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

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

In 1994, the UN chose the treaty process as a means to provide protection to military members to military forces performing a UN peacekeeping mission that was authorized under Chapter VI of the UN Charter. [114] States that have ratified the Convention on the Safety of United Nations and Associated Personnel are obligated to criminalize the murder, kidnapping, or attack upon the person or liberty of any UN or associated personnel. [115] After approximately six years, only thirty-three States, have ratified this treaty. [116] The inability to achieve a broad international consensus on protecting peacekeepers most likely contributed to the UNSC's decision to bypass the normal treaty route when it created the ICTY. The UNSC did not pursue a treaty to create the ICTY because the treaty process would have taken years, if not decades, and could have been defeated by opposition from a number of States. [117] The best alternative for providing immunity from domestic laws for international bounty hunters would be an enforcement action by the UNSC.

Worldwide immunity for international bounty hunters could be created by a resolution by the UNSC. [118] Under the UN Charter, the UNSC has substantial powers to maintain international peace and security. If the UNSC determines that a threat to international peace exists then it may use its enforcement authority to eliminate that threat, [119] even going so far as to displace domestic law. Article 42 of the UN Charter authorizes the UNSC to call upon multinational military forces to restore international peace. Article 41 of the UN Charter permits the UNSC to impose measures not involving the use of armed force to maintain international peace. Article 41 further permits the UNSC to enact arms, air travel, oil embargoes, economic, and financial sanctions. [120] The UNSC has also used its Article 41 enforcement authority to attempt to coerce a non-cooperative State to turn over custody of an international fugitive. In November 1999, the UNSC imposed economic sanctions against Afghanistan for harboring Bin Laden who was charged with complicity in the United States 1998 embassy bombings in Kenya and Tanzania. [121] In this instance, the UNSC determined that a sole criminal fugitive remaining at large constituted a threat to international peace. Furthermore, the UNSC has also used its broad enforcement authority under Article 41 to create the ICTY and ICTR.

In the Tadic case, the Appeals Chamber of the ICTY rejected the defense's argument that the UNSC lacked the authority to create an international criminal tribunal. [122] The Tadic defense argued that Article 41 only permits the UNSC to impose economic and political measures. [123] The Appeals Chamber held that the examples of economic and political sanctions expressly contained in Article 41 do not exclude other types of enforcement measures. [124] Article 41 grants broad discretion to the UNSC to take any measures not involving the use of armed force in order to maintain international peace and security. [125] Furthermore, the Appeals Chamber declined to review the UNSC's determination that an international criminal tribunal could effectively meet its objective of restoring the peace. [126] In conclusion, the UNSC has very broad discretion in crafting enforcement mechanisms under Article 41 to promote international peace and security.