Prosecuting International Crimes in Africa - PULP - University of ...

292 Chapter 13
4.1.3 The law regulating extradition and surrender
The ICC has neither a police force nor a prison service. In order to effect
arrests of suspects it relies on the co-operation of the state parties to the
Rome Statute. 75 Even in the execution of sentences of imprisonment, the
ICC relies on state parties to provide the correctional facilities. 76 While by
signing and ratifying the Rome Statute state parties have undertaken to cooperate
with the Court in the arrest and surrender of all suspects, the
actualisation of this co-operation, in most states, requires further
clarification. This is largely because most of the state parties already have
legislation that details when they can conduct an extradition and at whose
request it may be processed. Clearly, while the practice of extraditing
offenders is not novel it is the surrender to the ICC that presents its own
unique challenges.
In Malawi the extradition of offenders is regulated by the Extradition
Act. 77 This Act outlines the procedures that must be followed in the event
there is a request for the extradition of an offender. Several features of the
Extradition Act actually bring out the need for an Act to domesticate the
Rome Statute in Malawi. Firstly, although the Extradition Act does allow
for the surrender of offenders outside of Malawi, it is notable that the Act
proceeds on the presumption that a request for the surrender must have
been made by a government. This necessarily means that a request for the
surrender of a fugitive from the ICC would not fall for resolution within the
Act’s framework. Secondly, Malawi’s co-operation for the purposes of the
Extradition Act is only extended to countries that are referred to, under the
Act, as ‘designated countries.’ 78 The Extradition (Designated Countries)
Order, made under the Extradition Act, lists down all the countries with
which Malawi has entered into extradition arrangements. Needless to
state, the ICC is not among the countries listed in the Order. Even though
the Minister may enter into arrangements the result of which would be the
extension of the countries on the list, it is worth noting that the Act
supposes that such an arrangement can only be made with another country
and not an international organisation. 79 Thirdly, the Extradition Act also
presupposes that one would be extradited only where the offence
concerned is also an offence not only in the country where the offender is
sought to be extradited but also under the laws of Malawi. 80 Having regard
to the fact that war crimes, genocide and crimes against humanity have yet
to be specifically legislated for in Malawi it is difficult to imagine how
75
76
77
78
See eg art 89 Rome Statute.
See art 103 Rome Statute.
Ch 8:03 of the Laws of Malawi.
A designated country is basically a country with which Malawi has entered into an
79
80
extradition agreement.
Sec 3 Extradition Act.
Sec 5 Extradition Act.