Thiago Braz Jardim Oliveira is a teaching assistant at the Faculty of Law of the University of Geneva and a PhD candidate at the Graduate Institute of International and Development Studies.
On November 15th of last year, Dr. Roger O’Keefe (Cambridge University) gave a very interesting talk at Oxford University titled “Immunities and Extradition: The Curious Case of Khurts Bat”. I was not there, but benefitted from Oxford University’s excellent podcast system (podcast of talk available here). As Dr. O’Keefe explained, the talk developed views he had already expressed in a case note he had written for the British Yearbook of International Law. The case in question was Khurts Bat v Investigating Judge of the German Federal Court,  EWHC 2029 (Admin). The case involved a request by Germany for the extradition, from the UK, of Mr Khurts Bat, head of the Office of National Security of Mongolia. He was sought on account of crimes he supposedly committed in Germany, particularly the kidnapping, imprisonment and questioning of a Mongolian national. In the extradition proceedings before the English court, Mongolia attempted to prevent the extradition of her official by invoking two types of immunity, both of which failed. First, Mongolia relied on personal/ status immunity or immunity ratione personae on the basis that defendant was said to be a member of a Special Mission sent by Mongolia to the UK and also by virtue of Mr. Bat’s position as “a very senior governmental officer.” Secondly Mongolia relied on subject-matter immunity or immunity ratione materiae, arguing that the acts in respect of which Khurts Bat was accused in Germany were committed on behalf of Mongolia.
It had been asserted before the English court that “[Mr. Khurts Bat was] entitled to immunity from criminal prosecution in Germany ratione materiae” (ibid., para. 63). Dr. O’Keefe considered this argument to be “wholly illogical”. For him, to focus on whether the defendant was immune, as a matter of international law, from the courts of the requesting State (Germany), as opposed to from the jurisdiction of the English courts was plainly wrong. The point was crucial because the court eventually held that, under international law, there was no immunity ratione materiae from the jurisdiction of a State with respect to acts done in that State. Since the acts were done in Germany and the English court considered immunity from German jurisdiction, it was held that Mr Khurts Bat did not benefit from immunity ratione materiae. As I explain below, I think the English court was right to treat the question as one relating to immunity from German jurisdiction and not from English jurisdiction.
Dr. O’Keefe’s objection is primarily based upon the fact that the extradition process, under English law, is an exercise of criminal jurisdiction. Drawing upon the Pinochet (No. 3) precedent, he contends that immunity ratione materiae applies to extradition processes because they are themselves criminal proceedings. In support of his position, he points to a handful of statements by some of the Lords in Pinochet (Lord Saville, for example, said: “It is accepted that the extradition proceedings against [Senator Pinochet] are criminal proceedings. It follows that unless there exists, by agreement or otherwise, any relevant qualification or exception to the general rule of immunity ratione materiae, Senator Pinochet is immune from this extradition process”. Pinochet (No. 3)  1 AC 147, 266). Also, Dr. O’Keefe observes that the certified point of law in Pinochet (No. 3), as put to the House of Lords by the Divisional Court from whose decision appeal was sought, was “the proper interpretation and scope of the immunity enjoyed by a former head of state from arrest and extradition proceedings in the United Kingdom in respect of acts committed while he was head of state” (ibid., 152). The consequence of his argument is that there should be no reason why immunity ratione materiae would be treated differently than personal immunities. By assuming there is an international rule of immunity ratione materiae from extradition process, Dr. O’Keefe is thus content to subscribe to Lord Phillips’s hypothetical formula as a general truth: “The argument in relation to extradition has proceeded on the premise that the same principles apply that would apply if Senator Pinochet were being prosecuted in this country for the conduct in question. It seems to me that that is an appropriate premise on which to proceed.” (ibid., 280).
I am not so sure that this is right. In fact, I would disagree with Dr. O’Keefe’s extension of Lord Phillips’s premise, deemed suitable in the circumstances of Pinochet (No. 3), to every extradition case and, in particular, to Khurts Bat. My disagreement rests on two points.
Immunity ratione materiae does not apply to extradition proceedings
First, legal processes from which foreign State officials enjoy personal immunities, as a matter of international law, do not necessarily correspond to the ones from which they enjoy immunity ratione materiae. Extradition is one such proceeding from which the latter type of immunity is not really required. At least one case clearly supporting this could be cited. That is the extradition proceedings before Swiss courts against Mr. Evgeny Adamov, a former Minister of Atomic Energy of Russia who was sought for prosecution both in the United States and in Russia. (Adamov v Federal Office of Justice (Switzerland, Federal Tribunal, 2005), Appeal judgment 1A.288/2005). The Russian government expressly insisted that Mr. Adamov, as a former official, enjoyed immunity from foreign prosecution before US courts. However, notwithstanding the fact that in Switzerland extradition also takes the form of criminal proceedings, Russia never challenged the lawfulness of these proceedings as such.
