An Introduction To The International Criminal Court - Institute for ...

investigation and pre-trial procedure 135
transfer of a Rwandan suspect to the Arusha tribunal. 63 Accordingly, that a
national judge would consider a distinction between ‘transfer or surrender’
and ‘extradition’ to be little more than legal sophistry cannot be ruled out,
despite the clear words of Article 102. 64
Penalties may also pose problems for some States with regard to transfer
and surrender. The issue was raised at Rome during the debates on
the death penalty and life imprisonment, with some delegations noting
their constitutional prohibition on extradition in the case of such severe
penalties. For example, the Colombian Constitution forbids life imprisonment.
Presumably, a Colombian accused could argue before domestic
courts in proceedings to effect transfer to the International Criminal Court
that eligibility for parole, as set out in Article 77 of the Statute, does not
exclude the possibility of such a sentence. 65 Colombian courts might hold,
by analogy with a recent decision of the Italian Constitutional Court, 66 that
because they cannot or should not speculate upon whether parole might be
granted, transfer or surrender must be denied. Portugal finessed the issue at
the time of ratification, making the following declaration: ‘The Portuguese
Republic declares the intention to exercise its jurisdictional powers over
every person found in the Portuguese territory, that is being prosecuted
for the crimes set forth in Article 5, paragraph 1 of the Rome Statute of
the International Criminal Court, within the respect for the Portuguese
criminal legislation.’ Nor should the prospect be gainsaid that some time
in the future, regional or universal human rights bodies might determine
that the sentences allowed by the Rome Statute, specifically life imprisonment
without the possibility of parole before twenty-five years, are in breach
of international human rights norms. 67 States preoccupied by their compliance
with the Rome Statute might be led to contemplate reservations to
63 Robert Kushen and Kenneth J. Harris, ‘Surrender of Fugitives by the United States to the War
Crimes Tribunals for Yugoslavia and Rwanda’, (1996) 90 American Journal of International Law
254.
64 According to Cherif Bassiouni, ‘in most States, surrender is equivalent to extradition’: M. Cherif
Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former
Yugoslavia, Irvington-on-Hudson, NY: Transnational Publishers, 1995, p. 787.
65 Gisbert H. Flanz, ‘Colombia’, translated by Peter B. Heller and Marcia W. Coward, in Gisbert H.
Flanz, ed., Constitutions of the Countries of the World, Dobbs Ferry, NY: Oceana Publications,
1995, Art. 34.
66 Venezia v. United States of America, Decision No. 223, 25 June 1996 (Constitutional Court of
Italy).
67 See, for example, Dirk Van Zyl Smit, ‘Life Imprisonment as the Ultimate Penalty in International
Law: A Human Rights Perspective’, (1998) 9 Criminal Law Forum 1.