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HUMAN RIGHTS QUARTERLY

Who Pursues the Perpetrators?

State Cooperation with the ICC

Courtney Hillebrecht* & Scott Straus**

ABSTRACT
Despite the International Criminal Court's increased prominence in interna-
tional politics, there remains marked variation in states' cooperation with
the ICC. This article asks why do states cooperate with the ICC following
an indictment, arrest warrant or request for information, and how do these
patterns of cooperation affect the Court's ability to constrain state behavior?
Using comparative case studies from Kenya, C6te d'lvoire, and Libya, we
suggest that states' cooperation with the ICC is a function of do i sthpoliti-
cal calculations, tempered by states' international partners and ambitions
and the ICC's own learning process.

I. INTRODUCTION

In the decade since its founding, the International Criminal Court (ICC) has
initiated legal proceedings in twenty-one cases across eight situations, or
human rights crises, and built a membership of 123 states. Despite early
growing pains and persistent critiques of its work, the Court has established
itself as an integral part of contemporary international criminal law. Yet the

* Courtney Hillebrecht is Associate Professor of Political Science at the University of Nebraska-

Lincoln. She is the author of Domestic Politics and Human Rights Tribunals: The Problem
of Compliance (Cambridge 2014) and co-editor of State Responses to Human Security:
At Home and Abroad (Routledge 2013). This research was funded by a Carl J. Schneider
Research Grant.
**Scott Straus is Professor of Political Science and International Studies at the University of
Wisconsin, Madison. His most recent books are: Making and Unmaking Nations: War,
Leadership, and Genocide in Modern Africa (Cornell, 2015) and Fundamentals of Genocide
and Mass Atrocity Prevention (United States Holocaust Memorial Museum, 2016).

Human Rights Quarterly 39 (2017) 162-188 C) 2017 by Johns Hopkins University Press
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 163

ICC, like many international human rights tribunals and treaties, has weak
enforcement powers. It lacks any real authority to enforce its arrest warrants
or requests for information and has no police force or military to capture
suspects. Instead, the ICC depends almost entirely on state cooperation in
order to bring suspected perpetrators to justice.
States vary considerably in whether and how much they cooperate with
the ICC. Some states, like the Central African Republic and Uganda, have
sought the ICC's help in bringing perpetrators to justice. Others, like Sudan,
have issued blanket rejections of the Court's authority, while still others, like
Libya and Kenya, have erected pseudo-legal hurdles to cooperation and the
extent of their cooperation has varied over time. Yet other states, like Cbte
d'lvoire, have cooperated on some cases but not others. What explains the
varying degrees of state cooperation with the ICC?
Building on the growing literature on compliance and cooperation with
international human rights and criminal tribunals, we suggest that states'
cooperation with the ICC is contingent on the ability of incumbents to use
cooperation for their domestic political gain. In particular, we identify two
conditions under which cooperation is likely: first, when incumbents use
the Court to constrain and remove domestic opposition in a process we
call the "international legal lasso," and, second, when incumbents are able
to dictate the timing and sequencing of ICC investigations such that they
minimize risk of accountability themselves. Further, we suggest that pressure
by international donors and concerns about international reputation can
nudge a state toward cooperation but that these influences are unlikely to
trump an incumbent's domestic political interests.
Our empirical analysis bears out these propositions. In general, state
incumbents, meaning individual political elites who hold office at the time of
their interactions with the ICC, cooperate most completely when the targets
of investigation and indictment are their political or military opponents. In
these cases, the state uses the ICC as an international legal lasso. By the
same logic, state incumbents reject the Court's authority most completely
when members of a ruling coalition are the targets of the ICC. In these cases,
the legal lasso falls short because the ICC cannot carry easily its writ into
the domestic affairs of the state. By implication, cooperation typically tracks
the ways in which cases get to the ICC in the first place, with cooperation
more likely in cases of self-referral than in those in which the ICC's chief
prosecutor or the United Nations Security Council (UNSC) initiate the in-
vestigations and trials. Indeed, the term "self-referral" might be a misnomer,
as these cases often act as "opposition-referrals," with incumbents triggering
the use of the ICC as a way to remove or undermine their domestic political
adversaries. There are some variations to this pattern, of course, in particular
in cases in which both cooperation and outright rejection of the Court each
entail significant costs for political incumbents. In such situations, states
164 HUMAN RIGHTS QUARTERLY Vol. 39

try to manage the dual risks of accountability and the loss of international
and domestic political capital by engaging in what we call qualified or pro
forma cooperation.
In explaining these patterns of cooperation, our research makes three
main contributions to the international relations and human rights litera-
tures. First, by focusing on the mechanisms of cooperation, particularly the
international legal lasso, this article unpacks the conditions under which
political elites are willing to risk international scrutiny and prosecution at
an international tribunal. Our research also illustrates how these conditions
change, affecting cooperation in the process. By focusing on the process
of cooperation, our research moves beyond correlational studies between
domestic politics and cooperation with international courts and demon-
strates how particular domestic political configurations facilitate or thwart
cooperation.
Second, and relatedly, our work considers the iterative and highly stra-
tegic interactions between the ICC and states. Both the ICC and domestic
political elites are strategic actors with their own interests and preferences.
When states are willing to cooperate on specific cases, it is likely that the
interests of the state incumbents align with the Courts on those cases. How-
ever, political elites, who are willing to work with the ICC when they see an
opportunity to advance their domestic political goals, can also be hesitant to
cooperate with the Court when doing so increases their own risk of prosecu-
tion. Indeed, domestic elites sometimes find themselves with interests that
directly collide with those of the ICC, in which case cooperation is unlikely.
In recent years, the ICC has been more mindful of how its interests
intersect with those of domestic political elites. Indeed, the ICC has good
reason to be cautious and strategic in its interactions with states. Some Af-
rican leaders have argued that the Court is biased against Africa and point
to the fact that all of the ICC's cases come from Africa as indicative of the
Court's bias against them. The tension between the African Union (AU) and
the ICC reached a crescendo in 2013 and 2014, when AU states met to
discuss a mass withdrawal from the Rome Statute and began drafting plans
for a new, multi-chamber African Court of Justice and Human Rights that
would include a criminal court chamber and circumvent the ICC. With its
legitimacy and authority questioned, the ICC is careful to protect its remit.
These concerns affect the ways in which the ICC interacts with states, in-
fluencing in particular how much the court is willing to push and shame a
state that withholds cooperation.
Third, our research begins to answer a pressing question about the ICC:
does it have any deterrent power? One of the central aims of the ICC is to
punish perpetrators of atrocity crimes in order to deter future atrocities. The
underlying assumption is that would-be perpetrators would refrain from
committing atrocities if they feared international prosecution for such acts.
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 165

In practice, however, deterrence behavior is difficult to observe and even

more difficult to identify causally. In order for the ICC to have a deterrent
effect, however, it would need to be able to garner cooperation even from
the most powerful suspected perpetrators. If state cooperation with the ICC
is voluntary and inconsistent, then any possible deterrent effect becomes
muted. Overall, our research points us in this direction: incumbents have
significant latitude with respect to cooperating with the ICC, choosing to
cooperate when doing so aligns with their domestic political interests, and
vice versa. The Court itself cannot directly induce cooperation and, given
growing opposition from African countries and other concerns, it operates
in a cautious fashion, apparently unwilling to condemn noncooperation
too loudly. At the same time, we find that domestic civil society, a state's
regional aspirations, and a state's international allies can create conditions
under which noncooperation is quite costly. The high price of noncoopera-
tion in these instances closes the room for state maneuvering, suggesting in
turn there is some deterrent effect by the ICC.
The remainder of the article explores these claims and proceeds as fol-
lows. The next section outlines the importance of state cooperation for the
ICC. The following section builds on the existing approaches to understand-
ing cooperation with international human rights and criminal tribunals and
outlines three main drivers of cooperation with the ICC. The next section
considers the role of the ICC as a negotiating partner. The fourth section
develops a rubric for assessing cooperation with the ICC and provides an
empirical analysis of the dynamics of state cooperation for each of the
ongoing ICC situations. The fifth section explores in greater depth the two
main cases, C6te d'lvoire and Kenya, and provides a brief analysis of the
role of the ICC in Libya. Finally, the article concludes with a discussion of
the implications of our analysis and areas for future research, including the
implications of our findings for the deterrent effects of the ICC.

