Norman Aas: Estonia's obligations regarding ICC arrest warrants

While it is unlikely that Estonia will ever have to practically deal with handing over Russian or Israeli leaders to the International Criminal Court (ICC), the current situation provides a good opportunity to raise awareness of the obligations Estonia has assumed by joining the ICC, writes Norman Aas.
In recent years, arrest warrants issued by the International Criminal Court (ICC) against leaders of Russia and Israel have ignited heated debates both in Estonia and worldwide. The discussions center on whether these warrants should be enforced and whether such decisions are inherently political or purely legal.
The blindfold on Lady Justice symbolizes impartiality, suggesting that the sword she wields strikes equally and impartially for all. The principle that all individuals, regardless of political beliefs, societal standing, nationality, wealth or other factors, are equal before the law is a cornerstone of rule-of-law states.
However, law does not exist in a vacuum free from politics, particularly in international and transnational relations. It is inevitable that some ICC arrest warrants will spark significant political controversy and opposition.
It is, therefore, understandable that states – or at least their top officials – are compelled to take official or informal positions on such matters. But how much weight does a political stance have when it comes to the enforcement of an ICC arrest warrant? Below, I will attempt to clarify this using Estonia as an example.
Estonia is a party to the ICC's Rome Statute and has committed to cooperating with the Court. The Statute requires member states to fulfill ICC arrest warrants in accordance with national law.
In Estonia, the procedural framework for cooperation with the ICC is outlined in the Code of Criminal Procedure. The sole provision directly regulating ICC cooperation (§ 489) mandates that upon receiving an ICC arrest request, the Prosecutor's Office must arrange for the individual's detention and custody. This is a legal obligation, leaving no room for discretion on the part of the Prosecutor's Office, irrespective of any stance the government may hold on the matter.
Estonia has also unequivocally declared that it cannot refuse international cooperation based on national economic interests, foreign policy considerations or other factors if doing so would conflict with a binding international agreement. The Rome Statute does not permit member states to refuse cooperation on political grounds.
Estonian courts have a limited role in cases of surrendering individuals to the ICC. Their task is restricted to verifying whether the arrest warrant pertains to the person in custody, whether the arrest was conducted according to proper procedure and whether the individual's rights were upheld. If these criteria are met, the individual must be handed over to the ICC. The Rome Statute explicitly prohibits member state courts from evaluating the substantive validity of the crimes alleged or the arrest warrant itself.
The process of surrendering individuals to the ICC cannot be analogized to extradition for prosecution in another country, where the Estonian government retains the final decision.
The Rome Statute makes a clear distinction between extradition (the transfer of a person from one state to another under a treaty, convention or domestic law) and surrender (a state's transfer of a person into the Court's custody under the Statute). Surrender under the Rome Statute is more akin to the European Arrest Warrant, which facilitates the transfer of individuals for prosecution between EU member states without political decision-making.
Under Estonian law, the government has no authority to interfere in the execution of ICC arrest warrants, regardless of political opinions on the matter. If, for any reason, Estonia's Prosecutor's Office fails to fulfill an ICC arrest warrant, the ICC prosecutor has the authority to come to Estonia and execute the arrest personally, enjoying the same procedural rights as an Estonian prosecutor. Remarkably, Estonia has voluntarily granted this carte blanche authority to the ICC prosecutor, even though the Rome Statute does not require it.
Politicians undeniably have the authority to decide whether Estonia joins or withdraws from the ICC. For instance, neither Russia nor the United States is a member of the ICC, as their political leaders believe that membership could harm their national interests. However, once a country has chosen to join the Rome Statute, the procedures related to the ICC become primarily a legal domain where politicians have no direct jurisdiction.
While it is highly unlikely that Estonia will ever face the practical task of surrendering Russian or Israeli leaders to the ICC, the current situation is an opportune moment to reflect on the commitments Estonia has made by joining the ICC. Understanding these obligations ensures that Estonia remains a steadfast advocate for the rule of law on the international stage.
--
Follow ERR News on Facebook and Twitter and never miss an update!
Editor: Marcus Turovski