Sanctum
for the War Criminal:
Extradition
Law and the International Criminal Court
Sunil Kumar Gupta
[cite
as “3 Cal. Crim. L. Rev. 1 (Oct. 2000) available at
http://www.boalt.org/CCLR/v3/v3guptanf.htm”;
pincite using paragraph numbers]
¶1 The finalization of the treaty in Rome
creating the International Criminal Court (“ICC” or “the Court”) signaled a
great step forward for international law1 and represented the fruition of a
fifty-year-old dream. According to Human Rights Watch:
[t]he
potential impact of the ICC is enormous. By holding individuals personally
accountable, the Court could be an extremely powerful deterrent to the
commission of genocide, crimes against humanity and serious war crimes that
have plagued humanity during the course of this century. Not only is the
establishment of the Court an opportunity to provide critical redress to
victims and survivors, but potentially to spare victims from the horrors of
such atrocities in the future. If effective, the ICC will extend the rule of
law internationally, impelling national systems to themselves investigate and
prosecute the most heinous crimes-- thus strengthening those systems-- while
guaranteeing that where they fail, the ICC can operate to ensure that justice
prevails over impunity.2
Thus, the
fundamental goals of the Court are to investigate and prosecute cases of gross
human rights abuses where domestic systems do not or, in the alternative, to
encourage domestic systems to investigate and prosecute in lieu of the Court.
¶2 Nevertheless, despite the creation of the
Court, its actual effectiveness in bringing war criminals to justice is in
serious doubt. This is because the statute that establishes the ICC contains
provisions that may substantially hinder the apprehension of suspects indicted
by the Court. While, in theory, the Court may have jurisdiction over horrendous
acts such as genocide, war crimes, and crimes against humanity, in practice,
the ability of the court to bring accused suspects before it is heavily
restrained by national laws pertaining to extradition.
¶3 Extradition is normally defined as the
surrender of a person charged or convicted of a criminal offense by one state
to another state, not to an international body.3
Therefore, theoretically, the normal questions raised by extradition requests
such as the fairness of the proceeding and the legitimacy of the charge should
not arise in the context of an international body created with the consent and
approval of the majority of states. However, in reality, there are strong
indications that states will treat the Court’s requests to surrender an accused
like an interstate extradition request. The deliberate failure of the statute
to specifically prohibit the application of extradition procedures opens the
door to a number of different defenses an accused may assert in the custodial
state.
¶4 This article will explore how national
extradition laws and procedures may provide Court-indicted suspects with a wide
range of defenses that will no doubt bring forth the ire of the ICC’s prosecutors
seeking to obtain their arrest and surrender.
¶5
First, this
article will explain how the ICC statute may obtain jurisdiction over cases and
why the application of extradition laws may hinder the very purpose of the
Court. Second, this article will reveal how the ICC statute may permit states
to apply their extradition laws upon the Court’s request for the surrender of
an accused. Third, this article will examine, under the common and civil law
systems, the various defenses and procedures under domestic extradition laws
and how they may interact with an ICC’s surrender request. Throughout, this
article will also compare the statute with those of the existing international
criminal tribunals to highlight the prohibitions each place on extradition procedures.
II. The
Dilemma
¶6 The establishment of the Court was not
without controversy. The final vote on the ICC statute in Rome was 120 in favor
to 7 against, with 21 abstentions.4 The most vocal opposition came from
the United States, Israel, and China.5
As of September 22, 2000, some 113 states have signed the ICC treaty, 21 of
which have gone on to formally ratify the treaty.6
The Court will come into existence once the necessary 60 ratifications are
obtained.7
¶7 The political and legal ramifications of
the Court pose concerns for obvious reasons. The Court represents an effort to
break impunity on a domestic level. The Court will address gross human rights
violations where national forums fail to. Thus, the existence of the ICC raises
the possibility that those accustomed to domestic impunity may be subject to
criminal responsibility under an international forum. In addition, another
concern is the Court's ability to be fair and impartial. Worries abound that
the Court will be subject to political pressures influencing decisions about
whom to prosecute or not to prosecute.
¶8 Historically and theoretically,
extradition laws arose in order to counter just such fears. Extradition laws of
the custodial state attempted to remove or address the political questions arising
from an interstate transfer. States were often leery of foreign judicial
systems, so extradition laws were created to either encourage domestic
prosecutions or to ensure the accused would be fairly treated abroad. As a
result, it seems intuitive for states to also apply the same extradition
safeguards in dealing with an international forum like the ICC. After all, if
individual state judicial systems may be tainted by flaws, ineptness, or
political bias, why presume that the ICC could not fall victim to similar
weaknesses?
¶9 There are two fundamental problems with
this assumption. First, while the ICC has no record yet from which we can judge
its fairness, the Court, in theory, was designed by the nations of the world to
be an independent and impartial institution.
¶10 Second, and more importantly, the Court
is designed to function only where the states involved are unwilling or unable
to prosecute the accused. The ICC is premised on the theory of complementarity
placing it in a position that is subordinate to national courts.8 The ICC can only admit a case where
national courts are unwilling or unable to genuinely prosecute or investigate
the case.9 Consequently, the ICC is designed to
intervene only where the states involved refuse to take action.