II. THE ICC AND STATE COOPERATION

Established in 2001, the ICC is an international court of last resort designed

to try the perpetrators of the worst crimes-genocide, crimes against hu-
manity and war crimes.' There are three ways in which cases can get to

1. See, e.g., THE RECKONING: THE BATTLE FOR THE INTERNATIONAL CRIMINAL COURT (Skylight Pictures
2009), available at http://skylight.is/films/the-reckoning/; INTERNATIONAL CRIMINAL COURT,
THE ICC AT A GLANCE, available at http://www.europarl.europa.eu/meetdocs/2004_2009/
documents/dv/afet_04112008jicc/afet04112008_iccen.pdf; SARA MCLAUGHLIN MITCHELL
&

EMILIA JUSTYNA POWELL, DOMESTIC LAw GOES GLOBAL: LEGAL TRADITIONS AND INTERNATIONAL COURTS
(2011).
166 HUMAN RIGHTS QUARTERLY Vol. 39

the ICC: self-referrals, Security Council referrals, and the ICC Prosecutor's
propio motu powers. Self-referrals entail member states asking the ICC to
investigate situations in which war crimes, crimes against humanity, and
genocide might have occurred. Through the self-referral process, states cede
the authority for the investigation of these crimes to the ICC. Self-referrals
have thus far represented the majority of the ICC's workload, including the
situations in the Central African Republic, the Democratic Republic of the
Congo, Mali, and Uganda. The second mechanism, UNSC referral, takes
place under Article 13 of the Rome Statute. The UNSC can ask the Office
of the Prosecutor (OTP) to open an investigation in situations in which the
Security Council believes that atrocity crimes have taken place and pose a
threat to world peace. Thus far, these referrals have been limited to Libya
and Sudan. As David Bosco notes, UNSC referrals are most likely to happen
when the state in question does not have a clear patron among the P-5. 2
Finally and most controversially, situations can be referred to the ICC via
the Prosecutor's propio motu powers. According to Article 15 of the Rome
Statute, when the Prosecutor believes that atrocity crimes have taken place
within the territory of a member state and are unlikely to be prosecuted
domestically, he or she can open investigations into the alleged crimes. The
OTP has exercised these powers in Kenya and C6te d'lvoire, two of the cases
we explore in more depth below.
Although the scope of the ICC's jurisdiction is clearly outlined in the
Rome Statute, the execution of that jurisdiction is far less clear. In particular,
state cooperation is fundamental to the success of the Court. While broad
membership in the Rome Statute is, of course, necessary for the Court to
work and survive, it is the beginning, not the end, of the story. Once states
are party to the Rome Statute and have accepted the jurisdiction of the ICC,
they are regularly called upon to perform a number of tasks, from helping
arrest and turn over suspected perpetrators to providing access to victims
and witnesses and establishing field offices. The daily operation and the
overall success of the Court are contingent upon states' cooperation on
these matters.'

2. DAVID Bosco, ROUGH JUSTICE: THE INTERNATIONAL CRIMINAL COURT IN A WORLD OF POWER POLITICS
(2014). This, then, explains why we do not see the UNSC referring situations like those
in Israeli/Palestinian territories and Syria to the ICC. As Palestine's recent accession into
the Rome Statute and Article 12(3) declaration regarding alleged violations in the Pales-
tinian territories show, however, the UNSC's failure to act does not inherently preclude
ICC action.
3. VICTOR PESKIN, INTERNATIONAL JUSTICE IN RWANDA AND THE BALKANS: VIRTUAL TRIALS AND THE STRUGGLE
FOR STATE COOPERATION (2008); Victor Peskin, Caution and Confrontation in the International
Criminal Court's Pursuit of Accountability in Uganda and Sudan, 31 Hum. RTS. Q. 655
(2009).
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 167

III. DOMESTIC POLITICS, INTERNATIONAL AMBITIONS, AND THE

UNCERTAINTY OF COOPERATION

Given the importance of states' cooperation for the daily operation of the
ICC, scholars and practitioners alike must understand the conditions under
which states are likely to cooperate with the Court-or not. In this section,
we advance a theoretical framework for cooperation with the ICC based
on the fundamental idea that political elites' cooperation with the ICC is
predicated on their ability to balance the risk of being prosecuted themselves
with their willingness to use cooperation to advance their own political
agenda. Cooperating with the ICC can be a great asset for state incumbents
to remove or undermine their domestic opposition and to advance their
international reputation. Moreover, cooperating with the Court can signal
a commitment to human rights and the rule of law that can, in turn, serve
as a bargaining chip in trade deals and other multilateral or international
negotiations.' But cooperation can also bring great risk, most notably in
the form of an indictment. Cooperation can also alienate some domestic
constituencies who are opposed to the Court or who view it as a tool of
Western neocolonialism. Furthermore, the changing nature of the ICC itself
complicates any cost-benefit analysis that elites might undertake. The relative
incipience of the ICC and the fact that the ICC's caseload has been so small
means that political elites do not have many prior examples of adjudication
on which to base their expectations of future ICC action.
It is important to note that each of the three factors we identify as impor-
tant for explaining cooperation with the ICC are rooted in domestic politics.
We begin from the premise that cooperation with the ICC is shaped less by
the ICC's ability to constrain state behavior than the states' internal political
constraints and ambitions. This assumption stems from recent research on
compliance and cooperation with international courts, which posits that
these international institutions do not necessarily constrain or even screen
out noncompliant states, but instead initiate a set of domestic actions that
can lead to cooperation and compliance.'

4. Beth A. Simmons & Allison Danner, Credible Commitments and the International Criminal
Court, 64 INT'L. ORG. 225 (2010); EMILIE M. HAFNER-BURTON, FORCED TO BE GOOD: WHY TRADE
AGREEMENTS BOOST HUMAN RIGHTS (2009).
5. Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L. J. 1935
(2002); Courtney Hillebrecht, The Domestic Mechanisms of Compliance with International
Human Rights Law: Case Studies from the Inter-American Human Rights System, 34
Hum. RTS. Q. 959 (2012); COURTNEY HILLEBRECHT, DOMESTIC POLITICS AND INTERNATIONAL HUMAN
RIGHTS TRIBUNALS: THE PROBLEM OF COMPLIANCE (2014); Yonatan Lupu, Best Evidence: The Role
of Information in Domestic judicial Enforcement of International Human Rights Agree-
ments, 67 INT'L. ORG. 469 (2013); James D. Morrow, When Do States Follow the Laws of
War?, 101 AM. POL. ScI. REV. 559 (2007); James Raymond Vreeland, Political Institutions
and Human Rights: Why Dictatorships Enter into the United Nations Convention Against
Torture, 62 INT'L. ORG. 65 (2008).
168 HUMAN RIGHTS QUARTERLY Vol. 39

The international relations literature has long recognized that domestic

mechanisms fill the enforcement gap left by international human rights re-
gimes, including international criminal regimes. 6 The literature on compliance
with international human rights courts reasserts the role of domestic politi-
cal actors and institutions in promoting compliance and cooperation.! As
Hillebrecht's research on the European and Inter-American regional human
rights courts suggests, procompliance coalitions comprised of domestic actors,
including the executive, judiciary, and legislature are critical for compliance
with these tribunals' rulings. Moreover, these tribunals offer clear incentives
for domestic actors, executives above all, to comply. These incentives include
providing opportunities to signal to domestic and international audiences a
commitment to human rights, providing political cover for potentially divi-
sive human rights policy change, and upholding longstanding traditions of
promoting human rights and the rule of law." More generally, international
human rights law and international human rights and criminal tribunals'
rulings can empower domestic courts,9 help executives and legislators set
the domestic agenda,10 and mobilize civil society organizations." In turn,
domestic actors actively use-and occasionally usurp-cooperation and
compliance with these tribunals to advance their domestic political interests.

