Milosevic from Yugoslavia's presidency has done little to improve Yugoslavia's level of cooperation with the ICTY. Mr. Vojislav Kostunica, Yugoslavia's newly elected president, has not permitted Serbs to be extradited to The Hague. [4] Mr. Kostunica has stated that a Yugoslavian national truth commission should address Yugoslav war crimes. [5] The departing president of the ICTY, Gabrielle McDonald, has criticized the United Nations Security Council (UNSC) for "doing too little to help bring indicted people to justice." [6]

Without an international police force, who can the international community rely on to hunt war criminals and bring them to justice? In the United States, domestic bounty hunters have proven more effective at ensuring an alleged criminal's presence at trial than State law enforcement has. [7] Can international bounty hunters prove an efficient means to bring war criminals to justice? [8]

Shortly after Ms. Carla del Ponte, the Chief United Nations (UN) prosecutor at the ICTY, called for "creative ways" to arrest fugitive war criminals, on April 21, 2000, in Smederevo, Serbia, Mr. Dragan Nikolic, an indicted war criminal, was handed over to American Stabilization Force soldiers by bounty hunters. [9] The bounty hunters smuggled Mr. Nikolic out of Serbia and handed him over to NATO troops in Bosnia who transferred him to the ICTY in the Netherlands. [10] During an April 28, 2000 court appearance, Mr. Nikolic pleaded not guilty to eighty separate war crimes charges and requested that the ICTY dismiss his case on the grounds that his arrest was illegal. [11] On May 17, 2000, Serbian police arrested eight persons in Serbia who were allegedly involved in kidnapping Mr. Nikolic. [12] Serbian police claim that unspecified "foreign services" paid [pounds]31,000 (British pounds) for the kidnapping. [13]

This paper discusses the feasibility and practicality of utilizing international bounty hunters to deliver war criminals to justice. Part I of this paper provides a brief overview of some of the available sources of international law that establish war crimes. Part II discusses the international community's growing interest in prosecuting war criminals and the inadequacy of relying on extradition treaties, military forces, and UNSC enforcement sanctions to capture fugitive war criminals. Part III briefly considers the viability of utilizing an international police force to capture war criminals. Part IV analyzes the effectiveness of domestic bounty hunters. Part V discusses the available legal alternatives for establishing international bounty hunters. Part VI discusses whether a bounty hunter's forced abduction of an indicted war criminal violates the UN Charter. Part VII explores the practical applications of how an international bounty should function.

II. WAR CRIMES

International and domestic courts rely on treaties applicable to armed conflicts and customary international law [14] when defining war crimes. A war crime is defined as any violation of international law governing war. [15] However, only grave breaches of the law involving the mistreatment of protected individuals are typically prosecuted. [16]

The four 1949 Geneva Conventions [17] protect persons who are not taking an active part in an armed conflict. Protected persons include the sick and wounded, prisoners of war and civilians under the control of an occupying force. Murder, torture, inhuman treatment and willfully causing great suffering or serious injury to a protected person in the course of an international armed conflict are grave breaches to the Geneva Conventions and constitute war crimes. [18] The Additional Protocols of 1977 extended these protections to all civilians. [19] Common Article 3 to the 1949 Geneva Conventions also provides basic fundamental protections to all persons during all armed conflicts, both international and internal. Common Article 3 prohibits murder, torture, the taking of hostages, outrages upon personal dignity, and the carrying out of executions without the judgment of a regularly constituted court. [20]

The Geneva Conventions focus upon the protection of persons during armed conflict, while the Hague Conventions [21] focus on the means and methods of warfare. [22] The 1907 Hague Convention concerning the laws and customs of land warfare prohibits parties to an international armed conflict from using poisoned weapons, employing arms that are calculated to cause great suffering, and improperly using a flag of truce. [23] The 1907 Hague Convention also requires combatants to protect, as far as possible, buildings of historical or cultural significance, and hospitals. [24]