¶11 The diagram below explains the processes
required before the ICC can obtain jurisdiction over a case and may find it
admissible. After a crime under Article 5 takes place, there are three
different ways the Court can initiate an investigation: 1. Any state party to
the ICC treaty may refer a case to the Court; 2. The ICC prosecutor may
initiate a case; or 3. The UN Security Council may initiate a case.10
The first two methods of initiation further require that either the state where
the crime took place or the state of the nationality of the accused consent to
the ICC's jurisdiction (either by virtue of being a state party that has
already ratified the ICC treaty or making a special registry with the ICC to
consent to its jurisdiction).11
A case initiated by the Security Council requires no such state consent.12
Once these conditions are met, the ICC has jurisdiction over a case.
¶12 In addition, the case must pass an
admissibility test before it may proceed. A case cannot proceed if it is being
actively pursued by a domestic court with proper jurisdiction or if a domestic
court has already tried the accused for the conduct in question.13
However, the case will be admissible where the domestic forum is
"unwilling or unable" to "genuinely" prosecute the accused.14
A domestic forum is considered unable to genuinely prosecute of investigate
where its national judicial system is unavailable or has substantially
collapsed.15 A domestic
forum is considered unwilling to genuinely prosecute where the domestic
proceedings are delayed unjustifiably, not independent or impartial, for the
purpose of shielding the accused from the ICC, or where no domestic proceedings
are taking place.16
If these criteria are met, the ICC can then hear the merits of the case.
¶13 As the diagram below illustrates, the
statute filters out the types of cases it may hear reserving jurisdiction and
admissibility to cases where there are no domestic proceedings or the domestic
proceedings are disingenuous. In such circumstances, it is not a leap of faith
to conclude that these domestic forums would be hostile to the investigation
and prosecution of the accused.
¶14 On the other hand, if an accused is found
in a state that is not tied to the conduct in question or is not the state of
nationality of the accused, there may not be the problem of the reluctant
state. Thus, this state's application of extradition laws makes more intuitive
sense.17
Provided that no other states with jurisdiction are able or willing to
prosecute the accused, the custodial state may cautiously cooperate through its
extradition safeguards.
¶15 However, it is perhaps more likely that
an accused will remain in a state that is favorable to him, not one that is
willing to extradite him. Therefore, it is more likely that the ICC will
receive cases in which the states involved are reluctant to being cooperative
because of their refusal to genuinely investigate and prosecute. In fact,
knowing that a state is favorable to his interests and that traditional
extradition law would be applicable, an indicted war criminal will specifically
seek sanctum in one of these reluctant states. Consequently, allowing these
states additional mechanisms under extradition law to prevent the ICC from
hearing a case only exacerbates the exact problem the ICC was designed to
thwart.
III.
The Application of National Extradition Laws under the ICC Statute
A. Responsibilities and Rights of the
Custodial State
¶16 Despite the seriousness of the crimes
over which the Court has jurisdiction, the ICC statute contains a number of
provisions deferring to national laws where an indicted suspect is arrested and
transfer is sought to the Court.
¶17 A state party who has received a request
for arrest and surrender has an obligation to “immediately take steps to arrest
the person in question in accordance with
its laws...” (emphasis added).18
The custodial state must bring the accused before “before the competent
judicial authority” in that state which will determine whether: 1. “[t]he
warrant applies to that person”; 2. “[t]he person has been arrested in accordance
with the proper process”; and 3. “[t]he person's rights have been respected.”19
All three of these determinations will be conducted “in accordance with the law of that State” (emphasis added).20
This provision, in particular, is especially problematic because many
extradition laws are for the stated goal of protecting a person’s rights; and,
therefore, may be deemed applicable under the ICC statute.
¶18 Article 89, more crucially reiterates the
fact that, once the Court transmits the arrest warrant, “States Parties shall,
in accordance with the provisions of this Part and the procedure under their national law, comply with requests
for arrest and surrender” (emphasis added).21
While there are provisions regarding international cooperation and judicial
assistance which emphasize that “States Parties shall ensure that there are
procedures available under their national law for all of the forms of
cooperation…”22 and “States
Parties shall, in accordance with the provisions of this Statute, cooperate
fully with the Court in its investigation and prosecution of crimes within the
jurisdiction of the Court”,23
the language of article 89 is troubling. While it could be argued that the
ability to apply “procedure under their national law” might not attach to the
substantive laws of extradition, the legislative history of article 89 reveals
a different intention, if not conflicting intentions.
B. The Legislative History of Article 89
¶19 Initially, the drafters of the statute
suggested using the term “extradition” in the statute and utilized the term
“surrender” in order to stall application of extradition laws.24
However, throughout the entire drafting process the terms “surrender”,
“transfer”, and “extradition” remained as the possible lexicon for naming the
process of releasing a defendant to the Court.25
This alone illustrates the controversy regarding the issue of bringing indicted
suspects before the Court.
¶20 In 1994, the International Law
Commission’s draft statute, article 53 (the precursor to article 89),
incorporated the following language: “a State party shall consider whether it
can, in accordance with its legal
procedures, take steps to arrest and transfer the accused to the Court, or
whether it should take steps to extradite the accused to a requesting State or
refer the case to its competent authorities for the purpose of prosecution.”
