The decision of Likanyi v The State, which was recently handed down by the Namibian Supreme Court, raises pertinent issues relating to the understanding and application of the principles of public international law which govern the extraterritorial arrest of individuals by States. The Court had to consider whether it could exercise criminal jurisdiction over one Osbert Mwenyi Likanyi, who had been arrested by the Botswanan Police on their territory and handed over to the Namibian Police in 2002. This amounted to the re-arrest of Likanyi, by the Namibian Police, on Botswanan territory.
The facts that gave rise to the case relate to a failed secessionist attempt of the Caprivi (now the Zambezi) Region of Namibia in 1999 by armed militants. The appellant, Likanyi, was one of the accused: he was tried, convicted and sentenced on, amongst others, high treason charges. During his trial, he raised a special plea under Namibian Criminal Procedure to the effect that Namibian courts lacked jurisdiction to try him because he was brought back to Namibia from Botswana where he had sought and acquired political asylum. He claimed that his arrest by the Namibian Police in Botswana was in breach of Namibia’s international law obligation not to exercise powers of arrest on the sovereign territory of Botswana.
The Supreme Court majority of four of the five judges who heard the case held that by performing the ‘sovereign act of arrest’ on Botswanan territory, the Namibian authorities had violated international law and committed an ‘act of international delinquency’. Because of this international law breach, the majority held that the Namibian Courts could not exercise criminal jurisdiction. Therefore, the conviction and sentencing of Likanyi were set aside with a permanent stay of prosecution against him on the charges on which he was indicted ordered. The majority determined that arrest within the territory of a state is settled to be a sovereign act of that state. Carrying out an arrest extraterritorially was therefore a transgression of international law. To support this, the majority cited an excerpt from SS Lotus (France v Turkey) in the Permanent Court of International Justice, which sets out the position that international law prohibits the exercise of its powers in any form on the territory of another State.
While Likanyi demonstrates the Supreme Court’s commitment to the rule of law and fair trial principles contained in the Constitution, as can be seen in the concurring reasons of the Chief Justice, the question arises as to whether the SS Lotus principle permits extraterritorial arrest where the ‘host’ State consents to that arrest. In Likanyi, it is clear from the facts that the Botswanan authorities agreed (at different points both expressly and tacitly) to the carrying out of an arrest by the Namibian authorities, as it was common cause that the appellant was handed over to Namibian law enforcement agents by Botswanan police, so that the Namibian Police could arrest him while on Botswana territory.
What is noteworthy here is that the obligation not to exercise the power of arrest extraterritorially is an interstate obligation i.e. an obligation that two states—Namibia and Botswana—owe to each other. To this end, under the International Law Commission’s 2001 Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), consent is a recognised circumstance that precludes a state from wrongful conduct under international law, per Article 20. Botswana validly consented to Namibia executing an arrest on its territory—consent which is evidenced through Botswana’s handing over of Likanyi to Namibian agents. Therefore, no violation of the international obligation that Namibia owes to Botswana to refrain from extra-territorial arrest arises, contrary to the majority’s determination. SS Lotus must thus be read together with Article 20 ARSIWA.
It is a trite principle of international law that consent cannot be validly raised in defence of violations of peremptory norms (jus cogens), such as the prohibitions of torture and genocide, as reflected in Article 40 ARISWA read with Article 53 of the Vienna Convention on the Law of Treaties. However, there is scarce authority for the notion that the prohibition on arrests carried out extraterritorially by a state is a norm of jus cogens. It is worth noting that the dissent in Likanyi by Justice Frank cites Ian Brownlie’s Principles of Public International Law as an authority for the proposition that consent can permit extra-territorial enforcement, but this principle is arguably more than a scholarly opinion: it is customary international law that has been codified in ARSIWA and is binding law under Article 144 of the Namibian Constitution.
The Namibian Supreme Court therefore reached the wrong conclusion in Likanyi. While the Supreme Court’s commitment to the rule of law domestically and extra-territorially is welcome, the precedent that the Likanyi majority sets, namely that consent cannot cure an act of international delinquency through wrongful extraterritorial arrest, is regrettable and likely to pose a challenge in future.