Introduction
International law comprises the collection of regulations and policies that are deemed and acknowledged as binding within the associations between countries and states[1]. One of the main fundamentals of international law in the pursuance of justice against international and state criminals is the issuance of international arrest warrants. International arrest warrants are warrants that are legally binding to all member states. The warrants oblige member states to incarcerate and relocate an unlawful suspect or a sentenced individual to the issuing state or arbitral tribunal for trial or detention based on the binding treaties or conventions between states. The enforcement of international arrest warrants by international tribunals has been compounded by the involvement of national states.
Indeed, one of the key tenets of international law involves the creation of rights, responsibilities or requirements for third-party states without consent. As such, before international arrest warrants are enforced on criminal suspects, the member state, which represents the suspect, should agree to the warrant in order for it to occur. In addition, the precept of universal jurisdiction facilitates the issuance of arrest warrants internationally. This is because, without the principle, international crimes such as crimes against humanity and war crimes become performed with exemption[2]. Consequently, excluding the International Criminal Court, international law possesses null enforcement mechanisms except the right to prosecute suspects in custody by national courts for criminal incidents committed overseas. Alternatively, one cannot choose to ignore the ineffectual nature of international arrest warrants based on the incapability or reluctance of states to enforce the regulation for member criminals. Thus, it is important to consider the rights, obligations and limitations on states to execute international arrest warrants effectively.
Overview
The consideration of states in pursuing and effecting international arrest warrants against sentenced individuals or criminals under indictment has brewed legal controversy based on the flexibility of international law in incarcerating criminals within member states. Based on international law, states are recognized as sovereign entities and as such, need information on the arrest of a suspected national. In addition, states should provide consent on novel structures implemented by international tribunals in effecting international law. As such, states possess the capability, impeccable or flawed, to determine the enforcement of the international arrest warrants for criminal suspects. Alternatively, the notion of extradition and state immunity propels the controversy further within international law.
State immunity provides the accused suspect within the member state with the right to avoid arrests based on the restrictive legislations provided by the respective state in limiting the power of international law[3]. For instance, the case of state immunity is exhibited by the International Court of Justice (ICJ) in its protection of foreign ministers. Based on ICJ’s assertion, conventional international law obliges state immunity regarding foreign ministers to ascertain the effectual application of their duties with respect to their particular states and to secure the accused person against any course of action by the authority of a different member state, which would restrict the individual from performing his important functions.
Alternatively, the rationale provided based on the mentioned assertion deduces a rationale for offering immunity based on definite state conduct. The result of this is the creation of a rationale that controversially is a qualification to ascertaining the opinio juris indispensable for a decree of conventional international law. As such, the concept of immunity provides an efficient basis for determining the ineffectual enforcement of international arrest warrants.
Rights of States on Enforcing International Arrest Warrants
International law recognizes states as entities that have accomplished the international authorized criterion of statehood. Based on the Montevideo Convention, Article 1 of the treaty, which provides for the Rights and Duties of States, illustrates the authorization of statehood. The article recognizes states when they possess full completion of an undeviating population, a definite terrain, a government and the capacity to facilitate international associations and affairs with further states. Similarly, the Arbitration Commission of the European Conference on Yugoslavia compares a state with a community asserting that a state should comprise a terrain and a populace that is subject to an organized political authority and that the respective state should be characterized by sovereignty[4].
Alternately, the concept of state immunity contemplates the amount of rights that states should possess in protecting national suspects from international prosecution and warrants. The tenet of state immunity involves the protection and security provided to the officials of a state from being prosecuted and arrested by other states. The doctrine assumes that arresting or prosecuting an individual of a member state infringes the statehood and sovereignty of the suspect’s member state[5]. As such, state immunity comprises a fundamental right of states in the execution of international arrest warrants. This is because states focus on the loss of resources attributed to the compromise of the vital functions of the individuals suspected by international criminal tribunals or foreign states. As such, states become reluctant in assisting the courts in delivering the suspect for prosecution and arrest.