(Emphasis Added).26
¶21 This language more ambiguously left open
the possibility of states applying extradition law. Arguably, legal procedures
may not encompass substantive extradition laws. However, as the drafting
negotiations continued, it became clear that the delegations were divided into
three camps. One camp favoring the application of national laws for
transferring a defendant to the Court, another camp favoring a strict transfer
regime with no application of national laws, and a third camp favoring a
comprise between the opposing views.
¶22 In 1995, during the Ad Hoc Committee on
the Establishment of an International Criminal Court, China made itself clear
that it was in the first camp stating that the statute should afford states
“the option of choosing whether or not to: … (b) transfer documents and the
accused to the international criminal court for adjudication…” and that the
Court would be subordinate to national systems.27
¶23 The United States’ position at this same
committee meeting was more ambiguous. The U.S. delegates criticized the use of
the word “transfer”, instead of “extradition”, by stating “[c]alling the
process a transfer does not mean that the ILC has effectively carved out a new
area of law unencumbered by some of the difficulties associated with
extradition law (including treaty practice) such as non-extradition of
nationals and discretionary refusal of extradition (for reasons permitted by
treaty or otherwise.”28
However, the US did make clear that the systems of national prosecution and
international extradition should in all cases prevail over the regime set up by
the international criminal court.29
¶24 The first Preparatory Committee to
discuss the ILC’s draft statute released a report in 1996 stating:
[I]t was
noted that the system of apprehension and surrender under article 53 of the
draft statute, which embodied a strict transfer scheme without contemplating
any significant role of the national courts and other authorities on the
matter, was a departure from the traditional regime of cooperation between
States established under the existing extradition treaties. In this regard, some delegations indicated
that they were in favour of a system based exclusively on the traditional extradition
regime, modified as necessary. Some
other delegations supported the transfer regime as envisaged in the
Statute. Some further delegations
expressed their view in support of reconciling the two regimes so as to ensure
the consistent application of the Statute.
The suggestion was made also that, in order to facilitate its acceptance
by States, the Statute should provide for a choice between a modified
extradition regime and a strict transfer regime, subject to different national laws and practices.30
By August of
that same year, the Preparatory Committee met again and proposed various drafts
that reflected and accommodated these three different viewpoints.31
The language provided for all three alternatives: unconditional surrender, the
application of extradition laws, and the express inapplicability of some common
extradition exceptions.32
¶25 By the end of 1997, the fifth Preparatory
Committee had jettisoned the third, compromise position. This was apparently
due to a lack of agreement among the delegations to decide what common
extradition exceptions should not apply to the Court.33
The result was largely an all or nothing approach that either called for a
strict transfer regime or the unchecked application of national extradition
laws.34 Draft statutes full of bracketed
language and listed optional texts revealed the controversy.35
¶26 By the end of the sixth Preparatory
Commission, both camps remained divided on the issue with draft language that
could have resulted in the application of traditional extradition laws or
language that could expressly prohibit its application.36
The draft article read “States Parties shall, in accordance with the provisions
of this Part [and the procedure under their national law], comply with requests
for arrest and [surrender] [transfer] [extradition] without [undue] delay.”37
In addition, a bracketed section expressly provided for the application of
national law “[The national law of a requested State shall govern the
[conditions] [procedure] for granting or denying a request for [surrender]
[transfer] [extradition] [except as otherwise provided in this Part].”38
In contrast, another bracketed section offered a contrary provision not
allowing any grounds for refusing to surrender a defendant or another option
limiting refusal to a few specified grounds including where the defendant was a
national of the custodial state.39 However, on this issue, the
Preparatory Committee noted that “[t]here is no agreement on the list of
grounds contained in this option.”40
Yet another bracketed section provided:
[Where the
law of the requested State so requires, the person whose [surrender] [transfer]
[extradition] is sought shall be entitled to challenge the request for arrest
and [surrender] [transfer] [extradition] in the court of the requested State on
[only] the following grounds:
[(a) lack of jurisdiction of the Court;]
[(b) non bis in idem; or]
[(c) the evidence submitted in support of the request does not meet
the evidentiary requirements of the requested State as set forth in article 88,
paragraph 1 (b) (v) and (c) (ii).]]”41
With the
exception of non bis in idem, the
adoption of this entire section and its bracketed text would have effectively
precluded the application of national laws pertaining to extradition.42
¶27 However, in the end, the complete lack of
agreement among the delegations to decide what traditional extradition grounds
a custodial state could assert resulted in the abandonment of language
advocating both extreme provisions and the adoption of article 89’s more
ambiguous language.
¶28 Nevertheless, the lack of consensus
regarding this issue suggests that states will approach this issue on their own
terms, on a state by state basis or, more troubling, utilize extradition laws
where it is politically convenient. Thus, the failure to specifically exclude
the use of extradition laws, the legislative history of the statute, and its
plain language could effectively allow custodial states and accused defendants
to assert extradition defenses in matters before the ICC.
