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Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.90 Competing requests/Demandes concurrentes

William A. Schabas

From: The International Criminal Court: A Commentary on the Rome Statute (2nd Edition)

William A Schabas

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
22 September 2016
ISBN:
9780198739777

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 08 December 2023

Subject(s):
Elements of crimes — International criminal law, victims — International criminal law, conduct of proceedings — Evidence

(p. 1297) Article 90.  Competing requests/Demandes concurrentes

  1. 1.  A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person’s surrender, notify the Court and the requesting State of that fact.

  1. 1.  Si un État Partie reçoit de la Cour, conformément à l’article 89, une demande de remise et reçoit par ailleurs de tout autre État une demande d’extradition de la même personne pour le même comportement, qui constitue la base du crime pour lequel la Cour demande la remise de cette personne, il en avise la Cour et l’État requérant.

  1. 2.  Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:

  1. 2.  Lorsque l’État requérant est un État Partie, l’État requis donne la priorité à la demande de la Cour:

    1. a)  The Court has, pursuant to article 18 or 19,1 made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or

    1. a)  Si la Cour a décidé, en application des articles 18 ou 19, que l’affaire que concerne la demande de remise est recevable en tenant compte de l’enquête menée ou des poursuites engagées par l’État requérant en relation avec la demande d’extradition de celui-ci; ou

    1. b)  The Court makes the determination described in subparagraph (a) pursuant to the requested State’s notification under paragraph 1.

    1. b)  Si la Cour prend la décision visée à l’alinéa a) à la suite de la notification faite par l’État requis en application du paragraphe 1.

  1. 3.  Where a determination under paragraph 2(a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2(b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court’s determination shall be made on an expedited basis.

  1. 3.  Lorsque la Cour n’a pas pris la décision visée au paragraphe 2, alinéa a), l’État requis peut, s’il le souhaite, commencer à instruire la demande d’extradition de l’État requérant en attendant que la Cour se prononce comme prévu à l’alinéa b). Il n’extrade pas la personne tant que la Cour n’a pas jugé l’affaire irrecevable. La Cour se prononce selon une procédure accélérée.

  1. 4.  If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible.

  1. 4.  Si l’État requérant est un État non partie au présent Statut, l’État requis, s’il n’est pas tenu par une obligation internationale d’extrader l’intéressé vers l’État requérant, donne la priorité à la demande de remise de la Cour, si celle-ci a jugé que l’affaire était recevable.

  1. 5.  Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State.

  1. 5.  Quand une affaire relevant du paragraphe 4 n’a pas été jugée recevable par la Cour, l’État requis peut, s’il le souhaite, commencer à instruire la demande d’extradition de l’État requérant.

  1. 6.  In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to:

  1. 6.  Dans les cas où le paragraphe 4 s’applique mais que l’État requis est tenu par une obligation internationale d’extrader la personne vers l’État non partie requérant, l’État requis détermine s’il y a lieu de remettre la personne à la Cour ou de l’extrader vers l’État requérant. Dans sa décision, il tient compte de toutes les considérations pertinentes, notamment:

    1. a)  The respective dates of the requests;

    1. a)  L’ordre chronologique des demandes;

    1. b)  The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and

    1. b)  Les intérêts de l’État requérant, en particulier, le cas échéant, le fait que le crime a été commis sur son territoire et la nationalité des victimes et de la personne réclamée; et

    1. c)  The possibility of subsequent surrender between the Court and the requesting State.

    1. c)  La possibilité que la Cour et l’État requérant parviennent ultérieurement à un accord concernant la remise de cette personne.

  1. 7.  Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person’s surrender:

  1. 7.  Si un État Partie reçoit de la Cour une demande de remise et reçoit par ailleurs d’un autre État une demande d’extradition de la même personne pour un comportement différent de celui qui constitue le crime pour lequel la Cour demande la remise:

    1. a)  The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court;

    1. a)  L’État requis donne la priorité à la demande de la Cour s’il n’est pas tenu par une obligation internationale d’extrader la personne vers l’État requérant;

    1. b)  The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to2 extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question.

    1. b)  S’il est tenu par une obligation internationale d’extrader la personne vers l’État requérant, l’État requis soit remet cette personne à la Cour soit l’extrade vers l’État requérant. Dans son choix, il tient compte de toutes les considérations pertinentes, notamment celles qui sont énoncées au paragraphe 6, mais accorde une importance particulière à la nature et à la gravité relative du comportement en cause.

  1. 8.  Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.