6. Emilie M. Hafner-Burton, International Regimes for Human Rights, 15 ANNU. REV. POL. SCI.
265 (2012); HILLEBRECHT, DOMESTIC POLITICS AND INTERNATIONAL HUMAN RIGHTS TRIBUNALS, Supra
note 5; BETH A. SIMMONS, MOBILIZING FOR HUMAN RIGHTS: INTERNATIONAL LAW IN DOMESTIC POLITICS
(2009).
7. Hillebrecht, The Domestic Mechanisms of Compliance with International Law, supra
note 5; HILLEBRECHT, DOMESTIC POLITICS AND INTERNATIONAL HUMAN RIGHTS TRIBUNALS, supra note
5; Courtney Hillebrecht, The Power of Human Rights Tribunals: Compliance with the
European Court of Human Rights and Domestic Policy Change, 20 EUR. J. INT'L. REL.
1100 (2014); Courtney Hillebrecht, Implementing International Human Rights Law at
Home: Domestic Politics and the European Court of Human Rights, 13 Hum. RTS. REV.
279 (2012); Alexandra Valeria Huneeus, Compliance with International Court Judgments
and Decisions (U. Wis. Legal Studies Research Paper No. 1219, 2013), available at http://
papers.ssrn.com/abstract=21 98595; Alexandra Huneeus, Courts Resisting Courts: Lessons
from the Inter-American Court's Struggle to Enforce Human Rights, 44 CORNELL INT'L. L.
J. 493 (2011); Darren Hawkins & Wade Jacoby, Partial Compliance: A Comparison of
the European and Inter-American Courts of Human Rights, 6 J. INT'L. L. & INT'L. REL. 35
(2010).
8. HILLEBRECHT, DOMESTIC POLITICS AND INTERNATIONAL HUMAN RIGHTS TRIBUNALS, supra note 5.
9. Huneeus, Compliance with International Court Judgments and Decisions, supra note
7; Lupu, supra note 5; SIMMoNs, supra note 6; Courtenay R. Conrad & Emily Hencken
Ritter, Treaties, Tenure, and Torture: The Conflicting Domestic Effects of International
Law, 75 J. POL. 397 (2013); Emilia Justyna Powell & Jeffrey K Staton, Domestic judicial
Institutions and Human Rights Treaty Violation, 53 INT'L. STUD. Q. 149 (2009).
10. Hillebrecht, The Domestic Mechanisms of Compliance with International Law, supra
note 5; HILLEBRECHT, DOMESTIC POLITICS AND INTERNATIONAL HUMAN RIGHTS TRIBUNALS, supra note
5; SIMMONS, supra note 6, at 20.
11. MARLIES GLASIUs, THE INTERNATIONAL CRIMINAL COURT: A GLOBAL CIVIL SOCIETY ACHIEVEMENT (2006);
SIMMoNs, supra note 6; Peter van Tuijl, NCOs and Human Rights: Sources of justice and
Democracy, 52 J. INT'L. AFF. 493 (1999); Courtenay Ryals Conrad & Will H. Moore, What
Stops the Torture?, 54 AM. J. POL. Sci. 459 (2010).
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 1 69

A. The International Legal Lasso

One way that domestic political elites use the process of cooperation with
the ICC to advance their domestic political interests is through a mechanism
that we call the "international legal lasso." Incumbent cooperation is most
likely to occur when neither the incumbents nor their political allies are the
defendants and when cooperating with the Court introduces the possibility
of removing a political foe. For state incumbents, a successful prosecution
serves as a political windfall, one in which the state appears to be coop-
erating with international justice institutions, thereby earning reputation
benefits, and removes and delegitimizes an immediate and likely persistent
threat. In this way, cooperation with the ICC serves as a domestic political
lever that state incumbents harness to consolidate their authority. While this
might be a naked grab for power, it is nonetheless cloaked in the discourse
of international legitimacy.
We propose to think of this process as an international legal lasso by
which domestic elites rope in other political actors through cooperation
with the ICC. Figure 1, below, depicts this relationship.
It also follows from this logic that states would be more likely to co-
operate with the ICC when the suspects come from outside of the ruling
coalition. As Tom Ginsburg argues, ratification of the Rome Statute is a way
for states to signal their commitment to prosecute their opponents, although,
as he says, ratification is not equally a commitment to be prosecuted."
When facing the threat of prosecution themselves, incumbents are unlikely
to cooperate with the ICC, but they might very well reach out to the ICC
when cooperating with the Court would remove powerful spoilers from the
domestic political arena.
Thus, we arrive at two straightforward hypotheses:
Hi: States are more likely to cooperate with the ICC when the indictees come
from the opposition to the ruling coalition.

H2: States are less likely to cooperate with the ICC when the indictees are in
or are allied with the ruling coalition.

B. The Downstream Threat of Accountability

Even for those states most intent on using the international legal lasso,
cooperation with the ICC does not come without costs or risks. In many
conflict environments, atrocities are double sided. The violence is commit-

12. Tom Ginsburg, The Clash of Commitments at the International Criminal Court, 9 CHI. J.
INT'L. L. 499 (2009).
170 HUMAN RIGHTS QUARTERLY Vol. 39

ICC

Ruling
Elites

Opposition
Suspects

Figure 1. The International Legal Lasso

ted as part of a political struggle for power, and in most situations under the
ICC's watch, neither the state incumbents nor the opposition emerged from
the preceding conflict with clean hands. This implies that even the most
cooperative ruling elites could later find themselves under investigation at
the ICC for the violence that they committed during the preceding (or even
ongoing) conflict. We can consider this a downstream threat of accountability.
Cooperation heightens the risk of future accountability for a number of
reasons. First, by allowing the ICC to set up a field office, conduct investi-
gations, and get testimony from witnesses and victims, ruling elites run the
risk that the ICC will unearth details of their complicity in genocide, war
crimes, and crimes against humanity. Second, the precedent of cooperation
with the ICC raises expectations about accountability among domestic and
international audiences. These expectations can later be turned against the
ruling elite if the ICC comes knocking. This risk is particularly heightened
when criminal courts make a point of avoiding perceptions of one sided or
victors' justice.
An observable implication of this argument is that state leaders will be
more likely to cooperate if they can successfully persuade ICC prosecutors
to sequence their investigations and indictments such that the OTP first
indicts members of the opposition." Given the slowness and vagaries of
international justice, putting members of the opposition on trial first buys
ruling elites years of immunity. Thus:
H3: In the case of two-sided violence, states are more likely to cooperate with
the ICC if they can negotiate with the ICC to investigate and indict the opposi-
tion first.

13. Of course, this raises the potential selection concern that the OTP will attempt to indict
cases in which cooperation is more likely, although we bracket this selection question
for the time being.
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 171

C. Potential Costs of Noncooperation

In addition to their immediate concerns over domestic politics and the threat
of individual indictment, political elites must also consider their state's in-
ternational and regional ambitions and integration. Despite its challenges,
the ICC has become a flagship institution of the international human rights
infrastructure, and cooperating with the ICC is a signal of states' commit-
ments to human rights and the rule of law. 14
lOs and powerful NGOs can serve as gatekeepers to the most influen-
tial states and hem in other states' regional or international aspirations."
For small and medium power states to increase their stature and influence,
whether that means economically, militarily, or socioculturally, they need to
play by certain international norms and expectations. This is particularly true
for those states that are dependent on foreign aid, foreign direct investment,
and international trade, including those that are under ICC investigation.' 6
Thus, noncooperation with the ICC also carries some substantial potential
costs. Many of the states facing ICC investigations are low income states that
depend on donors for budgetary, development, and military assistance. When
noncooperation would harm their international reputation, especially with
donors, states face potential reputational costs. The specific claim is that:
H4: The more donor-dependent and/or more internationally-integrated a state,
the more likely it is to cooperate with the ICC.

