International Human Rights Law

This chapter addresses the human rights obligations central to extraterritorial arrest/capture and surrender to the ICC: First, the right to liberty and security and, second, the principle of non-refoulement. On the first obligation, States can guarantee the right to liberty and security, as set out in Article 5 ECHR and Article 9 ICCPR, also in an extraterritorial context if they respect the different aspects of the main criterion of ‘lawfulness’. In that regard, if the ICC has issued an arrest warrant, the crimes alleged therein should, in principle, constitute the substantive grounds for arrest as required by Article 5 ECHR and Article 9 ICCPR. Moreover, an essential aspect of the right to liberty and security in an extraterritorial context is the duty to respect the sovereignty of the territorial State. It is therefore required that an extraterritorial deprivation of liberty be authorised either by the territorial State or the Security Council or, more controversially, be permitted by international humanitarian law. In order to explain the complex issue in its entirety, it is also presented in table form (see Sect. 6.2.1.4.). With regard to the second obligation, States acting extraterritorially are usually bound by the human rights principle of non-refoulement. This principle aims to prevent serious human rights violations after transfer to another state or entity. The principle of non-refoulement is an individual right and must be assessed on a case-by-case basis. However, as the ICC has so far demonstrated that it respects the core of human rights law, the principle of non-refoulement would not normally prevent the transfer of suspects to the ICC.