Crimes Against Humanity—ICC Uses Interpol Red Notices in Uganda Cases

As we speculated last month, the International Criminal Court (ICC) has made its first request for the issuance of Interpol Red Notices in connection with its investigation into the situation in Uganda.^[1] The Red Notices were issued in the support of ICC arrest warrants for five members of the Lords Resistance Army (LRA): Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya and Dominic Ongwen.^[2] The ICC Chief Prosecutor, Luis Moreno Ocampo stated that the five are charged with international crimes including crimes against humanity and war crimes.^[3]

The investigation was opened in July 2004 by referral from Uganda and the arrest warrants, the first ever issued by the ICC, were issued in 2005. In July 2005, the Pre‑Trial Chamber II, Judge Tuiloma Neroni Slade presiding, decided to issue the warrants apart from national requests for arrest and surrender.^[4] It also denied the Prosecutor’s request to transmit the requests to each of the states parties individually.^[5]

After the arrest warrants were unsealed in November 2005, the European Union Council issued a strong statement calling for the immediate detention and surrender of the five indictees. The issuance of the Red Notices this month means that police in any of the 184 Interpol member states, especially those states among the hub‑and‑spoke network anchored by Interpol that are also states party to the ICC Rome Statute, may capture and detain the suspects at any time on the authority of the ICC warrants.

The timing of the Red Notices, in spite of the political heat, may be questionable. Currently, by agreement with the Ugandan President Yoweri Museveni, Joseph Kony has almost a month in which to voluntarily bring a peaceful end to the LRA‑led rebellion and to resume peace talks with the government.^[6] It is unlikely that a manhunt, arrest, and trial of rebel leaders will be an inspiration to the possibility of a peace process.

Process of Surrender
Although the mechanism of surrender pursuant to an arrest warrant issued by the ICC is not subject to the same intricate laws regarding extradition between nations, it is important to know how to respond to this consent‑based request and how it can be challenged. In fact, provisional arrest presents one of the earliest opportunities for an individual to challenge the jurisdiction of the ICC.

After the subject of a Red Notice is provisionally arrested by a member state’s local police force, that state can surrender the individual from the state jurisdiction to the jurisdiction of the ICC when either of two criteria are met:

1. When the detainee consents to the surrender; or
2. When the ICC provides a request for surrender and supporting documentation within 60 days of the arrest.^[7]

If the detaining state is not also a state party to the ICC’s Rome Statute, the surrendering state is not legally bound to comply with the ICC request for surrender.^[8] In addition, the Court must respect any existing legal and diplomatic obligations of the surrendering nation when a second or third country is involved.^[9]

A detained individual may contest the surrender request on the grounds that the case is not admissible at the ICC, for instance, under the principle of ne bis in idem.^[10] For this particular challenge, the question of admissibility must be resolved before the state may execute the request for surrender.^[11]

Given the conflicting political pressures among the various parties, it will be interesting to see how the Red Notice effect is felt in this case and how the targeted individuals respond.

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[1] Interpol Issues First ICC Red Notices, ICC Press Release, ICC-OTP-20060601-138-En, June 1, 2006 [hereinafter ICC Press Release]. See also Interpol Issues First Red Notices on Behalf of International Criminal Court, Interpol Press Release, June 1, 2006 [hereinafter Interpol].
[2] Interpol Issues Notices for Ugandan Rebel Leaders, Sudan Tribune, June 4, 2006 [hereinafter ST]. Persistent reports that Dominic Ongwen was killed last year in combat had not been confirmed at the time of this post.
[3] ICC Press Release supra note 1.
[4] Decision on the Prosecutor’s Applications for Warrant of Arrest Under Article 58, ICC‑02/04, July 8, 2005.
[5] Id. at pg. 8.
[6] ST supra note 2.
[7] ICC Rules of Procedure and Evidence, Rule 188.
[8] Rome Statute, art. 89(1).
[9] Id. at art. 98.
[10] Id. at arts. 89 and art. 20. The principle of ne bis in idem is similar to the "double jeopardy" bar against reprosecution in American criminal law. Article 20(3) states that “no person who has been tried by another court…shall be tried by the Court with respect to the same conduct…”
[11] Id. at art. 89(2).