The relationship between extradition practice, international criminal law, and the prosecution of crimes before international criminal tribunals is of potentially high geopolitical significance, yet it is sometimes overlooked by both practitioners and the academy. Surrender proceedings have – understandably – not generated the same symbolic or expressive effect as trials.
It is trite that the ICC and other international criminal tribunals rely on the cooperation of States to ensure that their orders, decisions, and judgments may be effectively enforced. Historically, however, orders of the ad hoc tribunals such as the ICTY and ICTR were backed by the authority of the UN Security Council. The Security Council’s referral of the Situation in Darfur to the ICC in in March 2005 resulted in years of litigation after ICC States Parties – including Jordan, South Africa and Mali – declined to arrest then President Al-Bashir of Sudan when he was present in their territory, despite the issuance of two ICC arrest warrants against him for war crimes, crimes against humanity, and genocide.
The ICC Appeals Chamber’s Judgment in Bashir
In May 2019, in a long-awaited judgment considering the legality of Jordan’s failure to arrest Mr Al-Bashir, the ICC Appeals Chamber considered whether the man who was Sudan’s president at all material times enjoyed immunity as a Head of State that would have prevented Jordan from executing the ICC’s arrest warrant against him, unless Sudan had waived the immunity.
The Appeals Chamber held in its Judgment that Mr Al-Bashir did not enjoy immunity as a Head of State vis-à-vis the ICC under customary international law, including in respect of arrest by a State Party to the Rome Statute at the request of the ICC. This represented an “additional pillar” on which the conclusion that Jordan should have arrested Mr Al-Bashir rested. One implication of the Appeals Chamber’s Judgment is that it suggests that officials of both ICC States Parties and non-States Parties are not protected by any rule of interstate immunity barring their arrest and surrender to the ICC, irrespective of whether the situation was triggered by the Security Council. The cogency of this finding is beyond the scope of this post, which instead considers its implications under UK law.
The Majority of the Appeals Chamber went on to opine in a separate opinion that States Parties to the Rome Statute act as the ICC’s jurisdictional “surrogates” during arrest and surrender proceedings, again irrespective of whether the Security Council referred the situation to the Court (see paras. 441 et seq). This adoption of a concept of surrogacy suggests that, in the Majority of the Appeals Chamber’s view, as it was then constituted, in all situations the Inter-nationalCriminal Court assumes a supra-national character vis-à-vis ICC States Parties and their Courts during surrender proceedings. This post explores whether, and if so how, this proposition might be contested in UK surrender proceedings.
The Appeals Chamber’s judgment is of significant practical, as well as legal, effect. As at the time of writing, eight “situations” (excluding the situation in Iraq/UK) before the International Criminal Court remain under “preliminary examination”. De facto, the preliminary examination stage currently functions as a type of insurance policy providing both States Parties, non-States Parties, and individuals with notice of a further procedural hurdle prior to the formal opening of the investigation, after which exposure to the issuance of arrest warrants arises and calculations of travel risk will change.
This blog post therefore seeks to test propositions raised by the Appeals Chamber’s Judgment in Bashir against the legal framework governing surrender proceedings between the ICC and the UK. How much discretion does an English court have to decline to surrender a person who is the subject of an ICC arrest warrant? In such a case, would an English court consider itself the “jurisdictional surrogate” of the ICC, as the Majority of the Appeals Chamber of the Court suggests it should? Or might English courts assert the primacy of common law remedies, and maintain that the UK has nevertheless adhered to its obligations as a State Party to the Rome Statute? On immunities, who has the final say – the ICC, or its “jurisdictional surrogate”, the UK?
Transmission and endorsement
Following its receipt in the UK, the Secretary of State “shall” transmit an ICC arrest and surrender request, and its accompanying documents, to a ticketed Judge of the Magistrates’ Court: section 2(1) of the International Criminal Court Act 2001 (the Act). The Judge “shall” endorse the arrest warrant and issue a domestic arrest warrant provided they are satisfied that it appears to have been issued by the ICC: section 2(3). In the case of provisional arrest requests, the procedure requires that an application for issuance of a domestic warrant be made by a police officer: section 3.