¶29 In fact, the final statute appears to
acknowledge the likelihood of the application of extradition laws when
describing the documentation the Court must provide to support an arrest.
Article 91 explains that arrest warrants will include: “[s]uch documents,
statements or information as may be necessary to meet the requirements for the
surrender process in the custodial State, except that those requirements should
not be more burdensome than those applicable to requests for extradition
pursuant to treaties or arrangements between the custodial State and other
States and should, if possible, be less burdensome, taking into account the
distinct nature of the Court.”43
C. Comparing the ICC Statute with the
ICTR & ICTY Statutes
¶30 There are fundamental differences in the
laws surrounding the obligations of custodial states when one compares the ICC
statute with the statutes of the International Criminal Tribunal for the former
Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).44
¶31 In stark contrast to the ICC statute,
neither the ICTY nor the ICTR allow any deference to national laws in surrender
matters. In fact, Article 29 of the ICTY and Article 28 of the ICTR declare:
"[s]tates shall cooperate with the International Tribunal in the
investigation and prosecution of persons accused of committing serious
violations of international humanitarian law."45
Article 29(2) of the ICTY and Article 28(2) of the ICTR specify that such
assistance requires compliance with orders of the Tribunal's trial chambers,
including, but not limited to, the identification and location of persons, the arrest or detention of persons, and
the surrender or transfer of defendants to the Tribunal46.
The Secretary-General's Report for the ICTY states an order of the Tribunal for
the surrender or transfer of persons "shall be considered to be the
application of an enforcement measure under Chapter VII of the Charter of the
United Nations."47
¶32 More specifically, The Rules of Procedure
and Evidence for both Tribunals reiterate that the obligations regarding the
surrender or transfer of a defendant prevail over “the national law or extradition treaties of the State concerned”
(Emphasis Added).48 The rules also provide for referral
to the UN Security Council in the case of a state failing or refusing to
execute an arrest warrant of the
Tribunal.49
¶33 The difference in surrender laws between
the ICC and the Tribunals lies in their theories of concurrent jurisdiction. As
explained above, the ICC is premised on the theory of complementarity, meaning
that it may only admit a case where national courts are unwilling or unable to
genuinely prosecute or investigate the case.50
¶34 In contrast, the ICTY and ICTR hold
primacy over national courts.51
Given that these courts do have primacy, language usurping national laws and
extradition law regarding surrender seem justifiable. Nevertheless, despite the
express prohibition to the contrary, states are viewing their cooperation with
the ICTY and ICTR through the lens of extradition proceedings.52
¶35 According to Amnesty International,
"[t]he most serious problem of many of the laws which have been enacted is
the failure to follow Article 6 of the Guidelines, which requires that the
transfer of an accused to the custody of the tribunals be carried out 'without
resort to extradition proceedings'."53
Several states, including Austria, Denmark, Finland, Iceland, Italy, Norway,
Sweden, Switzerland and the United States, have provided in their legislation
for the transfer of accused persons to the tribunals through extradition or
similar proceedings.54
¶36 Some states explicitly call for the full
use of extradition procedures or retain only some procedural aspects of
extradition proceedings. For example, the United States implementing legislation
for both tribunals states unequivocally that laws on extradition "shall
apply in the same manner and extent to the surrender of persons" to both
tribunals.55 Similarly,
Germany’s article 2 of its implementing legislation provides for the transfer
of criminal proceedings to the tribunal, but Article 3 applies most provisions
of the law on international judicial cooperation in criminal cases, except for
the political offence exception and the rule of specialty.56
In any respect,
the fact that many states are insisting to apply extradition laws, despite the
express prohibition not to, portends an even worse fate for the ICC.
II.
Defenses under Extradition laws
A. Extradition Laws provided for under
the ICC Statute
¶37 While the ICC statute fails to directly
tackle most domestic laws dealing with extradition, it does address two
domestic laws commonly utilized under extradition procedures.
¶38 Ne
bis in idem literally
means “not twice in the same thing”. It is essentially an international
protection against double jeopardy. It prevents extradition if the custodial
state has already tried or is in the process of proceeding against the accused
for the same conduct or if a third state has rendered judgment dealing with the
same conduct.57 Ne
bis in idem is a principle recognized by “the penal laws of every civilized
state.”58
¶39 Article 20 of the ICC statute prohibits
the Court from ever retrying the accused for the conduct in question.59
It also prevents any other court from trying the accused after the Court has
convicted or acquitted the accused.60
Finally, article 20 blocks the Court from trying an accused already tried by
another court provided that court did not try the case “for the purpose of
shielding the person concerned from criminal responsibility for crimes within
the jurisdiction of the Court” or the trial was “not conducted independently or
impartially in accordance with the norms of due process recognized by
international law and were conducted in a manner which, in the circumstances,
was inconsistent with an intent to bring the person concerned to justice.”61
¶40 This language appears to properly
forestall states from avoiding surrender of a suspect through circus trials and
does not allow states a simple device to avoid surrender.