IV. THE ICC AS NEGOTIATING PARTNER

While our emphasis is on states' strategic behavior, the ICC also has incen-
tives and interests, which in turn shape the dynamics of cooperation. The
ICC is not an apolitical actor. The Court must navigate the political landscape
of the countries with which it is working as well as the overall international
environment. More than a decade into its existence, the Court's political
position is especially salient because it faces resistance from a range of
actors: from the AU and African states who are troubled by the fact that
the Court's current cases all stem from the region; from the United States,

14. Judith Kelley, Who Keeps International Commitments and Why? The International Crimi-
nal Court and Bilateral Nonsurrender Agreements, 101 AM. POL. Sa. REV. 573 (2007);
Simmons & Danner, supra note 4.
15. Christopher L. Pallas & Johannes Urpelainen, NGO Monitoring and the Legitimacy of
International Cooperation: A Strategic Analysis, 7 REV. INT'L. ORG. 1 (2012).
16. HAFNER-BURTON, supra note 4; David L. Richards, Ronald D. Gelleny & David H. Sacko,
Money with a Mean Streak? Foreign Economic Penetration and Government Respect
for Human Rights in Developing Countries, 45 INT'L. STUD. Q. 219 (2001); FREDERICK M.
ABBOTT, CHRISTINE BREINING-KAUFMANN & THOMAS COTTIER, INTERNATIONAL TRADE AND HUMAN RIGHTS:
FOUNDATIONS AND CONCEPTUAL ISSUES (2006); ANN KENT, BEYOND COMPLIANCE: CHINA, INTERNATIONAL
ORGANIZATIONS, AND GLOBAL SECURITY (2010); Xun Cao, Brian Greenhill & Aseem Prakash,
Where Is the Tipping Point? Bilateral Trade and the Diffusion of Human Rights, 43 BRIT.
J. PoL. ScI. 133 (2013).
172 HUMAN RIGHTS QUARTERLY Vol. 39

which has adopted a more supportive stance toward the Court under the
Obama administration but still cannot fund any of the Court's work, creat-
ing resentment among Rome Statute member states; and from the Court's
main principals in the Western Europe and Other Group (WEOG) who are
unhappy about the ICC's high price tag and the perceived incompetence of
the judicial and prosecutorial teams.
In interviews, Court officials have shown themselves to be keenly aware
of these problems and have been very proactive over the past few years in
trying to change their public perception. Combating the so called "Africa
17
Problem" has been central to these efforts. We hypothesize that the Court's
public perception problem means that the ICC is eager to collect a few
"lwins." In particular, the Court is looking to assuage critics by showing that
some Africans support the Court and by demonstrating that the Court can
put together a set of well constructed and argued cases as well as trials that
are competently run and free of evidence tampering and witness badger-
ing-all problems that the Court has had.
Court officials would reject this claim, maintaining that the ICC only
pursues cases according to the three mechanisms outlined in the introduc-
tion above. However, we suggest that Court officials are now more likely
to pursue cases in which they can expect state cooperation. That is, facing
extensive criticism, Court officials have a strong incentive to secure finished
cases rather than open confrontations with states, thereby risking existing
cases or engendering more paralysis. The Court's desire to restore and buttress
its legitimacy and mount successful cases intersects with state incumbents'
incentives to gain the benefits of cooperation while minimizing the risk of
prosecution. The result is an intricate set of interactions that complicates
the cooperation process.

V. METHODOLOGICAL APPROACH AND EMPIRICAL ANALYSIS

To explore the dynamics of state cooperation outlined above, we investigate

state cooperation empirically. We do this in two ways. First, we develop a
typology of cooperation and use this rubric to analyze the level of coopera-
tion in each case. This allows us to consider cooperation in a comparative
context. Second, we look at three case studies: C6te d'lvoire, Kenya, and
Libya, which illustrate nuanced patterns of cooperation. By focusing on

17. David Smith, New Chief Prosecutor Defends International Criminal Court, THE GUARDIAN, 23
May 2012, available at http://www.theguardian.com/law/2012/may/23/chief-prosecutor-
international-criminal-court; Official Records of the Assembly of States Parties to the
Rome Statute of the International Criminal Court, Twelfth Session, The Hague, 20-28
Nov. 2013, (ICC-ASP/i 2/20), available at https://asp.icc-cpi.int/iccdocs/asp-docs/ASP1 2/
OR/ICC-ASP-1 2-20-ENG-OR-vol-I.pdf.
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 173

these three case studies, we are able to highlight the causal processes that
not only drive states' overall cooperation but that also dictate changes in
states' ability and willingness to cooperate with the ICC. These cases are not
meant to be representative of all ICC situations. Instead, they are illustrative
of those cases in which both the state and the ICC test the limits of interna-
tional law to constrain state actors and the ability of states to constrain the
very institution designed to hold them accountable. That said, while all of
the cases discussed originate from Africa, the dynamics of elite behavior are
generalizable beyond the region. Moreover, the focus on Africa in this article
mirrors the Court's caseload, which is comprised entirely of African cases."

A. EVALUATING COOPERATION

Cooperation with the ICC is a relatively nuanced phenomenon with states

very rarely cooperating with all of the Court's requests." In order to make
sense of the many discrete requests the ICC makes of states, we identify
cooperation as pertaining to one of three categories: procedural and evi-
dentiary; jurisdictional; and practical cooperation with indictments and ar-
rests. The first, procedural and evidentiary, means that states provide the
Court with the information it requires, allows access to victims, facilitates
and protects ICC personnel conducting field visits, and generally follows
the orders and timeframe set by the Court. The second type of cooperation
is jurisdictional. This entails accepting the jurisdiction of the Court and not
starting or continuing domestic trials with the goal of circumventing the
ICC's authority. The third type of cooperation is practical cooperation with
indictments and arrests. This means issuing arrest warrants and carrying out
arrests when a suspect's location is known and/or allowing INTERPOL or
other relevant agencies to carry out these tasks.20 Table Al in the appendix
provides more detailed information on these categories.
Cooperation is necessarily multi dimensional, as the Court often asks
states to engage simultaneously in procedural, jurisdictional, and practical

18. The situations under preliminary examination are more geographically diverse.
19. Courtney Hillebrecht, Rethinking Compliance: The Challenges and Prospects of Measuring
Compliance with International Human Rights Tribunals, 1 J. Hum. RTS. PRAc. 362 (2009);
Hillebrecht, The Power of Human Rights Tribunals, supra note 7; HILLEBRECHT, DOMESTIC
POLITICS AND INTERNATIONAL HUMAN RICHTS TRIBUNALS, supra note 5. It is important to differenti-
ate here between compliance and cooperation. The common usage of compliance in
international relations theory has come to mean the alignment of state behavior with the
specific mandates outlined in international treaties. While we could technically say that
states comply with the ICC when they provide access to witnesses or follow through with
indictments, that strict definition belies the bureaucratic and political decision-making
that is inherent in each of these smaller examples of cooperation.
20. HILLEBRECHT, DOMESTIC POLITICS AND INTERNATIONAL HUMAN RIGHTS TRIBUNALS, supra note 5; Hil-
lebrecht, Rethinking Compliance, supra note 19.
174 HUMAN RIGHTS QUARTERLY Vol. 39

activities. As with compliance with international human rights tribunals,

states rarely cooperate or comply with each and every one of the Court's
demands. Similarly, complete failure to cooperate is also a rarity.2 1 Table
1, below, provides basic information about the eight situations under open
investigation and provides summary analyses of states' cooperation in each
of these situations.
In order to explain why states vary in their cooperation with the ICC,
we must have a consistent way of evaluating cooperation across the differ-
ent cases and over time. To do this, we identify a spectrum of cooperation
comprised of four main categories. On one end of the spectrum we refer to
"full" cooperation, meaning that the state fulfills the vast majority of the ICC's
requests, whether they are procedural, jurisdictional, or practical. Toward
the middle of the spectrum are "qualified" and "pro forma" cooperation.
Qualified cooperation indicates that the state cooperates up until a certain
point but has a set of nonnegotiable issues on which it will not yield. Often
these are of a practical or jurisdictional nature. Pro forma cooperation indi-
cates that the state does the minimum to approximate cooperation and poses
technical challenges to cooperation. States exhibiting pro forma cooperation
couch their behavior within the language and processes of the Court, often
using legal technicalities to limit their cooperation. They typically cooper-
ate on procedural matters but seek to block the Court from exercising full
jurisdictional authority. Finally, at the other end of the spectrum, we have
"noncooperation," or rejection, meaning that the state opts against coopera-
tion and outwardly contests the ICC's work.
The boundaries of each type of cooperation-full cooperation, qualified
cooperation, pro forma cooperation, and noncooperation-are fuzzy. States'
actions do not necessarily fit neatly within each of these categories, and
given that states regularly engage in 5 la carte compliance, it is important
not to set rigid boundaries between different compliance or cooperation
levels.22 With this in mind, this spectrum provides us with both an empiri-
cal description of states' behavior toward the ICC as well as an evaluation
schema that we can use across the various situations, cases, and states. 23

21. supra note 5; Hawkins

HILLEBRECHT, DOMESTIC POLITICS AND INTERNATIONAL HUMAN RIGHTS TRIBUNALS,
& Jacoby, supra note 7.
22. Hillebrecht, Rethinking Compliance, supra note 19; HILLEBRECHT, DOMESTIC POLITICS AND
INTERNATIONAL HUMAN RIGHTS TRIBUNALS, supra note 5.
23. For more on measuring compliance and cooperation see: Hawkins & Jacoby, supra note
7; Pierre Hazan, Measuring the Impact of Punishment and Forgiveness: A Framework
for Evaluating Transitional Justice, 88 INT'L. REV. RED CROss 19 (2006); HILLEBRECHT, DOMESTIC
POLITICS AND INTERNATIONAL HUMAN RIGHTS TRIBUNALS, supra note 5; Hillebrecht, Implement-
ing International Human Rights Law at Home, supra note 7; Hillebrecht, Rethinking
Compliance, supra note 19; AnnJanette Rosga & Margaret L. Satterthwaite, The Trust in
Indicators: Measuring Human Rights, (N.Y.U. Pub. Law & Legal Theory Working Paper
No. 91, 2008), available at http://Isr.nellco.org/nyu-piltwp/91; Helen Watchirs, Review
of Methodologies Measuring Human Rights Implementation, 30 J. L. MED. & ETHICS 716
(2002).
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 175

TABLE 1.
Case Summaries and State Response to ICC Requests

Situation Referral Method Basic Statistics Responses to ICC Requests

Central Self-referral 5 arrest warrants (AW) * Referred case to ICC.