In addition, any individual performing a duty of the respective state, in the event of performing a crime, is immune from prosecution and arrest based on the assertions of state immunity. This transgresses even after the suspected individual resigns from performing state duties. Therefore, such a class of immunity will only cease to function if the state loses its sovereignty. Usually, functional immunity applies for offices such as the Head of State, Foreign Ministers, Cabinet Ministers and Defense Ministers. These offices are typically protected from prosecution for the actions they commit for the duration of time they remain in office. For instance, an English court lacked the power to issue an arrest warrant for Robert Mugabe based on international crimes since he was currently functioning as President of Zimbabwe at the period the proceedings were issued[6].
Alternatively, the principle of immunity has been evident in the protection of other prominent personalities against arrest warrants and prosecution proceedings. For instance, the retired Cuban President, Fidel Castro, was charged with Crimes against Humanity by the Foundation for Human Rights in Cuba (FHRC) in Spain. The organization accused Fidel Castro of humanity crimes based on genocide, mass killing and torture ever since the revolution by Castro commenced in 1959. However, the National Court, which was the court in charge of moderating international crimes, discarded the allegation. In addition, the Criminal Chamber, within the National Court, substantiated this decision due to sovereign impunity based on international law[7]. In summary, the principle of immunity within states for officials within the respective governments constitutes one of the major rights that states possess in international law milieu.
The right to extradite is also another fundamental privilege that states possess amidst the issuance of arrest warrants and conduction of prosecution proceedings. In legal context, the right to extradite, or simply extradition, is the legal procedure by which an individual condemned or alleged is relocated from a state to another state based on the directive of the issued arrest warrant in order to prosecute the suspected or sentenced person. Usually, for extradition to take place, three main parties are involved. These include the issuing state, the requested state and the extradition subject. International law accepts that states possess no obligation towards surrendering an individual in their terrain. As such, most states possess bilateral and multilateral extradition accords between each other that permit the relocation of offenders and suspects in specific circumstances. States also utilize agreements and non-attaching structures for extradition. In addition, states can also conduct extradition regardless of treaties depending on the statute of the appealed state[8].
Obligations of States on Enforcing International Arrest Warrants
International law prescribes that member states are obligated to produce suspected individuals or sentenced persons for prosecution and detention upon the issuance of an arrest warrant. Nevertheless, it is important to note that the obligation of the states in the enforcement of international arrest warrants is based solely on the cooperation of the nations. This is evidenced in the establishment of the International Tribunal Council for Rwanda (ICTR) and the International Tribunal Council for Yugoslavia (ICTY) in 1993 and 1994 whereby the United Nations Security Council deduced the success of the tribunals to arise from cooperation among member states. Evidently, the International Criminal Court (ICC) deems it imperative for states to oblige in cooperation in the context of international law[9]. As such, the main obligation required by states in enforcing international arrest warrants is cooperation per or not per to the agreements binding the respective member states.
One of the chief doctrines innate within international law involves the incorporation of consent. International law assumes that a treaty or a convention does not possess the mandate to make obligations or privileges for states without sanction. This is evidenced in the Vienna Convention on the Law of Treaties of 1969. In addition, treaties that do not bind the respective member states should not make such changes without gaining consent from the non-binded states. For instance, the constituents within conventions minimally require states that are not party to the agreements to provide consent and ensure that they do not barricade the actions of the international tribunals from prosecuting the suspect. Nevertheless, cooperation is eminent in both situations in order to ensure that arrest warrants are enforced regardless of whether or not the requested member state is part of or separate from the respective international treaties.
As mentioned, it is considerably noteworthy that states exercise cooperation in the event that the courts, through the issuing states, provide arrest warrants for criminal suspects. Usually, international courts such as the International Criminal Court (ICC) do not possess the power to provide a security force to enforce arrests based on the respective arrest warrants. As such, courts rely on state cooperation in ascertaining the detention of individuals who have been issued arrest warrants by the legal bodies. The ICC, after issuing an arrest warrant for a suspect, asks for cooperation from State or non-State parties to conduct arrest and surrender the identified suspect. Commonly, the Registrar of the international Court is mandated to deliver the documents and receive the responses by the parties to the request. After receiving the issuance of arrest, States that are party to the binding agreement are required to cooperate with the international court and apply procedures to arrest the suspects within their territories immediately.
