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) pincite using paragraph numbers]

 

I. Introduction

 

¶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.

 

1. Ne Bis In Idem

 

¶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.

 

B. Double Criminality

 

¶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.

 

1. The Common Law States

 

¶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.

 

2. The Civil Law States

 

¶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.

 

1. Civil Law

 

¶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

 

2. Common Law

 

¶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.¹⁵³ In addition, provisions for aut dedere, aut iudicare did not survive the drafting stage.¹⁵⁴

 

E. Evidence of Guilt

 

¶91 Many states require showing evidence of guilt before extradition may proceed. While the ICC statute demands that there be “reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court” for an arrest,¹⁵⁵ it is unclear how this language will be interpreted by the Court itself and by national courts. During the statute’s drafting unsuccessful attempts were made to specifically prohibit the application of an evidence of guilt exception to surrender proceedings.¹⁵⁶

 

1. Civil Law

 

¶92 In general, civil law jurisdictions have extremely liberal procedural standards for examining the proof of the offense in an extradition proceeding and may not pose problems for the ICC. The custodial state need only review documents provided by the requesting state supporting a request for extradition. These documents include a copy of the conviction or sentence, a warrant of arrest, a statement of offenses for which extradition is sought, a copy of the relevant enactments or laws violated, and a description of the accused.¹⁵⁷ If these documents establish that the accused is charged with an extraditable offense, then extradition will proceed.¹⁵⁸

¶93 However, some civil law states allow the accused to prove that he or she could not have committed the offense because the accused was, without a reasonable doubt, somewhere else at the time the offense was committed.¹⁵⁹ Though not formally part of its extradition law, the Swiss also allow a similar showing before the political authorities.¹⁶⁰

¶94 Other civil law states are exceptions to the rule and do require some evidence to establish a presumption of guilt. Among the exceptions found in Latin America are