African 2 cases * Belgium delivers AW and
Republic 2 trials facilitates arrest.
2 detained
3 interim release

Kenya Propio Motu 6 summonses * Challenged admissibility.

0 in custody * Stated would develop
3 cases internal mechanisms.
1 trial * Indicted suspect wins in
1 pre-trial Presidential elections.
1 withdrawal of charges * Charges withdrawn
1 AW against indicted suspect.

Libya UNSC referral 3 AW * Challenged admissibility

0 in custody of Saif's case on
1 suspects at large principle of subsidiarity,
1 suspect dead holding him in Libya.
1 case * Has limited/restricted ICC
1 inadmissible access to suspect.
* Al-Senussi case
inadmissible, domestic
proceedings.

C6te d'Ivoire Propio Motu 3 AW * Turned Mr. Gbagbo and

2 in custody Bl Goud6 over to ICC.
1 at large * Reaffirmed commitment
1 case to Court.
* Refuses to hand over Mrs.
Gbagbo.

DR Congo Self-referral 6 AW * Asked ICC to initiate

1 in custody investigation.
1 at large * Assisted in/cooperated
1 case dropped charges with arrests.
2 convictions * Has refused cooperation
1 acquittal re: Ntaganda.
* Ntaganda self-
surrendered.

Uganda Self-referral 5 AW warrants * Asked for assistance to

1 in custody find Kony.
3 at large * Also claims will try Kony
1 suspect dead domestically.
* Surrendered Ongwen to
ICC through participation
in AU Regional Task
Force.
176 HUMAN RIGHTS QUARTERLY Vol. 39

TABLE 1. CONTINUED

Situation Referral Method Basic Statistics Responses to ICC Requests

Darfur UNSC Referral 4 AW * Refused to comply or

3 at large recognize ICC.
5 cases * Chad has similarly refused
3 voluntarily turned to cooperate with AWs.
themselves over to ICC
after summonses.

Mali Self-referral Investigation opened in * Referred case to ICC;

January 2013 Prosecutor opens
1 in custody investigation.
* Full cooperation

TABLE 2.
Types of State Cooperation and Country Classification

Overall State Type of State Situation Targets of

Cooperation Cooperation Investigation

Strong Full CAR Opposition

Mali

Qualified Uganda Opposition

DRC Opposition
C6te d'lvoire Opposition

Pro forma Kenya Incumbent

Libya Opposition

Weak Noncooperation Sudan Incumbent and

opposition

Table 2 places each of the eight situations on this spectrum of coopera-

tion. Below, we explain how we arrived at our ranking for each of the cases
and discuss how these cases conform to the hypotheses we outline above.
We then turn to more in depth case studies of C6te d'lvoire, Kenya, and
Libya to examine those cases that fall into the qualified/pro forma categories.
Of the ongoing ICC situations, five of them-the Central African Republic,
the Democratic Republic of the Congo, Mali, Sudan, and Uganda-clearly
support our first two hypotheses. In the Central African Republic, for example,
the former president, Frangois Boziz6, used the ICC to physically remove a
political foe: Jean-Pierre Bemba of the Democratic Republic of the Congo.
He used the court as an international legal lasso. A weak domestic political
landscape with few mechanisms for accountability reduced concerns that
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 177

Boziz6 himself would ultimately be turned over to the ICC, while coopera-
tion provided a modicum of legitimacy for Boziz6's government. Similarly,
in Mali, the government has cooperated with the ICC's efforts to try Ahmad
Al Faqi Al Mahdi, who is accused of destroying a set of cultural sites in
Timbuktu in 2012, as part of their broader efforts to regain control over the
north of the country.24
In the Democratic Republic of the Congo, President Joseph Kabila made
a state referral to the ICC in 2004, asking the OTP to investigate the possible
war crimes and crimes against humanity that took place in the Congo from
2002 and onward. 25 Presiding over a very fragile peace and the persistent
threat of conflict, particularly in the eastern part of the country, Kabila and
his interim government wanted to keep potential spoilers and major opposi-
tion parties from the country.26
The outcome has been quite different in Sudan, but it is still in keeping
with our main theoretical proposition. Already an international pariah state,
Sudan's Omar al-Bashir has rejected the ICC's authority and has unsurpris-
ingly refused to cooperate with the ICC, especially on its indictment of
al-Bashir and his Minster of National Defense. The state has little incentive
to cooperate given that the main target is that of the sitting president and
cooperating with the ICC is unlikely to significantly alter the state's interna-
tional reputation or standing.
Uganda exhibits what we referred to above as qualified cooperation. In
referring the situation to the ICC in 2003, the state's interest laid in removing
and undermining a persistent armed opposition group, the Lord's Resistance
Army. The incumbent used the legal lasso, assigning an international court
a task that the state's military forces had not been able to handle. The state
also reaped international reputational benefits for endorsing a then-fledgling
international human rights body. The ICC also benefited in that it received
tacit endorsement from an influential African state, while also opening an
investigation into one of the most notorious armed actors on the continent.
Furthermore, the ICC acted first, and seemingly exclusively, against the op-
ponents of the ruling authorities.2 7

24. Coalition for the ICC, The ICC's Role in Prosecuting and Deterring War Crime Attacks
on Cultural Heritage, GLOBAL JUSTICE, 10 Aug. 2016, available at https://ciccglobaljustice.
wordpress.com/201 6/08/1 0/the-importance-of-protecting-cultural-heritage-and-the-iccs-
role-in-prosecuting-and-deterri ng-the-war-crime-of-attacks-on-cultural-heritage/.
25. International Criminal Court, Situation in Democratic Republic of the Congo, ICC-01/04,
0
available at http://www.icc-cpi.int/en menus/icc/situations%2 Oand%2 Ocases/situations/
situation%20icc%200104/Pages/situation/o20index.aspx.
26. Thijs B. Bouwknegt, How Did the DRC Become the ICC's Pandora's Box?, AFRICAN ARGU-
MENTS, 5 Mar. 2014, available at http://africanarguments.org/201 4/03/05/how-did-the-drc-
become-the-iccs-pandoras-box-by-thijs-b-bouwknegt/.
27. Sarah M. H. Nouwen & Wouter G. Werner, Doing Justice to the Political: The Interna-
tional Criminal Court in Uganda and Sudan, 21 EuR. J. INT'L. L. 941 (2010).
178 HUMAN RIGHTS QUARTERLY Vol. 39

After the ICC took up the situation and issued five separate arrest war-
rants, Uganda began to back away from cooperation. This is for a number
of reasons that are consistent with our theoretical framework above. On the
one hand, the referral was largely ineffective. The four who were indicted
remained at large for many years after the indictment, with one suspect turn-
ing himself in to the ICC in January 2015. On the other hand, the referral
proved politically costly at home. It became something of a lightning rod of
criticism againstYoweri Museveni's government. Museveni's critics lambasted
the government for its failure to manage the rebellion and for committing
atrocities in the north of the country. Even if the ICC seemed disinclined to
pursue an indictment against someone within the ruling coalition or within
the Ugandan People's Defense Forces, the Museveni government faced
some costs for his cooperation with the Court and the possible specter of an
indictment against someone in his coalition, prompting him to back away
and eventually disavow it. Museveni's actions conform to our third hypoth-
esis, which predicts early cooperation when an incumbent can sequence
possible arrest warrants but limited cooperation when incumbents are less
able to control the timing and ordering of the indictments and investigations.
These five cases fit neatly within the expectations outlined in our hy-
potheses. The cases of C6te d'Ivoire, Kenya, and Libya, however, showcase
the complex ways in which state cooperation, particularly qualified and pro
forma cooperation, can vary over time and based on strategic interactions
with the ICC.