At the conceptual level, there is a fundamental distinction between immunity ratione materiae and personal immunities. The distinction is based on their different object. Unlike personal immunities, which apply even to measures that only create a mere risk of embarrassment for ‘the effective performance of their [beneficiaries’] functions’ (See Arrest Warrant case, paras. 53-54, 70), immunity ratione materiae is a right attached to (certain) acts accomplished on behalf of a State. Its purpose is ‘to prevent the legality of such acts from being adjudicated upon in the municipal courts of a foreign state’ (per Lord Millet, Pinochet (No. 3)  1 AC 147, 270). It thus only applies, as a procedural bar required by international law, to domestic proceedings aimed at adjudicating, or having the practical effect of adjudication, of acts in respect of which foreign officials enjoy immunity. Extradition proceedings, for their part, whether or not their validity is controlled in a judicial process (the situation varies from State to State), may be said to be administrative in nature, for they do not judge the accused person’s acts. This is true even where courts judging an extradition request have to make sure that the charges for which the accused person is sought would be criminal if committed in their territory: the so-called double-criminality test. Such a requirement, as many others, generally in the form of treaty clauses safeguarding the right of the requested State to withhold extradition on certain grounds, is intended to ensure that the accused person’s individual liberty will not be unduly restricted. A decision allowing extradition does not have the effect of criminal conviction, any more than a refusal to extradite has the effect of acquitting the person charged of the offenses in respect of which extradition is denied. Therefore, neither practice nor theory seems to support the view that there is an international rule of immunity ratione materiae from extradition proceedings.
Pinochet (No. 3) does not support immunity ratione materiae from extradition proceedings
My second difficulty in following O’Keefe’s criticism of Khurts Bat is that, it seems to me, the working of immunity ratione materiae in Khurts Bat’s extradition was not that much at odds with Pinochet’s. In Pinochet (No. 3), the argument of immunity was never intended to foreclose extradition proceedings in limine litis either. That the House of Lords even considered immunity ratione materiae to exist in certain respects (in relation to charges of murder and conspiracy to murder in Spain) did not prevent Pinochet’s extradition to Spain from being authorised (in respect of torture-related charges), but only limited Spain’s ability to try Pinochet on charges other than those on which extradition had been granted.
It also cannot be ruled out that the House of Lords’ findings on immunity, as a merits defence similar to Khurts Bat, took into account the position of the defendant before the courts of the State requesting extradition (Lord Millet even said: “The plea of immunity ratione materiae is not available in respect of an offence committed in the forum state, whether this be England or Spain.”  1 AC 147, 277): on the one hand, the exception to immunity in respect of torture-related charges extended to Spain; on the other, the immunity in relation to crimes committed in Spain to which Pinochet was entitled was thought to be applicable before Spanish courts – in the minds of their Lordships, there was no exception to immunity in relation to crimes committed in the territory of the forum.
Immunity ratione materiae in extradition proceedings?
Now, if there is no international rule of immunity ratione materiae that forecloses extradition proceedings, is there any rule that would prevent extradition of officials who may claim such immunity in the requesting State? Here, I believe Dr. O’Keefe’s attempt to make sense of why immunity ratione materiae was argued the way it was in Khurts Bat to be impeccable. The argument is that, unless international law had not granted Mr. Khurts Bat immunity before German courts, to order his extradition to Germany, where his prosecution was to take place, would be a breach of the UK’s duty of non-assistance within the meaning of Article 16 of the Articles on Responsibility of States for International Wrongful Acts (ARSIWA); the UK would be aiding or facilitating the commission of an internationally wrongful act, namely prosecution contrary to immunity. Dr. O’Keefe is, however, critical towards applying this argument to Khurts Bat: he found it “unclear how it could be said to be [a breach of the duty of non-assistance], in fulfilment of an international obligation to extradite or the equivalent, to surrender a defendant to the requesting State 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, the latter being a question for eventual determination by those courts.” (82 BYIL, p. 625); he found “also unclear by what domestic legal route it would be open to an English court to decline to exercise a statutory jurisdiction for fear of placing the UK in breach of its international obligations” (ibid.); finally, as developed in his Oxford talk, he considered that, unless denial of immunity by Germany were a “flagrant breach of international law” in accordance with Kuwait Airways Corporation v. Iraqi Airways Co  UKHL 19,  2 AC 883, “Buttes non-justiciability” and act of State doctrines would most likely not have allowed English courts to inquire into whether prosecution of Mr. Khurts Bat by German courts would be contrary to international law (ibid.). The first difficulty concerns international law; the other two are strictly problems of domestic law.
There might, indeed, be practical difficulties in applying Article 16 ARSIWA in extradition cases. One of these difficulties is for States seized of an extradition request against a foreign official to establish, in view of the often unknown functioning of another State’s domestic law, whether the foreign official will ultimately be denied immunity. To the extent only international law is concerned, however, the answer to this question is a matter of fact. If facts are such that they render the duty of non-assistance altogether unworkable, the result would be that the question of immunity ratione materiae should not feature at all in extradition cases. In view of the existence of a conventional obligation to extradite, as Dr. O’Keefe seemed to suggest, extradition could certainly not be resisted on this ground. On the other hand, if there were a competing international obligation not to extradite because of Article 16 ARSIWA, no doubt the answer would be far less obvious. Does it, in itself, vitiate the application of this provision? I guess not. The problem would be similar to resisting extradition under a European Arrest Warrant on grounds of competing international human rights law obligations. The list of specific grounds for non-execution provided by the EU Framework Decision of June 2002 does not expressly include broader grounds derived from human rights. Yet, UK courts, under the Extradition Act 2003, have on some occasions considered the compatibility with the European Convention of Human Rights of extradition to certain States (for a comment on two recent cases before UK courts, see here).
My final reaction concerns the relationship between international law and domestic law, notably English law: at the end of the day, if English courts cannot give effect to an international obligation, either to extradite or to withhold extradition, or decide to consider the issue of immunity ratione materiae as a merits defence of an extradition request, even if they are not strictly required to do so, it does not mean that what they do is or should be international law. If the International Law Commission is going to have a look at the problems here discussed, and I think it should, I suppose it will have to be mindful of this relationship.