Roger O’Keefe is University Senior Lecturer and Deputy Director of the Lauterpacht Research Centre for International Law, University of Cambridge.
Before I engage with the substance of Thiago Braz Jardim Oliveira’s excellent reply to my British Yearbook of International Law casenote and Oxford talk (available here) on the Khurts Bat case, I would like to thank him for bringing both to the attention of a far wider audience than they have likely enjoyed until now. We all spend ages working on these things while others are stopping to smell the flowers, often only for the fruits of our labours to lie unread or unheard by all bar those on whom we pull a weapon. So muito obrigado, Thiago.
By way of rejoinder to what Thiago says, I will make only a few brief points.
Any proceedings before a court are by definition judicial proceedings, whether or not they involve the adjudication of the legality of given acts. In those legal systems where a request for extradition is dealt with, at least at a preliminary stage, by a court (and I have always laboured under the belief that this was what made extradition ‘extradition’, as opposed to mere executive surrender of custody), extradition involves judicial proceedings. Where extradition involves judicial proceedings, these proceedings are of a criminal character—that is, they are heard by a criminal court, often in the form of a magistrate, rather than by a civil or administrative court. In short, extradition proceedings, where they take place, are criminal proceedings.
The fact that extradition may not involve judicial proceedings in every legal system (although, again, I had always thought that judicial involvement was the touchstone of extradition) does not mean that international law should not take those extradition proceedings that do occur for what they are, namely judicial proceedings, specifically criminal proceedings. In other words, with respect to states where extradition proceedings do take place, it stands to reason that international law should regulate the availability of those same procedural immunities whose availability it regulates in the context of other criminal proceedings.
As for the distinction between immunity ratione materiae and immunity ratione personae, the point is that, whatever their respective rationales, their effect is the same: both serve to render internationally unlawful, to the extent of the immunity, the forum state’s subjection of the beneficiary of the immunity to judicial proceedings. As regards both types of immunity, the question must be whether the extent of the immunity is such that the forum state’s subjection of the beneficiary to judicial proceedings would indeed be internationally unlawful. In the case of extradition proceedings, the forum state is the state where the extradition proceedings take place. This was where the court went wrong in Khurts Bat.
Turning to Pinochet (No 3), I am not sure I follow Thiago’s first argument, which, with respect, seems to me to say no more than that the immunity ratione materiae owed in respect of foreign state officials serves to bar criminal proceedings in respect of certain subject-matters but not in respect of others—in other words, that the immunity ratione materiae from which foreign state officials benefit is an immunity ratione materiae. Perhaps my confusion relates to Thiago’s use of the terms ‘in limine litis’ and ‘merits defence’, which may differ from mine. In this respect, I will simply reproduce what I say in my casenote at footnote 251 (the numbering thankfully deriving from my 2011 BYIL casenotes in toto, not from the Khurts Bat casenote alone):
“Using the UK as an example, the merits of the requested extradition encompass matters such as the bars to extradition enumerated in section 11 (in respect of Part 1, i.e. extradition pursuant to a European arrest warrant) and section 79 (in respect of Part 2, i.e. extradition proper) of the Extradition Act 2003; whether extradition would be contrary to the defendant’s human rights, as per sections 21 (Part 1) and 87 (Part 2); and whether the physical or mental condition of the defendant is such that it would be unjust or oppressive to extradite him or her, as per sections 25 (Part 1) and 91 (Part 2). In contrast, whether the offence specified in the European arrest warrant (section 10(2)) or extradition request (section 78(4)(b)) is an extradition offence within the meaning of the Act—a question which, in the case of an extradition request for a person yet to be sentenced for the offence in the requesting State, involves consideration of double criminality (section 137(2)(b))—is, like the question of procedural immunity, a matter to be considered in limine litis, as reflected in its inclusion in the Act (sections 10 and 78) under the heading ‘Initial stage of extradition hearing’.”
As for the suggestion that the Lords may have taken into account Senator Pinochet’s immunity or otherwise before the courts of Spain, I think it is safe to say that they did not, notwithstanding the confusion evident in Lord Millet’s brief outlier of a dictum.
On article 16 ARSIWA, I agree that an obligation to extradite would not constitute a circumstance precluding the wrongfulness of the requested state’s breach of its obligation not to render aid or assistance in the commission by the requesting state of an unambiguous breach of international law. My point was that it is something of an evidentiary leap from the obligatory surrender of a defendant ‘in circumstances where the requesting prosecuting authority no more than asserts that the defendant is not entitled to procedural immunity before the requesting State’s courts’ to a violation of article 16, not least because the actual availability of immunity from the jurisdiction of the requesting state’s courts is ‘a question for eventual determination by those courts’, not for the prosecuting authority. Indeed, in the line after the one quoted by Thiago, I say that ‘[i]t hardly makes for a compelling case of aid or assistance in the commission of an internationally wrongful act within the meaning of article 16 of the Articles on Responsibility of States for Internationally Wrongful Acts’. Perhaps the obligatory nature of the surrender makes no real difference in this regard, so to this extent I concede Thiago’s point, although I suspect an international tribunal may be influenced to some extent by it.
Finally, I had hoped that it was perfectly clear that I do not suggest that what English courts do necessarily ‘is or should be international law’. For a start, I’m Australian.