2. Specialty
¶41 The requirement of specialty prevents an
extraditing country from prosecuting an individual for crimes other than those
specified in the extradition request. Many countries now hold that the
specialty doctrine applies, regardless of whether it is explicitly mentioned in
an extradition treaty. In fact, it is now a “universally accepted principle.”62
¶42 Article 101 of the ICC statute states
specifically “[a] person surrendered to the Court under this Statute shall not
be proceeded against, punished or detained for any conduct committed prior to
surrender, other than the conduct or course of conduct which forms the basis of
the crimes for which that person has been surrendered.”63
However, the statute also provides for the surrendering state parties to waive
the rule of specialty.64
This is a useful exception since the prosecutor and court may not find evidence
of other crimes until after the accused has been surrendered.
¶43 Double criminality poses a possible
defense to an ICC surrender request in both common and civil law states. During
the statute’s drafting unsuccessful attempts were made to specifically prohibit
the application of double criminality to surrender proceedings.65
Despite these efforts the ICC statute does not specifically preclude the use of
double criminality as a defense to surrender. However, this defense applies
only to states that have not ratified the ICC treaty, but where the Court has
jurisdiction over a defendant in that state.66
¶44 According to this principle, extradition
may only be granted if the defendant’s act constitutes a crime according to the
laws of the both the requesting and the custodial state. This principle is one
of the most universally recognized rules of extradition law under both the
civil and common law systems. In fact, some commentators regard the notion of
double criminality as a customary rule of international law that is applied
even if such wording is omitted from an extradition treaty.67
¶45 The ICC statute has built-in definitions
of the crimes over which it has jurisdiction.68
Therefore, a state party to the ICC statute has effectively consented to be
governed by the ICC’s definition of those crimes. As a result, a defendant
present in a state party could not assert a double criminality defense.
However, the defendant could assert such a defense if present in a state that
is not party to the statute.
¶46 So far, only one state has abolished the
rule of double criminality: Germany. German law is independent of the law of
the country in which the criminal act was committed, thus eliminating the
"double criminality" requirement.69
The only relevant question in German law in relation to extradition is whether
the requesting state's provision of criminal law would be constitutional if it
were passed by the German legislature.70
¶47 While the case of an ICC surrender
request is not exactly analogous to a request for extradition from another
sovereign state, the double criminality rule is founded on the maxim of nulla poena sine lege (no punishment
without law).71 Therefore,
the notion of double criminality does not rest on the relationship between two
sovereigns, but on notions of fairness. It would be odd for a state to
surrender a person to a forum for acts that would have brought no punishment in
the custodial state. Therefore, it is extremely likely that an accused in
non-state party to the ICC treaty could invoke the principle of double
criminality in order to defend against a surrender request.
¶48 Under traditional extradition law, most
courts look for domestic laws that similarly criminalize the actions that
surround the basis of the extradition request. This reflects the obvious fact
that no two states have the exactly same criminal laws. For example U.S. courts
ruling on double criminality have not required statutes to be identical. They
have required the crimes, as defined in the requesting and custodial nations,
to be "substantially analogous" or "substantially similar".72
Crimes in different nations are substantially analogous "when they 'punish
conduct falling within the broad scope' of the same 'generally recognized
crime'."73
¶49 Similar standards prevail in Britain:
"double criminality in our law of extradition is satisfied if it is shown:
(1) that the crime for which extradition is demanded would be recognised as
substantially similar in both countries, and (2) that there is a prima facie
case that the conduct of the accused amounted to the commission of the crime
according to English law."74
¶50 The recent House of Lords March 24, 1999
decision regarding the extradition of General Augusto Pinochet illustrates
British law on double criminality and forecasts how Britain may interact with
the ICC.
¶51 Section 2 of Britain’s Extradition Act
1989 defines extradition crimes and places them in two categories: a) conduct
committed within the territory of the foreign state; and b) an
extra-territorial offence against the law of the foreign state.75
Therefore, if the act occurred in the requesting state, then the standard
double criminality test applies. However, if the requesting state is asserting
jurisdiction over an act not committed on its soil (extraterritorial
jurisdiction), the British Extradition Act 1989 applies a modified double
criminality standard. Under the Act, British courts can extradite in this case
if one of two conditions is met: i) the conduct would also “constitute an
extra-territorial offence against the law of the United Kingdom”; or ii) where
the act did not occur on British soil and the foreign state is basing its
extraterritorial jurisdiction on the nationality of the offender.76
¶52 In the Pinochet case, Spain was asserting
extraterritorial jurisdiction for acts of torture committed outside its soil.77
Because Pinochet was not a national of Spain, the UK could only extradite if
Pinochet’s acts of torture could also constitute an extraterritorial offense in
Britain.78 Since
Pinochet’s acts committed outside the UK did not become an offense under UK law
until it ratified the Torture Convention on 29 September 1988, the House of
Lords had to rely on the Torture Convention as being the only instrument to
base double criminality on.79 It could, therefore, not use the
“substantially similar” standard and use UK laws on assault, murder, etc. to
satisfy the double criminality requirement since those laws do not cover
extraterritorial crimes.
¶53 Fortunately, the majority of crimes for
which the ICC will have jurisdiction are likely to be considered customary
international law that binds all states including non-state parties to the ICC
statute. However, the ICC statute does modify some aspects of international law
which are beyond the purview of customary international law and may not have
been accepted by many states under conventional law.