For instance, the International Criminal Court requires all States Parties binded by the Rome Statute to execute measures of arrest of the named suspect in the event that an arrest warrant has already been issued. The task to cooperate is deduced from the binding agreements between the requested and the issuing state. This is respect to paragraph 4 and 2 of the S/RES/827 (1993) and S/RES/955 (1994) respectively of the United Nations Security Council. The articles provide that states must cooperate entirely with the International Criminal Tribunal and its elements with respect to the existing resolution and the Statute of the International Tribunal. Additionally, the articles provide that States must apply all compulsory procedures underneath domestic law to employ the stipulations of the current declaration and the Statute, with the obligation of the parties to conform to the appeals for support or orders provided by a Trial Chamber within Article 29 of the Statute[10].
As such, parties are obliged to provide the International Tribunals with support if required based on the requisite temperament of the proviso. In addition, states are obligated by courts or tribunals to provide cooperation in the context of presenting suspects or sentenced persons upon receipt of an arrest warrant based on the structure of the framework guiding the obligation of cooperation. For instance, states are required to comply with the International Criminal Tribunal for Yugoslavia (ICTY) because of the General Framework Agreement for Peace in Bosnia and Herzegovina. Additionally, statutory declaration based on the obligation of states to cooperate with courts is depicted in the example statutes of the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The provisions granted by specific statues within these tribunals provide the basis for state cooperation.
For instance, Article 28 and 29 of the Rwanda Statute and the Yugoslav Statute provide for the inculcation of cooperation by states regarding international lawsuits. Specifically, the articles provide that states should cooperate with the International Tribunal in the inquiry and prosecution of individuals indicted of committing stern contraventions of international law as well as provision of assistance in facilitating arrests[11]. Similarly, the Rome Statute provides that states provide assistance such as state authorities in arresting suspected individuals as per the warrant of the International Criminal Court[12]. As such, states are obliged to support international courts in arresting suspects as means to implement the issued arrest warrants from the courts.
Limitations of States on Enforcing International Arrest Warrants
The enforcement of international arrest warrants by states faces various limitations that grant the ineffectiveness of international arrest warrants. Much of the ineffectiveness associated with the issuance of arrest warrants is majorly attributed to the incapability and hesitation of states in enforcing the stipulations. One of the main limitations incumbent on states regarding such enforcement is the limitation to extradition. Regardless of the assumption that states possess the right to carry out extradition, the requested state in which the suspect resides also possess equal and considerable powers that can be utilized to limit the performance of extradition against the respective suspect. As such, the limitations to extradition determine the possibility or revocation of an extradition regardless of the issuance of international arrest warrants.
One restriction to extradition is Dual Criminality. Dual Criminality is one of the most general clauses evident in most binding agreements. The rule of dual criminality specifically asserts that a suspect can only receive extradition if the offense that forms the basis for the extradition is an offense in both the requested and issuing State. The rationale behind the stipulation is that the appealed State should possess the capability to repudiate to extradite if they do not see the suspect’s demeanor as a criminal offense. The clause serves as a limitation on states to enforce arrest warrants because of the difference in regulations guarding criminal offenses in both states[13]. A state issuing an arrest warrant against another country’s suspect may issue the warrant based on the crime committed which may be recognized in the issuer as eligible for extradition based on the contravention of its laws but may be seen in the requested state as mild and thus not eligible for extradition.
Alternately, states may be unwilling to enforce international arrest warrants based on the nature of the crime. This mostly applies in cases where the crimes committed are described as political offenses. Regardless of the fact that international law lacks the delineation of political offense, states requested to enforce arrest warrants by courts in other countries can refuse based on the assertion that the crime committed is a political offense. Additionally, requested states can take advantage of the lack of definition of political offenses by veiling heinous crimes as political crimes and thus securing a limitation against enforcing arrests. Alternatively, for states that condone political crimes such as genocide and crimes against humanity, it becomes impossible for the respective states to enforce arrest warrants because there is a possibility that the presiding government has been deprived of its law. As such, it does not possess the enforcement capabilities or is reluctant to carry out such mandates for perpetrators holding political or military positions.