B. Cbte d'Ivoire

The ICC situation arose in CMte d'lvoire following a contested election in

late 2010. The then incumbent, Laurent Gbagbo, refused to cede power after
losing the second round of elections to Alassane Ouattara. International and
regional organizations strongly sided with Ouattara while forces loyal to
Gbagbo committed, in some cases significant, human rights crimes against
Ouattara's supporters. In the end, Ouattara teamed up with former rebels
who advanced against government forces. With eventual support from the
United Nations and French military forces, pro-Ouattara forces seized control
of the state and arrested Gbagbo, his wife, and other key officials. Along the
way, however, pro-Ouattara forces also committed atrocities against civil-
ians associated with Gbagbo. After the war ended, forces loyal to Gbagbo
decamped to neighboring states, principally Ghana, from whence they
launched military incursions.
C6te d'lvoire initially exercised full cooperation with the ICC but sub-
sequently objected to the Court's jurisdiction. We label their cooperation
as qualified cooperation. Shortly after coming to power, the Ouattara gov-
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 179

ernment and the ICC discussed investigating the post election crisis in The
Hague and the OTP opened the investigations via its propio motu powers.
The Court in turn investigated and issued an indictment for Gbagbo, the
most high-profile suspect. CMte d'lvoire proceeded to hand over Gbagbo
to the ICC; he is now in custody at the ICC. The Court subsequently issued
an indictment against Charles B1d Goud6, the former leader of a militant
organization and an ally of Gbagbo. Bld Goud6 was subsequently arrested
in neighboring Ghana, extradited to C6te d'lvoire, and later transferred to
the ICC. This pattern of state action is consistent with our main hypotheses:
Gbagbo and Bl6 Goud6 were the most important political opposition to
incumbent Ouattara. The state thus used the international legal lasso, re-
moved and potentially discredited the main opposition, and earned some
international accolade for such action.
More puzzling, however, is the state's response to an ICC indictment
against Simone Gbagbo, Gbagbo's wife, for whom the ICC has also issued
an arrest warrant. In this instance, to date, the Ivoirian government has re-
fused to hand over Mrs. Gbagbo, opting instead to try her domestically in
two separate trials. Mrs. Gbagbo stood trial in March 2015 and was later
sentenced to twenty years in prison for her involvement in the post electoral
violence. As of this writing, her second trial is ongoing. What explains this
trajectory? One answer is that Mrs. Gbagbo is less of a political threat than
Gbagbo and Bl Goud6, each of whom is a public political figure with
diehard followers. That is less the case for Mrs. Gbagbo, who was more of
a behind-the-scenes power player during her husband's administration. But
we suspect that the real reason is that the Ouattara regime is maneuvering
to shelter members of the ruling coalition from an eventual ICC indictment.
As noted, atrocities were committed on both sides during the Ivoirian
post electoral violence. Within C6te d'Ivoire, the Ouattara regime has been
facing a phalanx of criticism from international human rights organizations,
donor states, and domestic civil society to avoid one sided justice. Thus,
looking downstream, the Ouattara government likely worries that the ICC
will issue an indictment against key actors within his own fragile ruling
coalition, in particular against military forces that are central to his survival.
The democratic institutions are strong enough in C6te d'lvoire, where there
is an active opposition press, domestic and international human rights
organizations, and a relatively well trained judiciary, that the Ouattara gov-
ernment understands that refusing cooperation would be politically costly.
Thus, rather than having to reject the Court straightforwardly and possibly
jeopardizing the most important trial (of Gbagbo) the Ouattara government
is positioning itself to try cases domestically so as to shelter or selectively
prosecute, if need be, members of its own coalition.
The C6te d'lvoire case, however, raises the question of why the ICC does
not issue more indictments. While Gbagbo was primarily responsible for trig-
180 HUMAN RIGHTS QUARTERLY Vol. 39

gering the post electoral crisis when he refused to step down, the atrocities
committed on both sides were similar in scale. The largest single massacre
and crime against humanity in the 2010 to 2011 period was committed by
pro-Ouattara forces against pro-Gbagbo supporters in and around the town
of Dudkou6. Pro-Ouattara forces also committed significant violations of
human rights against pro-Gbagbo civilians after Gbagbo was ousted. Why
then has the ICC only indicted three members from the former ruling coali-
tions but none from the current ruling coalition?
Our answer concerns the ways in which the ICC is acting strategically.
As noted, the ICC faces significant international opposition and criticism,
especially from among African states. It is fair to characterize the ICC as
being on the defensive, and ICC administrators are looking for a win to help
reestablish the legitimacy of the Court. The Gbagbo case, especially, as well
as the Bl6 Goud6 case, are important to the success of the Court, and thus
the Court has exercised caution in indicting someone from the Ouattara
coalition for fear that such a move would jeopardize future state coopera-
tion. The ICC may one day issue an arrest warrant against a defendant from
the Ouattara coalition and Fatou Bensouda has committed to investigating
both sides of the violence, but such an event is unlikely to take place before
the Gbagbo trial is complete."
All told, the C6te d'Ivoire case is consistent with the theoretical expec-
tations outlined in this article. The state incumbent is exercising enough
cooperation to lasso the administration's principal domestic opposition, using
the court to remove and undermine the most significant political opponent.
However, the administration faces a downstream risk of accountability, which
it is managing through a sequencing of cooperation with full cooperation on
some cases but noncooperation on others. Rather than exposing this contra-
diction and forcing the Ivoirian state to cooperate fully, the court, mindful
of its regional and international position, is exercising strategic caution.

C. Kenya

Kenya's cooperation with the ICC is best characterized as pro forma, mean-
ing that Kenya generally stayed within the confines of the Rome Statute and
played along with the Court's proceedings while also taking every opportunity
to exculpate the indicted. Given that the main cases in Kenya pertained to
the country's current president, Uhuru Muigai Kenyatta, and deputy president,
William Samoei Ruto, many Kenyan constituents and legislators oppose the

28. Tom Miles, ICC Prosecutor Vows to Investigate Both Sides in Ivory Coast, BUSINESS INSIDER,
3 June 2016, available at http://www.businessinsider.com/r-icc-prosecutor-vows-to-
investigate-both-sides-in-ivory-coast-201 6-6.
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 181

ICC. The question for Kenya seems to be: why did the government of Kenya
not simply walk away from the ICC? Our theoretical expectation would be
pro forma cooperation, as the main indictments are against state incum-
bents but those elites would also face significant costs for noncooperation.
More specifically, Kenya has a domestic constituency that accepts the ICC
but rejects the specific cases against Kenyatta and Ruto as well as a set of
international partners and donors for whom cooperation with the ICC is an
important component in determining a state's international good standing.
As Table 1 indicates, the ICC opened three open cases in the situation
in Kenya: The Prosecutor v. William Samoei Ruto and Joshua Arap Sang; The
Prosecutor v. Uhuru Muigai Kenyatta; and The Prosecutor v. Walter Osapiri
Barasa.2 9The two primary cases pertain to the violence that erupted in Ke-
nya in the aftermath of the 2007 elections. At the time, both of the leading
candidates, Mwai Kibaki (PNU) and Raila Odinga (ODM) claimed victory,
leading some of their political and co-ethnic supporters to violently lash out
against the other side.3 0 The violence left approximately 1,000 dead, 3,500
injured, and 350,000 displaced.' On 26 November 2009, the OTP formally
requested authorization from the ICC's Pre-Trial Chamber II to open an in-
vestigation into the post-election violence.32 Pre-Trial Chamber II formally
granted Ocampo's request to open investigations on 31 March 2010.33
Throughout 2009 and 2010 there was very little sense among the Kenyan
leadership that any of their rank would be hauled in front of the judges in
The Hague.3 4 Once it became clear that they had miscalculated, however,
the Kenyan government adopted a stance of pro forma cooperation. Their
strategy generally included three main components: first, cooperation on a
shallow level to all three types of requests discussed above; second, chal-
lenging the Court's decisions on admissibility and the location of the trials
within the channels set up by the ICC; and third, using extra judicial means
to intimidate witnesses.