¶54 In
Article 5, the ICC statute provides for jurisdiction for the following crimes:
genocide, crimes against, humanity, war crimes, and aggression.80
Since aggression has yet to be defined for integration into the statute, we
will not attempt to evaluate its status under customary international law.
However, some detailed aspects of the other offenses may not be fully accepted
as customary international law; and therefore, these offenses may suffer from
double criminality problems and extraterritorial limits on extradition, as the
Pinochet case demonstrated.
1. Genocide
¶55 The International Court of Justice (ICJ)
recognized in its Advisory Opinion on Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide that the Convention has
become customary international law, binding all states regardless if they have
signed the convention.81
Therefore, it is unlikely that this crime should suffer any problems on the
issue of double criminality.
2. Crimes Against Humanity
¶56 Crimes Against Humanity has never been
the focus of a “specialized international convention”.82 While it is considered customary
international law, its actual scope has been a subject of debate.83
¶57 The ICC Statute encompasses several
different acts as crimes against humanity.84
While most of these acts are not especially controversial in terms of being
accepted as customary international law, it does explicitly proscribe
deportation and imprisonment, which can, in some circumstances, be legal under
domestic laws.85 In
addition, the definition of crimes against humanity includes a vague
prohibition on “other inhumane acts…intentionally causing great suffering, or
serious injury to body or to mental or physical health.”86
This may also pose double criminality problems depending on the circumstance.
¶58 More importantly, however, is the fact
that the ICC’s definition expands the definition of crimes against humanity to
cover peacetime acts as well as acts committed by non-state actors.87
Most jurisprudence and commentators appear to agree that the application of
crimes against humanity is not limited to armed conflict under customary
international law.88
However, the application of crimes against humanity to non-state actors is more
controversial and is not clear.89
This could pose double criminality problems if there is no analogous domestic
law or conventional law criminalizing the act.
¶59 Foreshadowing the difficulties the ICC
may experience, a problem of double criminality did arise with respect to the
ICTY. Article 1 of the French legislation concerning the Yugoslavia Tribunal of
2 January 1995 stated that it applied “to any person who is charged with crimes
or offences defined as such by French law” and
constituting crimes under Articles 2 to 5 of the ICTY Statute.90
However, articles 212-1 and 212-2 of the Code Pénal (1994) of France define
crimes against humanity more restrictively than in Article 5 of the ICTY
Statute.91 Therefore,
if a surrender request entailed conduct covered by the ICTY statute but not by
the French definition of crimes against humanity, France would not comply with
the surrender. Fortunately, when the French law was amended on 15 May 1996 to
include cooperation with the Rwanda tribunal, the double criminality provision
was removed.92
3. War Crimes
¶60 The expanded definition of war crimes
under the ICC statute will almost certainly pose double criminality problems.
¶61 The four Geneva Conventions of 194993 have been recognized as customary
international law defining war crimes.94
Two additional protocols of 1977 (Protocols I and II) relating to
"conflicts of an international character" and to "conflicts of a
non‑ international character" are more controversial.95
Protocols I and II are not as widely ratified as the four Geneva Conventions.96
In addition, some governments, including the United States, argue that not all
of Protocols I and II codify customary international law and remain as
conventional law binding signatory states only.97
The drafters of the ICC statute were aware of this controversy and cautiously
drafted Article 8, defining war crimes, so as to incorporate some, but not all,
provisions given under Protocols I & II.
¶62 Article 8(2)(a) incorporates most of the
"grave breaches" all found common in the four Geneva Conventions,
and, therefore, should not pose double criminality problems. Likewise, Article
8(2)(c), dealing with non-international armed conflicts, lists some of the most
serious violations found in common article 3 of the four Geneva Conventions and
are all part of customary international law. However, Articles 8(2)(b) and
8(2)(e) incorporate some violations found in the four Geneva Conventions as
well as those found in the two Protocols.98
Therefore, some of its provisions may not be customary international law.
¶63 For example, the Protocol I prohibitions
regarding reprisals against civilian objects and dealing with works and
installations containing dangerous forces are not necessarily regarded as
customary international law.99
This may pose problems for Articles 8(2)(b)(iv) & (v) which limit attacks
on civilian objects and for 8(2)(b)(xi) which prohibits “[k]illing or wounding
treacherously individuals belonging to the hostile nation or army.”100
In addition, more controversial Protocol
II provisions, particularly those governing wars of national liberation and
guerrilla warfare, may also not reflect customary international law.101
¶64 However, without a given context, it is
uncertain how the ICC and national courts will treat these provisions. For
instance, it is debatable as whether Article 8(e)(ix)’s prohibition against
“[k]illing or wounding treacherously a combatant adversary” in
non-international armed conflicts may constitute customary international law
and will depend heavily on the given circumstance.102
¶65 Therefore, while most of the crimes under
the ICC statute probably constitute customary international law and will not
pose double criminality concerns, problems could arise regarding deportation,
imprisonment, other inhumane acts, and non-state actors under the statute’s
definition for crimes against humanity. In addition, certain provisions dealing
with civilian objects and dangerous forces may pose problems for the statute’s
definition of war crimes.
