Immunity ratione materiae from extradition proceedings: A rejoinder to Thiago Braz Jardim Oliveira

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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.

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Thiago Braz Jardim Oliveira says

September 6, 2013

Dear Roger,

Thank you for this exchange, which I hope you enjoyed as much as I did.

If you allow me to add a last point on what, as I see it, is the major reason of our disagreement, the surrender of an individual by one State to another does not have to go through any form of judicial process. If it does at any given stage, it’s because the surrendering State has at some point committed itself, mostly through domestic law but hardly ever through particular international law, to afford increased control over the legality of surrender. Not surprisingly, judicial control over extradition is often considered as an instance to resist extradition, which can be waived altogether by the individual, and not as the crucial moment at which extradition is ultimately granted, which is the result of either a prior or ulterior administrative decision.

So, if a State is generally free to surrender a foreign official to another State outside judicial proceedings, in which case the foreign official could not rely on immunity ratione materiae as a general international law defence, I don’t see why the same immunity should successfully foreclose proceedings that are anything but a requirement of general international law. Who can do more, can do less. Conversely, if what really mattered for immunity ratione materiae to apply were the existence of judicial proceedings per se, even the actual conviction of individuals in respect of conduct otherwise protected by such immunity could be carried out without violating that rule of international law by simply stripping that process of any judicial aspect. This is why I believe the nature of the proceedings is what really counts, which in the case of extradition is administrative, and not judicial.

Finally, please be sure that I did not intend to suggest in any way that you are secretly English. I know what the reaction of too many Australians would be.

Best wishes,


Roger O'Keefe says

September 6, 2013

Dear Thiago

Thanks for your riposte to my rejoinder, to which I will add my ... well, whatever comes after a riposte. (A 'repeating oneself'?) Two things.

First, he who does, does or, in the words of Lady Macbeth, what is done cannot be undone. If a state engages the process of its courts as a step towards - or, in the case of a European arrest warrant, as the beginning, middle and end - of surrendering an individual to a foreign state, court proceedings take place, and procedural immunity, viz immunity from proceedings before a state's courts, is implicated, whether that court be involved in what you seem to characterise as a merely 'administrative' exercise or in what you might call a truly 'judicial' one, and whether the immunity in question be ratione materiae, ratione personae or ratione custard-pie. Where there are proceedings before a court, the question of procedural immunity must, by definition, be implicated. Nor does it make the slightest difference whether or not a state is obliged by international law to engage its criminal process to this end. If it does engage its criminal process, procedural immunity must be implicated. (A state is not internationally obliged either to try someone before throwing her in jail, unless it chooses to fetter its freedom of action in this regard by subscribing to the international human rights guarantee against arbitrary detention; but if it does try her, the question of procedural immunity is surely implicated, although I suspect you would see the difference as lying in the fact that a trial is a 'judicial', not 'administrative', activity.) The way I see it, it takes a particular sort of reality-denying ingenuity to resist the obvious fact that court proceedings are court proceedings, and it is to court proceedings that procedural immunity poses a bar - in the case of immunity ratione materiae, a bar to court proceedings arising out of only certain subject-matters, but a bar to court proceedings all the same. My reply to this reality-denying ingenuity is, in the words of a far cleverer observer of reality than myself, 'But it does move!'.

Secondly, the English bit was a joke. Some of my best friends are English - although I may have cause to reconsider this after the return Ashes series starting November.

Best wishes and parabens