29. This last case pertains to allegations that the defendant attempted to corrupt three wit-
nesses in the other two cases.
30. Thomas Obel Hansen, The International Criminal Court in Kenya: Three Defining Features
of a Contested Accountability Process and Their Implications for the Future of International
justice, 18 AUSTL. J. Hum. RTS 187 (2012); International Coalition for the Responsibility
to Protect, The Crisis in Kenya, available at http://www.responsibilitytoprotect.org/index.
php/crises/crisis-in-kenya; BEN RAWLENCE & CHRIs ALBIN-LACKEY, HUMAN RIGHTS WATCH, BALLOTS
TO BULLETS: ORGANIZED POLITICAL VIOLENCE AND KENYA'S CRISIS OF GOVERNANCE (2008), available at
http://www.hrw.org/sites/default/files/reports/kenya03O8web.pdf.
31. Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to Article
15 of the Rome Statute on the Authorization of an Investigation into the Situation in the
Republic of Kenya (31 Mar. 2010) [hereinafter Situation in the Republic of Kenya].
32. Id. at 4.
33. Id. at 83.
34. Susanne D. Mueller, Kenya and the International Criminal Court (ICC): Politics, the
Election and the Law, 8 J. EAST. AFR. STUD. 25 (2014).
182 HUMAN RIGHTS QUARTERLY Vol. 39

Despite the many reservations the Kenyan government had about the
ICC, it generally cooperated with the Court's requests for appearances, site
visits' and documents. For example, in October 2014, Kenyatta suspended
his presidential duties to attend a status conference hearing in The Hague,
despite some domestic and regional pressure to ignore the ICC's request.
Moreover, the Kenyatta and Ruto teams consistently used the formal, legal
channels established by the Court to lodge their complaints and challenges.
For example, the Kenyan government lodged an admissibility challenge,
arguing that it would establish a domestic mechanism for accountability
under the principle of complementarity. 5 The Pre-Trial Chamber rejected
the Kenyan government's application, as did the Appeals Chamber follow-
ing Kenya's appeal to the decision. Instead of walking away from the Court,
however, Kenya continued to use the ICC's own framework to challenge the
Court on the location of the trials. 36 That said, in addition to mounting these
formal, legal challenges and cooperating at a basic level with the Court's
requests, the Kenyan government engaged in a widespread process of brib-
ing and intimidating witnesses. These practices led to the withdrawal of the
Prosecutor's case against Francis Kirimi Muthaurall and, more significantly,
to the Court's recent decisions to vacate both the Kenyatta and Ruto cases."
Kenya pursued this type of pro forma cooperation because of the
confluence of competing demands. Because the indictment was against
the state incumbents, Kenyatta and Ruto preferred not to cooperate. Yet,
they tempered their noncooperation because of the costs associated with
an outright rejection of the Court. Domestically, opinion polling indicates
that citizens were opposed to the case against Kenyatta and Ruto but that
they also opposed a withdrawal from the Court. 9 Further, many of Kenya's
main international partners and aid donors are key supporters of the ICC.

35. Situation in the Republic of Kenya, supra note 32.

36. Prosecutor v. William Sameoi Ruto and Joshua Arap Sang, Case No. ICC-01/09-01/1 1,
Decision on Mr. Ruto's Request for Excusal from Continuous Presence at Trial (18 June
2013), available at http://www.icc-cpi.int/iccdocs/doc/docl 605793.pdf.
37. Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Case No. ICC-
01/09-02/11, Prosecution Notification of Withdrawal of the Charges Against Francis
Kirimi Muthaura (11 Mar. 2013), available at https://www.icc-cpi.int/pages/record.
aspx?uri=1 565549.
38. International Criminal Court, Statement of the Prosecutor of the international Criminal
Court, Fatou Bensouda, on the Status of the Government of Kenya's Cooperation with
the Prosecution's investigations in the Kenyatta Case, (2014), available at https://www.
icc-cpi.int/Pages/item.aspx?name=otp-stat-04-12-2014; Press Release, International Crimi-
nal Court, Ruto and Sang Case: ICC Trial Chamber V(A) Terminates the Case Without
Prejudice to Re-Prosecution in Future (5 Apr. 2016), available at https://www.icc-cpi.
int/Pages/item.aspx?name=PR1 205.
39. Rorisang Lekalake & Stephen Buchanan-Clarke, Support for the International Criminal
Court in Africa: Evidence from Kenya (Afrobarometer Pol'y Paper No. 23, 2015), available
at http://afrobarometer.org/sites/default/fi les/publ ications/Pol icy%20papers/ab-r6_pol icy-
paperno23_kenya-anti-corruption.pdf.
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 183

According to the OECD, in the time period between 2010 and 2012, Kenya
received nearly 7 billion USD in overseas development assistance. Its top
ten donors included the United States, Germany, Japan, the European Union,
the United Kingdom, France, and Sweden, as well as the World Bank and
International Monetary Fund. In 2012, international aid represented 6.6
percent of Kenya's gross national income (GNI). 4 0 Notably, Japan, Germany,
4
France, and the United Kingdom also foot a large share of the ICC's bill. 1
Not only were they unlikely to support Kenya's attempts to derail the very
same Court that they fund and support, but they also made it difficult for
Kenya to simply walk away from the ICC.
And thus we arrive at this process of pro forma cooperation. Kenya's
immediate interests would suggest noncooperation, but its long-term stand-
ing in the international system, as well as the future of its foreign policy and
economy depend on cooperating, at least in part, with a Court that poses a
clear threat to the survival of its leadership. The Kenyan case also conforms
to the notion that the ICC is also engaged in a set of strategic interactions
with target states in order to shore up its own legitimacy. The Kenyan policy
of pro forma cooperation, particularly the coupling of delaying the cases via
formal legal challenges, witness intimidation, and evidence tampering, led to
the decision to vacate the Kenyatta and Ruto cases. While it was clear that
the OTP did not make this decision lightly, the withdrawal of these cases
is consistent with the expectation that ICC currently is invested in pursuing
cases in which their probability of success is higher.

D. Libya

As of this writing, we label Libya as demonstrating pro forma cooperation.

While he was still alive, Muammar Gaddafi contested the ICC's authority
to investigate him, his son Saif Al-Islam Gaddafi, and Abdulla AI-Senussi,
Gaddafi's Chief of Military Intelligence. In the aftermath of Gaddafi's death,
the prospect of Libya's cooperation with the ICC improved. Authorities in
Libya and Mauritania arrested AI-Senussi and Al-Islam Gaddafi, and the OTP
had an ongoing dialogue with the interim government. After their arrests,
however, the prospect of cooperation diminished. Despite an incentive to
cooperate given that the indictees came from the political opposition, the
new authorities chose not to use the international legal lasso. Instead, they

40. OECD: Kenya (KEN) Profile of Exports, Imports and Trade Partners, available at http://
atlas.media.mit.edu/profile/country/ken/; World Bank, Net ODA Received (% of GNI)
(2014), available at http://data.worldbank.org/indicator/DT.ODA.ODAT.GN.ZS.
41. What Does the International Criminal Court Do?, BBC NEWS, 25 June 2015, available at
http://www.bbc.co.uk/news/world-1 1809908.
184 HUMAN RIGHTS QUARTERLY Vol. 39

presented a number of highly legalistic challenges to the ICC; a Libyan

court eventually tried, convicted, and sentenced Al-Islam Gaddafi to death
in July 2015.42
Libya posed a number of challenges to the ICC's authority, most of
which have centered on disputes over the applicability of the Rome Stat-
ute, the ICC's jurisdiction over Al-Islam Gaddafi's case, and the principle of
complementarity. Libya also requested, among other things, a delay in the
proceedings. The government also at one point detained ICC staff members
conducting investigations in Libya. 43
The ICC agreed that, according to the principle of complementarity,
Libya could try the case against AI-Senussi, especially after the govern-
ment took steps to ensure due process in his case.44 Nevertheless, the ICC
contended that Al-Islam Gaddafi should have been turned over to the ICC
for trial. This was especially true for the Office of Public Counsel for the
Defense, who expressed concern about Al-Islam Gaddafi's safety. In direct
opposition to this claim, Libyan authorities moved forward with the trial.
The interim government's message to the ICC was clear: we will play by
your legal game, but stay out of our affairs. In fact, Libya's representative
to the ICC said precisely that: "'No amount of pressure will push Libya' to
surrender Saif Al-Islam or Senussi." 4 5
At first glance, Libya's increasingly uncooperative relationship with the
ICC challenges our theoretical framework. As a country enduring continued
violence and whose future economic and political viability will likely rest
on a significant amount of international support, it would seem that the
Libyan government would be keen to remove a source of domestic political
opposition and curry favor with international donors. Yet, we suggest that it
is precisely because of continuing deep instability and political fragmenta-
tion in Libya that the interim government cannot and will not cooperate
further with the ICC.
The British Broadcasting Corporation estimates that there are 1,700
competing militant factions operating in Libya. 46 The government's writ
remains extremely fragile, at best, and even the idea of talking about a
coherent government that exercises sovereign control over territory would