C. The Existence of a Treaty &
Extraditable Offenses
¶66 Many states prohibit extradition in the
absence of a prior treaty or agreement. Therefore, if the ICC issues an arrest
warrant to a non-state party, surrender may not be possible under domestic law.
This is especially important since, under the ICC statute, it is possible for
the Court to have jurisdiction over a case even though the defendant may be
present in a state that is not party to the statute.
¶67 As touched on earlier, in order to
trigger the ICC’s jurisdiction over a crime, any of three conditions must be
present. First, the crime must have occurred in the territory of a state party
or a state that has accepted the Court’s jurisdiction with respect to the crime.103 For example, if a defendant commits
a war crime in state X and flees to state Y, as long as state X has consented
to the jurisdiction of the Court (by ratification or by ad hoc consent), it does not matter if the custodial state Y is a
party to the statute or not. State Y has an obligation to surrender the
defendant.
¶68 Second, jurisdiction can be triggered
where the state of the nationality of the accused is a state party or a state
that has accepted the Court’s jurisdiction with respect to the crime.104
For example, if a defendant is living in state Y but is a national of state X,
as long as state X has consented to the Court’s jurisdiction, then it does not
matter if the custodial state Y is a party to the statute or not. State Y has
an obligation to surrender the defendant.
¶69 Finally, jurisdiction is triggered
whenever the UN Security Council refers a case to the prosecutor under Chapter
VII of the UN Charter.105 For example, a defendant may have
committed a crime in state X, fled to state Y, and is a national of state Z.
However, if the Security Council refers the case to a prosecutor, the fact that
states X, Y, and Z are all non-parties is irrelevant. State Y, or any other state where the defendant is
present, has an obligation to surrender the defendant.
¶70 Therefore, the state in which the accused
is present does not have to be a state party or accept the jurisdiction of the
Court in order for the Court to begin an investigation and prosecution.
However, if non-state parties are called on by the Court to surrender an accused
on its soil, the absence of an extradition treaty or surrender agreement may
poses serious obstacles.
¶71 Most common law countries generally do
not extradite in the absence of a treaty. Therefore, if the Court calls on a
common law state to surrender an accused and that state has not ratified the
ICC treaty, there may be serious legal impediments. Great Britain only allows
extradition "where an arrangement has been made with any foreign state.”106
The United States also does not grant extradition unless bound to do so by a
treaty.107
¶72
The applicability
of this common law rule to international tribunals became very clear in
December 1997 when the United States tried to extradite Elizaphan Ntakirutimana
to the International Criminal Tribunal for Rwanda.108 In this case, the United States
sought to extradite Ntakirutimana to the ICTR for participating in the Rwanda
genocide of 1994.109
However, the federal district court in Texas ruled that the extradition was
invalid as a matter of United States law because the extradition agreement in force between the United States and the
Tribunal had not been ratified with the advice and consent of the Senate under
a two-thirds majority.110
The extradition agreement was not a treaty, but a statute, which Congress
passed under a simple majority and the President signed into law.111
Therefore, without a valid, full-fledged treaty in effect, the court refused to
authorize Ntakirutimana’s extradition, and he was released.112
However, the US re-filed its request for extradition in another federal
district court and successfully argued that either a treaty or a statute
constituted sufficient congressional authorization for the extradition to
proceed.113 The 5th
U.S. Circuit Court of Appeals reversed finding that that the authority to
surrender a person to a foreign government must be granted by law, either by
the terms of a treaty or by an act of
Congress.114 Therefore, the President had the authority
to extradite Ntakirutimana without a full-fledged treaty but through a congressional
statute. The Supreme Court just recently upheld this decision.115
¶73 However, the likelihood of a state not
ratifying the ICC treaty, but instituting domestic legislation to provide for
surrenders is virtually non-existent and would indeed be paradoxical. It would
be self-contradictory for a state to refuse to ratify, but yet freely agree to
surrender individuals on its soil to the court. The Ntakirutimana case was
unique because the UN Security Council created the Rwanda Tribunal via a
binding resolution and did not utilize a treaty mechanism to bind states. As a
result, all states had an obligation to implement legislation to abide by the
UN Resolution establishing the court.116
¶74 A few common law states do allow
extradition in the absence of a treaty. Canadian law permitted extradition
without treaty with the approval of the Governor General; however, this
provision has never been utilized and may have been superseded by a 1970
statute.117 Currently,
Canada is making steps to revise its extradition law to make it possible to
extradite defendants to both the Tribunals and the ICC.118
Also, South Africa can also extradite in the absence of a treaty with the
approval of the President.119
¶75 Therefore, if a common law state fails to
ratify the ICC treaty and has an indicted defendant on its soil, the failure to
ratify or implement will provide the defendant an effective defense against
surrender.
¶76 A failure to ratify the ICC treaty will
not render a surrender request fatal in most civil law states. France, for
example, has special extradition laws designed to operate with countries with
which no treaty obligation exists.120
An analogous statute can be found in German law.121
The tradition is also largely followed in Latin America.122
¶77 However,
a few civil law states prohibit extradition in the absence of a treaty and may
pose problems for the ICC. These states include the Netherlands,123
Norway,124 Ethiopia,125
Israel126 and
Turkey.127
¶78 Therefore, in general, an arrest warrant
issued to a civil law state that has not ratified the ICC statute will most
likely not automatically render the surrender request fatal.