There would appear to be limited scope to challenge the decision of the Secretary of State to transmit the request, or a Judge’s decision to endorse the warrant, given the clear basis in UK law for both actions as well as their administrative nature.
Arrest to delivery order
A person arrested under an ICC warrant, provisional or otherwise, “shall be brought before a competent court as soon as is practicable”: section 4(1) and 5(1) of the International Criminal Court Act 2001 (hereinafter the “Act”). ICC surrender proceedings offer fewer express protections to defendants than those afforded under UK extradition law. This reflects the nature of the obligations the UK as a State Party has undertaken under the Rome Statute compared with the obligations it has undertaken pursuant to (for example) the Council Framework Decision on the European Arrest Warrant of 13 June 2002, the European Convention on Extradition of 1957, or the UK’s bilateral extradition treaty with the US. The UK’s extradition arrangements customarily include safeguards against extradition where (for example) return would give rise to a real risk of a flagrant violation of an requested person’s human rights, or where an extradition request is motivated by extraneous (e.g. political) considerations. The ICC’s distinctive position – under treaty law – may be said to support the Majority of the ICC Appeals Chamber’s suggestion that the executing State Party’s court acts as the ICC’s jurisdictional surrogate.
Section 5(2) of the Act contemplates a summary procedure between arrest and issuance of a delivery order. Simply, if “the competent court is satisfied that the warrant “is a warrant of the ICC and has been duly endorsed” or “duly issued”, and the person brought before the court is the person named or described in the warrant, the Court shall make a delivery order. As provided by Article 89(2) of the Rome Statute, the national court may adjourn the proceedings pending the outcome of any challenge before the ICC (not the national court itself) to the admissibility of the case or to the ICC’s jurisdiction, and in deciding whether to make a delivery order the court is not concerned to enquire either whether any ICC warrant was duly issued or whether there is evidence to justify a trial: section 5(4) and (5) of the Act. These provisions implement Article 59(2) and (4) of the Rome Statute into UK law.
The national court may also determine whether the person has been lawfully arrested under the warrant and whether their rights have been respected: section 5(6) of the Act. The court must make this determination if the person arrested applies for it to do so. Subsection (6) does not seek to spell out all the rights which the court may consider; it simply tracks and implements Article 59(2) of the Rome Statute. If the domestic court determines that there have been violations of proper process or of the person’s rights, it shall make a declaration which will be passed to the ICC: section 5(8) and (9) of the Act. The national court is not expressly permitted by the legislation to grant any other relief, and under the Act the declaration will not affect the national court’s decision whether to issue a delivery order. This statutory limitation – which may be viewed as a high point of the UK’s “surrogacy” to the ICC in the surrender procedure – is notable because it is in fact not expressly codified in Article 59(2) of the Rome Statute, and the UK has gold-plated its obligations under Article 59(2) when implementing them into national law.
The Explanatory Notes to the Act observe that “nothing in the Rome Statute permits a State to refuse to surrender a person to the ICC on the grounds that the person has not been properly arrested or his rights have not been respected” and add that the UK Government, at the time of the Act’s passage into law, interpreted “the [Rome] Statute as meaning that it will be for the ICC to determine the consequence of any violation of a person’s rights or of proper procedure for his prosecution before the ICC” on the basis that it “would be open to the ICC, for example, to halt the prosecution on grounds of abuse of process or to award compensation.” However, the ICC’s Appeals Chamber has subsequently denied that the Court possesses an inherent abuse of process jurisdiction as understood under English law, and it seems unlikely that the assertions made in the Explanatory Notes will remain untested in any litigation concerning section 5.
Importantly, then, section 5 does not exclude any other procedure available under domestic law for the remedy of a violation of a person’s rights (see Explanatory Notes to section 5, para. 25); indeed, section 23 of the Act contains provisions relating to State and diplomatic immunity while a narrow carve out with respect to habeas corpus is expressly provided for under section 12. It is further submitted that remedies under the Human Rights Act 1998 or the Court’s inherent abuse of process jurisdiction have not been excluded by the surrender scheme.