  1. 8.  Lorsqu’à la suite d’une notification reçue en application du présent article, la Cour a jugé une affaire irrecevable et que l’extradition vers l’État requérant est ultérieurement refusée, l’État requis avise la Cour de cette décision.

(p. 1298)

(p. 1299) Introductory Comments

Most States Parties to the Rome Statute have pre-existing treaty obligations to facilitate extradition. Some may also have status of forces agreements that govern jurisdiction over crimes committed on their territory. Situations may arise where there are competing requests, one from a third State (which may not be a State Party to the Rome Statute) and one from the International Criminal Court. Article 90 provides a legal framework to resolve such conflicts.

Drafting of the Provision

The 1993 Working Group of the International Law Commission proposed a text reading: ‘A State Party should, as far as possible, give priority to a request under paragraph 2 over requests for extradition from other States.’3 The commentary noted that ‘only a State Party which has accepted the jurisdiction of the Court with respect to the particular crime would be obliged to do so’.4 There was a similar provision in the final draft, adopted in 1994. Some Commission members felt the text went too far, stressing that ‘the court should in no case interfere with existing and functioning extradition agreements’.5

In the Ad Hoc Committee established by the General Assembly, meeting in 1995, ‘concern was expressed regarding the presumption made in the draft statute of the primacy of the requests of the international criminal court in full for the apprehension and surrender of persons over requests from another State. The view was also expressed, however, that the primacy of the jurisdiction of the court should prevail in all cases of most serious crimes’.6

The final draft of the Preparatory Committee contained three options for what were called ‘parallel requests’, contained within the general provision on surrender rather than as a stand-alone article. The first required a State Party to give priority to a request from the Court over extradition requests from other States, with the words ‘as far as possible’ in square brackets. The second gave the requested State Party the option of deciding to whom the accused person should be transferred. According to the third, the State Party was to accord priority to a request by a State over a request by the Court.7

At the Rome Conference, although ‘not the most controversial in substance, the negotiation of article 90 was the most complex in the cooperation section, because of the underlying issues addressed’. All States agreed upon the need for a text that ‘properly respected the existing or subsequent international obligations of States’ outside of those contained in the Rome Statute itself.8 The provision on competing requests was removed from the general text on surrender and became a distinct provision.9 The important distinction in the norms applicable to States Parties and non-party States emerged during the discussions. However, there was no debate in the Committee of the Whole on (p. 1300) the provision, and only two proposed amendments,10 making the travaux préparatoires of little assistance in the interpretation of article 90. The existing commentaries do not provide any significant further enlightenment respecting the debates that took place at the Rome Conference concerning article 90.11

Analysis and Interpretation

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 (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 (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.

Bibliography

Footnotes:

1  The words ‘articles 18 and 19’ in the original version were replaced by ‘article 18 or 19’ pursuant to C.N.604.1999 of 12 July 1999.

2  The word ‘to’ was added pursuant to C.N.577.1998 of 10 November 1998.

3  ILC 1993 Working Group Report, p. 129.

4  Ibid., p. 130.

5  ILC 1994 Final Report, pp. 64–5.

6  Ad Hoc Committee Report, para. 201. Also, para. 218.

7  Preparatory Committee Draft Statute, pp. 135–6.

8  Claus Kreß and Kimberly Prost, ‘Article 90’, in Triffterer and Ambos, Commentary, pp. 2060–8, at p. 2061.

9  Report of the Working Group on International Cooperation and Judicial Assistance, UN Doc. A/CONF.183/C.1/WGIC/L.11, para. 4.

10  China: proposal regarding article 87, UN Doc. A/CONF.183/C.1/WGIC/L.2; Italy: proposal regarding article 87, UN Doc. A/CONF.183/C.1/WGIC/L.3.

11  Claus Kreß and Kimberly Prost, ‘Article 90’, in Triffterer and Ambos, Commentary, pp. 2060–8, at pp. 2061–2; Phakiso Mochochoko, ‘International Cooperation and Judicial Assistance’, in Lee, The Making of the Rome Statute, pp. 305–17; Bert Swart, ‘Arrest and Surrender’, in Cassese, Rome Statute, pp. 1639–703, at pp. 1695–8.

12  Rome Statute, art. 90(8).

13  Rules of Procedure and Evidence, Rule 186.

14  Rome Statute, art. 19(10).

15  Claus Kreß and Kimberly Prost, ‘Article 90’, in Triffterer and Ambos, Commentary, pp. 2060–8, at p. 2065.

16  See this Commentary, Preamble, Duty of States to prosecute.

17  Lubanga (ICC-01/04-01/06), Decision on the Prosecutor’s Application for a Warrant of Arrest, 10 February 2006, para. 33.