Conclusion
The enforcement of international arrest warrants is an issue that presents obstacles to the efficacy of international law in upholding law and justice. The rights declared to a state such as sovereign impunity facilitate a state’s autonomy and concurrently affect the apprehension. Regardless, enforcing such warrants has been compounded based on political context in which requested states attach justified or unjustified political reasons in enforcing arrests by the issuing states. Nevertheless, it is clear that the regulations guarding individuals within their states prove to be the same barriers that limit implementation of arrest warrants across borders.
Bibliography
Akande, Dapo, “The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC” (2012) 10(2) Journal of International Criminal Justice 299.
Alebeek, Rosanne, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (Oxford University Press, 2008).
Bentham, Jeremy, Bentham’s: An introduction to the Principles of Morals and Legislation (SCM Press, 2009).
Brownlie, Ian, The Principles of International Law (Oxford University Press, 7th ed, 2010).
Caplan, Lee, “State Immunity, Human Rights and ‘jus Cogens’: A Critique of the Normative Hierarchy Theory” (2009) 2 International Law 481.
Fox, Hazel, “International Law and restraints on the Exercise of Jurisdiction by National Courts of States” in Malcolm D Evans (ed.), International Law (Oxford University Press, 1st ed, 2003) 415.
Frowein, Jochen & Rudiger Wolfrum, Max Planck Yearbook of United Nations Law (Kluwer Law International, 2000).
Nicholls, Clive et al, The Law of Extradition and Mutual Assistance (Oxford University Press, 2007).
Stroh, Dagmar, “State Cooperation with the International Criminal Tribunals for the Former Yugoslavia and for Rwanda” (2001) 5 Max Planck Yearbook of United Nations Law 249.
The Guardian, Arrest Warrants: Short Arm of International Law (17 Dec 2009) < http://www.guardian.co.uk/commentisfree/2009/dec/17/tzipi-livni-miliband-gaza-law/>
Warbrick, Colin, “States and Recognition in International Law” in Malcolm D Evans (ed.), International Law (Oxford University press, 2nd ed, 2006) 218.
[1] Jeremy Bentham, Bentham’s: An introduction to the Principles of Morals and Legislation (SCM Press, 2009), 6.
[2] The Guardian, Arrest Warrants: Short Arm of International Law (17 Dec 2009) < http://www.guardian.co.uk/commentisfree/2009/dec/17/tzipi-livni-miliband-gaza-law/>
[3] Rosanne Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (Oxford University Press, 2008), 101.
[4] Lee Caplan, “State Immunity, Human Rights and ‘jus Cogens’: A Critique of the Normative Hierarchy Theory” (2009) 2 International Law 481, 492; Colin Warbrick, “States and Recognition in International Law” in Malcolm D Evans (ed.), International Law (Oxford University press, 2nd ed, 2006) 218, 220
[5] Lee Caplan, “State Immunity, Human Rights and ‘jus Cogens’: A Critique of the Normative Hierarchy Theory” (2009) 2 International Law 481, 497.
[6] Hazel Fox, “International Law and restraints on the Exercise of Jurisdiction by National Courts of States” in Malcolm D Evans (ed.), International Law (Oxford University Press, 1st ed, 2003) 415, 416.
[7] Hazel Fox, “International Law and restraints on the Exercise of Jurisdiction by National Courts of States” in Malcolm D Evans (ed.), International Law (Oxford University Press, 1st ed, 2003) 415, 418.
[8] Clive Nicholls et al, The Law of Extradition and Mutual Assistance (Oxford University Press, 2007) 27.
[9] Dapo Akande, “The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC” (2012) 10(2) Journal of International Criminal Justice 299, 300.
[10] Jochen Frowein & Rudiger Wolfrum, Max Planck Yearbook of United Nations Law (Kluwer Law International, 2000) 56.
[11] Dagmar Stroh, “State Cooperation with the International Criminal Tribunals for the Former Yugoslavia and for Rwanda” (2001) 5 Max Planck Yearbook of United Nations Law 249, 254.
[12] Dapo Akande, “The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC” (2012) 10(2) Journal of International Criminal Justice 299, 305
[13] Ian Brownlie, The Principles of International Law (Oxford University Press, 7th ed, 2010), 77
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