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

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

For the most part, domestic courts have tolerated State-sponsored abductions by holding that a State's illegal or irregular method in bringing a defendant to court does not divest the court of its jurisdiction over the defendant. The United States Supreme Court has held that a State-sponsored abduction in violation of international law did not deprive a federal court of criminal jurisdiction over the abducted individual. [77] The ICTY has not yet decided whether it will continue to maintain personal jurisdiction over an abducted individual. [78] Despite judicial tolerance of the practice, State sponsored abductions are not an acceptable solution for obtaining custody of war criminals. State sponsored abductions violate customary international law [79] and undermine world public order by encouraging the erosion of international law. [80]

The UNSC could use its enforcement powers to lawfully authorize a military invasion of a State to forcibly remove an indicted war criminal. [81] However, authorizing a large-scale military invasion to pursue one person seems counter-productive to the UNSC's mission of maintaining international peace and security since the use of a large military force to capture a protected fugitive would most likely lead to an armed conflict. In any event, even if the UNSC authorized a large-scale military invasion to hunt for a fugitive war criminal, it is doubtful that such a mission would succeed. [82] The use of a large-scale military invasion force is not an efficient enforcement mechanism to capture war criminals. Military forces are not trained to hunt for individual fugitives. A single individual is easy to hide, and a large-scale military invasion might only prompt the fugitive to relocate to another State.

The UNSC could limit its authorization to the use of small-scale military forces to capture an indicted war criminal. A small, clandestine military strike force might be able to successfully capture a suspected war criminal without provoking an armed conflict since a small military force could enter a State by stealth as opposed to brute force. However, it would be extremely difficult for the UNSC to craft resolutions on an ad hoc basis that authorize States to use military forces to pursue a suspected war criminal but also restrict this grant of authority to use of only a small-scale strike force. [83] Furthermore, any UNSC resolution that called upon all States to undertake a small-scale military operation to abduct an indicted war criminal would also provide an advance warning of such an operation to the fugitive. Accordingly, ad hoc resolutions for small-scale military operations would undermine the element of surprise that would be essential for the operation's success. If the UNSC had its own standing m ilitary force, it could avoid this problem, but at present the UNSC is ill-equipped to authorize small-scale military operations to abduct indicted war criminals.

Even when a State's military force is already present in a foreign State by invitation or pursuant to a UN' mission, military commanders would still be reluctant to take on the responsibility of hunting war criminals since the search and apprehension of suspected war criminals would usually be counter productive to the commander's peacekeeping or peace-enforcement mission. Neutrality is the key to effective peacekeeping and peace-enforcement. It is hard to be perceived as neutral when military forces are actively engaged in the pursuit of alleged war criminals. [84]