42. Libya Trial: Caddafi Son Sentenced to Death Over War Crimes, BBC NEws, 28 July 2015,
available at http://www.bbc.com/news/world-africa-33688391.
43. Libya: ICC Staff Detentions Raise Justice Concerns, Incident Undermines Lawyers'
Independence, HUMAN RIGHTS WATCH, 3 July 2012, available at https://www.hrw.org/
news/201 2/07/03/libya-icc-staff-detentions-raise-justice-concerns.
44. Libya: A Rebuff to the ICC: Authorities Fail to Surrender Caddafi's Son to ICC, De-
spite Ruling, HUMAN RIGHTS WATCH, 19 Sept. 2013, available at https://www.hrw.org/
news/2013/09/19/libya-rebuff-icc.
45. Mark Kersten, No Winners in ICC-Libya Standoff, FOREIGN Poucy, 8 Oct. 2012, available
at http://foreignpolicy.com/2012/10/08/no-winners-in-icc-libya-standoff/.
46. Why Is Libya Lawless? BBC NEws, 14 Sept. 2016, available at http://www.bbc.com/news/
world-africa-24472322.
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 185

be misconstrued. The country has had two parliaments and indeed two
governments for some time. In a February 2015 report, the normally cau-
tious International Crisis Group referred to Libya as "chaos" with "virtually
no state."47 In these circumstances, the state incumbents, to the extent one
can even speak of state incumbents, lacked sufficient control to move Al-
Islam Gaddafi safely to The Hague. Indeed, according to one ICC bureaucrat
interviewed in 2014, neither officials in The Hague nor in Libya can figure
a way to move Al-Islam Gaddafi safely out of the compound where he had
been held, never mind out of the country.
In addition to the ongoing violence, authorities in Libya have to consider
the possible risk of downstream accountability. Some current government
officials are aligned with armed groups that are complicit in some of the
worst human rights violations that occurred during the conflict. This creates
the very real threat that the ICC will come after them. While a strong armed
dictator such as al-Bashir can control the public sphere enough to mitigate
the threat that domestic actors call for his accountability at the ICC, the lack
of a clear consolidation of power in Libya means that a rival faction could
turn over a rival indicted by the ICC, in part as a way to shore up power.
In short, deep insecurity, fragmentation, and multi-sided atrocity create not
only practical obstacles but also potential significant costs, which seem to
outweigh the benefits of turning over Islam al-Gaddafi to the ICC.

VI. CONCLUSION

In this article we have suggested that cooperation with the ICC is a function
of states' domestic and international interests. We build on the existing lit-
erature on compliance and cooperation with international tribunals to show
not only how domestic interests affect state cooperation with international
tribunals but also how states' international aspirations and commitments
sometimes run orthogonally to domestic incentives.
The case studies presented above illustrate how these domestic and
international factors intersect. In C6te d'lvoire, for example, the Ouattara
government has taken full advantage of the international legal lasso, using
it to remove their most dangerous political rivals. This has lead to a policy
of cooperation that coincides with the Ouattara administration's domestic
political interests, while also minimizing the potential costs associated with
defying the ICC. In Kenya, however, the key suspects are incumbents. While
we might expect this to lead to a policy of noncooperation, the Kenyatta

47. No. 157,

INT'L CRISIS GROUP, LIBYA: GETTING GENEVA RIGHT, MIDDLE EAST AND NORTH AFRICA REPORT
1 (2015), available at https://d2071 andvip0wj.cloudfront.net/1 57-libya-getting-geneva-
right.pdf.
186 HUMAN RIGHTS QUARTERLY Vol. 39

government is keenly aware of the costs of noncooperation, most notably

the fact that major trade partners and donors expect Kenya to cooperate
with the ICC. Thus, Kenya has pursued a policy of pro forma cooperation.
In Libya, in contrast, current security concerns threaten the very viability of
the state and the costs of cooperating with ICC, even to use the international
legal lasso, far exceed the expected benefits.
The analysis presented in this article suggests three areas deserving of
greater research. First, if our contentions are correct, the involvement of
the ICC during conflict can shape the incentive structures of those at war.
Our research suggests that the ICC poses more of a threat to the losers of
conflict than it does to the winners. As we saw in the case of C6te d'lvoire,
and in the brief summary of the cases from the Central African Republic,
the Democratic Republic of the Congo, and Uganda, the victors can use
the international legal lasso against the losers. Knowing that losing on the
battlefield could result in prosecution by the ICC might encourage actors
engaged in conflict to hold on longer, or perhaps even fight dirtier, in the
hopes that they can win the war.
Our research does not suggest, however, that victors and incumbents
can fully escape the reach of the ICC. As the Kenyan case clearly illustrates,
even after capturing the state, incumbents can face indictment. The costs of
noncooperation with the ICC are not insignificant, and the measures that states
must take to engage in even pro forma cooperation require both political
and financial capital, that states and political elites would prefer to expend
in other ways. Even Ouattara, who has successfully used the legal lasso to
remove his biggest challenger, still faces the possibility that a high-ranking
member of his team will face prosecution.
This leads to the second implication of our research: the potential
deterrent effect of the ICC. Our research does not suggest that the ICC has
no deterrent effect, but rather that such an effect is nuanced. Our research
indicates that the ICC's structural relationship with states raises questions
about its capacity for deterrence. The deterrent power of the ICC is likely
to be most effective if political and military elites believe that they cannot
control or manipulate the ICC's prosecution process. For that expectation
to hold, the ICC would have to act in a consistently impartial fashion with
regard to all cases. Our research, by contrast, suggests that controlling the
state creates constraints on the ICC, thereby blunting the ICC's power to
prosecute state incumbents, a situation about which ICC officials are aware.
For nonstate incumbents, however, the threat of ICC prosecution is real. All
this leads us to conclude that perhaps the presence of the ICC may deter
atrocity crimes when state capture is highly uncertain, which is likely to be
the case in many circumstances.
2017 Who Pursues the Perpetrators? State Cooperation with the ICC 187

Third, and finally, we encourage future research to map the various

mechanisms through which the ICC affects elite decision making before,
during, and after conflict. This might entail the assessments leaders make
during conflict about committing atrocity crimes or continuing to fight in the
hopes of turning the tides of the conflict, or the social pressure donor states
put on receiving states to cooperate with the ICC, or even domestic efforts to
adjudicate atrocity crimes at home rather than in The Hague. Our research
suggests that the ICC has become a fixture in the international landscape,
making understanding cooperation with the court even more important.
188 HUMAN RIGHTS QUARTERLY Vol. 39

APPENDIX A.

Table Al
Types of ICC Requests and Cooperation

Cooperation with the ICC

Type of Request Evidence of Cooperation

Procedural and Evidentiary Cooperation * Provides requested information.

* Allows access to witnesses/victims/
suspects.
* Follows procedural orders, e.g., submits
reports on time, accepts amicus briefs.
* General respect for the order and rules of
the Court.
* Allows ICC to visit state.
* Treats ICC visitors with respect (see
Libya's decision to hold ICC investigators
in prison.)

Jurisdictional Cooperation * Supplies legal materials from any relevant

on-going domestic trials.
* Ceases/does not begin domestic trials with
the goal of circumventing ICC
adjudication through the principle of
subsidiarity.
* Does not contest the admissibility of cases
at the ICC.

Cooperation with Indictments and Arrests
* Issues arrest warrants and carries out
arrests when suspect's location is known.
* Cooperates in finding suspect to carry out
the above tasks.
* Allows INTERPOL and/or other help (e.g.,
U.S. military in the case of Kony) in
locating suspects.