D.
Nationality of the Offender & Place of Commission of Offense
¶79 The nationality of the defendant may
serve as the biggest obstacle to the surrender of suspects to the ICC. In the
civil and common law, the concepts of nationality and extraterritoriality are
intertwined in extradition law and with other extradition concepts such as
double criminality.128
Each system holds its own theory regarding jurisdiction. These theories focus
on judicial fairness and protecting the rights of the accused, but may also, in
practicality, provide a convenient means by which a state may refuse to
surrender a suspect to the ICC.
¶80 With few exceptions, civil law countries
do not extradite their own nationals. These
states include Austria, France, Germany, Greece, the Netherlands, and
Switzerland.129 The tradition also holds true in
Latin America,130
except for Colombia, which now has begun to extradite its own nationals under
pressure from the United States.131
¶81 Italy is the most prominent exception in
the civil law world. After 1930, Italy began to allow the extradition of its
own nationals if provided for in an international convention.132
¶82 The civil law presumption against the
extradition of its own nationals rests on the civil law tradition of allowing
jurisdiction over nationals who commit extraterritorial crimes. Therefore, in
the interests of fully protecting the rights of its own nationals, a civil law
state would prefer to try the accused in its own forum rather than in a foreign
forum where the accused may be at a disadvantage. Therefore, the civil law
rejects the extradition of its nationals under the presumption that the
custodial state already has jurisdiction to try the case domestically. In
theory, civil law states are able to strictly adhere to the principle of aut dedere, aut iudicare- that is, they
should either extradite or prosecute domestically.133
¶83 In fact, more specifically, scholars have
argued that for a crime of international law the principle of aut dedere, aut iudicare has become a jus cogens norm.134 This argument has been accepted by
at least one judge of the International Court of Justice.135 In practice, however, the civil law
the principle of aut dedere, aut iudicare
often fails through either a lack of interest in prosecution or the difficulty
in obtaining the necessary evidence and witnesses.136 Other times, the nation either acquits the
individual or issues a lenient sentence.137
¶84 As a result, if a civil law state refuses
to extradite its own national, it is not entirely clear whether the state will
prosecute the accused domestically even though it has an obligation to do so
under international law.
¶85 The civil law prohibition on the
extradition of nationals has provided a legal justification to refuse to
surrender nationals to the ITCY and the ITCR.138 For example, the 1990 Constitution
of the Federal Republic of Yugoslavia explicitly prohibits the extradition of
its own citizens.139
The government of the former Yugoslavia has used this as a legal shield to
refuse surrender of its indicted citizens. In addition, other states in the
region have presented similar problems. Modeled to some extent on the old
Yugoslavian Constitution, the post-independence constitutions of Croatia,
Slovenia, and Macedonia all prohibit extradition of their nationals.140
Macedonia will also not extradite foreign subjects without a ratified
international agreement.141
¶86 The ICTR has encountered similar
difficulties. Article 5 of the Mutual Assistance Treaty in force among Burundi,
Rwanda, and Zaire contains a blanket prohibition against the extradition of a
state’s own nationals.142
The Burundian Constitution, for example, expressly forbids the extradition of
its nationals under Article 24.143
Similarly, Rwandan criminal law presented an immediate dilemma at the ICTR’s
onset because Article 16 of the Rwandan Penal Code also prohibited the
extradition of Rwandan nationals.144
¶87 Most common law countries continue to
extradite their citizens willingly. In contrast to the civil law systems,
common law states generally do not recognize the nationality principle of
jurisdiction, and, therefore, cannot exercise jurisdiction over
extraterritorial crimes. As a result, the extradition of nationals is generally
allowed because the alternative would result in the accused escaping his day in
court. In addition, the theory holds that the justice is most fully and
conveniently served by trying defendants where they committed their crimes.145
¶88 However, there are a few exceptions.
Israel in 1978 amended its penal code to expand Israeli jurisdiction over
extraterritorial offenses, and forbids the
extradition of its citizens.146
In addition, Cyprus forbids the extradition of its nationals.147
¶89 The United States does not have blanket
laws prohibiting the extradition of its nationals. Where a treaty or agreement
exists permitting the extradition of nationals, US courts have found that the
executive holds discretion and final say on whether a US national may be
extradited.148 If the
treaty or agreement is silent on the issue, the US Supreme Court has found that
US nationals are still extraditable.149
Canadian courts take the same view.150 Therefore, common law states should not pose
problems for ICC arrest warrants on the basis of the nationality of the
offender.
¶90 During the statute’s drafting unsuccessful attempts were made to specifically prohibit the application of nationality to surrender proceedings.151 While language was introduced to allow this traditional extradition exception to directly apply to the Court, it was not eventually adopted either.152 At the adoption of the final statute, a number of delegates publicly disapproved the deletion of this provision and affirmed that their respective states strictly prohibit the extradition of their nationals.