State or diplomatic immunity
Section 23(4) of the Act reserves ultimate authority to determine whether any State or diplomatic immunity attaches to a person to the Secretary of State, i.e. the UK Government. The Secretary of State may, in any case where immunities might attach, and “after consultation with the ICC and the state concerned, direct that proceedings (or further proceedings) … shall not be taken against that person.” The Secretary of State’s authority extends to the immunity of officials of both States Parties and non-States Parties and extends even to cases where a waiver of immunity is “obtained by the ICC”: section 23(1) and (2). The fact that under the Act the UK government retains the authority to direct that the proceedings shall come to an end, notwithstanding an obligation to consult with the ICC and the State concerned, suggests that the vertical relationship implied by the concept of jurisdictional surrogacy is perhaps some way from an accurate reflection of how the UK might view its relationship with the ICC during surrender proceedings.
In English surrender proceedings, the national court retains a narrowly prescribed habeas corpus jurisdiction, which confers an express power on a court reviewing a delivery order to set it aside and discharge it if it is not satisfied of the matters in section 5(2) (i.e. that the warrant is an ICC warrant, that it has been duly endorsed” or “duly issued”, and that the person brought before the court is the person named or described in the warrant): section 12(4) of the Act. Section 12(2) expressly states that directions for execution of a delivery order shall not be given while such proceedings are pending.
Human Rights Act 1998
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with rights contained in the European Convention on Human Rights: section 3 of the Human Rights Act 1998. It may be submitted, in the context of ICC surrender proceedings, that this means that the Act should be read in such a way such that prior to making any delivery order the competent Judge should also decide whether the person’s surrender would be compatible with their Convention rights.
Should the Act be interpreted differently, it would lead to the (seemingly) unacceptable result that provisions of the International Criminal Court Act 2001 which require a delivery order to be made irrespective of its compatibility with Convention rights might be declared incompatible with those rights: section 4 of the Human Rights Act 1998. The better view would seem to be that given that human rights remain central to the Rome Statute and the ICC system of justice (as reflected by Article 21(3) of the Rome Statute), an individual’s surrender must be compatible with their Convention rights in order for it to be lawful under English law.
Abuse of process
We have seen that the ICC has expressly disavowed an abuse of process jurisdiction. In extradition proceedings, the national court has power to prevent its process being abused. The power exists outside the confines of the Extradition Act 2003 and, it is submitted, it follows that it exists outside the International Criminal Court Act 2001: see R (Government of the United States of America) v Bow Street Magistrates’ Court  1 WLR 1157 at  to . The question of whether abuse is demonstrated has to be “asked and answered in light of the specifics of the statutory regime”: R (Bermingham) v Director SFO  EWHC 200 (Admin) at .
Abuse of process recognised in domestic criminal jurisdiction such as where “a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly prejudice a defendant before the court” applies to extradition cases and is extended to conduct by a judicial authority: Id. at . In the domestic criminal context, proceedings will also amount to an abuse of process if either it is impossible to provide a fair trial or where it is necessary to protect the integrity of the criminal justice system: see R v Maxwell  UKSC 48 per Lord Dyson at ; R v Crawley  EWCA Crim 1028 per Sir Brian Leveson P at  – ); see also Giese v USA  EWHC 1480 (Admin). In extradition proceedings, it may be argued that there is overlap between the court’s abuse of process jurisdiction and the statutory barriers to extradition customarily included in the UK’s extradition treaties.
It would therefore appear, under English law, open to individuals to argue against surrender – and for discharge – on grounds of abuse of process notwithstanding that such objections are not expressly provided for under either the Rome Statute or the Act.
The contours of the Appeals Chamber’s view of States Parties as the ICC’s jurisdictional surrogates may be contested in the UK. Such a characterisation does not accurately reflect the position that, ultimately, the national court might exercise its inherent jurisdiction to prevent an abuse of its process, that the protection of Convention rights might foreseeably require the national court to decline to surrender an individual to the ICC, and that the final arbiter of immunity (under the Act) is the UK government.
In the UK, remedies deriving from both Strasbourg human rights law and the common law will foreseeably provide procedural avenues for individuals to challenge their surrender to the ICC. Remedies under national law are not displaced through operation of the Rome Statute and, although implementing legislation will vary between States Parties, the Rome Statute itself affords a residual discretion which renders the concept of jurisdictional surrogacy perhaps begging more questions than it answers.
Author: Joshua Kern, 9 Bedford Row