The general theme of article 89 is recognition of priority to the request from the Court. However, it is subject to various limitations, bearing in mind the existing extradition obligations that a State may have, especially when these concern non-party States that are themselves under no duty to cooperate with the Court. Article 90 primarily concerns extradition treaties. But it must also be read in light of article 98(2), which particularly governs status of forces agreements and similar instruments that require a State to transfer a suspect to what is usually called a ‘sending State’.
If a State Party that has received a request from the Court for surrender pursuant to article 89 also receives a request from a State to surrender the same person for the same conduct, it is to notify the Court and the requesting State of the fact that there are competing requests. From that point, the solution to the problem depends upon whether or not the requesting State is a State Party to the Rome Statute. The notification requirement is intended to alert the Court to the need to rule on admissibility of its own request for surrender, something it may not yet have done. Even if the Court determines the case to be inadmissible, the requested State may decide not to comply with the extradition request. A footnote to the draft text adopted at the Rome Conference affirms what would seem self-evident: ‘There was general agreement that the fact that the Court has determined that the case is inadmissible does not, on its own, place the requested State under any international obligation to surrender the person to the requesting State.’ If the requested State does not extradite to the requesting State, it is to notify the Court,12 and specifically the Prosecutor.13 The International Criminal Court may well have declared the case inadmissible because it believed it would be prosecuted by the requesting State. If this is no longer the situation because extradition is denied, then the rationale for inadmissibility disappears. This becomes a new fact mandating revision of the inadmissibility decision. Notification alerts the Prosecutor to the fact so that she may return to the Pre-Trial Chamber for an arrest warrant.14
Requesting State is a State Party (Art. 90(2), (3))
If the requesting State is a State Party to the Rome Statute, the requested State is to give priority to the Court’s request for surrender. This is subject to a determination having been made by the Court that the case is admissible, bearing in mind the competing request. In effect, if the requesting State has jurisdiction over the crime and is unwilling References(p. 1301) or unable to investigate or prosecute, article 17 of the Rome Statute dictates that the case is inadmissible before the Court. In practice, therefore, although article 90(2) obliges the Court to make a determination that the case is ‘admissible’, it must determine that the requesting State is unwilling or unable genuinely to investigate or prosecute.
While the Court is considering the admissibility issue, the requested State may proceed to deal with the extradition application from the requesting State ‘at its discretion’, although it is not to extradite the suspect until the Court has determined that the case is admissible. This provision ‘struck a necessary balance’ between the priority of the Court in prosecutions and the need to honour extradition treaties.15 The Rome Statute requires the Court to make its admissibility determination ‘on an expedited basis’.
In effect, then, article 90(2) requires States Parties to ignore treaty obligations with respect to extradition, to the extent that these involve other States Parties. By ratifying or acceding to the Rome Statute, States Parties agree that any extradition obligations they are owed become subordinate to a superior obligation of surrender to the Court. It is as if a provision is added to all existing and future extradition treaties with other States Parties by which it is agreed that surrender requests from the Court take precedence.
Requesting State is a Non-Party State (Art. 90(4))
In some respects, the situation with regard to extradition obligations owed to non-party States is the same. This is because the case may be inadmissible, whether or not the State seeking to prosecute the suspect is a party to the Rome Statute. The admissibility test imposed by article 17 is not dependent upon the status of the State exercising jurisdiction. It is entirely conceivable that a non-party State will be genuinely willing and able to prosecute for the same conduct. Two scenarios are contemplated, depending upon whether the competing requests concern the same conduct as that for which the Court has sought surrender or whether it concerns other criminal conduct.
Article 90(4) establishes that the requested State Party must give priority to the Court’s request for surrender unless it is under an international obligation to extradite the suspect to the requesting State. The norm seems deceptively simple, because where there is no obligation to extradite to a third State and there is an obligation to surrender to the Court, there is only one international obligation. Thus, there may be competing ‘requests’, but there are no competing obligations. However, there is a sustainable argument that a customary legal obligation exists to facilitate extradition for serious international crimes such as those listed in article 5 of the Rome Statute.16 In other words, the requested State will always be under an international obligation to extradite the suspect to the requesting State for genocide, crimes against humanity, war crimes, and the crime of aggression. The Court and the State Party may take the position that to the extent the requested State is prepared to cooperate with the Court by surrendering the suspect, it is complying with its customary legal obligation either to try or extradite, and that therefore there is no legal duty to honour the request from the non-party State.
To the extent that the Court has not determined the case to be admissible, the requested State may, ‘at its discretion, proceed to deal with the request for extradition from the requesting State’. The wording of article 90(5) contrasts with a similar but slightly References(p. 1302) different formulation applicable in the case of requests from a State Party, whereby the requested State is prohibited from extraditing the suspect until the Court has ruled on admissibility. When the requesting State is not a State Party, there is no such bar to extradition as long as the Court has not declared the case admissible. The Statute seems to envisage a race between the Court, to rule the case admissible, and the requested State, to complete its extradition proceedings to the requesting State.
Where there is an existing international obligation to extradite to the requesting State, presumably in the form of a bilateral treaty, pursuant to article 90(6) the requested State ‘shall determine’ whether to comply with the extradition request or to respond to the Court’s request for surrender. It is to consider several relevant factors that are listed in the Statute, although the list is not held to be exhaustive, and the requested State seems to be free to consider other criteria as well. Article 90(6) lists the following: the dates of the requests (the implication being that the earlier request takes priority); the interests of the requesting State, including, where relevant, whether the crime was committed on its territory and the nationality of the victims and of the person sought; and the possibility of subsequent surrender between the Court and the requesting State. Interestingly, the requested State is not obliged to determine whether the requesting State is willing and able genuinely to prosecute the case. It is hard to imagine how a requested State could be under an obligation to extradite someone if the requesting State was not willing and able genuinely. Moreover, it is also difficult to envisage a State proceeding with an extradition request if it was not willing and able genuinely to prosecute. And if this be the situation, why would the Court have ruled the case admissible?
If the application for extradition does not concern the same conduct as that covered by the Court’s request for surrender, the applicable norms are essentially the same, although obviously the issue of admissibility does not arise. Instead, the requested State is to decide which of the competing requests it is to honour in light not only of the criteria listed in article 90(6). Furthermore, it ‘shall give special consideration to the relative nature and gravity of the conduct in question’. There was probably a presumption when this was drafted that the conduct of interest to the Court would always be more serious than other crimes for which extradition might be sought. This may not, however, always be the situation. Although it did not concern competing extradition requests, the case of Thomas Lubanga presented a somewhat analogous situation. He was being prosecuted in the Democratic Republic of Congo for genocide and crimes against humanity when the Court sought and obtained his surrender on charges of recruiting child soldiers.17 Had Lubanga involved competing requests, it is certainly possible that a requested State would consider a request by a third State to try the suspect for genocide to be of greater gravity than a prosecution involving child soldier offences.